International Criminal Court Bill [Lords]

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The Chairman: Order. I will not be distracted by hon. Members of whatever status standing up, opening bottles of water, and wandering around the Committee, as has been happening today. Can we introduce some real discipline into the Committee and behave in accordance with normal practice?

Do I take it that the hon. Member for Chesham and Amersham wants a debate on clause 3 stand part?

Mrs. Gillan: Yes, Mr. Cook, I would.

The Chairman: I advise the hon. Lady that we had a lengthy discussion on the clause led by the hon. and learned Member for Harborough when considering amendments Nos. 17, 18, 19 and 21. If I hear any repetition at all, I shall call an abrupt halt to the debate.

Question proposed, That the clause stand part of the Bill.

Mrs. Gillan: Thank you for permitting a debate on clause 3 stand part, Mr. Cook. I seek some clarification because of the history of the clause.

Amendments to the clause were tabled by the Government in another place, and this is the first opportunity that we have had to debate the clause since those amendments were made. I seek clarification from the Minister about the letter dated 5 March about the Government amendments, sent by Baroness Scotland to Lord Lester of Herne Hill. Although the Government tabled amendments to several clauses on Report in another place, it will be useful to refer to the amendments to clause 3.

During the Committee stage, the Government accepted the amendment—I believe that it was amendment No. 12—tabled by the Opposition on the request of the Law Society of Scotland. That means that those Conservative Mems who have sought to scrutinise the Bill constructively have made a contribution to its improvement. Despite the consultation process to which the Bill was subject, it was not until Report stage in another place that the Government decided that they needed to table the amendments. The amendments have improved the Bill, and it is good to see that certain disparities between the procedures for applying for a provisional warrant in Scotland and those in England and Wales have been dealt with. Following further consideration by the Scottish Executive—

Mr. Browne: Before the hon. Lady goes any further, I assure her that I have had recent and detailed conversations with the Law Society of Scotland. We are now satisfied that the Government have responded to all the concerns about the Bill voiced by the legal profession in Scotland, and that the Bill is in an appropriate state to reflect the requirements of devolution.

Mrs. Gillan: I am grateful to the hon. Gentleman, who now appears to speaking for those sitting on the Front Bench—may he soon be promoted. I am sure that that we all look forward to that. Unfortunately, reassurances are required from Ministers and from the Government, not from humble Back Benchers, however eminent in the law they may be.

The question is simple. The original motivation behind the amendment, as Ministers know, was to correct the anomalies between the position in England and Wales and the position in Scotland. I seek an assurance—the hon. Member for Kilmarnock and Loudoun got ahead of me—that the legislation is definitely free of such anomalies.

3.15 pm

There is a further pertinent point. I am raising the matter on clause 3 stand part because of the history of the clause. The Scottish Parliament is not considering the Bill until long after this House has done so. I think that I am correct—the Minister will tell me—that although the Bill has already been presented to the Scottish Parliament, it will not consider it for several weeks. What would happen if any further anomalies came to light during the passage of the Bill? For example, what would happen if any changes were made to the Scottish legislation during its passage through the Scottish Parliament? What would be the implications for the UK statute? What remedying devices exist and what if there was a gap between the two statutes? I accept that that is hypothetical, but the situation is unusual, and, as we have established, the legislation will be in place for decades to come.

I understood that, under devolution, the Scottish Parliament did not take the lead in matters of foreign affairs. However, it is not crystal clear which body takes precedence. Through the device of clause 3 stand part, Mr. Cook, far from trying to annoy you or get up your nose in any way, I seek clarification from the Minister. He is at least nodding and smiling at me, which is more than some people are doing—I do appreciate that. There may be implications for the Bill and it is right and proper that we ask these questions now. I hope that the Minister can throw light on the matter.

The Solicitor-General (Mr. Ross Cranston): I have three brief points. First, it is true that in the other place the Opposition tabled amendments at the suggestion of the Law Society for Scotland. I do not criticise them for doing that. We took those amendments on board and reworded them, and the Law Society of Scotland is now happy with the drafting of the clause. It simply brings the procedure in Scotland into line with that in England and Wales.

Secondly, on the correspondence between provisions here and in Scotland, I am sure that the hon. Lady is aware of clause 80, which states expressly that if necessary the Secretary of State can make regulations to bring the provisions into line, so that the provisions of the Act that the Bill will become are co-ordinated with the provisions of any corresponding Act of the Scottish Parliament.

Thirdly, the Scottish Executive is entirely content with the Bill as it now stands, and the Scottish Bill will have no direct impact on this part of the Bill.

Question put and agreed to.

Clause 3 ordered to stand part of the Bill.

Clause 4 ordered to stand part of the Bill.

Clause 5

Proceedings for a delivery order

Mr. Blunt: I beg to move amendment No. 60, in page 4, line 3, after `court', insert—

    `or service court in the case of service personnel'.

I am grateful to my hon. and learned Friend the Member for Harborough and my hon. Friend the Member for Chesham and Amersham for allowing me to table this amendment with their support. The amendment is a redrafted version of amendment No. 23 that should be consistent with the language used in the Bill. Service courts are defined in clause 75, and the term ``service court'' is therefore more appropriate than ``court martial''. The amendment is needed because service courts are not identified in clause 26 as a competent court for the purposes of section 5. I want to explain why it is important that they are included for proceedings against service personnel under the Act.

In his reply to the debate about who would serve as judges on the ICC, the Minister drew attention to the merit of judges with military experience, saying:

    ``We agree that it is important to have top-quality judges and juries. There will be judges who are experienced in humanitarian law, but—this may help the hon. Member for Aldershot—there will also be military judges who are experienced in the rules and laws of war.''—[Official Report, Standing Committee D, 24 April 2001; c. 103.]

In the case of the Army, assistance in service courts is normally available from the Office of the Judge Advocate General of the Forces. Its representatives are not mentioned as officers whose presence would enable a service court to be a competent court for the purpose of the relevant proceedings.

I hope that the Government will accept the amendment. It is important to remember the circumstances in which the ICC will seek the arrest of a British subject under the Act. As we debated on Tuesday, the United Kingdom will have decided not to bring someone to justice or will be thought to have done so inadequately. Inevitably, the circumstances will be controversial. It would be infinitely better for service men to go through the process at the hands of service courts. Let me explain why.

My hon. Friend the Member for Chesham and Amersham asked me to move the amendment because of my 12 years in the Army. Soldiers, sailors and airmen regard the military discipline system as just. Let us assume that the amendment is not accepted. The ICC will exercise its jurisdiction, having overridden the principle of complementarity and because we have decided, for whatever reason, not to bring a soldier, sailor or airman to justice. Technically, it could be argued that it will make no practical difference if the service man goes before a civilian court for the purposes of clause 5, but it will make the greatest difference to morale and confidence in the system in the services themselves.

We must acknowledge the services' proper concerns about the Bill. They have been expressed, virtually on the record, by the Chief of the Defence Staff. It is important that the Government listen to concerns about the conduct of the process and, as far as possible, find ways to allay them. Therefore, when a service man is to be delivered to an international jurisdiction outwith that of the United Kingdom, it would be infinitely preferable for a service court, which is part of the military justice system, to make the order.

Mr. Browne: Will the hon. Gentleman explain to those of us who do not have a military background why our military, according to him, has no confidence in the system of civil justice in this country?

Mr. Blunt: I did not say that the services had no confidence in the civil justice system. I said that they probably have more confidence in the military justice system.

Mr. Browne: It is the same thing.

Mr. Blunt: I do not accept that. My experience suggests that when there was an opportunity for either system to try him and a soldier left the military justice system and was sent to be tried by the civil justice system, he would have much more confidence that he was going to get a fair trial, ironically—

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