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Session 2001- 02
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Delegated Legislation Committee Debates

Draft International Criminal Court (Immunities and Privileges) and Draft Specialized Agencies of the United Nations (Immunities and Privileges of Unesco) Order 2001

Third Standing Committee on Delegated Legislation

Monday 9 July 2001

[Mr. Win Griffiths in the Chair]

Draft International Criminal Court (Immunities and Privileges) Order 2001

4.30 pm

The Minister for Europe (Peter Hain): I beg to move,

    That the Committee has considered the draft International Criminal Court (Immunities and Privileges) Order 2001.

The Chairman: With this it will be convenient to consider the draft Specialized Agencies of the United Nations (Immunities and Privileges of UNESCO) Order 2001.

Peter Hain: I welcome you to the Chair, Mr. Griffiths. I hope that you enjoy chairing Committees on statutory instruments for many years to come [Laughter.]

The draft International Criminal Court (Immunities and Privileges) Order 2001 was laid before the House on 19 June. Members of the Committee will recall the passage through the House of the International Criminal Court Act 2001, which received Royal Assent on 11 May. The draft order is one of a series of items of secondary legislation to prepare for ratification of the Rome statute of the International Criminal Court. The Rome statute was signed on behalf the Government on 30 November 1998 and presented to Parliament as Command Paper 4555.

The draft order implements articles 4.1 and 48.2 of the statute. In addition to conferring the legal capacities of a body corporate on the court, the order provides that the judges, the prosecutor, the deputy prosecutors and the registrar shall, when engaged on or with respect to the business of the court, enjoy the privileges and immunities as are accorded to the head of a diplomatic mission, as well official act immunity after the expiry of their terms of office.

The ICC will be a permanent court, situated in The Hague, to try individuals for some of the most serious crimes known to humankind, such as genocide, crimes against humanity and war crimes, as well as, perhaps, in future, the crime of aggression. There have been aspirations to the creation of such a court for the past 50 years, since the United Nations was founded in 1945 after the Nuremberg and Tokyo military tribunals.

The ICC will have jurisdiction over individuals, not states. It will be able to prosecute not only those who carry out crimes, but those in authority who order crimes to be committed, including heads of state and government officials. The ICC will work as a court that is complementary to national courts: national courts will retain primary jurisdiction and the ICC will undertake investigation and prosecution of a crime only when states with jurisdiction are unable or genuinely unwilling to do so.

The ICC will consist of a chamber of 18 judges divided into pre-trial, trial and appeals division, an independent prosecutor and a registry. The ICC statute contains detailed provisions safeguarding due process and fair trial in accordance with the highest international standards. The ICC may sentence individuals to imprisonment of up to 30 years or, where justified by the extreme gravity of the crime and the individual circumstances of the convicted person, life imprisonment. Fines and forfeiture of proceeds from the crimes in question may also be ordered.

Funding will be made through contributions from states parties to the court. It will receive some funding from the United Nations, in particular when the United Nations Security Council has referred a case to it. The order is one small part of a legal jigsaw; although important, it is non-controversial and I hope that it will receive the full support of all members of the Committee.

The draft Specialized Agencies of the United Nations (Immunities and Privileges of UNESCO) Order 2001 was laid before the House on 25 June and is essentially a housekeeping measure. The United Kingdom rejoined the United Nations Educational, Scientific and Cultural Organisation on 1 July 1997. As members of the Committee will be aware, UNESCO aims to contribute to peace and security by promoting collaboration among nations through education, science and culture in order to further universal respect for justice, the rule of law, human rights and fundamental freedoms.

The order is required to restore to UNESCO the immunities and privileges provided for by the 1947 Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, Command Paper 855. Before the United Kingdom withdrew from UNESCO on 31 December 1985, the relevant immunities and privileges were conferred under the Specialized Agencies of the United Nations (Immunities and Privileges) Order 1974, statutory instrument 1974 No. 1260. That order is still in force, but as a result of British withdrawal from UNESCO, it automatically lapsed in respect of that organisation.

The new order provides for the 1974 order to apply once again to UNESCO in accordance with its terms. I commend the order to the Committee and trust that this modest proposal will, like the first, have the support of all Members.

4.35 pm

Mrs. Cheryl Gillan (Chesham and Amersham): Like the Minister, I, too, welcome you to the Chair, Mr. Griffiths. I hope not to detain the Committee for too long, but I have a few points to make about the orders.

I do not object to the two orders being taken together, but it is worth noting that the usual channels were not consulted about whether they should be or not. I hope that the usual channels will take note of the fact that in future it would be polite to arrange such matters with Her Majesty's official Opposition. Had the orders been more contentious, the House would have been done a great disservice by the failure to allow the Committee adequate time for scrutiny.

In addition, I do not know who is responsible for timetabling the debate, but 4.30 on a Monday afternoon is a peculiar time for statutory instruments to be discussed in Standing Committee. If everyone favours family-friendly hours, as the governing party ostensibly does, timetabling a sitting for 4.30 on a Monday afternoon suggests that the Government would rather like to get through the business ``PDQ'', as they say.

Having got that off my chest, I unreservedly welcome the hon. Member for Neath (Peter Hain) back to the Foreign Office as the new Minister for Europe. There appears to be a revolving door in the Foreign Office for him. It is worth noting that the two Ministers with whom I had the privilege of sparring during Committee proceedings on the International Criminal Court Act are no longer in government, having left their respective posts. I hope that today's proceedings on the ICC do not precede the Minister's premature removal from his new post.

I have little to say about the UNESCO order for the simple reason that it merely re-enlivens the 1974 order. However, having been advised by his officials, is the Minister absolutely satisfied that nothing in that order needs to be changed? If he is, it is nice to know that a measure that was passed so long ago remains relevant today, and it shows that measures introduced in the last century can have a bearing on our proceedings today.

I have a couple of questions about the draft ICC order. I should like an updated report from the Minister on how many countries have ratified the ICC statute. Is the figure that I have—36—accurate? What are the prospects that more countries will ratify and if so, over what time scale?

The immunities and privileges that the order accords are, in effect, those that are accorded to the head of a diplomatic mission; they are set out in schedule 1 of the Diplomatic Privileges Act 1964. They provide the highest level of exemption other than that accorded to a head of state and are therefore pretty important in the ranking of immunities.

The order does not deal with all the circumstances covered by schedule 1, but only certain sections. It fails to cover, for example, counsel, experts, witnesses and others involved in the proceedings of the ICC who will, I understand, be the subject of an order to be drafted after the Assembly of States Parties has met. Will the Minister give us an idea of the timetable involved? I realise that he may not have a start date, but how soon after such a meeting does he envisage that Order in Council being introduced?

My next point relates to the passage of the International Criminal Court Bill in the Scottish Parliament. I understand that the Scottish Parliament Bill has passed through only its first and second stages and is still waiting for the third stage, equivalent to Report and Third Reading. As the Scottish Parliament has now adjourned, the legislation will not be approved until autumn at the earliest. I should have thought that the order is therefore premature, given its reference to the Scottish Parliament, which has yet to pass the legislation. Where do we stand constitutionally? I would like an assurance that we are not putting the cart before the horse.

That issue raises certain questions about responsibility delegated to other Parliaments. If the Scottish Bill has not yet passed through all its stages in the Scottish Parliament, we should not introduce an order that passes immunities and privileges to hypothetical people—people whose jobs do not yet exist. It would have been better for the Minister and the Foreign Office to withhold the order until the Scottish Parliament had passed the legislation, so that there was no room for ambiguity.

I am sure that the Minister will be able to set my mind at rest, but I would like chapter and verse. The order has been introduced precipitately, even though it is not contentious and could have waited. Why did the Minister not leave the order for a later date, when we could have been sure that everything would pass through the Scottish Parliament?

4.41 pm

Mr. David Chidgey (Eastleigh): I, too, welcome you to your position, Mr. Griffiths, but I will not be so churlish as to wish your chairmanship of these Committees to continue year after year. I am sure that your talents will take you on to Committees of greater depth, scope and interest.

I also welcome the new Minister for Europe to his post. I look forward in due course to continuing our sparring in the Select Committee on Foreign Affairs—I recall that a good deal of intellectual rapport was established in that Committee in the previous Parliament.

The Liberal Democrats have no quarrel with the two orders, as I am sure the Minister is aware. We actively supported the 2001 Act through its various stages and it is fair to say that the contributions that we made to the consultative process helped to improve the legislation. I shall refrain from going through the orders line by line, as I realise that the hon. Member for Chesham and Amersham (Mrs. Gillan) has a pressing engagement at 5 o'clock and I would not want to spare her the private grief that will no doubt come from it.


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