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(c) that there is a prima facie case, on the evidence to be heard,").

The noble Lord said: This amendment seeks to add a new paragraph, (c), to Clause 5(2) requiring the competent court to be satisfied, in addition,


In the light of what the noble and learned Lord the Attorney-General said in response to previous amendments, I shall not press this matter. My reason is twofold. First, I know what the noble and learned Lord's answer will be. Secondly, two amendments in the next grouping, Amendments Nos. 24A and 28A, provide an alternative way of achieving the solution that we seek under this amendment. Therefore, with the leave of the Committee, I shall wait until I deal with the next group of amendments to raise the substance of the issue that I sought to raise in this one.

As to the remaining amendments, I am in difficulty over both Amendment No. 30B and Amendment No. 32A in view of the fact that Amendment No. 30A has been declared inadmissible. Therefore, I shall not move them.

As to Amendment No. 35A, it covers a great deal of the ground that was covered by the noble Lord, Lord Lester, in his previous intervention. It seeks to require that if a competent court finds that there have been breaches of a person's human rights, there should be a refusal to make the delivery order. The noble and learned Lord the Attorney-General is well aware of the point that the amendment seeks to make and I shall not elaborate on it any further. I beg to move.

Lord Lester of Herne Hill: For the avoidance of doubt and for the benefit of the noble Lord, Lord Kingsland, I am not suggesting that the remedy that the English court should grant would be the kind that he has in mind when, as I shall do later, I press for a wider application for judicial review than habeas corpus. I shall simply be seeking a remedy by way of a declaration of rights which can then be transmitted to the Minister and to the ICC but not to an order of the kind that he has in mind to refuse delivery. I want to make that quite clear. Habeas corpus is one thing; but I do not wish to fetter the machinery in the way that the noble Lord has in mind. If he thinks that I do, then it is my fault; I must have mistaken him.

Lord Kingsland: The noble Lord, Lord Lester, was characteristically so clear in his previous exposition that I had understood that to be the case.

Lord Williams of Mostyn: As I understand it, these amendments will not be moved.

Lord Kingsland: That is not quite the case. Amendment No. 24 has been moved; however, I have indicated that it will be withdrawn because the ground that it covers is covered in a different way by Amendments Nos. 24A and 28A, which I shall deal with when we come to the next group. I shall not move

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Amendments Nos. 30B and 32A because a declaration of inadmissibility regarding my Amendment No. 30A makes them ineffective. I have spoken to Amendment No. 35A; that was also the subject matter of my recent exchange with the noble Lord, Lord Lester.

Lord Goldsmith: I am slightly confused as to where matters stand following what the noble Lord, Lord Kingsland, has said. My understanding is that the noble Lord does not intend to press Amendment No. 24, either now or in the future--and that is what I am interested in. Were he intending to press the amendment in the future, there are a number of other points that I should like to suggest that he consider before doing so. But if he does not intend to press the amendment, I need not weary the Committee with those points.

Lord Kingsland: I can confirm that I do not intend to press the amendment, either now or at any subsequent stage in the Bill's proceedings.

Lord Williams of Mostyn: I am grateful to the noble Lord for his clarification. Amendment No. 35A deals with the point that we have discussed on an earlier occasion. It relates to line 11 on page 4, and seeks to,


    "leave out from ("shall") to end of line 13 and insert ("refuse to make the delivery order").

I hope I have made my position plain. I do not think that I can assist the Committee by simply repeating the mirror argument.

Lord Kingsland: My understanding of the noble and learned Lord's position was exactly as he just expressed it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 24A:


    Page 3, line 35, at end insert (", and


(c) that the Secretary of State has reasonable grounds for being unwilling or unable to investigate and prosecute the named person,").

The noble Lord said: I said that the end that I sought in tabling Amendment No. 24 might be achieved in an alternative way, by means of Amendments Nos. 24A and 28A. The principle upon which both amendments are based is the principle of complementarity.

With Amendment No. 24A, I seek to add a new paragraph, (c), stating,


    "that the Secretary of State has reasonable grounds for being unwilling or unable to investigate and prosecute the named person".

This amendment is a concrete expression of the principle of complementarity. In my submission an individual who is under threat of having a delivery order made against him ought to be able to test the reasons why the state has decided not to deal with his case in the United Kingdom. In normal circumstances I would expect the Secretary of State to have a legally proper response--for example, that it was impossible to garner the kind of evidence that was needed to advance the prosecution from the United Kingdom, or

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that the alleged crime involved was of an international nature and required the probably more effective procedural devices at the disposal of the International Criminal Court to acquire the evidence that was needed to further the prosecution. There may be other perfectly proper reasons why the Secretary of State was not in a position to pursue the prosecution.

However, there may be occasions when the reasons why the United Kingdom Government have chosen not to pursue a prosecution are highly questionable in law. The motives may be improper or irrelevant; for example, there may be political motives--perish the thought--behind a decision not to pursue a prosecution which were unacceptable in--

Lord Archer of Sandwell: I most grateful to the noble Lord for giving way. But, understanding as I do that he is well aware of the way in which these procedures operate, I am puzzled because it is not the Government and it is not the Secretary of State who decide whether someone will be prosecuted or who direct the prosecution. That being so, I do not quite follow why the test of whether someone will not be prosecuted in this country is whether the Secretary of State is unwilling that he should be prosecuted.

Lord Kingsland: As I understand it, the principle behind the Rome statute is the principle of complementarity; that is to say, the primary responsibility for bringing a prosecution against an individual for one of the crimes set out in the schedules to this Bill is the responsibility of the nation state. Perhaps I should have referred to the Crown Prosecution Service or to the Government in general rather than to the Secretary of State. If that is the point the noble and learned Lord makes, I accede immediately. What I am suggesting to the noble and learned Lord the Attorney-General is that an individual faced with a request from the International Criminal Court ought to be able to test the reasons why the responsible authorities in the United Kingdom have chosen not to prosecute him.

In most circumstances the responsible authorities will have a perfectly valid reason for not doing so. I have already given an example of the difficulties of garnering evidence. There may be other reasons which are perfectly proper. But it is conceivable in my judgment that there may arise circumstances where in law the motives of the responsible authorities in this country for not prosecuting someone in the United Kingdom are improper. In my submission, an individual ought to have the opportunity to have that matter tested in the national court. I can see nothing--

Lord Lamont of Lerwick: I hope that my noble friend will address the following question. This is possibly relevant to what the noble and learned Lord, Lord Archer, said. Have there not been cases where decisions have been made relating to the early release of prisoners in Northern Ireland which have meant that other people who might have been prosecuted would have been released immediately had they been prosecuted and found guilty, and that therefore they might not be prosecuted for that reason?

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5.45 p.m.

Lord Kingsland: I have no doubt that there is something in what my noble friend has said, although I do not wish to pursue that analogy in the context of the point that I am making here. I hope that I have explained Amendment No. 24A. Before I move that amendment I shall speak to the other amendments on that page.

In a sense, an alternative way of dealing with this matter is provided by Amendment No. 28A. The noble and learned Lord the Attorney-General will recall that this point came up right at the beginning of the Committee stage this afternoon. He may find this an easier concept or approach to accept than the approach under Amendment No. 24A. Here I am suggesting that, if the ICC seeks to have someone it wishes to prosecute delivered up and the responsible authorities in the United Kingdom wish nevertheless to pursue the prosecution domestically, they should have the power under this Bill to make the appropriate submissions themselves to the International Criminal Court in the Hague to that effect. That opportunity, as I read it, is not open to them under Clause 5(4). It is clearly open to the individual to make some submissions about the admissibility of the warrant, but it does not appear to me to be open to the responsible authorities in the United Kingdom itself. This amendment seeks to fill that gap by providing such an opportunity to the responsible authorities.

The other amendment to which I need to speak, Amendment No. 29A, which I believe is in the same group, simply deals with the provision of legal aid to an individual who would be making some submissions. I beg to move.


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