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Lord Goldsmith: I of course have sympathy with the underlying point made by the noble Lord, Lord Kingsland, that the principle of complementarity means that, where a prosecution can be brought in this country, that is what probably ought to happen. The other amendments to which the noble Lord refers are concerned with how the International Criminal Court becomes aware of whether or not the relevant country is prepared to institute those proceedings. My understanding--the noble and learned Lord the Attorney-General will state the correct position--is that procedures are, or will be, in place so that where this country wants to prosecute that is a feature which will be known to the International Criminal Court and therefore will make the case inadmissible as far as the court is concerned under Article 17.

That is the first point; namely, how the court becomes aware that the authorities in a particular country are prepared to prosecute because if they are prepared, and are able, to prosecute, the case will not be admissible. It seems to me at the moment--probably I have misunderstood the position--that the noble Lords's alternative way of dealing with this issue (Amendment No. 24A) does exactly the opposite of what the statute is intended to achieve. If a state is unable or unwilling to prosecute--that will include

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cases where it is willing but does not have reasonable grounds not to do so--the statute intends that the International Criminal Court will have jurisdiction.

The effect of the noble Lord's amendment is this. If the Secretary of State or the Crown Prosecution Service--whatever the authority will be--should prosecute but will not do so, the court will not issue the delivery order to send the matter to the International Criminal Court--the very court which should, in those circumstances, prosecute. I test some of the noble Lord's amendments in this way. What would we think if another country which did not have the same approach put into its legislation a law which states, "We shall not send someone to the International Criminal Court if we think that our own government do not have reasonable grounds for not prosecuting"? Nor could the court force them to prosecute. That would put the case in limbo; no one would have jurisdiction.

I have sympathy with the underlying concern but the matter has to be dealt with by procedures whereby the ICC knows whether we are prepared to prosecute--I hope that the Attorney-General will explain the position--rather than the provision in Amendment No. 24A.

Lord Lester of Herne Hill: I agree with the noble Lord, Lord Goldsmith. I cannot believe that it is in the pubic interest or compatible with the purposes of the Bill or the ICC statute to ask English courts on a routine basis to answer the question posed by Amendment No. 24A,

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

I cannot imagine that the noble Lord, Lord Kingsland, would welcome that as a judicial task except in the most extreme circumstances. It would be contrary to the whole of our legal system, as we have built it up, to start giving courts that scope for judicial intervention except in the most extreme case.

Lord Archer of Sandwell: I am puzzled by the structure of what the noble Lord seeks to do. I agree with my noble friend Lord Goldsmith. Clearly, the intention is that it is only where the authorities--whoever they are--are unwilling to prosecute that the jurisdiction of the International Criminal Court is invoked.

Let us suppose that a court in this country were given the opportunity to ask the question which the noble Lord invites to be asked in the amendment. Let us suppose that it comes to the conclusion that the authorities--I think that the noble Lord accepts that the Secretary of State is not the appropriate authority--have bad reasons for not prosecuting and should have prosecuted; and for that reason the ICC should not have jurisdiction. What would happen next? Would the court then have some power to order the appropriate authorities to prosecute? That would be the first time in 600 years that such a power has been invested in a court in this country, to my knowledge.

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Clearly it is not for the courts to second guess the prosecuting authorities as to why someone has not been prosecuted.

Lord Avebury: These matters will presumably work on the same lines as apply to the torture convention. If it is alleged that someone within our jurisdiction has committed any of the offences specified in Section 134 of the Criminal Justice Act 1988, the matter is referred to a special unit of the Metropolitan Police which conducts an investigation. If it finds that there is sufficient evidence, it is referred to the Crown Prosecution Service which can then decide whether to bring proceedings.

Perhaps the noble and learned Lord the Attorney-General will confirm my assumption that there will need to be an enormous expansion of that special unit within the Metropolitan Police to investigate allegations of offences which may subsequently be the subject of charges before the International Criminal Court.

I remember an interesting talk that the noble and learned Lord gave about the operations of the War Crimes Act. He laid out the enormous resources that we should have to deploy in terms of lawyers and investigating police officers to result in a small yield of prosecutions or convictions. If we are to take our obligations under the ICC legislation seriously, we shall need to have thorough investigating provisions within our police forces. It is they who will first be seized of allegations of offences under the Bill. For that purpose, there will presumably be close liaison between the police and the authorities of the ICC when deciding where the proceedings would be most appropriately brought.

If witnesses are largely in another jurisdiction, perhaps it would not be best for that person to be tried within the English courts, irrespective of the fact that he happened to be present here. There have been cases of war criminals who swam into our jurisdiction who were wanted by the International Criminal Tribunal. I know of one example. Muvunyi, a Rwandan, was an alleged war criminal who was resident in south London. He was known to the media for many months before an indictment was issued. He was then arrested and delivered up to the tribunal because it would have been inappropriate for him to have been dealt with under our jurisdiction. It would have been impossible to bring the witnesses here and to have collected the evidence which would have resulted in his conviction.

I take it that these considerations will apply once the Bill is on the statute book. There will be some instances where it is correct for us to take proceedings in the English or Scottish courts, and others where it is more appropriate for the matter to be dealt with in the ICC. Those will be the subject of negotiations between the authorities.

However, to put the provision into the Bill at this stage would be counter to the provisions of Article 59 of the statute. In the amendments put forward, the Conservative Opposition seek to go behind the statute and amend it through this legislation. That cannot be

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accepted by the Committee. If we do so, it will be impossible for us to meet our obligations and ratify the treaty.

Lord Williams of Mostyn: Perhaps I may remind the Committee that the group of amendments includes Amendments Nos. 29, 24A, 28A and 29A.

If passed, Amendment No. 29 would put into the Bill the provision that no delivery order shall be made to the ICC in the case where there is or has been an investigation under domestic law. That is not necessary on the face of the Bill for the reasons which were set out by my noble friend Lord Goldsmith. The way that the measure will work will be this. No request will come from the ICC in such a case so there will be no need to refuse a request in such a case. When the ICC prosecutor begins to consider an investigation against a UK national, the ICC notifies all interested states. When we receive that notification, we have the opportunity to notify the ICC of our intention to investigate ourselves. In that case, as the noble Lord, Lord Goldsmith, indicated the ICC will not issue a request for delivery. It is an important point and I am glad to have had this opportunity for clarification.

Amendment No. 24A suggests that a delivery order should be made only if the Secretary of State has reasonable grounds for being unwilling or unable to prosecute. With great respect, I confirm the observation made by my noble and learned friend Lord Archer of Sandwell. As colleagues will readily confirm, in this country the Crown Prosecution Service and the Law Officers are not an arm of the Government. Our advice, palatable or not, is our advice. The Crown Prosecution Service was set up as an independent prosecuting service.

The point that Amendment No. 24A is not workable is valid, but that does not take away from the point that would be made if it were redrafted. There could be no review of whether the Secretary of State had reasonable grounds for being unwilling or unable to investigate and prosecute, but he does not carry out either function in any event; the Crown Prosecution Service does that, under the superintendence of the Law Officers.

Be that as it may, Amendment No. 24A is not necessary. The provision is implicit in the Bill and explicit in the statute. As my noble friend Lord Goldsmith pointed out, Article 19 offers the challenges to admissibility. They can be made by the accused, by a person for whom a warrant of arrest or a summons to appear has been issued or a by state that has jurisdiction over a case--such as the United Kingdom--on the grounds that it is investigating or prosecuting the case or has investigated or prosecuted it. That does not need to be spelled out in the Bill because it is in the statute to which the Bill gives effect. It is implicit in the Bill and explicit in the statute.

The same answer applies to Amendment No. 28A. The Secretary of State, the person sought or even another state are able to challenge the jurisdiction of the ICC.

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The final point was on Amendment No. 29A and the provision of legal aid. Articles 55 and 67D of the statute provide that persons coming before the ICC shall have the right to counsel in any case in which the interests of justice require it, without payment if the accused lacks sufficient means to pay for it.

6 p.m.

Lord Kingsland: I thank the Attorney-General for his response and all those who have contributed to this interesting debate. In response to the noble and learned Lord, Lord Archer, on Amendment No. 24A, if a court found that the Government's motives were improper, no prosecution would go ahead in the United Kingdom and the Government would be prevented from submitting the individual to the International Criminal Court. I entirely accept that the consequences of such a finding--

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