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Lord Williams of Mostyn: My noble and learned friend Lord Archer knows that I am not being discourteous, but it is critical to remember what he said. The Government do not prosecute. That is one of the glories of our system. This is not semantics. The Crown Prosecution Service is independent of the Government and in so far as the Law Officers influence the Crown Prosecution Service, which they may do by their decisions in some circumstances, they are not the Government. That is an important point.

Lord Archer of Sandwell: What my noble and learned friend the Attorney-General says is absolutely right and of vital importance. Even if the amendment were amended to read, "the Crown Prosecution Service and the Law Officers" instead of, "the Secretary of State", there would still be a grave logical difficulty. The situation that the noble Lord has just posited is one in which the court has decided that the motives of those who decided not to prosecute were improper and therefore that the ICC shall not have jurisdiction. Presumably the court has decided that the person in question ought to be prosecuted, but the noble Lord says that he cannot be prosecuted in this country either--or anywhere.

Lord Kingsland: A decision of the Crown Prosecution Service not to prosecute can be judicially reviewed in certain circumstances. The situation is not constitutionally unknown in the United Kingdom.

I entirely accept the admonition about the Secretary of State. I did not intend to give the impression that I thought that the Secretary of State would be the prosecutor in those circumstances. It is, of course, the Crown Prosecution Service.

I draw great comfort from the Attorney-General's response to Amendment No. 28A. Sometimes he appears to put parts of the Rome Statute in the Bill and sometimes he says that they are implicit. In this case, the relevant part of Article 19 is clearly implied. I am grateful to him for confirming that, because it provides the protection that we are seeking. In those

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circumstances, I shall not need to pursue Amendment No. 24A on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 25 to 33 not moved.]

Lord Howell of Guildford moved Amendment No. 34:

    Page 4, line 10, at end insert (", or

(c) that there is reason to believe that the person would not receive a fair trial in accordance with principles of United Kingdom law,").

The noble Lord said: The amendment would add something to the Bill as it concerns the law of the United Kingdom. It would not amend the Rome Statute--we have learned by now that that is ruled out of court, as the Bill is intended to give effect to that statute as it stands. The amendment would add a third consideration for the competent court. It is the minimum that we as legislators should consider appropriate for people who are likely to be transferred to a higher jurisdiction or tried under our domestic courts. I beg to move.

Lord Lester of Herne Hill: I made a similar suggestion during the consultation process, but I was persuaded by the response to that process that I was mistaken.

In favour of the amendment, Section 43 of the New Zealand statute says that a person will not be eligible for surrender unless his rights, in accordance with the law of New Zealand, have been respected. The New Zealand Government obviously believe that that is compatible with the ICC Statute. However, on further reflection, I rather doubt it.

I simply want to make the following point for all of us who are so sure that the English system of justice is the best and fairest in the world, even in the criminal justice sphere, notwithstanding the many judgments found against us by the European Court of Human Rights. My point is that the statute of the court goes further in protecting the fundamental human rights and freedoms of the accused than any other international human rights instrument that I have ever seen. Article 66 carries a presumption of innocence, and Article 67 spells out the rights of the accused in great detail.

As the effect of the amendment would be to introduce another fetter on transfer to the International Criminal Court of a kind which I do not believe to be compatible with the statute or necessary, as I have full confidence in the ability of the International Criminal Court to ensure a concept of justice as good as our own, I would be against the amendment.

Lord Williams of Mostyn: I do not believe that the amendment is necessary. The noble Lord, Lord Lester of Herne Hill, is quite right. Of course, we examined the statute and also the Rules of Procedure and Evidence. I believe that it is fair to say, quite

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moderately, that the Rules of Procedure and Evidence fully reflect the rights known in domestic law and in the European Convention on Human Rights. I suggest that making provision for a domestic court to refuse surrender in those circumstances is, first, not required and, secondly, not permitted under the statute.

Earl Attlee: I hesitate to interject, but the noble and learned Lord the Attorney-General and the noble Lord, Lord Lester of Herne Hill, have suggested that this amendment fetters the right to transfer to the International Criminal Court. However, it simply requires the notification of the Secretary of State to the ICC; it does not prevent transfer.

Lord Goodhart: Before the noble Lord, Lord Howell, replies to the amendment, I want to raise one question. I entirely accept the view of my noble friend that the amendment is almost certainly incompatible with the Rome Statute. The amendment is one of a series put forward by the Conservative Front Bench which is, to a greater or lesser extent, incompatible and which would make it impossible for this country to ratify the Rome Statute without making a reservation. That, as we know, is not possible. In those circumstances, is that the intention of the Conservative Front Bench? Is it their intention to frustrate the ratification by this country of the Rome Statute or is it not?

Lord Avebury: I certainly believe that it would be highly undesirable for us to put these words on to the statute book. They would give an indication to the International Criminal Court, before it started its operations, that people in this country have some doubt as to whether it will try people fairly. Why would we have entered into the ratification of the treaty if we did not believe--I hope that we do believe--that the International Criminal Court will give as fair a trial as any court in our domestic jurisdiction, whether in England or Scotland?

The Conservatives are not trying to avert the surrender of the persons to whom the provision might apply; they are trying to provide that the Secretary of State, after being notified that there is reason to believe that a person would not receive a fair trial, would be notified of that finding in accordance with the final sentence of Clause 5(6). Therefore, as I understand the amendment, the Secretary of State would not have to do anything about such a finding other than transmit it to the International Criminal Court. I believe that that was the point made by the noble Earl, Lord Attlee.

Nevertheless, placing us in the position of having to tell the International Criminal Court that we would not expect it to give people a fair trial would not be a good start to the operations of that supremely important tribunal. I do not believe that words should appear in the Bill which give the impression that this House, or this Parliament, has no confidence in the standards of justice that will be delivered in the ICC.

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6.15 p.m.

Lord Goldsmith: Before the noble Lord replies, perhaps I may add one comment to the points that have been made, all of which I agree with. If I may say so, the point just made by the noble Lord, Lord Avebury, is particularly important. Not only might the International Criminal Court be offended by what we say but, far more importantly, we might give the impression to other countries that this country or this House takes the view that the International Criminal Court may not give a fair trial. We certainly do not want to convey that message. It is one with which we would not agree at all and it would simply provide a pretext for other countries not to bring the statute into effect or support it themselves. I invite the noble Lord to consider that point, too.

Lord Kingsland: I entirely agree with what the noble Lord, Lord Goldsmith, said in relation to the International Criminal Court. It would be appalling if that impression were given. Nevertheless, we should bear in mind that in the course of the passage of the Human Rights Bill in your Lordships' House, one of the reasons given by many speakers for bringing home rights was uncertainty about the quality of the judges who would be appointed to the expanded European Court of Human Rights. In the past, concerns have been expressed in your Lordships' House about the quality of judges, although I believe that in present circumstances the noble Lord, Lord Goldsmith, is absolutely right to make his point.

Lord Lester of Herne Hill: Will the noble Lord, Lord Kingsland, accept that the promoters of the incorporation of the convention, of which I was one and the Government were the main ones, have never suggested in any debate that the reason for giving domestic effect to the convention was a lack of confidence in the new--or the old--European Court of Human Rights? The reason was wherever possible to provide speedy and effective remedies in our courts so that there might be a principle of complementarity.

I know that the noble Lord does not wish to be rude about the International Criminal Court, but I am sure that neither does he wish to be rude about the new court, whose record, I believe, has been admirable. Its judges have come from central and eastern Europe as well as from western Europe. I hope that the noble Lord agrees with that.

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