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Lord Kingsland: Perhaps I may say to the noble Lord, Lord Lester: quite the contrary. During the course of the debate on the Bill in your Lordships' House, I was one of the very few speakers who wished the decisions of the European Court of Human Rights in Strasbourg to be binding on our own courts. Indeed, I recall that I was almost alone in wishing that. Therefore, if I may say so, at least so far as I am concerned, my position is wholly consistent with complete trust in the judges of the European Court of Human Rights.

Lord Brennan: Perhaps my noble and learned friend will forgive me. Before he replies, will he confirm that

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the doubts referred to by the noble Lord, Lord Kingsland, were not expressed from these Benches and are not shared on these Benches?

Lord Williams of Mostyn: I was not rising to reply further except to agree that the noble Earl, Lord Attlee, was right. I believe that I made my reply on the effect of Amendment No. 34 too short. I should have said that this amendment, if taken with Amendment No. 35, would have had the consequence to which I referred. He is quite right with regard to the position of Amendment No. 34 on its own. I simply wanted to express that accurately.

Lord Howell of Guildford: I believe that it is my turn to end the discussion. I say straight away that I considered the reply of the noble and learned Lord in setting out his view of the unacceptability of the amendment to be fair and precise. Indeed, although the noble Lord, Lord Lester, spoke against the amendment, he also indicated that certain matters had passed through his mind and needed to be given further thought.

Although I hate to step in this direction, I must add that I regarded the intervention of the noble Lord, Lord Goodhart, as mildly unfortunate. He must know perfectly well that in seeking to fulfil our duty in this Committee, we are having to walk a tightrope. Many noble Lords, including the noble and learned Lord, Lord Archer of Sandwell, who worked for years on this matter, will appreciate the nature of the tightrope. First, we do not in any way want to impede or fetter, or place obstacles in the way of, the effort to bring to justice, in a way that has not happened in the past but which we hope will happen when we have a permanent court rather than ad hoc tribunals, monstrous perpetrators of hideous crimes. On the other hand, it is also our duty to safeguard the rights of the subjects of this kingdom. When those two considerations are in conflict, we need to measure them very carefully. That is what we are seeking to do. To call that an attempt to frustrate the Bill is not fair or reasonable. I put that on the record because I feel it very strongly indeed. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 35 and 35a not moved.]

Clause 5 agreed to.

Clause 6 [Supplementary provisions as to proceedings before competent court]:

Lord Howell of Guildford moved Amendment No. 36:


    Page 4, line 37, leave out paragraph (b) and insert--


("(b) for the purposes of the Legal Aid (Scotland) Act 1986 and any regulations made thereunder, solemn legal aid shall be made available in respect of such proceedings or any appeal provisions following thereon").

The noble Lord said: This is another amendment that has Scottish origins. Since I had so much luck with the previous amendment, I shall try my luck again with this amendment.

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The amendment provides that "solemn legal aid" shall be available for proceedings that are raised under the Bill. The reasoning is that, as the Bill is currently drafted, Clause 6(3)(b) would result in summary criminal legal aid being available in Scotland in relation to proceedings that were raised under those provisions. In practical terms, the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 would apply. Payment in relation to the preparation and conduct of those important proceedings would therefore be limited to 500.

I am advised that in Scotland legal aid for serious cases, which are dealt with under solemn procedure, is paid on a time-and-line basis. There is therefore no upper financial limit on the extent of the work that can be carried out. The Law Society of Scotland advised me that it believes that cases under the Bill should also be dealt with on that basis; hence the amendment. I beg to move.

Lord Monson: I shall use this simple, technical amendment relating to Scotland as a peg on which to hang a much wider question relating to Scotland, which I want to put to the noble and learned Lord the Attorney-General. There seem to be few other windows of opportunity this evening. The Bill relates not to the whole of the United Kingdom but only to England, Wales and Northern Ireland. What happens if the Scottish Parliament declines to approve a parallel Bill? In practice it is highly unlikely that it would take such a course, but in theory it has every right to do so; that is provided for in the Scotland Act. International treaties have nothing to do with Edinburgh; they are matters for Westminster. If the Scottish Parliament says, "No, we are not going to pass a similar Bill", how would that leave the United Kingdom's international obligations?

Lord Williams of Mostyn: Even in the arid wastes of the late afternoon, this is a delightful moment, and I am glad that there are many lawyers in the Chamber. Legal aid was described as being solemn; I appreciate that that is a term of art, but it is one that I had not come across before dealing with the Bill. I shall have to write about it on the back of a postcard and send it to my noble and learned friend the Lord Chancellor.

Clause 6(3)(a) prescribes that proceedings should be summary in nature. Solemn legal aid north of the Border relates to solemn proceedings; that is, on indictment for serious offences which would involve a jury.

That is my first answer; my second is well known. The operation and regulation of legal aid is a function that is devolved to the Scottish Parliament and it would therefore not be appropriate for us to legislate in that regard. That really is the rat's answer, but I thought that I had better give it! I believe that my first answer is the more important.

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To answer the noble Lord, Lord Monson, the Bill will extend to Scotland for arrest and surrender. For criminal offences, our colleagues north of the Border have their own legislation.

Lord Howell of Guildford: The grasp that the noble and learned Lord has of the intricacies of Scottish law, including the law relating to devolution, is certainly superior to mine. I bow to his knowledge in these matters. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clause 7 [Consent to surrender]:

Lord Kingsland moved Amendment No. 37:


    Page 5, line 1, leave out from ("which") to end of line 2 and insert ("the justice of the peace, or in Scotland, the sheriff, is satisfied that the person is incapable by reason of mental disorder or of inability to communicate because of physical disability and that it is appropriate for a person to act on his behalf").

The noble Lord said: The amendment probes the circumstances in which it would be appropriate for another person to act on behalf of the person arrested for the purpose of consenting to surrender.

We believe that consent to surrender should be given by another person only in very restrictive circumstances, such as when the person arrested is incapable of giving consent. The effect on an individual's liberty of granting such consent is so significant that the court should be satisfied that the person is incapable of making a decision in that regard before another person can act on his or her behalf.

Amendment No. 62 would have the same effect, and I do not need to elaborate on Amendment No. 63. I beg to move.

Lord Williams of Mostyn: I am afraid that I cannot accept the amendments. The limitation on the definition of incapacity might very well restrict the court's discretion in judging those matters. Every case will be different and it is important to ensure that all eventualities are covered. That is the reason for the Bill's general wording. In this context, in which definitions are very difficult, it is better to leave that wording general so that the courts may decide.

Lord Kingsland: I am not happy with the response of the noble and learned Lord, but I shall reflect on whether to return to the matter on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 38 to 42 not moved.]

Clause 7 agreed to.

Clause 8 [Procedure where court refuses order]:

Lord Howell of Guildford moved Amendment No. 43:


    Page 5, line 27, leave out ("shall") and insert ("may").

The noble Lord said: In moving Amendment No. 43, I shall speak also to Amendments Nos. 44 to 48 and 72.

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The amendments would allow the court to have discretion about whether to continue to remand a prisoner where a court refuses an order and to allow for the release of a prisoner when an order has been refused.

Amendment No. 43 gives the court discretion when it refuses an order. When the court has refused an application to make a delivery order, it can make an order remanding the person arrested and notify the Secretary of State of its discretion. The amendment would give the court the discretion as to the above if the court so refuses to make a delivery order.

The argument that lies behind Amendment No. 44 is that, if a person is entitled to resist a delivery order, he is entitled to his liberty. Amendment No. 46 again comes from the Scottish direction and represents the view of the Law Society of Scotland, which stated that there may be some dubiety as to what constitutes the term "without delay" for the purposes of the clause. It may be better in the interests of clarity to specify a period within which the court should be informed if an appeal is to be brought under Sections 9 or 10.

Amendment No. 47 seeks to place a time limit upon the court being informed of an appeal under Clauses 9 and 10 so that the court can ensure that the order for removal lasts no longer than 24 hours, if the court so orders.

Amendment No. 72 again represents the view of the Law Society of Scotland whose contention is that the term "without delay" could lead to confusion as to the appropriate period of time within which the Secretary of State should notify the court of his decision in regard to whether to accede to the request. Again, the amendment seeks the provision of a specific period of time to avoid disputes. I beg to move.

6.30 p.m.

Lord Williams of Mostyn: As regards Amendment No. 43, the provision as drafted allows a court further to remand a prisoner if an intention to appeal is lodged with the court by the Secretary of State, or, of course, north of the Border, the Scottish Ministers.

We believe that that is very important indeed. It reflects similar provisions in the Extradition Act. I attach importance to this matter because these are very serious crimes, by definition. Let us think of a prospective defendant like General Mladic, for example. We remand defendants accused of less serious crimes if there is a likelihood that they may abscond. I believe that ICC crimes are so serious that that provision is required to remove any risk of absconding. If there were an absconding at that point, before we had completed domestic proceedings, that would be very damaging to the United Kingdom's reputation internationally and we should be in breach of our obligations under the statute. Therefore, I cannot accept Amendments Nos. 43, 44, 45 or 48.

Remand does not necessarily mean custody. It would be open to the court, subject to the other provisions of the Bill, to remand on bail with conditions.

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Amendments Nos. 46 and 47 relate to time limits which would bind the Secretary of State to make a decision whether to appeal within 48 or 24 hours. Of course, I endorse the noble Lord's concern, and I share it, to ensure that these cases are dealt with speedily. I am sure that they will be. But it is not necessary to specify those rigid periods of time. They will be extremely difficult and important cases. Any Secretary of State will put his mind to his decision extremely promptly. On the basis of that explanation, I hope that the noble Lord will not wish to press this matter.

Amendment No. 72 would impose an inflexible 48-hour time limit for the Secretary of State to notify the court of his decision. I do not think that we should look to rigid time limits in particular areas. I assure the Committee that every effort will be made to notify the court expeditiously of the Secretary of State's decision. As I said, the words "without delay" are intended to confirm that. In this particular area, with very difficult cases indeed, we should not have rigid limits. A margin not of appreciation but of time should be allowed.


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