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Lord Lester of Herne Hill: The Attorney-General believes that he uses ordinary language as I believe I do, but I can assure him that the non-lawyer Members of the Committee find the ordinary language that we use bizarre and extraordinary. In spite of our best efforts, they find it jargon-ridden or technical. For that reason I would prefer to see a further safeguard. I understand that we have a common objective. To me the sensible course is to leave the matter as it stands and to await the letter from the Attorney General. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 52 to 54 not moved.]

Clause 11 agreed to.

Clause 12 [Right to review of delivery order]:

Lord Kingsland moved Amendment No. 55:


The noble Lord said: Amendment No. 55 has a simple objective, which is to increase from 15 to 21 days the period of time for the execution of a delivery order. I beg to move.

Lord Williams of Mostyn: The procedure in Clauses 11 and 12 was designed with the precedents of the Extradition Act 1989 and Transfer to International Criminal Tribunals in mind. Following those precedents, the time period in which an individual due to be delivered up can make his application is 15 days. I believe that 15 days is quite long enough to start the process. I am not convinced that there is any proper reason further to lengthen the process than that provided for in extradition, which I think is a reasonable analogy.

Lord Kingsland: In the light of what the noble and learned Lord the Attorney-General has said, I shall again reflect on our amendment. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lester of Herne Hill moved Amendment No. 56:


    Page 7, line 27, after ("corpus") insert ("or for judicial review").

The noble Lord said: In moving this amendment, I speak also to Amendments Nos. 57, 59 and 60. This group of amendments is designed to widen the right to review of a delivery order by means of an application for (at present) habeas corpus in Clause 12 to include an application for judicial review. I shall use ordinary language. The non-lawyer Members of the Committee may find it tedious in the extreme. However, is quite important.

As the Bill stands, the domestic safeguards by way of remedy are too narrow. Confining the right of review to a habeas corpus application means that a court can only consider whether a person has been lawfully arrested and detained and, if the court finds

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that the detention is unlawful, order release. That is the ancient writ of habeas corpus--a writ that runs as of right, not discretion. The problem, which is well known to judges and lawyers in this country, is that the remedy of habeas corpus has somehow to be reconciled with the broader discretionary remedies provided for by judicial review.

As I pointed out earlier in the debate, the competent court has to determine whether the rights of the accused have been breached. That is provided for in Clause 5(6)(b). Article 59(2) of the ICC statute requires the judicial authority in the custodial state to determine--I repeat, to determine--in accordance with the law of that state,


    "(c) that the person's rights have been respected".

On a simple application for habeas corpus, that is not open to, in this case, the English court. An English court can decide only whether or not the detention is lawful and, if it determines that it is not, quash the detention and order the release of the prisoner.

Article 59(2) contemplates a determination, in accordance with English law, that the person's rights have been respected, and that that determination be transmitted by the Secretary of State to the International Criminal Court by the Secretary of State. That is a very important point. In addition to a quashing order for habeas corpus, provision is needed to allow the competent court to grant a declaration that the rights of the suspect have been infringed. That will not give rise to any automatic remedy. It is discretionary, which is a built-in safeguard. However, it will ensure that there is a proper, judicially reasoned determination, which can be sent to the Secretary of State, and then to the International Criminal Court.

I have received a letter from the Minister of State in the other place, Mr Peter Hain, in reply to questions that I raised at Second Reading about this matter. In respect of the extent to the right of review, Mr Hain indicated that the Bill broadly follows the provisions of the Extradition Act, the Backing of Warrants Act and the UN (International Tribunals) Orders. But those Acts are very different in scope and have very different sets of procedures and safeguards from those in this Bill. In particular, unlike this Bill, they do not provide for a judicial determination of whether the rights of the accused have been breached, nor for that determination to be sent to an international court.

The Minister in his letter also noted--and I think this is an example of the doctrine of the unripe time--that the recent review by Sir Jeffrey Bowman of the Crown Office List had recommended that habeas corpus should be subsumed into judicial review, except in extradition cases. Extradition cases were singled out because the review was concerned solely with the Crown Office List, and consideration of extradition was outside its remit. The Minister indicated that, as the Government are currently considering the relationship between habeas corpus and judicial review, it would be unwise to pre-empt those deliberations by amending the Bill to provide for judicial review--a somewhat bureaucratic reason. I

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submit that there are good reasons, specific to this Bill, why the greater safeguard of judicial review should be included in the right to review in order to make sense of this specific machinery.

I have again looked at Sir Jeffrey Bowman's report of March 2000 to the Lord Chancellor. I shall not weary the Committee with the detail. To cut a long story short, it is recommended that habeas corpus should become an order available on an application for judicial review; that there should be statutory provision to ensure that the discretionary elements of judicial review relating to permission to proceed and time limits and remedies should not apply when habeas corpus is sought.

Our amendments would do nothing to prejudge any wider reforms that the Lord Chancellor or Parliament may make in the wake of Sir Jeffrey Bowman's sensible recommendations. The amendments are tailor-made for this particular Bill. That is because they empower the judge to make a declaration, if so advised, which can then be used in the way that I have indicated, rather than having to rely upon the too narrow procedure for habeas corpus. I beg to move.

Lord Clinton-Davis: I run the risk of misinterpreting the noble Lord, for which I apologise in advance. I had not previously read the information that the noble Lord has put before the Committee. Perhaps I may ask in what way the words of his proposal devalue the proposal of the noble and learned Lord the Attorney-General. I believe that he has made a powerful case for changing the Bill in this respect. I cannot imagine that the noble and learned Lord the Attorney-General will immediately be able to approve the words that he has added. If not, the burden rests with him. I hope that my noble and learned friend will take away the Bill and examine very carefully the words which the noble Lord prays to be inserted.

7 p.m.

Lord Avebury: Speaking as a mere layman, when the Attorney-General comes to reply perhaps he can say whether there is any other method by which the provisions of Article 59(2)(c) can be given effect. The statute provides that the competent judicial authority shall determine that,


    "The person's rights have been respected".

As I understand my noble friend Lord Lester, in an application for habeas corpus that matter is not within the competence of the court. It is only if there is an application for judicial review that the question whether a person's rights have been respected can be determined. The court would not deal with that of its own volition unless an allegation was made by the individual that one or other of his rights had been infringed. If my noble friend's amendment is not accepted, can the Attorney-General advise the Committee how else those provisions of the statute are to be implemented?

Lord Kingsland: As I believe the noble Lord, Lord Lester, said, this matter is dealt with in Article 59(2) of

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the Rome Statute. This point is also discussed briefly in paragraph 25 of the Explanatory Notes:


    "If the domestic court considers that there have been violations of proper process or of the person's rights, the ICC will be informed of this determination. It is intended that this determination will not, however, affect the court's decision whether or not to issue a delivery order under subsection (2)".

The amendment moved by the noble Lord, Lord Lester, with which I respectfully agree, deals with what he believes should be the domestic judicial consequences of a violation of proper process. What consequences does the noble and learned Lord believe may flow from informing the International Criminal Court that proper process has not been respected in the domestic jurisdiction?

Lord Williams of Mostyn: I deal first with the latter two matters raised by the noble Lords, Lord Avebury and Lord Kingsland. Beginning with the matter raised by the noble Lord, Lord Avebury, the answer is to be found in Clause 5(6). The noble Lord asked how a determination can be made under Article 59(2)(c). The answer is that under Article 59(2) a person who is arrested shall be brought promptly before the competent judicial authority in the custodial state. That competent judicial authority--we have already looked at definitions--is that which we find in Clause 5(6). Therefore, one determines whether a person's rights have been respected by means of Clause 5(6), because the competent court must come to that conclusion.


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