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Lord Falconer of Thoroton: My Lords, that is a compliment to the noble Lord, Lord Bassam, who is the modernising Minister in the department.

There is a serious point here. As a result of there being a website, a vast amount of information about government departments is more accessible than otherwise would have been the case. I entirely agree with the noble Lord.

Lord Crickhowell: My Lords, does the Minister agree that it is the responsibility of Ministers to ensure that the Answers given are correct? It is not a question of convenience but of principle. Answers should be given in the Official Report and then placed on the website, and not the other way round.

Lord Falconer of Thoroton: My Lords, questions of judgment are involved. My noble friend Lord Bassam and I agree that it would have been better if the numbers had been given.

Lord Renton: My Lords, I thank the noble and learned Lord and the noble Lord, Lord Bassam, who signed the Answer as "Lord Steve Bassam". That sounds awfully friendly but I did not know that he was the son of a Duke or a Marquess.

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In answer to the noble Lord, Lord Avebury, the public have access to Hansard and although they may have access to websites and so on they may not have the exact reference required. In any event, as my noble friend Lord Crickhowell, said, is it not much better that the well established parliamentary practice relating to constitutional importance should continue? I am glad that it will.

Lord Falconer of Thoroton: My Lords, it is surely right that the figures should be given; and that there should be a reference to the website where more material can be found.

Uninsured Driving

3 p.m.

Baroness Turner of Camden asked Her Majesty's Government:

    What steps are being taken to deal with the problem of uninsured driving.

Lord Whitty: My Lords, we are taking the offence of uninsured driving very seriously. The police have powers to stop vehicles to check insurance and other matters. Every year, more than 250,000 drivers are convicted of driving without insurance. The Government are supporting the insurance industry in setting up a computerised insurance database with links to the vehicle register. That database should be operational later this year, enabling the police to detect and prosecute more uninsured and unlicensed drivers at less cost.

Baroness Turner of Camden: My Lords, I thank my noble friend for that response. Is he aware that, although the numbers prosecuted seem to have increased, the standard fine is only 150, whereas the average insurance premium is 350? Clearly there is an incentive for miscreants not to insure. Should not something more be done about the level of the fine, which is much too low for the offence?

Lord Whitty: My Lords, I take my noble friend's point seriously. The maximum fine is 5,000. The licence can be endorsed by six to eight points and disqualification is discretionary for the court. However, in practice my noble friend is correct--the average fine is 210. That is higher than for other motoring offences but it is still much lower than the maximum. Last year, the courts imposed full disqualification in 28,580 cases. People should realise that the courts have powers to deal with that offence. In addition, the Home Office is currently engaged in consultation on penalties for motoring offences in general, including this one.

Lord Marsh: My Lords, does the Minister agree that, although the Motor Insurance Bureau has to pick up the tab for uninsured drivers, the penalties are

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ludicrously low given the total financial disaster that befalls a family whose breadwinner, for example, is killed by an uninsured driver?

Lord Whitty: My Lords, I accept that there is concern about the level of the penalties. As the noble Lord said, there is a safety net in most cases, operated by the insurance companies under the Motor Insurance Bureau, but the cost has to be handed on to the insurance companies and thence to other insured drivers who are obeying the law.

Lord Skelmersdale: My Lords, I understood the Minister to say that the department was helping the insurance industry by setting up a database at the Driver and Vehicle Licensing Agency in Swansea. Why does not that fall foul of the Data Protection Act?

Lord Whitty: My Lords, we have discussed the issue with the data protection authorities. Access will be by special agreement with the police authorities to enable particular inquiries to be pursued. The database will not be available to the general public.

Lord Acton: My Lords, it is not clear to me from what my noble friend said whether there are firm plans to raise the minimum fine.

Lord Whitty: My Lords, the actual level of the fine within the maximum is always a matter for the courts. I said that the Home Office was currently engaged in a wide consultation about the nature of penalties in motoring offences, including this one. If noble Lords are interested, I think that the closing date for consultation is 9th March. That relates particularly to the seriousness of the offence of uninsured or unlicensed driving.

Lord Acton: My Lords, is my noble friend saying that there is no minimum fine?

Lord Whitty: My Lords, there is rarely a minimum fine. There is a maximum fine of 5,000.

Lord Brabazon of Tara: My Lords, when the department does spot checks for road tax, which one occasionally sees taking place, are checks also made on insurance? Is there a correlation between those who do not pay their road tax and those who are not insured?

Lord Whitty: Yes, my Lords, there is an almost automatic correlation in that a driver cannot buy a road tax disc without showing a valid insurance certificate. The two offences are frequently related.

Lord Berkeley: My Lords, is there a further correlation between those who do not pay their road tax, those who are not insured and those who abandon vehicles by the roadside? How much of a problem is caused by abandoned vehicles and what is my noble friend doing about it?

Lord Whitty: My Lords, although I personally am doing little, my colleague Keith Hill and I are ensuring

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that the police, the local authorities and the DVLA co-operate on an apparent increase in the number of abandoned vehicles around the country. There are substantial powers, but they need to be co-ordinated and we need to target the areas of worst offence. A couple of pilot projects will be launched shortly to improve that co-ordination. All the authorities need to address the issue.


3.5 p.m.

Lord Carter: My Lords, at a convenient time after 3.30 p.m., my noble friend Lady Blackstone will, with the leave of the House, repeat a Statement being made in another place on the schools Green Paper.

Criminal Defence Service (Advice and Assistance) Bill [H.L.]

Read a third time, and passed, and sent to the Commons.

International Criminal Court Bill [H.L.]

3.6 p.m.

The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.--(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 23 [Provisions as to state or diplomatic immunity]:

Lord Avebury moved Amendment No. 73:

    Page 13, line 9, leave out subsection (4).

The noble Lord said: I shall speak to the amendment on behalf of my noble friend Lord Lester and at his request.

The amendment would remove the discretionary power of the Secretary of State to direct that proceedings under Part II shall not be taken against a person to whom subsections (1) and (2) apply. Article 27 of the statute provides that:

    "This Statute shall apply equally to all persons without any distinction based on official capacity".

That includes heads of state or government. Therefore, in accepting Article 27, a state party to the ICC Statute has already agreed that the immunity of its representatives, including its head of state, may be waived before the International Criminal Court and that their status is not a barrier to their arrest and surrender to the court.

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A non-state party to the ICC Statute has not accepted that provision and the immunity of their diplomats remains intact unless there is an express waiver. If there is a waiver of immunity in relation to a request for a diplomat's surrender, that waiver is treated as extending to proceedings for his arrest and surrender to the ICC.

Article 98 of the statute says:

    "The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity".

The court would not have the power to ask the United Kingdom to breach our obligations relating to state or diplomatic immunity.

If any case arises as to the status of a person named in the request made by the ICC under Clause 2, the determination of his status will be a matter for the court, not for the state party--in this case the United Kingdom--that received that request for provisional arrest and surrender.

The subsection that we are dealing with assumes that there will be consultations between the Secretary of State and the ICC but leaves the Secretary of State with an unfettered discretion to direct that further proceedings shall not be taken, whether or not the person concerned is a national of a state party.

If under international law there is any doubt as to the nationality or immunity of the person concerned, I submit that the correct procedure would be, first, for the Secretary of State to draw the attention of the International Criminal Court to the evidence, showing that that person is a national of a non-state party and that he has an immunity recognised in international law. If the court agrees that the person has immunity, it can then apply to the non-state party for a waiver. If it does not obtain the waiver, the court has the power, under Article 58.4 of the statute, to cancel the warrant of arrest. Clearly it would wish to exercise that power if it was satisfied that the accused had the status which he claimed.

If, after examining the evidence, the court disagrees with the person's claim to the nationality concerned or with his claimed immunity, that is a matter for the court and not for the Secretary of State. The accused may still challenge the jurisdiction of the ICC on any of the grounds of admissibility which are mentioned in Article 17 of the statute. The non-state party which has refused to accept the jurisdiction of the court under Article 12.3 may also challenge the admissibility of the case under Article 19.5. If that were to happen, presumably the competent court in this country would adjourn the hearing of any request by the ICC for the delivery of the person concerned under Clauses 2 or 3 of this Bill until the ICC had determined the question of admissibility.

Perhaps I may refer to the relevant New Zealand legislation; that is, the International Crimes and International Criminal Court Act 2000. The sequence of events that would occur when any question arose of conflict with other international obligations is spelt

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out. There, the Attorney-General must inform the ICC of the supposed conflict and the Minister has the power to defer compliance with the ICC's request until the ICC advises him whether or not it intends to proceed. In the event that the ICC tells the Minister that it intends to proceed, the request must be executed. The ICC, and not the Minister, has the final word, and the same principle should apply in this country.

This particular subsection has far wider implications than for the UK alone. Other countries will be using our legislation as a model: countries in the Commonwealth; perhaps countries in the European Union; and countries further afield. I can only imagine that if some of those countries gave a power to their Ministers equivalent to the one set out in this legislation, it would not always be exercised in the spirit of the statute. If, for example, Iraq is a non-state party which has an agreement with other states to grant immunities to Saddam Hussein and other leading figures in the regime, those other countries may be able to refuse co-operation with the ICC by saying that they have bilateral treaties with Iraq which prevent them complying with requests for arrest and delivery of the alleged criminals.

What would happen if a question arose as to the nationality or diplomatic status of the accused? First, if the accused is a person such as is mentioned in subsection (1), no argument exists as to jurisdiction. If, on the other hand, he is a citizen of a non-state party, then normally a waiver would have been obtained and certified by the Secretary of State under subsection (3).

However, let us suppose that at this point the accused claims that he is not a citizen of the state which issued the waiver but of some other non-state party and that he possessed an immunity as a result of his position in that state. Either way, the Secretary of State would consult the ICC. If they agreed that the accused was what he claimed, the ICC would cancel the warrant. If, on the other hand, they were both satisfied that he was not qualified, the proceedings would continue.

Therefore, the only circumstances in which the power might be used would be either if the ICC disagreed with the Secretary of State or if it wished to determine the validity of the claim for itself rather have it done for it by the Secretary of State. That does not constitute full compliance with the statute and I hope that, on reflection, the noble and learned Lord will agree to reconsider the matter. I beg to move.

3.15 p.m.

Lord Archer of Sandwell: I hope that the noble Lord, Lord Avebury, will forgive me for the fact that I exhibited some surprise when he rose to move the amendment. As I was the only person present whose name appeared to the amendment, I believed that the task would fall to me. However, there is nothing personal in that and I do not in any way question the noble Lord's right to move it. Indeed, I rise to support him.

12 Feb 2001 : Column 14

Perhaps I should say at the outset that the noble Lord, Lord Lester of Herne Hill, and my noble friend Lord Goldsmith, who also put their names to the amendment, asked me to convey to your Lordships their regret that they cannot be here until later in our proceedings. Fate decreed that the amendment was not reached during the first day of the Committee stage when they were present throughout and that it was reached before they were able to be here today.

Perhaps I may also say at the outset that I do not resile from one word that I said at Second Reading. I believe that the Government are warmly to be commended on the lead which they gave in the negotiations leading to the statute, on their determination to ratify the statute as soon as possible so that we shall not dissipate the influence that we have acquired by arriving late at the table, and, accordingly, on finding time for the Bill. Therefore, I have no mission to complain about a gift horse.

I support the noble Lord, Lord Avebury, because, together with my noble friends, I seek to give the Government's artefact an extra polish. I confess that I find it disappointing that successive British governments of whatever complexion have played a heroic role and have then gone out of their way to silence the chorus of approval by ensuring that attention is concentrated not on their achievement but on the defects.

As the noble Lord, Lord Avebury, said, one consequence of Article 27 is that a state which ratifies agrees to waive diplomatic immunities in respect of its own officials in proceedings before the court. That is given effect to by Clause 23. Of course, a statute cannot deprive a potential defendant of diplomatic immunity if the state in respect of which he claims it is not a party to the statute. However, as the noble Lord said, there is provision for that state to waive the immunity if it considers it right to do so because the immunity is there for the benefit of the state which is being served and not of the individual. Clause 23 gives effect to that provision, too.

Those provisions are a necessary corollary of the whole purpose of the statute. Those who commit monstrous offences which fall within the court's jurisdiction are not confined to private soldiers and minor officials. Often they are acting in accordance with a deliberate policy initiated by senior politicians and officials. To provide that they shall be immune from the process would be to frustrate what it is there to achieve. The international tribunals for Yugoslavia and for Rwanda equally provide that there shall be no defence of diplomatic immunity.

That is one of the many ways in which the modern world subordinates the interests of individual states to the needs of the global community. Last year, Mr Kofi Annan expressed that sentiment in a speech to the General Assembly. He said that in a growing number of challenges, the,

    "collective interest is the national interest".

Therefore, as I understand it, we are all agreed on the principle to which Clause 23 gives effect.

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However, as the noble Lord, Lord Avebury, said, for a reason which is not clear--at least, to me--the Bill proceeds to explain that it does not really mean what it says. Although in those situations the right to rely on diplomatic immunity is withdrawn, nevertheless the Secretary of State may direct that the proposed defendant shall not be delivered up to the court. That is a curious provision for at least three reasons.

First, it appears to frustrate the whole purpose of Article 27. Those who might otherwise have relied on diplomatic immunity shall nevertheless be subject to the court's jurisdiction, but only if the Secretary of State decides that they shall.

Secondly, as the noble Lord, Lord Avebury, said, it introduces an executive discretion by a politician into a judicial process. The Secretary of State is not required to give reasons for his decision. If he declines to explain how he arrived at his conclusion, no one has the power to second guess him. Thirdly, it opens the door to diplomatic pressures by other states, including the state of which the prospective defendant is a national, in a process which is specifically designed to protect the rule of law from diplomatic pressures.

The Government gave a commendable lead in the discussions prior to the statute in arguing that the prosecutor should not be subject to political interference, yet that is precisely what the Bill now seems to propose. I understand that implementing the statute may sometimes cause a strain in our relations with another state if that state does not wish to see one of its nationals answerable for his conduct. But I should have thought that in that situation it would make life easier for the Government if they can respond to representations by saying that they have no power to interfere with the process.

The Bill could place the Secretary of State in a situation where he must either refuse the request of the other government to intervene, although he has power to comply with that request, or obstruct a prosecution which the British public and world opinion might wish to see undertaken. That is not a method of protecting the Government from embarrassment; it is a recipe for embarrassing the Secretary of State and creating diplomatic difficulties.

I believe that is the view of the many distinguished NGOs in the field of human rights which have addressed some of us on this subject: Amnesty, Redress, the Medical Foundation for the Care of Victims of Torture and the Parliamentary Group for World Government, which is represented in this House, all of which applauded the Government's work on the statute but are now spending more of their time pressing for changes in the Bill. That is a pity. Those of us who tabled the amendment did so because we want the process to work successfully. We did so not to embarrass the Government but to spare them embarrassment. We are all on the same side. I hope that the Government will listen.

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