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Lord Archer of Sandwell: My Lords, since my noble friend moved Amendment No. 26, I assume that we are entitled to debate it.

The Deputy Speaker: My Lords, the Minister spoke to it.

Lord Archer of Sandwell: My Lords, I stand corrected. I have often corrected other noble Lords on that point. My noble friend spoke to Amendment No. 26 but is proposing to move it and we are, I understand, entitled to debate it now. I believe I have got that formula right.

I intervene only to say that all of my sympathies are with the comments of the noble Lord, Lord Lester, but I know how hard my noble friend fought to gain this half loaf. Speaking for myself, I should seize the half loaf and give thanks.

Lord Kingsland: My Lords, I am delighted to say at least once today that I wholly share the view expressed by the noble and learned Lord, Lord Archer of Sandwell. I have every sympathy with the motives that lie behind the amendments that were moved by the noble Lord, Lord Lester, but on balance the noble Baroness has on this occasion got it absolutely right.

Lord Carter: My Lords, I am completely out of order--after the Minister has spoken, only the noble Lord who moved the amendment should speak.

Lord Archer of Sandwell: My Lords, that is why I asked my question.

Lord Lester of Herne Hill: My Lords, it is clear from the statements that noble Lords have made, although they are out of order, that we are in a conciliatory and "ungreedy" state, in that we are settling for half loaves rather than no bread.

I shall obviously reflect carefully on the noble Baroness's comments. The Government are clearly open minded; they have not closed their mind at all in this context. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Baroness Scotland of Asthal moved Amendment No. 26:

    Page 13, line 23, leave out from ("Part") to end of line 24 and insert ("which, but for subsection (1) or (2), would be prevented by state or diplomatic immunity attaching to a person shall not be taken against that person").

On Question, amendment agreed to.

[Amendment No. 27 not moved.]

Clause 39 [Production or disclosure prejudicial to national security]:

Lord Lester of Herne Hill moved Amendment No. 28:

    Page 19, line 13, at end insert--

("( ) The decision to refuse to disclose a document or a piece of information to the ICC, or the decision to issue a certificate under this section, shall not be made unless the Secretary of State has consulted the ICC, as outlined in Article 72.").

The noble Lord said: My Lords, as the Bill stands, Clause 28 will allow the Minister to issue a conclusive certificate to the effect that documents or information could not be disclosed if they were prejudicial to the security of the United Kingdom.

The ICC statute states in Article 93, paragraph 4, that in accordance with Article 72, a state party may deny a request for assistance in whole or in part only if the request concerns the production of any documents or disclosure of evidence relating to national security. Article 72 sets out the procedure to be followed when a state refuses to produce evidence on the grounds of national security. It provides that when a state takes such an action, it should act in conjunction with the prosecutor, the defence or the trial chamber to seek to resolve the matter. Steps to avoid a clash with national security should be taken. For example, requests could be modified or the information could be provided in another form.

Article 72, paragraph 7, accepts that there may be some circumstances in which the evidence withheld might be relevant and necessary for the establishment of the guilt or innocence of the accused. It also provides that in cases involving an ICC request for assistance, the court can enter into further consultations with the state and the court may refer the state to, among others, the Security Council as being in breach of its obligations under the statute. The court may also make such inferences of fact as may be appropriate in the circumstances.

In Committee, Conservative Front Bench spokesmen tabled some probing amendments to the national security provisions and the Attorney-General accepted, as I understood it, that any decision to refuse disclosure on national security grounds would have to be made according to the procedure that is laid out in Article 72. However, the noble and learned Lord felt that the Bill would be read together with the statute without the need for a specific reference.

In replying to the suggestion that a reference was necessary, the noble and learned Lord the Attorney-General noted that he did not believe one was

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necessary, otherwise on every occasion, one would have references. But, as the noble Lord, Lord Kingsland, noted in his reply,

    "this is not any old matter in the Bill; this is one of the most crucial clauses in the Bill".--[Official Report, 12/2/01; col. 65.]

In other clauses, references have already been written in; for example, Clause 65 on command responsibility refers to the statute, Article 26, and Clause 66 on the meaning of intent refers to Article 30. The purpose of this amendment is simply to put the position beyond doubt. I beg to move.

Baroness Scotland of Asthal: My Lords, the Government made clear in Committee that we consider that the provisions of the Rome Statute in Article 72 will come into play should the ICC request the release of information which the Government consider should not be released on national security grounds. That is also made clear in paragraph 69 of the Explanatory Notes which sets out the procedure in the statute and states explicitly that that clause must be read in light of the rights and obligations of a state party under the ICC statute. I am very happy to restate that now.

We take very seriously indeed the issues raised by the noble Lord, Lord Lester. Were the situation to arise in which we considered that the release of the material sought by the ICC would prejudice national security, we should seek to resolve that matter by consultation with the ICC, in accordance with our obligations in Article 72.

I understand that the noble Lord, Lord Lester, seeks to make an explicit reference to the provisions of Article 72 on the face of the Bill. We have considered that question since it was raised in Committee. We concluded that such a reference would not be appropriate. From a drafting point of view, it would open the question of why we were not making innumerable other references to articles in the statute on the face of the Bill. We do not think that such references are necessary or desirable. We have therefore sought to keep them at a bare minimum.

The House is aware that, in ratifying the Rome Statute, we should be bound by the provisions in it, and that applies no less in this case.

Although Article 72 is not referred to on the face of the Bill, it is referred to in the Explanatory Notes and we have placed it on record during our debates in Committee and again today that we shall consider whether reference can again be made in any post-legislative explanatory memorandum.

Lord Avebury: My Lords, before the Minister sits down, will she explain why it is necessary to refer to consultations with the ICC in Clause 23(4) and not in this place in the Bill?

Baroness Scotland of Asthal: My Lords, we have looked very carefully to see whether greater clarification in relation to each part is necessary. We

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agreed to that inclusion in the clause to which the noble Lord referred. The noble Lord will know that Article 72 is extensive and we should wish for scrutiny of the whole article to be undertaken when that issue is to be considered.

We have thought about it carefully. I assure the noble Lord that had we felt on balance that the clarity would be better served by including it, we should have come to that conclusion. On this occasion, we decided that that is not necessary. But that in no way undermines the importance of the article, and we have made that absolutely clear both today, I hope, and in Committee. As I said to the noble Lord, we shall make it clear again in any explanatory memorandum which is issued once this Bill becomes a statute and passes into law. I hope that that will satisfy the noble Lord, Lord Lester, and he will feel sufficient comfort to be able not to press the amendment.

Lord Lester of Herne Hill: My Lords, before the Minister sits down, when she refers to "any explanatory memorandum", is that the admirable new procedure whereby what we used to call Notes on Clauses are then updated on the completion of the Bill through all its stages and they then form some extrinsic evidence of what is intended? Does she have that new procedure in mind?

10 p.m.

Baroness Scotland of Asthal: My Lords, it would be similar in as much as once this Bill becomes law it is contemplated at the moment that we would issue with it certain guidance notes that would assist those who go through the Act to understand better the way in which it is intended to work. The noble Lord will know--I believe that we saw an example of it in Committee--that sometimes there are those who find it rather challenging to track the provisions of the statute through with the Bill. It is thought that if there are such explanatory notes issued after the Bill becomes law, that may assist with that process.

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