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I entirely support my noble friend Lord Lester of Herne Hill in believing that the appropriate test is not a residence test at all but is a presence test. However, the amendment assumes that a residence test is being applied and makes an attempt to clarify it to some extent. The problem is that the residence test is both highly flexible and highly uncertain. For instance, there is no single definition of residence for the purposes of the law of England or the law of the United Kingdom. Residence for tax purposes is not the same as the residence that is necessary for founding jurisdiction in divorce cases. For tax purposes, residence depends on fulfilling a number of different possible criteria. One has to look at the length of the stay, the reason for the stay and the availability on a long-term basis of a house or flat--somewhere to live in the United Kingdom.
In fact, the Inland Revenue applies a fairly detailed set of tests. For example, in normal circumstances, spending 90 days or more in this country in four consecutive years is sufficient to establish residence.
It is therefore at least possible that the court would say that residence for the purposes of the Bill meant something more like ordinary residence for tax purposes. In particular, a court might say that someone could be treated as resident in the United Kingdom only if the United Kingdom was his or her principal place of residence. That would narrow the jurisdiction too much. We believe that the courts of this country should have jurisdiction over someone who, for example, has a house here and regularly spends a few months a year in that house. It is immaterial that the same person might also reside in another country and might indeed spend more time in that country than he or she spends in the United Kingdom.
It would therefore be useful to have Amendment No. 47, which makes it clear that the residence test does not require the United Kingdom to be the sole or principal residence of the alleged perpetrator. Amendment No. 47 would also mean that the definition in the amended Amendment No. 46 would now serve some useful purpose and would not be entirely circular.
Lord Archer of Sandwell: My Lords, at the risk of being repetitive, my position on this group of amendments is very similar to the one that I expressed in an earlier debate. My noble friend's amendment does not represent all that some of us would have wished. If I thought that the amendment moved by the noble Lord, Lord Lester, had any prospect of being accepted, I would have done all I could to pursue it. But I am aware of how hard my noble friend has worked to achieve this degree of progress and it would be churlish not to express my appreciation for that.
As the noble Lord, Lord Lester, remarked, the amendment does represent an improvement. It addresses what threatened to be the scandalous situation which would have arisen had a notorious war criminal or a person charged with crimes against humanity been known brazenly to be living in this country if the authorities had been unable to do anything about it.
However, I take a rather different view of Amendment No. 47, to which the noble Lord, Lord Goodhart, has just spoken. I should have thought that it was not impossible to persuade the Government to reconsider it. Quite clearly, the word "residence" embraces a range of ambiguities. I am clear that the definition we have at the moment is straight out of Alice in Wonderland. I seem to recall, although I cannot remember where I saw it, a definition in a piece of subordinate legislation which defined a smoked
Lord Avebury: My Lords, perhaps I may ask the noble Baroness a question which I put to her in Committee but to which I do not think I received a reply. Can she cite any other example in the whole of our criminal law where we are obliged to arrest and extradite to another country someone for acts committed which are not offences in our jurisdiction? If this is a departure from the usual practice--namely, that when we arrest someone and extradite him to another jurisdiction, we must ensure that it is an offence under our law--can she give any conceivable justification for this departure from a time-honoured practice?
That is a technical point, but I am concerned more with the practical effects of limiting our jurisdiction to persons who are resident here. As the noble and learned Lord, Lord Archer, pointed out, not only is it scandalous if we allow people to take up residence when we know that they are war criminals; it is equally scandalous if we give them permission to come and shop at Harrods, to obtain medical treatment or simply to enjoy a holiday here, as many of them would do if they knew that they had the immunity given to them under the present drafting, even with the addition of the amendment before us.
When the noble Baroness states that war criminals are on notice that this country is not a place where they can retire in peace, does she honestly think that anyone would contemplate retiring here in the knowledge that, irrespective of whether we would deal with them in our courts, they would be liable to arrest and extradition to the International Criminal Court? Is it not much more necessary for us to deal with the case when someone is only temporarily in our jurisdiction? Furthermore, when the noble Baroness states that these cases are ones where there is no clear nexus to the United Kingdom, what if the offence concerns the murder of British citizens?
At the risk of tedious repetition, perhaps I may call the noble Baroness's attention to a case which I have mentioned before; namely, the case of Colonel Yunus Yosfiah, the commander of the Indonesian troops at Balibo in October 1975, who murdered two British citizens. He has never been brought to justice for those crimes, but, unknown to us, he was a guest of Her Majesty's Government. He came here to attend college as a guest of the Ministry of Defence and spent several months within our jurisdiction. He then peacefully went back to Jakarta. If such an event were to occur in the future--namely, that someone came to this country for a temporary purpose and it was brought to the attention of the authorities that the person had been responsible for the murder of British citizens--
I understand that over the past couple of weeks the Australians have released a great many documents which concern the events which took place at Balibo. Five newsmen, including two British citizens, who worked for an Australian TV channel were cold-bloodedly massacred by the clandestine Indonesian invasion forces. Is the noble Baroness saying that no case of that kind could ever come to our notice in the future, where such a war criminal would swim into our jurisdiction and be here for a temporary period without taking up residence, and that we would not then wish that we had taken the powers that we could have done under the Bill to arrest that man and bring him before our courts?
Lord Goldsmith: My Lords, the first thing to acknowledge is the very important principle that has been accepted by the Government in bringing forward the amendment. At earlier stages of the Bill, a number of noble Lords, including myself, expressed grave concern that someone could come and hide here; that we could have a situation where a war criminal, a despot, a tyrant, was able to make Britain a safe haven. That was our primary concern. I believe that the Government have accepted that principle by the amendment they have brought forward. I very much share the expression of appreciation that my noble and learned friend Lord Archer of Sandwell has given to the Minister.
So the principle is accepted. One then comes to the very important detail of how one identifies who should be subject to the jurisdiction of the court. First, there is the Canadian model--a model which, in Committee, I proposed as a possible solution--based on presence. The problem with presence is that it is not a perfect solution either. Presence can range from the kinds of extended stay to which the noble Lord, Lord Avebury, referred, to mere adventitious presence for a very short space of time.
One has a similar problem when the courts deal with jurisdiction in the context of civil matters. Is it right that the court should take jurisdiction over someone who is here on a very temporary basis as a tourist passing through? I can understand--I do not know whether this lies behind the Government's concerns--that there may be occasions when political pressure may be applied in circumstances where someone is on a very temporary visit. I am not convinced that presence is without its difficulties.