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Lord Lester of Herne Hill: My Lords, before the noble Lord, Lord Goldsmith, comes to the alternative, does he agree that one of the great problems about the residence test is that it will be bound to produce impossible anomalies? Let us take the case of mercenaries, drawn from various countries, who commit terrible atrocities in, say, the Congo; some of

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them are then resident here and some of them are present here. Only those who are resident here are able to be prosecuted. Just for good measure, let us assume that one of them is guilty of torture, where one does have jurisdiction irrespective of any residence test. Does the noble Lord agree that that would produce the ridiculous situation where we would be able to prosecute only some parties to a joint enterprise in which all parties are equally guilty of terrible crimes?

Lord Goldsmith: My Lords, it is extraordinarily unfair of the noble Lord to turn against me examples that I put in Committee in arguing against the position then taken by the Government.

The noble Lord, Lord Goodhart, is right: that was the initial reaction that I and other noble Lords had in Committee when my noble friend the Minister referred to the residence test and the uncertainty. It may be that a better word can be found before Third Reading.

This amendment does two things. First, "resident" hits at those people whom we want to ensure are caught by the provision, the scandal which has been referred to. I share my noble and learned friend's view; I should very much like to hear the Government's response to Amendment No. 47, which has been tabled by the noble Lord, Lord Goodhart.

One can even say that there is an advantage in the uncertainty; that is, it would be very hard for any lawyer to advise a tyrant or despot who was thinking of spending some time in this country that he could safely say that he is not resident. I was concerned, as were other noble Lords, that these people should not be able to find peace.

However, it does not fill the complete gap within which there may be cases where the international court cannot intervene. I do not believe that it is right to say that this country should be the alternative International Criminal Court. I hope that it will mean that all noble Lords--I have in mind especially those noble Lords on the Benches opposite--will help to persuade other countries, including the United States, that they should join the circle. That is the best way to fill the accountability gap.

Lord Kingsland: My Lords, in a further attempt to make myself unpopular with members of my own profession in your Lordships' House, I should like to remind noble Lords that the Opposition Front Bench supports the views expressed so eloquently by the noble and learned Lord, Lord Lloyd of Berwick, on Second Reading. We have no objection whatever to the Government's attempt to extend the definition in the original draft of the Bill by adding the residency test. However, I greatly sympathise with the smoked haddock of the noble and learned Lord, Lord Archer of Sandwell. If one looks at the latest edition--I believe that it is the sixth--of Stroud's Judicial Dictionary of Words and Phrases, which is not a publication known for its prolixity, it will be seen that it devotes nearly five pages to the definition of "residence".

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I believe that the Government owe it to your Lordships to be a little more specific about what type of residence they have in mind; otherwise--in circumstances where someone who is not a national but is a resident finds himself, or, indeed, herself, in the firing line--there is likely to be a very long and drawn-out test case about the meaning of "residence". Indeed, as issues of residence are always issues of fact, those long drawn-out arguments might recur each time a new case arises. Therefore, it should help your Lordships enormously if the Government could reach out a little further than they do in Amendment No. 46, which seeks to define "residence" in a circular fashion. Perhaps I may humbly suggest to the noble Baroness that they should try to be a little more specific.

Baroness Scotland of Asthal: My Lords, just by virtue of the debate that we have had so far, one can see how difficult this issue has become. Speaking for myself, I have been most grateful for the contributions that have been made by all noble Lords through the various stages of the Bill, as we have wrestled with what we all recognise to be a very knotty issue indeed.

However, a number of factors are plain. To begin with, we are all in agreement about the mischief that we seek to cure; namely, that those who are responsible for war crimes should find no comfort or succour within this jurisdiction. We are all also clear that we wish them to suffer the most acute anxiety about their well-being when they set foot--if they were to set foot--on British soil.

One comes to the issue as to how best to express that intent. "Residence" has been alighted upon as the most appropriate term to meet the needs of the situation. At the previous stage of the Bill, a number of noble Lords expressed some concern about what the Government meant by "resident" or "residence", and that concern was echoed again this evening. I referred previously to the "flexibility" that this would give us.

What I mean by "residence" being flexible is that it is not a status like nationality, which is all or nothing and can be simply defined on paper. Residence depends on a variety of criteria, and is best decided upon by a competent court in possession of all the facts of a particular case. Residence is a question of fact. A person's actions, such as purchasing a property or beginning a job in this country, would be factors that would point towards that person being resident here.

Of course, it is difficult therefore to legislate precisely for each such occasion. However, the flexibility of the term "resident" is important in itself. If we attempted to place on the face of the Bill all of the factors that we considered indicators of residence, we would almost certainly leave gaps. That would defeat our purpose.

Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. Would this be a case where the admirable Explanatory Notes procedure

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might be used to make it clear to everyone that a flexible and generous interpretation ought to be given to the concept of residence?

Baroness Scotland of Asthal: My Lords, it would certainly constitute an opportunity for us to reflect on the meaning that we feel would be appropriate to residence in the broadest terms, as I seek to do in your Lordships' House this evening. Certainly we could consider how best to deal with that matter.

For example, one of the factors that could go on the face of the Bill would be the length of time that someone had spent in the country. However, it is the Government's view that this could well be a false indicator, as a person's actions may well mark him or her as resident long before any rigid time limit was reached. This could also apply to other issues. I refer to the example I gave earlier concerning someone taking out a lease. He or she could do that quickly before they had been here long. That may be an indicator that the court would be entitled to take into account in determining that the person intended to reside here.

It is certainly the Government's view that we should leave the determination on whether a person is resident to the United Kingdom courts. Your Lordships will note that we have simply used the word "resident". We have not used the terms "ordinarily resident" or "habitually resident". The noble Lord, Lord Goodhart, has a great deal of experience of our tax law. Different interpretations of residency--we touched on them in Committee--are used in relation to the Hague Convention as regards international child abduction.

This type of jurisdiction has been taken twice before in the War Crimes Act 1991--the noble Lord, Lord Lester, referred to that measure which we touched on in Committee--and the Sex Offenders Act 1997. I accept that the War Crimes Act has resulted in only one successful prosecution. But this was not because there was a debate over whether or not the individuals concerned were resident in the United Kingdom. As your Lordships will be aware, the small number of prosecutions had more to do with the narrow time-scale in which offences had to have occurred and the increasing age of the suspects.

Part II of the Sex Offenders Act 1997 provides courts in the United Kingdom with the jurisdiction to deal with British citizens and United Kingdom residents who commit sex offences against children abroad. There has been one conviction under Part II of that Act. On 21st January 2000, the British owner of a French campsite was extradited from France to this country and was convicted of indecent assault on a number of girls and sentenced to three years' imprisonment.

I hope that those cases taken together will demonstrate to your Lordships and to any criminals considering coming here that where we take extra-territorial jurisdiction we are not afraid to use it.

The noble Lord, Lord Avebury, asked pointedly why we are doing now that which we have not done before in relation to dual criminality. I say openly that

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after debate and discussion in this House this was the first of our two concessions on how we address this issue. It was a concession to those who, like the noble Lord, Lord Avebury, spoke with such passion and sincerity about universal jurisdiction.

The second approach we have taken is in relation to introducing residency. We make no apology that we are breaking with tradition in this case to do that which the noble Lord has already outlined. Because of the importance of the offences with which we are now dealing, having been persuaded by the oratory of all Benches, it seems right and appropriate so to do.

A number of noble Lords mentioned the Canadian model and asked why we do not use "presence". My noble friend Lord Goldsmith is right when he outlines the inherent difficulties in using that term. We have thought long and hard about the issue. It is not a conclusion to which Her Majesty's Government have come with any great ease.

The amendments tabled by the noble Lord, Lord Lester, would have the effect of extending jurisdiction of domestic courts over non-UK nationals present in the United Kingdom who have committed an ICC offence abroad. The Government consider that "resident in the United Kingdom" is the right approach.

We agree with the sentiment behind Amendment No. 47. "A United Kingdom resident" may indeed be resident in more than one state, as the noble Lord, Lord Goodhart, has set out clearly. That is proper British law. It has been interpreted in that way on a number of occasions. I am happy to make clear today that we would also be happy, if necessary, to make that clear in the Explanatory Notes to which the noble Lord, Lord Lester, referred.

None the less, we believe that it is unnecessary, even undesirable, to specify this on the face of the Bill. Perhaps contrary to appearances, our Amendment No. 47 is not an unnecessary tautology, as I think that the noble Lord, Lord Kingsland, hinted in his usual kind fashion. "United Kingdom resident" is used in the Bill as a useful shorthand to aid drafting. In due course there is a need to explain what we mean by "UK resident". By saying that it means that a person is "resident in the United Kingdom" we are deliberately using the same wording as in the War Crimes Act 1991 and the Sex Offenders Act 1997. We are deliberately saying that a simple test of residence applies, instead of more restrictive terms such as "habitually resident" or "ordinarily resident".

To accept the amendment tabled by noble Lords would be to move away from the wording used in the War Crimes Act and the Sex Offenders Act. By so doing it would cast doubt on the width of the meaning of the words "resident in the United Kingdom" where they are used in the 1991 and 1997 Acts and indeed where used elsewhere in this Bill. In all these cases we believe that someone resident in the United Kingdom can mean someone who is also resident in one or more other countries and we would not want this to be put in any doubt.

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I hope in the light of this explanation that noble Lords will not seek to press the amendments.

On Question, amendment agreed to.

10.45 p.m.

[Amendment No. 31 not moved.]

Clause 52 [Conduct ancillary to genocide, etc. committed outside jurisdiction]:

[Amendments Nos. 32 and 33 not moved.]

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