Standing Committee D
Tuesday 1 May 2001
[Mr. Frank Cook in the Chair]
Procedure where court makes order
Question proposed, That the clause stand part of the Bill.
Mrs. Cheryl Gillan (Chesham and Amersham): Good morning, Mr. Cook. We have made good progress so far and I hope that we shall make even more progress today. Before passing clause 11, I want to clarify what happened in another place and tease out the Minister's thinking on the changes that have been made to the clause, to which the Opposition tabled amendments.
I refer specifically to clause 11(1)(b), which states that the court shall
``inform the person of his rights under section 12 (right to review of delivery order) in ordinary terms and in a language which appears to the court to be one which he fully understands and speaks''.
The keys to the provision were the level of understanding and the language that would be used. The proposal in the Bill as originally drafted was to use ``ordinary language''. The commendable ensuing debate explored the amendment tabled by Lord Lester of Herne Hill to remove ``ordinary language'' and replace those words with the term
``a language he fully understands and speaks''
and the spirit of that proposal was accepted by the Government. The Attorney-General, the right hon. Lord Williams of Mostyn, said:
``I shall certainly have a look at this matter.''
He undertook to write to Lord Lester and said that he would
``place a copy of the letter in the Library for those noble Lords who may be interested. We want exactly the same thing. I believe that the words `ordinary language' have a virtue even in this Committee.''[Official Report, House of Lords, 8 February 2001; Vol. 621, c. 1319-20.]
However, the virtue of those words was not fully appreciated. When I went to the Library to discover the history of the clause, I perused the letter to which the Attorney-General referredthe letter dated 5 March to Lord Lester of Herne Hill. It dealt only with the Government amendments made on Report; it did not deal specifically with the amendment about ``ordinary language''.
I reiterate for the Committee's edification that the Bill was subject to a supposedly long consultation processalthough I believe that it was too short. The Government implied that, as a result, the Bill was perfect; however, it proved so imperfect that many amendments had to be made on Report in another place, including the one to introduce the terminology now in the Bill. Instead of accepting Lord Lester's amendment which would have inserted the phrase:
``a language he fully understands and speaks'',
the Bill now contains the phrase:
``a language which appears to the court to be one which he fully understands and speaks''.
The letter dated 5 March to Lord Lester explaining the amendments to clause 11 states:
``During the debate on 8 February, the Government agreed to look again at the provision on `ordinary language' in Clause 11(1)(b). In line with views expressed in committee, the amendment seeks to incorporate the need for the person to be informed of his rights to seek a review both in non-technical terms and in a language which it appears he fully understands. The amendment draws and expands upon the wording of the Statute to ensure that each of these distinct considerations is covered.''
I should have thought that to cover the considerations in the statute, the word ``appears'' was otiose. To use the phrase
``a language that he fully understands and speaks''
places a different burden of proof on the matter than inserting the word ``appears''. In the other place, the Earl of Onslow made the eminently sensible suggestion that we could have the best of both worlds if the replacement for the term ``ordinary language'' were:
``the ordinary language that he fully understands and speaks''.
Why did the Government not accept the Earl of Onslow's suggestion, but insist on the higher burden contained in
``which appears to the court to be one which he fully understands and speaks''?
Why have the Government inserted the word ``appears''? How will a court fulfil that section of the statute? What tests will the judge apply to find out whether the person committed to custody understands the language used? How will that person appear fully to understand the language being used? That is especially important given that we may be dealing with people of many nationalities who speak a variety of languages or dialects and who may, as we discussed earlier, be mentally or physically infirm or below the age of consent. At this stage in the scrutiny of the Bill, it is important that the Minister explains fully what is meant by
``appears to the court to be one which he fully understands and speaks''.
and explains what tests the court will apply to ensure that that provision is fulfilled.
The Solicitor-General (Mr. Ross Cranston): The issue is how a person will be informed of his right to ask for a review of the delivery order. As the hon. Lady said, the consultation draft referred to ``ordinary language''. Lord Lester and Conservatives in the other place asked what would happen if the person involved could not speak English. As the phrase ``ordinary language'' would not cover such a case, the Government introduced on Report an amendment to insert the terminology now in the Bill.
The hon. Member for Chesham and Amersham (Mrs. Gillan) asked about the word ``appears''. I imagine that the parliamentary draftsman was trying to deal with a case in which someone feigned ignorance of the language. I am not at all surprised by the particular language in the Bill. Lord Lester welcomed the amendment on Report in the other place, and Lord Howell of Guildford said:
``My Lords, it is now my turn to sayor not to say``Snap''. I agree with what the noble Lord, Lord Lester, has said.''
in other words, he accepted the amendmentindeed, he added:
``We are grateful that the amendments have been tabled.''[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 408.]
Conservatives in the other place accepted the languagethey were perfectly content with it. I suggest that the hon. Lady also accepts it and gets on with the more substantial issues raised by her hon. Friends in other amendments.
Mr. Edward Garnier (Harborough): On occasion, defendants who appear before the English courts are found to be mute of malicethey probably can speak the language and understand what is going on, but they refuse to co-operate with the normal workings of the court. In such cases, it is within the court's power to make a declaration that a person is mute of malice. If a person refuses to co-operate with the court, the court can, of its own motion, take steps to deal with that. Will the Solicitor-General clarify whether, the policy behind the use of the expression:
``which appears to the court to be one which he fully understands and speaks''
was to cope with such occurrences? Unfortunately, in his natural desire and haste to get on to other parts of the Bill, the Solicitor-General did not deal with that aspect of the concerns expressed by my hon. Friend the Member for Chesham and Amersham[Interruption.] If the hon. and learned Gentleman wishes to address the Committee, he should do so on his feet. [Interruption.] That might be help from afar. Nonetheless, it would have been helpful if the Solicitor-General had dealt with that point. He says, from a sedentary position, that he has already dealt with it, but I would be grateful for clarification.
The Solicitor-General: I am reluctant to return to my feet because I dealt with that point when I said that the wording was probably chosen to cover the problem of people who feign ignorance of the language, which was precisely the point raised by the hon. and learned Gentleman. That and other points were adequately covered in the other place, and the official Opposition in the other place were content. We have not yet come to important issues raised by the Opposition in the other place that we have a duty to consider, and I do not think that we should delay the Committee by considering spurious points.
Mrs. Gillan: I consider the Solicitor-General's reply to be extremely discourteous and disappointing. In considering the progress of the Bill, I reject the argument that merely because Members of the other place have agreed that something is better we in this House should be prevented from scrutinising it. That the word of unelected Members in the other place must be taken and elected Members in this House have no right to discuss matters further would be a dangerous precedent for the Solicitor-General to set.
The Solicitor-General is quite wrong in his assertions. I raised the matter on clause stand part out of a genuine desire to discover the thinking behind the insertion of the higher hurdle into the clause. It is rather sad that at this stage a Minister cannot take seriously a point that has been put quite succinctly by the Opposition. I will not divide the Committee, but I have noted the Solicitor-General's change in attitude. He is dismissive of attempts to explore the thinking behind such issuesunlike the Minister of State, Foreign and Commonwealth Office, who has entered into the spirit on many occasions.
The amendment that has featured in our debate was tabled by the Government in the other place. I am sure that the Solicitor-General question anything that was done by a fellow Minister, but his explanation has been derisory.
Question put and agreed to.
Clause 11 ordered to stand part of the Bill.
Right to review of delivery order
Mr. Garnier: I beg to move amendment No. 20, in page 8, line 35, at end insert
`( ) The Secretary of State shall not give directions for the execution of a delivery order where it does not appear to him to be in the public interest to do so.'.
The debate on the amendment will be short. However, its brevity should not deceive us as to its importance. My concerns can be expressed simply. Without such an addition to the clause, the Government would appear to be making an admission that it is no longer theylet alone Parliamentwho will be the decision maker on what is in the public interest. On recent occasions, the courts have made it clear that, as a general rule, the Government of the day decide what is in the public interest in a given situation. Through the absence of the wording which I want to import into the Bill there will be a massivebut hiddentransfer of political and constitutional power to an extraterritorial body. The extraterritorial body concerned is a courtthe International Criminal Courtrather than a Government or an international organisation of the character and nature of the United Nations or the European Union. The way in which that transfer is being effected may not have occurred to members of the public, still less to Members of Parliament, and possibly not even to all members of the Committee. Powers are being handed over wholesale to an extraterritorial body.
The clause states that
``The Secretary of State shall not give directions for the execution of a delivery order until after the end of''
a given period. It includes various other provisions relating to habeas corpus and a prisoner's rights to be released if he is wrongly apprehended, which is fair enough, but those are technical and legal procedural legal matters. However, in an echo of a previous debate, the Secretary of State has no discretion, either on his own behalf as a member of the Government or on behalf of the country, to say that the handing over of a particular person is not in the national interest. He is completely prohibited from exercising any discretion whatever as regards the handing over of an individual to that extraterritorial body in the event that the defendant does not come under one of the exceptions that we considered under clause 5, or cannot be released following a court hearing for habeas corpus.
It will no doubt be saidand I will have to take it on the chinthat that is just bad luck. The treaty that the Government have agreed says that the ICC has complete power over that aspect of our proceedings and nothing can be done about it. The treaty is the treaty: the statute of Rome cannot be amended by this Committee, let alone Parliament as wholeand I shall have to lump it. None the less, I want the Government to place their thinking about the clause on the record. Ministers should explain to the public why they are prepared to hand over those powers to that extraterritorial body. I shall be happy to listen to any explanation. On behalf of my constituents, I am extremely worried that the Government are preparednot only through clause 12, but other clausesto hand over willy-nilly huge domestic constitutional powers to an extraterritorial body over which Parliament has no influence.