International Criminal Court Bill [Lords]

Public Bill Committee, 26 April 2001.

Standing Committee D

International Criminal Court Bill [Lords]

Frank Cook (Labour, Stockton North)

I apologise to the Committee for my late arrival. There is a first time for everything, and this is the first time that I have been late in more than 10 years.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

On a point of order, Mr. Cook. On behalf of the Committee, may I say that I am delighted that you are here and that nothing untoward has befallen you? As you rightly said, in 10 years, you have never been late for a Committee, and I think that you are allowed to be late once every 10 years. We are delighted to have you in the Chair. Members on both sides of the Committee were worried about you.

My serious point of order is not necessarily for you, Mr. Cook, but for the authorities that look after the procedures of the House of Commons. In our first sitting, when we were debating the programming motion, I said,

``Far be it from me to suggest this, Mr. Cook, but the Chairman of the Committee might unaccountably be detained and not show up. I believe that there is no mechanism in the Standing Orders of the House for reclaiming lost time on the debate and scrutiny of any Bill.''—[Official Report, Standing Committee D, 10 April 2001; c. 6.]

That observation sprang from my experience in the Committee on the International Development Bill, where the same thing happened. An untoward event befell another Chairman and he was late, so time was lost for scrutiny of the Bill.

You might not want to comment on that now, Mr. Cook, but I wanted to put the matter on the record. A Chairman can be replaced by any member of the Committee, with its permission. I request the authorities of the House of Commons to examine whether there should be a mechanism by which we could start proceedings in the Chairman's absence, so as not to be impeded in our examination of the Bill.

Frank Cook (Labour, Stockton North)

I thank the hon. Lady for her point of order, which is well taken, and offer a comment. Had there been five Chairmen for the Committee this morning, I would still have been late. I was late because I was working and unavoidably detained on parliamentary duty. Had I been able to foretell that unexpected work pressure, I would have been able to get a Chairman for the Committee, even though I am its sole appointed Chairman.

A provision was made on Monday this week, when the Programming Sub-Committee was to sit at 6.30 that evening and I had constituency duties in the morning. I kept in constant contact with the chief Clerk and with our worthy Committee Clerk to relate my progress down the M1 so that everyone would be assured that, if necessary, an emergency Chairman could be put in place. I assure the Committee that this morning's event was extraordinary and that I have no intention of being known as the late Mr. Cook, at least not in the next 10 years. The remarks are on record and I am content to leave it at that; there is no need to take further action.

Clause 2 - Request for arrest and surrender

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 2, in page 2, line 19, after `demonstrate', insert `beyond reasonable doubt'.

The clause covers the circumstances in which the Government are required to act on a request from the International Criminal Court for an individual to be arrested, or to secure his or her surrender to that court. That request may refer to someone who is accused of committing a crime, as defined by the statute, or who has been convicted by the court and is not in custody. Subsection (4) sets out the documentation that could accompany the request when someone has been convicted, but the request has not been accompanied by a warrant. If we wanted to examine the source material on which the subsection is based, we would go to article 91.3 of the statute. As I am sure the Minister appreciates, the purpose of the amendment is to ensure that no person should be subject to arrest and detention unless he or she has been shown to criminal standards of proof to be the person identified in the request. The amendment is simple.

The matter was discussed in another place, but I felt that it was apposite to return to it at this stage because it deals with a convicted individual, rather than one who is, say, only accused and thus is facing an earlier stage in a trial by the ICC. The amendment would ensure that the best care and attention is given to establishing that the person sought is the self-same person to whom the judgment refers. The highest standard of proof should be a requirement before an officer issues a warrant for arrest.

From following the debate in the other place, I know that there is some sympathy for that line of thinking. We have tabled the amendment to give the Minister the opportunity to re-examine that part of the Bill. If the amendment is accepted, it will provide protection for an individual over whose identity a sufficient element of doubt existed, and will avoid a situation where, although an individual's identity was in question, he could still find himself handed over to the ICC.

This debate will be extremely useful and will put on record the views of the Government and concerns about the Bill. The individuals with which this part of the Bill deals could face a long period of incarceration and could have been convicted, under the statute, of some heinous crimes. It is doubly important that we ensure that someone who has already been convicted is the same person to whom the sentence is applicable. I fully acknowledge that in another place the Attorney-General, Lord Williams of Mostyn, was unprepared to accept either the amendment or the reasonable suggestion of replacing the phrase ``beyond reasonable doubt'' with the words ``more likely than not''.

It is important to hear the Minister's reply. By refusing to accept ``beyond reasonable doubt'' and to consider the helpful suggestion of ``more likely than not'', it is implied that even if the court and its officers were less than 50 per cent. sure that the identity of the person before them was the same as that of the convicted individual, the court would still have to hand that person over.

The purpose of the amendment is to seek reassurances and put them on the record, while trying to persuade the Minister to accept an amendment that is, I believe, reasonable. A high standard of proof should be required before the judicial officer issues the warrant. I hope that the Minister agrees that it is important for the courts to make sure that the right person is surrendered. It is highly desirable that the standard of proof should be ``beyond reasonable doubt''.

Des Browne (Labour, Kilmarnock and Loudoun)

I am trying to follow the hon. Lady's reasoning. It is not my understanding that, in our domestic law, before people can be arrested, we require police officers to be satisfied ``beyond reasonable doubt''. We require them to be satisfied to different standards, and we do not need to go into those now.

As I understand the Bill, however, no one can be delivered unless the court makes a delivery order. The requirements in clause 5 about the proceedings for the delivery order require the court to be satisfied that the conviction relates to the person before it. Is clause 2 the right place to put the standard of proof, or should the amendment require the authority that makes the delivery order—that is, the court—to be satisfied ``beyond reasonable doubt'', if that is the standard of proof that the hon. Lady requires?

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The hon. Gentleman's point is valid, and he could be right. Unlike me, he is a distinguished lawyer—

Des Browne (Labour, Kilmarnock and Loudoun)

Am I?

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am sure he is.

Gerald Howarth (Conservative, Aldershot)

Is he expensive? That is the question.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The hon. Gentleman is a distinguished and expensive lawyer and the point he raises is extremely helpful. I hope that the Minister will enlighten us on it. Perhaps I am demanding the inclusion of something that is already implicit, but it would be reassuring if that were done. We are dealing with an individual who has already been convicted and escaped, and who will go straight to jail, will not pass go and will not collect £200. The person will be beyond the process of law, and in the convicted period of his or her life. We need to make sure that we have the right person for the sentence.

I hope that the Minister has had a chance to reflect on the proposal. If he can include the safeguard in the Bill, it will reassure hon. Members and those in the other place who have raised the issue during the Bill's scrutiny.

John Battle (Labour, Leeds West)

I agree with the hon. Lady that there must be a high standard of proof and that the right person should be surrendered. That is common sense and should be good legal practice. To arrest and hand over the wrong person would be to go down a cul-de-sac that would be in no one's interests, would waste time, and would be prejudicial to the person concerned.

It seems that the amendment relates to a situation in which the United Kingdom has been asked to surrender a convicted prisoner—presumably an escapee—and the UK court has to satisfy itself that the person sought and the person arrested for surrender are one and the same. The amendment requires the appropriate judicial officer to apply the criminal burden of proof to the information that should be produced to demonstrate that the convicted person sought by the ICC is the one referred to in the judgment of conviction. My argument is that to introduce a further test at this point would be a case of belt and braces. I think that the hon. Lady said that she hoped that I would reassure her that the amendment was unnecessary because it is already implicit in the Bill, and that is my argument.

Gerald Howarth (Conservative, Aldershot)

I apologise for being a few minutes late. I cannot blame British Rail—I have just come from Cardiff where the train was on time. However, the tube, for which I believe Mr. Livingstone has responsibility, was somewhat delayed.

Crispin Blunt (Conservative, Reigate)

It is Mr. Prescott.

Gerald Howarth (Conservative, Aldershot)

Is it the Deputy Prime Minister?

Does the Minister envisage a circumstance in which the court convicted someone in absentia, perhaps a member of Her Majesty's armed forces, but there remained a belief in this country that the wrong person was being sought by the court? For example, the court might seek an airman who was responsible for a bombing, while we believed that someone higher up the line—perhaps an air marshall—would be the more appropriate person to seek. What would happen in such a circumstance?

John Battle (Labour, Leeds West)

I wonder whether the hon. Gentleman understood what the hon. Member for Chesham and Amersham (Mrs. Gillan) said. We are talking not about anyone being picked off the street, but about someone who has been convicted. The key point is that there will not be convictions in absentia by the ICC, so his example would not arise.

To accept the amendment and introduce a further test of the standard of information that should be produced would create a situation where the United Kingdom could potentially breach its international obligations. That would undermine our position. The amendment could introduce an additional barrier to the surrender of a fugitive who was a convicted war criminal. The hon. Lady may wish to apply the criminal standard of proof as to whether the person sought by the warrant is the one referred to in the judgment of the warrant, but we must be clear about what the processes and procedures will be in the context of arrest. As was reflected in the comments by the hon. Member for Aldershot (Mr. Howarth), we tend to assume that an atrocity has taken place and that we know from the media who is vaguely responsible, jump to judgments in our minds, and have the person before the court and locked up before they have gone through the procedures. I suggest to the hon. Lady that through this part of the Bill we are patiently, carefully and legally going through every procedure to ensure that the right accusations are made—that they are justified and are backed by evidence—and that the right person is brought before the court. That will produce a consistent process all the way through. Sometimes, in our imaginations we think, ``There's been an atrocity and we know who the culprits are; bring them to book and get them arrested, put them in front of the court and lock them up quickly.'' The Bill sets out the careful processes that start some time earlier.

The UK court in such a situation would not be trying the case, but fulfilling the request from the ICC to surrender a convicted person.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Am I right to assume that, because it is not a judicial process but a process of collecting someone who has been convicted and handing them back to the court, the Minister is prepared to accept a lesser onus of proof when deciding who the individual is than he would accept in our domestic law? Even if the court were not 100 per cent. sure—if, for example, the person had the same name as the convicted, but was innocent—would the Minister be happy if authorities in this country had no onus upon them to establish the identity of that individual, and could willingly hand him or her over? It is not impossible that someone called John Smith might be convicted, and there are several John Smiths. I am trying to establish whether the Minister is happy to accept a lower standard of proof in this area than he finds acceptable in other parts of our judicial process.

John Battle (Labour, Leeds West)

The hon. Lady poses a fair question, but it is not a lower standard. The court will need to be satisfied that the person before it is the fugitive wanted by the requesting country, and named in the Minister's authority, if it is to proceed. In extradition cases now, the divisional court has confirmed that the test applied to the quality of identification evidence is the same as that applied in determining whether there is a sufficient case to answer in criminal proceedings. I am not a lawyer, but I understand that that is called the Galbraith test. My hon. and learned Friend the Solicitor-General probably knows it in detail. The information before a magistrate should be such that it would be bound to lead him to the conclusion that he reached about the person's identity. There does not need to be a double standard.

The Bill makes provision corresponding to the relevant article of the Rome statute, 91.3(c), without applying any burden of proof test. If the UK court is not satisfied about the person's identity, it will not provide for their surrender. That is the first hurdle to get over, the first built-in proviso. There is also a possibility under clause 12 for the person to appeal against the delivery order on the ground that he or she is not the individual sought. In that case, the High Court will have to consider the matter. A series of processes will give the convicted person room for appeal. There is no need for the additional test in the amendment, which might also put us in breach of our international obligations.

Des Browne (Labour, Kilmarnock and Loudoun)

I agree with the argument that my hon. Friend is advancing, but I have a question because of the terms of the statute. They envisage that no request for surrender of a convicted person will be supported other than by a warrant. That is my reading of article 91.3, which says:

``In the case of a request for the arrest and surrender of a person already convicted, the request shall contain or be supported by''

a copy of a warrant. In this subsection, we seem to be anticipating circumstances in which a request for the surrender of a convicted person will not be accompanied by a warrant. There are likely to be few, if any, of those. In what circumstances does my hon. Friend envisage that there will be no warrant?

John Battle (Labour, Leeds West)

I am advised that there is a standard provision of summons, which would cover the case. It is right to envisage the worst possible cases to ensure that there are no gaps in provision. The idea and policy that we are trying to carry through in setting up the court, and handing people over to it, is that the right people are brought before it and that they are properly tried before it. That must tie in with our procedures, which are good—we have good law in that respect. I hope that the standard procedures here will be helpful.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The hon. Member for Kilmarnock and Loudoun (Mr. Browne) raised an important point. As I read it—perhaps the Minister can confirm it—the wording of 91.3(a) is

``a copy of any warrant of arrest'',

which implies that there may be a situation in which there is no warrant. I presume that the law that we are seeking to enact will cover that strictly, and fill a potential lacuna. I am sorry, I am helping the Minister out, but I was examining the matter and wondering what would happen if there were no warrant.

I feel that the Bill is here correcting what is almost a lacuna in the Rome statute and ensuring that we do not have faulty legislation; in that, the word ``any'' is the crucial point. Can the Minister confirm whether my thinking is correct?

John Battle (Labour, Leeds West)

The hon. Lady is absolutely right, and I am grateful for her clarification. The statute reads

``a copy of any warrant'',

and the word ``any'' is crucial. That ties us into the circumstances that we are discussing. Clause 2(4)(b) is trying to follow the wording of article 91.3(c) of the statute as part of our policy of co-operating with ICC requests, while ensuring that that is in line with what we do anyway.

We are talking not about arresting anybody, but a convicted person. There are ways of assessing whether a person is a convicted person, and not simply by the use of photographs, fingerprints, DNA and so on. There are means of knowing who the person is. I cannot envisage that there will be practical difficulties. However, the hon. Lady most helpfully pointed out that our tightening is helpful because of the word ``any''.

Edward Garnier (Conservative, Harborough)

I was intending not to speak on the amendment, until the Minister used the awful word ``escapee''. I ask him never to use it again in the sense that he meant. An ``escapee'', presumably, is the victim, or the respondent of an escape. The escaper is the person who has got away.

Leaving that tiresome and semantic point aside, the debate between my hon. Friend the Member for Chesham and Amersham and the Minister has been reassuring. None of us wants to see the wrong person sent to the ICC. We have seen in our own jurisdiction the difficulties caused by identification evidence. The Minister correctly mentioned the Galbraith case, the standard case on identity to which one always has to direct juries when dealing with identity issues. Identity has led to some of the greatest problems in miscarriage of justice cases during the past 15 or 20 years. As I am sure that the Solicitor-General will confirm, the Court of Appeal has been very keen to ensure that courts do not allow juries to be persuaded by faulty identification evidence.

The circumstances here are slightly different because, as the Minister said, we are dealing with a convicted person. The chances of mistaking the identity of a convicted person—of a person convicted in The Hague, and who is the subject of a request under clause 2, not being the same person who is picked up in this country—are relatively slim. Perhaps we should not be bound up by the expression in our amendment, although that is our fault, because it says ``beyond reasonable doubt''. We want to be sure, however, that the delivering system in this country behaves so that we are sure that the person in front of us is one who is to be delivered back to The Hague.

Neither my hon. Friend the Member for Chesham and Amersham nor I are hung up about the particular wording. In the light of this country's disasters of identity evidence during the past 15 or 20 years, we want to be sure before we ratify the statute of Rome that we are doing all that we can to prevent miscarriages of justice as a result of our enthusiasm for the overall principle behind the ICC, which is to bear down on war criminals. The Minister mentioned belt and braces, but if we have to use belt and braces, let us do so.

My hon. Friend mentioned article 91.3(a) of the Rome statute. I assume that the phrase:

``any warrant of arrest for that person''

refers to an ICC warrant and not, for example, to a Belarusian warrant for a bank robbery, or to a Sri Lankan arrest for another offence. Will the Minister confirm that that is implicit in the article?

Paragraph 3(c) of that article refers to:

``Information to demonstrate that the person sought is the one referred to in the judgement of conviction''

but contains no specific reference to who bears the burden of proof: that is, who must prove this or that. That matters, because courts are often not concerned, in practical terms, about who must prove something. However, they are interested in whether the evidence is available to reach a just conclusion, so the Minister need not be concerned about that.

Article 91.4 reads:

``Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.''

May I have the assurance that, in the event of consultations taking place between us, as a state party, and the court, the Government and any successive Government will draw to the court's attention our legitimate concerns about mistaken identity? We must bear in mind our judicial and criminal court history over the past 15 or 20 years, in which time we have seen appalling miscarriages of justice arising from issues of identity. May I also be assured that we will not have to wait for the court to request consultation with us, but that we, through either the Foreign Office or the Law Officers' Department, will initiate consultations to ensure that the court is aware of our concerns? Our concerns, as expressed by my hon. Friend the Member for Chesham and Amersham, are not meant to cause difficulties for the Government; rather, as the Minister was the first to appreciate, we have raised them to assist the better making of law.

John Battle (Labour, Leeds West)

It is important that we keep in focus the big picture of the purpose of the Bill. I take it not as criticism but as a challenge when the hon. and learned Member for Harborough (Mr. Garnier) tells us not to get carried away on a tide of enthusiasm when setting up the ICC, but to make sure that we must set in place the right laws and procedures to get the court working properly. We cannot act haphazardly or leave matters to chance, hoping that underlying good will will ensure that everything works out all right. We must introduce the correct procedures to ensure that the right people go before the court. I agree completely about the importance of getting the wording of our commitment to the statute right.

We tend to lose sight of the fact that the Bill is not about picking up a bank robber, a criminal or a murderer wandering around Europe or elsewhere. In a sense, when I first saw the Bill, I thought that it was written the wrong way around, because it ensures that we discuss handing over convicted people before we discuss the crimes for which they are convicted. We must keep in mind the sorts of crime with which the statute deals: crimes against humanity, such as genocide and war crimes, carried out on an horrendous scale. The ICC is a megacourt to deal with mega-accusations against people. It would surprise me if a person who had been convicted by the court was wandering around and had not been not locked up. Incidentally, I accept entirely the hon. and learned Gentleman's correction on whether a person is an escapee or escaper.

We are dealing with a hypothetical case of a convicted war criminal who has been convicted of genocide or mass murder and who, after wandering around for a while, arrives in Britain and has to be handed over. There is a question about identity. I accept that names are sometimes got wrong— we are well aware that that has happened in the past. However, the clause is based on current extradition practice in identifying the person sought. Thanks to the lessons of history, we have a high judicial standard, and we need to ensure that that will be upheld.

The hon. and learned Gentleman invited me to say whether the warrants that we are discussing could be from individual countries such as Belarus. We are discussing only ICC warrants. In addition, I assure him that our comments go on the record, so it will be possible to take them further. If consultations with the court about potential misidentification are needed, we can raise them and make sure that they are taken seriously. We do not want the court to get off on the wrong foot. It would be horrendous if the wrong person were accused of genocide and handed over when the person who had committed that crime and been convicted was still wandering around. It is important to get it right, but the amendment is unnecessary.

The hon. Member for Chesham and Amersham invited me to assure her that what she is seeking is implicit in the Bill. I think that we have strengthened reassurances, rather than weakened them.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am grateful to the Minister for generously responding to the very valid points that my hon. and learned Friend the Member for Harborough made. We have had a short but good debate and I am reassured that the Minister and the Government are taking into consideration the points that we made using the amendment as our vehicle to do so.

The Minister's response justifies our having raised the issue. We are dealing with people who have nowhere to go: having been convicted of megacrimes, they have nothing to lose and they are desperate. They are likely be surrounded by people who will stop at nothing and who might be willing to sacrifice an innocent individual to enable the perpetrator—the convicted criminal—to go free. We are potentially dealing with foreign nationals, with people who have no moral convictions of any sort and with people who have nothing to lose whatever they do, so it is important that we ensure that we use the correct and highest standard of proof when acting as directed by an outside agency.

The amendment was not ambitious. I am sad that the Government, even after reflection and after acknowledging our arguments, have not accepted it or offered some other means of including in the Bill a requirement for the highest possible burden of proof. I am, however, satisfied that the Government appreciate our concerns and that in any future interpretation of the legislation, the record of the Committee's proceedings can be consulted. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The Committee had a rest from the sound of my voice earlier in the week, so I hope that it will be forbearing now. When I discussed it with you, Mr. Cook, and with the Clerk, you graciously agreed that the clause 2 stand part debate would be the right one in which to raise two issues that are of particular concern to me. One is an all-embracing issue on which I want to tease out the Minister's thinking. The other is smaller, but clarification of it relates to the entire Bill. Although it is particularly apposite to clause 2 because it deals with a part of the statute of Rome to which the clause makes reference, clause 2 is the foundation stone of part II.

My first question is: what will happen to the sovereign right of individual nations to determine the outcome of their own internal conflicts when the Bill becomes law and countries sign up to the statute? That is important, because we heard last night that of the 80-odd conflicts that were recorded as taking place around the world the last time that statistics were drawn up, all but two or three were internal. That is the nature of today's disputes and wars.

Ms Oona King (Bethnal Green and Bow) indicated assent.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I see the hon. Lady nod.

The point is serious in terms of the court's action once a country has signed up to it. It seems to me that it will be able to overrule the prerogatives of certain nation states, and that causes me great concern. I shall draw on two examples, although we could use others and might be able to cite more in the future. One is the truth and reconciliation process in South Africa; the other our own reconciliation process in Northern Ireland.

There have been numerous transitions to democracy during the past few decades. We have seen many newly installed democratically elected Governments take over and face the terrible question of how to deal with the human rights violations committed by previous regimes, dictators, armies and juntas. Such Governments face an amazing legacy of political violence that includes some of the worst atrocities that human beings can perpetrate against each other: purges, massacres and individual cases of torture, death and destruction.

The setting up of the truth and reconciliation process in South Africa was, in my opinion, one of the most amazing acts of courage of any nation state in living memory. Nelson Mandela will be in London on Sunday and I am hoping to go to a celebration of African culture that he is also attending. I make no apology for putting in a little advert for what is going on at the moment, because it is important that our country appreciates the marvellous culture and heritage of South Africa, and continues to acknowledge the bravery involved in that country's peace process and its truth and reconciliation process.

Many countries do little to deal with the past. Sometimes, there is no desire at Government level even to confront what has happened. We have seen some Governments inquire into human rights violations and fail to publish the findings. It is, therefore, all the more important that when a country is prepared to confront its past we do not erect an impediment that might stop that process from taking place. We have witnessed some of those who have violated human rights in the past being prosecuted by the countries concerned, and I appreciate that the statute covers that eventuality, which is all well and good. However, the statute could prevent a truth and reconciliation process.

The truth commission and the sophisticated truth recovery process that started in South Africa attracted extensive national and international interest. The number of cases dealt with was extraordinary. It is arguable that a truth and reconciliation process is more capable of dealing with a large number of cases than a highly expensive and specialised ICC in The Hague. As a supplementary question to what happens to potential future truth and reconciliation processes, will the Minister say what the position would be on events happening in this country that might fall to the expense of the taxpayer? Issues of cost arise out of clause 2 that place financial burdens on British taxpayers of which they should be aware.

The Truth and Reconciliation Commission in South Africa dealt with vast numbers of individuals who could, perhaps, not have been dealt with by an ICC. Other truth commissions have generally not resulted in the prosecution of individuals. I understand that, in some instances, such commissions have resulted in the names of individuals being handed over to the normal judicial process. That would fit with the statute, but what about individuals who are not handed over and prosecuted? Truth commissions do not appear to be precluded from carrying out prosecutions, but the TRC in South Africa was mandated to grant amnesty, and it granted it to a large number of people who had committed atrocious crimes.

The TRC has fulfilled the fundamentally important function of bringing into the public domain the acknowledgement of the truth. It has made people face up to what has happened in the past and enabled history to be acknowledged, not rewritten. For the most part, it gives a better and more reliable picture of past abuses and actions and is desirable for that reason. However, in a funny way, it represents an anti-democratic process. A truth commission is rarely subject to democratic accountability, but is championed by Government and citizenry and exists by popular demand, as was the case in South Africa.

It is desirable that a truth and reconciliation process is not closed or tucked away in a court, but has the distinctive feature that commission in South Africa had—that of proceeding in a blaze of media publicity. Openness to public participation and scrutiny is a good thing, as I am sure the Minister will agree. That enabled the process to reach a far wider audience in Africa and elsewhere. The values of that process were healthy to democracy. They highlighted the benefits of transparency and of public debate and participation—the media provided a service. I acknowledge that there were drawbacks to the process being conducted in a blaze of publicity, but some steps towards reconciliation, such as private meetings between victims and perpetrators, took place out of sight of the media, in a private setting. There are ways to overcome the drawbacks.

There was an opportunity for restorative justice to play a part in the process. That issue is raised by the Bill. What future has the process of restorative justice within the context of what the Bill is trying to achieve?

An obvious failing that became clear in the South African truth and reconciliation process was that the commission was unable to investigate thoroughly the numerous human rights violations that had been committed by South Africans in neighbouring countries. It could not demand testimony relating to those actions because it could not guarantee indemnity from prosecution in those countries. If a country has not ratified the statute of Rome, though it might have signed up to it, and wants to set up a truth and reconciliation process but lives next door to a country that has ratified the statute, its truth and reconciliation process could be inhibited by its being unable to guarantee that people in the neighbouring country, and therefore falling under its regime, would be immune from prosecution by the ICC. Even if a country wants to go through a TRC process before ratifying the treaty of Rome, its process might be inhibited by a neighbour that has entered the group of nations that has ratified. The Minister might say that that is unlikely, but it is possible. I want to explore the possibility and learn what the Minister thinks about the possible effect on non-ratifiers in an interim period because of the potential for removing the opportunity for a truth and reconciliation process to take place.

The process in South Africa was imperfect, but it was one of the best processes that we have seen for facing a problematic past and moving forward into the future with great hope. No matter where one stands, and what one thinks, one must admit that that TRC process has been successful.

David Lammy (Labour, Tottenham)

In the context of the TRC in South Africa, would the hon. Lady would comment on something that is the exception rather than the rule internationally? Various factors at work in South Africa made it exceptional, including the fact that the vast majority of mainstream political parties wanted to progress quickly and agreed that reconciliation was the best way forward in the context of the ethnic conflict that had divided the country for some time. Also, there was an economic imperative. A large black population was anxious to proceed to greater prosperity and reluctant to engage in a lengthy legal process that would have opened many wounds and could have destabilised the incoming African National Congress Government. Finally, despite the vast evils of apartheid, atrocities had occurred on both sides, as evidenced by events involving Winnie Mandela. Will the hon. Lady explore those issues?

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The hon. Gentleman speaks with experience and as another distinguished lawyer. I have tried to choose my words carefully so as not to be too judgmental. I appreciate the issues that arose on both sides of the argument. As I recall, there was great debate about whether passages critical of ANC members should be included by Desmond Tutu in the final report, with objections being raised even by President Mbeki at one stage. Great attention was needed to enable South Africa to continue in relative stability, rather than to precipitate more violence or dramatic events.

However, that way of proceeding is not unusual. I understand that since the 1980s truth commissions have gained prominence and currency by virtue of the way in which they have dealt with violations and then moved on. About 15 truth commissions have been held since 1971, although I cannot list them all. My reading on this subject suggests to me that in the main they have been successful and that they worked on important processes. Each had distinguishing features, but there should always be a presumption that the best way forward is in conditions of stability, rather than by any means that would precipitate violence or destabilise the economy, which could only cause greater grief.

I hope that the Minister will tell us about what happened in Northern Ireland. I understand that 434 individuals were released under the Northern Ireland (Sentences) Act 1998. We have seen—and been made subject to—the release of people convicted of atrocious offences, including terrorist offences.

Mike Gapes (Labour/Co-operative, Ilford South)

I spent two years as a Parliamentary Private Secretary in the Northern Ireland Office. I was there during the negotiation of the Belfast agreement, and no one ever suggested that the horrendous actions of terrorist organisations on the loyalist and republican sides were war crimes. They were criminal activities. They were often horrendous, violent and murderous, but the term ``war crime'' was never used.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I did not use the term ``war crime''. Perhaps the hon. Gentleman can wait until my argument is deployed. At issue is not so much the individual circumstances as the principle of the amnesty given to individuals as part of a process of eliminating the conflict in a country. Even in this country, we have released convicted criminals as part of a peace process. What happens if a country wants to come to terms with its past and, in arriving at that happy conclusion to events, wants to grant an amnesty to people who have been convicted of activities that would be regarded as war crimes under the international criminal court statute?

Crispin Blunt (Conservative, Reigate)

The hon. Member for Ilford, South (Mr. Gapes) referred to war crimes. I would argue that article 7 of the statute of Rome applies to terrorist organisations on both sides in Northern Ireland. They are certainly guilty of

``Murder . . . Deportation or forcible transfer of population''.

People have been forced from their homes—indeed, people from both communities have been forced out of Northern Ireland as a result of terror. Terrorist organisations are also guilty of

``Imprisonment . . . Torture . . . Enforced disappearance of persons''.

Paragraph 1(h) refers to

``Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural . . . grounds'';

both loyalist and republican terrorist groups have been guilty of that. They have been guilty of the ``crime of apartheid'', because they have forced communities to live in separate areas. They are also guilty of other ``inhumane acts''. Without doubt, therefore, one could under article 7 bring a complaint of crimes against humanity against the terrorist organisations in Northern Ireland.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am grateful to my hon. Friend. He speaks with great experience. I did not pursue the issue in deploying my argument, but my hon. Friend's remarks go a long way towards contributing to it.

It is for the Minister to tell us how the processes we are discussing will be affected and whether they will be removed from the bag of tools that is available to a democratically elected Government when facing the past and the crimes of their citizens.

Many conflicts are going on and many views are taken of them. We need only consider the conflict between Russia and Chechnya. There seems to be a broad acceptance of the objectives of the Russian operation: when we talk about Russia and its territorial integrity, we seem to accept what the Russians are doing in Chechnya and that they are fighting terrorism. Severe reservations have, however, been expressed about the actions of President Putin and the Russian army in Chechnya. We constantly see the Chechens' reactions—most recently in the hostage situation that was, thankfully, resolved without the loss of life. It is therefore important to consider what our reaction will be in the future to solutions to such conflicts.

We should also consider the European Union, given that we are members of it. On 17 December 1999, the EU and the United States made a summit statement. Page 21 of the Library brief on the Chechnya conflict takes an extract from that statement. It stated:

``We recognize Russia's right to uphold its territorial integrity and to defend its citizens from terrorism and lawlessness, and we condemn terrorism in all its manifestations. But we believe that Russia's military tactics in Chechnya are undermining its objectives, creating a humanitarian crisis, endangering innocent civilians, and jeopardizing stability throughout the Caucasus region. A military solution to the conflict is not possible. We call for an immediate and lasting cease-fire throughout Chechnya and a political dialogue that can lead to a durable solution to the crisis.''

A ``political dialogue'' and a ``durable solution to the crisis'' are the two elements of that quotation to which I want to draw the Minister's attention. It may be that the political dialogue and the durable solution could involve a truth and reconciliation process. It could also involve an amnesty. If Chechnya and Russia—unlikely, but possible—ratify the treaty and join it, what will happen to them?

If there is no room for that process, is that not a disincentive to those countries to sign up to the statute? I would abhor that, because I should like everybody to sign up to the statute. We should think about how those that are not signatories and will not ratify can be encouraged to come on board. However, if we tell those countries that they cannot find their own solution, surely we will drive them from, rather than pull them towards, the very institution that we hope will be there for the next 100 or 200 years to deter the disgusting, revolting, inhumane acts that we have to consider in the context of the ICC. I hope that the Minister will be able to let the Committee into his thinking on this serious matter, because it is of great importance and goes to the heart of the operation of the court.

My second point is more technical. It concerns article 91. I refer to the proceedings in the House of Lords on 8 February 2001, reported in column 1272 of Hansard. Sadly, I cannot find my marked copy. It will take a while to find it.

Frank Cook (Labour, Stockton North)

While the hon. Lady is preparing to make her second point, would she care to have the Minister respond to her first?

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Yes. Thank you, Mr. Cook.

Gerald Howarth (Conservative, Aldershot)

On a point of order, Mr. Cook. For the assistance of the Committee, I should like to take up my hon. Friend's arguments. However, I shall be happy to listen to the Minister first.

Frank Cook (Labour, Stockton North)

Very well.

Mike Gapes (Labour/Co-operative, Ilford South)

I, too, wish to make a contribution, Mr. Cook. Will that be possible?

Frank Cook (Labour, Stockton North)

Do you need more time, Mrs. Gillan?

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Yes, Mr. Cook.

Frank Cook (Labour, Stockton North)

I shall come back to you. I call Mr. Gapes.

Mike Gapes (Labour/Co-operative, Ilford South)

I wish to take up some of the points raised by the hon. Member for Chesham and Amersham, and to refer to two other examples. The first is the former Yugoslavia and the second is Chile.

Although there was an internal process of transition in Chile, that process, whereby the democratic forces came to an agreement with the military junta that allowed Pinochet immunity, made him senator for life and stacked the senate so that it had an undemocratic majority, was only a partial transition to a democratic society. It took the entirely correct actions of a Spanish judge and a British Home Secretary, and the extradition process involving the Law Lords, to open up an internal debate in Chile.

Action taken by Spain and the United Kingdom concerning the mistreatment, torture and murder of their nationals by the Chilean authorities under Pinochet enabled a political process to be accelerated. The democratic forces—the Christian democrats, the socialists, the radicals and others in Chile—which had not initially been able to get all that they wanted from the transition, were able to use that acceleration. Now the Chilean courts and Chilean society are dealing with the crimes committed by Pinochet, in a further attempt to expunge those crimes and deal with their internal healing process. This is not an either-or situation.

I always respected my socialist comrades in Chile, for whom I worked and with whom I acted in solidarity against the vile crimes of Pinochet. Lady Thatcher and others in the Conservative party supported those crimes. In addition, the United States Administration and British Conservatives supported the Pinochet coup over many years. Those of us who cared about human rights and democracy in Chile in all parties—there were some Conservatives who cared, but not enough—knew that the internal transition would be difficult. That transition will take years and the healing process took years, and was assisted by work done by the Spanish and British authorities to bring about change within Chile. We do not have an either-or choice.

My second point is more difficult. It concerns Yugoslavia. I understand very well why the international community wishes to get Milosevic into the tribunal in The Hague as soon as possible. However, I must say that we need to be sensitive to the transition that the Serbs are going through, whereby Mr. Djindjic, who had to flee to Montenegro, is now the Prime Minister, and whereby there is a long-term opponent of Milosevic as president—Mr. Kostunica.

Crispin Blunt (Conservative, Reigate)

While the hon. Gentleman addresses his remarks to Yugoslavia, he might like to examine the consequences of the incorporation of this statute for a process such as that which resulted in the Dayton agreement. President Milosevic had to travel to the United States to endorse the Dayton agreement. He should consider whether that would be possible under the new system.

Mike Gapes (Labour/Co-operative, Ilford South)

I accept that there will be difficult situations in future, but the statute does not apply to the Dayton agreement. Dayton is in the past and the proceedings taking place in The Hague are subsequent to it. I will come to the hon. Gentleman's point, but I want to do so in my own way. The reality of the transition in former Yugoslavia is that in Croatia, Tudjman escaped justice by dying. War crimes were committed by the Croatian and Bosnian Croat forces under the control of Tudjman and his regime, but Tudjman was never indicted—although I believe that he should have been.

There is some justice in the criticism that the Hague process did not involve an even-handed approach to all those involved in war crimes. There is always a danger of establishing victors' justice in such conflicts, and that is often discussed. The world sees people as wearing either black or white hats, whereas unfortunately they are all really wearing murky grey hats. On all sides crimes have been carried out at the instigation of participants in bitter civil wars and conflicts.

What I have said is not to argue against truth and reconciliation processes or against peace processes such as the one in Northern Ireland. However, it is necessary to recognise that those processes take time. A transition has to be undergone. A society may be ready internally for a truth and reconciliation commission, or for a flawed transition process, as in Chile. However, it may not, at that time, be ready to come completely to terms with its past and to engage in internal healing and reconciliation that will take decades.

In Northern Ireland we talked about an agreement, but there was no trust. As the hon. Member for Newry and Armagh (Mr. Mallon) has often said, the main point is that trust was beginning to creep in. That is what we had to work for. As I do not want victors' justice, I want the ICC to set a framework in which we can, universally, deal with the relevant questions. We should not need to set up ad hoc tribunals like The Hague or Rwanda tribunals. At the same time, we should be sensitive to internal circumstances. I do not think that it is wise to put great pressure now on Djindjic and Kostunica, perhaps leading to an internal political reaction and creating difficulty for them, when they want Milosevic to be brought to account for the murder of journalists in Serbia, for taking state money, for asset stripping and for other things that he and his acolytes have done over the past decade and more.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The hon. Gentleman is making some interesting points. Perhaps I have read things wrongly, but I hope not. I was particularly disappointed when I felt that the international world, including our Government, was making haste to the leader of the country to tell him to hand Milosevic over to The Hague. I felt that the very spirit of setting up the ICC was to make it possible for trials of the relevant people to be conducted in the country concerned, and not to tell those countries to hand criminals over for a show trial in The Hague. I thought that the thrust of our foreign policy at the time in question was against the spirit of the Bill.

I am trying not to make a political point, but I must inevitably do so, because there was a tremendous tension and conflict between what the Government were saying and what they were doing.

Mike Gapes (Labour/Co-operative, Ilford South)

Ministers can answer with respect to the Government's position, but there was clearly a difference of emphasis in some statements from the United States and others by Europeans. Clearly, the internal crimes with which the Serbian authorities are charging Milosevic do not relate to those on which he has been indicted to appear at The Hague. The question is which should come first. Serbia has him locked away for one set of crimes, but the international charges are still extant. We should be sensitive to the need not to make it possible for people to argue that they have been locked up domestically simply to satisfy another country's demands. Therefore, I want all those crimes to be dealt with as soon as possible, but as an international community we must be sensitive. The accusations and charges against Milosevic are being dealt with under The Hague process, not by the ICC. There are differences in the provisions for The Hague, Rwanda and the ICC, which I do not want to go into now because it would take too long.

Gerald Howarth (Conservative, Aldershot)

I strongly support the observations of my hon. Friend the Member for Chesham and Amersham about the implications of the Bill for processes of reconciliation in countries where conflict—sometimes, serious conflict—has taken place. My hon. Friend referred in particular to the process of truth and reconciliation, as it was called, in South Africa, and she also mentioned Northern Ireland. The important point for us to understand—perhaps the Minister will deal with this when he replies—is that it will be difficult for the court to take into account in its deliberations such processes of reconciliation, which take place in countries where crimes have been committed that are generally recognised to fall within the categories set out in the statute of Rome. The difficulty is that we are not dealing with conventions; we will be dealing with United Kingdom statute law because the Bill's purpose is to incorporate huge chunks of conventions into our law.

I am not a lawyer, let alone an international lawyer, so I do not know the extent to which international conventions are binding on, and capable of interpretation by, our courts, but I know that once this legislation is enacted in UK law—and I recognise that there is also both English law and Scottish law—it will be subject to the strict interpretation of our courts. However, because the Bill makes no reference to a process of reconciliation, I put it to the Minister that no court will be able to take that process into account—not even the ICC. Although the ICC has some latitude to decide how to proceed in a particular case, and thereby to require us to arrest and surrender someone who has been convicted or charged by the ICC, we should be clear that its latitude will have no reference to the question of reconciliation. The Minister might be able to tell us that the ICC will be able to decide not to proceed in certain circumstances because, however horrific the crime, a process of reconciliation is taking place, which requires the ICC not to take any action.

I shall now refer to Chile. I hope that I will not be accused of being insensitive and of trying to wind up the hon. Member for Ilford, South (Mr. Gapes), whom, I know, is sensitive on the subject. However, I, too, feel sensitive about Chile because I visited the country in 1977. I saw the poverty in that country, and have seen it develop since then into a hugely prosperous and democratic country.

I do not want to revisit all the hon. Gentleman's arguments, except to say that I disagree fundamentally. I wish that people on the political left would understand that Salvador Allende, whom they regard as their patron saint, was no saint whatsoever. Had it not been for the intervention of the armed forces under General Pinochet in 1975, having failed to persuade the courts to do what he wanted, Allende would have overridden them and used his Cuban mercenaries to seize control.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee D

International Criminal Court Bill [Lords]

Crispin Blunt (Conservative, Reigate)

On a point of order, Mr. Cook. In the business statement today, the Leader of the House announced that consideration on Report and Third Reading would take place on 9 May. I asked the right hon. Lady a question, pointing out that the Committee was precisely halfway through its consideration of the Bill, having reached the fifth of its 10 sittings, but had reached only the clause stand part debate for clause 2 of an 84-clause Bill. I asked her to consider rescheduling Report and Third Reading to allow us proper consideration of the important issues of principle that still have to be discussed, such as universal jurisdiction and diplomatic immunity. Such rescheduling would allow us also to continue our current discussion about the consequences of the Bill for reconciliation.

The right hon. Lady undertook to report my concerns to the Minister in charge of the Bill. I do not know whether she has had a chance to do that, but I would like to place on the record that it seems clear that we will not be able fully to discuss important issues of principle. I hope that the Government will consider postponing the date of Report and Third Reading to allow consideration of the Bill to continue after 3 May.

Frank Cook (Labour, Stockton North)

I am sure that the hon. Gentleman knows well that that is not a matter for the Chairman. However, he has succeeded in getting his remarks on the record.

John Battle (Labour, Leeds West)

Further to that point of order, Mr. Cook. I, too, am disappointed, but it is not for me to decide when the Committee reports—I am simply in charge of seeing the Bill through Committee. We had agreed a programme.

It was reported to me that the hon. Member for Reigate (Mr. Blunt) complained that we have reached clause 2 only because there have been interventions and lengthy statements from Government Members. That is not quite true. Our remarks are on the record, written down word for word. If anyone would like to count the number of words or measure the number of minutes that Government Members have spent replying to amendments, and compare those numbers with the amount of time spent moving the amendments, that might leave the Opposition with some space to reflect. We are more than happy to debate these topics in any order that the Opposition choose. The time is in their hands. We wait with interest.

Crispin Blunt (Conservative, Reigate)

Further to that point of order, Mr. Cook—

Frank Cook (Labour, Stockton North)

Order. We have had quite enough discussion on that point. We will not succeed in our main task, which is line-by-line scrutiny of the Bill, if we argue about the length of time that we are taking not to do it. Let us make some progress.

Crispin Blunt (Conservative, Reigate)

On a new point of order, Mr. Cook. The Minister has inadvertently misled the Committee about my remarks and on whether I made a complaint about the conduct of Government Members. I most certainly did not, and I want to make that explicit. There is no complaint on my part about the interventions that I took from other Members. We have had a proper debate and I would not want it to be thought that there was any concern about the conduct of Government Members, which, overall, has been exemplary.

John Battle (Labour, Leeds West)

Further to that point of order, Mr. Cook. I accept that comment. I was under a misapprehension. I say that in good faith, and I thank the hon. Gentleman for his comments.

Frank Cook (Labour, Stockton North)

We continue in that spirit of friendship with clause 2—[Interruption.] Order. I am on my feet and I am addressing the Committee. Let us preserve the good humour, but do so within the rules. We continue with the clause 2 stand part debate. Clause 2 Request for arrest and surrender

Clause 2 - Request for arrest and surrender

Gerald Howarth (Conservative, Aldershot)

In the spirit in which you have invited us to continue, Mr. Cook, let me say that on Tuesday the Minister was very good to acknowledge that my hon. Friend the Member for Reigate had raised several important issues. He recognises that this is an extremely important Bill.

We are particularly concerned because of the international ramifications for our service men. We are disappointed that the Committee will not have more opportunity to scrutinise the Bill than was laid out in the programme motion. I support the contention advanced by my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) in her remarks about clause 2. I am concerned that there is no reference in the statute of Rome to reconciliation.

The hon. Member for Ilford, South (Mr. Gapes)—I am sorry to see that he is not in his place—referred to Chile before we adjourned this morning. I challenged his interpretation of events that took place there. For the record, I should like to refer to what has happened in Chile subsequently by quoting the former Chilean president, Eduardo Frei, who said in an interview with the Spanish newspaper ABC published on 10 October 1973:

``People cannot imagine in Europe how ruined Chile under Allende was. They don't know what happened . . . The Marxists, with the knowledge and approval of Salvador Allende, had brought into Chile innumerable arsenals of weapons which they kept in private houses, offices, factories, warehouses. The world doesn't know that the Chilean Marxists''—

Frank Cook (Labour, Stockton North)

Order. I am concerned that we might be allowing ourselves to stray into the rights and wrongs of Chilean history. Where opinion is pertinent to truth and reconciliation commissions, I am happy that the Committee should listen to it. However, I do not want to go too far down the road that the hon. Gentleman is exploring. Please be careful.

Gerald Howarth (Conservative, Aldershot)

I appreciate what you are saying, Mr. Cook, but I hope that you will allow me a little latitude to respond to the hon. Member for Ilford, South, because his points were pertinent to a better understanding of why reconciliation is important.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I had some difficulty marshalling my papers during this morning's sitting, but perhaps it would help my hon. Friend to know that one of the 15 truth commissions to which I referred in my earlier argument was the Rettig commission—the national commission on truth and reconciliation in Chile—which dealt with 3,428 cases of people who had disappeared or were killed, tortured to death or kidnapped, of which 2,920 were investigated in depth. The commission's work lasted for nine months and covered a period of 16 and a half years. It is important that such commissions are taken into consideration in the light of the effect on that process that may be made possible by future legislation.

Gerald Howarth (Conservative, Aldershot)

I am grateful to my hon. Friend. She has added considerably to my argument.

There was a belief on one side in Chile that the Marxists under Allende were about to engage in a self-inflicted coup. Others, like the hon. Member for Ilford, South, take a different view.

Oona King (Labour, Bethnal Green and Bow)

I have been trying to follow the logic of the hon. Gentleman's argument. Is he saying that, despite the election of President Allende, it was reasonable for a coup to take place that led deaths, murders, mutilations and torture under the ensuing regime, as is well-documented? I cannot understand his argument.

Mr. Howarth rose—

Frank Cook (Labour, Stockton North)

Order. The Committee is beginning to do exactly what I was trying to prevent. I do not want to rehearse Chilean history and I ask all Committee members to respect my instruction.

Gerald Howarth (Conservative, Aldershot)

I know, Mr. Cook, that if I answered the hon. Lady, you would rightly chastise me. There is a difference of view, but I can tell the hon. Lady that 147 semi-automatic rifles and 10 semi-automatic carbines were found the day afterwards in the President's house—

Frank Cook (Labour, Stockton North)

Order. The hon. Gentleman must confine himself to comments on truth and reconciliation commissions, which the hon. Member for Chesham and Amersham introduced into the debate. He should deal with those, not with Chilean history. He should not discuss the details that were presented in the 3,400 cases, but the principles involved as they relate to the Bill.

Gerald Howarth (Conservative, Aldershot)

I have no intention of going through the individual cases. I was responding to some of the observations made by the hon. Member for Ilford, South, which were not ruled out of order.

I have, however, made my point. Essentially, there is a difference of view, as there was in Chile. It is not up to us in this country to determine how the peoples of a country that has experienced serious conflict should resolve such matters. It was not up to us to interfere in South Africa with the way in which Archbishop Desmond Tutu and the authorities ran the Truth and Reconciliation Commission. It was always part of my contention and that made in another place by my noble Friend Lord Lamont of Lerwick that it was not the job of a freelance Spanish magistrate or the Home Secretary to interfere in the reconciliation process in Chile and the case of former President Pinochet. Arguably, the reconciliation process was impeded rather than advanced by what happened on this side of the Atlantic.

There is an important lesson for us to learn. We must allow nations that have been through a difficult civil war or internal conflict scope to reconcile their different factions. I think that we all accept that it will not be possible to impose solutions from outside. My hon. Friend the Member for Chesham and Amersham referred to Dayton, where an attempt was made at reconciliation. In another case, the British Government urged the Government of Sierra Leone to take into their ranks people guilty of heinous crimes whom they had sought to oppose. All in all, my hon. Friend's observations carry great weight, and I hope that the Minister will be able to respond to our concerns.

My hon. Friend the Member for Reigate told my hon. Friend the Member for Chesham and Amersham, who had referred to Northern Ireland and the question of the IRA and the loyalists, that many of the crimes that the IRA and some of the loyalist groups had committed could be categorised as crimes against humanity as set out in the statute of Rome. Those groups could also be held to be guilty of crimes of genocide. Article 6 states:

``For the purpose of this Statute, `genocide' means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group''.

It is perfectly clear to all of us that it would easy for an international court to argue that those on either side who had been responsible for such atrocities could be hauled before it. People in this country would greatly resent that. Some of us bitterly resent the fact that the Government gave an amnesty to some of those in the IRA who were responsible for the most horrendous terrorist crimes and who murdered friends of ours. Nevertheless, we accept that some leeway had to be given in a spirit of reconciliation if peace was to be secured in Northern Ireland.

John Battle (Labour, Leeds West)

I am happy to discuss Northern Ireland with the hon. Gentleman. I know it well and would be able to debate with him over days and weeks, never mind hours. However, I simply want to ask him how on earth the statute and the Bill relate to Northern Ireland if they are not retrospective, and how his remarks relate to clause 2?

Gerald Howarth (Conservative, Aldershot)

On the latter point, I am surprised that the Minister thinks that my remarks about Northern Ireland do not relate to the clause, nor I do not understand why he did not intervene on my hon. Friend the Member for Chesham and Amersham who was the first to raise the issue. The Minister did not intervene on her to suggest that it was not appropriate.

The point that Conservative Members are making is that there is no reference in the statute to reconciliation and the difficulty that the court might present—[Interruption.] I do not know what the Minister is saying, but if he wants to intervene, I will happily give way.

Mr. Desmond Browne (Kilmarnock and Loudoun) rose—

Gerald Howarth (Conservative, Aldershot)

I give way to the hon. and expensive Gentleman.

Des Browne (Labour, Kilmarnock and Loudoun)

I am not practising at the moment—I do only one job at a time, so this is all free.

With respect, the hon. Gentleman draws a false analogy. To understand the statute and the structure of the Bill, one must always have in mind the principle of complementarity. Everyone who has benefited from the early release processes in Northern Ireland under the Conservative Government and under the provisions of the Belfast—or Good Friday—agreement introduced in legislation under the current Government went through the UK system of justice in the Northern Ireland courts and was convicted. None of those cases would have had any relevance to an ICC, even if an ingenious and expensive lawyer had been able to put together a complicated argument claiming that what those involved were alleged to have done or what they did in the future could fall under the jurisdiction of the court. That is not a true analogy, although it is an interesting point.

Mr. Howarth rose—

Frank Cook (Labour, Stockton North)

Order. I repeat once again my appeal for shorter interventions. I must also caution the Committee that we are in danger of doing on the issue of Northern Ireland what I deprecated on the issue of Chile. Let us concentrate our minds on the requirements of a line-by-line scrutiny of the Bill.

Gerald Howarth (Conservative, Aldershot)

I am glad that the hon. Gentleman feels that I made an interesting point. I was not suggesting that the ICC could be responsible for removing authority for Northern Ireland from the United Kingdom, because we have tried such things ourselves. I was saying that I fear that there are circumstances in which that could happen and that we would resent it.

The ICC might require us under clause 2 to hand over nationals of countries that had gone through a process of reconciliation even if, in the view of the United Kingdom Government, a trial could prejudice that process. That, essentially, was my point, and I hope that the Committee understands it.

Crispin Blunt (Conservative, Reigate)

I shall be as brief as I can, but the consequences of the Bill for truth and reconciliation is an extremely important issue. The circumstances in which a truth and reconciliation commission will be set up in any country in future are necessarily hypothetical, but we can look for example to the conflict in Armenia and Azerbaijan, which will, we hope, reach settlement at some stage—very likely after the statute of Rome takes effect. Given that many of the signatories to the statute already have universal jurisdiction, any crimes committed if that conflict continues will be subject to the jurisdiction of those countries.

I expect that the Minister will refer to article 16, which provides that the United Nations Security Council may request a deferral of investigations. However, that depends on none of the permanent members of the Security Council exercising a veto, or on the request for a deferral being made by a majority on the Security Council to allow the national process to take place. All the examples that we have discussed—Northern Ireland, Chile and South Africa—are relevant examples of countries in which the process of truth and reconciliation has taken place. The national process gives the United Nations Security Council an opportunity to make such a requests, but the Government will not be able to rely on the United Nations Security Council to make that request, which means that there is a risk to truth and reconciliation commissions.

The argument can be made—I understand the purpose of the statute to be thus—that our message to dictators around the world is that there will be no way out for leaders who engage in the very serious crimes specified in the statute. There will be no hiding place for such people. We are, in a sense, saying goodbye to truth and reconciliation commissions. We are putting future dictators and people who are guilty of certain crimes in the same position as the Allied powers deliberately put the leaders of Germany in 1943 by demanding unconditional surrender. The leaders of Germany and Japan knew that there would be no negotiated settlement. One can draw that analogy.

If I were a victim of a crime under the statute and my country decided to establish a truth and reconciliation commission, I could decide not to accept that and take my complaint to the ICC. If a crime had been committed against me, I would expect the ICC to investigate it. If my country would not bring the perpetrators of that crime to justice, I, the victim, would expect the ICC to do that for me.

Every country—including, most importantly, the United Kingdom and France, who are likely to be first to sign and ratify the statute, and who have taken a leading role in policing global security since 1945—will have to face up to the great difficulty of reconciling the practical advantages of being able to engage in truth and reconciliation processes, as has been done in numerous cases, with the principled and proper position that, from now on, there will be no hiding places for people who are guilty of the crimes specified in the first part of the statute.

A case can be made for either position: for pragmatism and the way in which we have conducted the world order since 1945, and for the permanent members of the Security Council having a veto; or for the direction in which the statute will take us. I look forward to the Minister's reply because the Government's position is riddled with uneasy and unsustainable compromise. The inconsistency is present even in the statute: articles 27 and 98 are in direct contradiction of each other. One allows immunity, which we shall discuss later, and the other says that there shall be irrelevance of official capacity in bringing people to book for the crimes. In this debate on truth and reconciliation, I am hoping to hear from the Minister whether we are to take a pragmatic approach to diplomacy and the ability of Ministers to make decisions or whether we shall have, as the statute of Rome intends, a more idealistic approach to facing up to the serious crimes that are listed in this statute.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Earlier, Mr. Cook, when I was unable to get my papers in order, you promised that you would allow me to return to my second point. I thank you for that courtesy, and I shall try to detain the Committee only briefly. It is a technical point that stems from our first day of consideration in Committee. I asked the Minister about the declarations and the phrase ``none in mind''. He said in his response:

``We cannot go back to rake over and unilaterally rewrite the Rome statute, which has been agreed internationally. That is not the purpose of the Bill; the purpose is to sign up to it.''—[Official Report, Standing Committee D, 10 April 2001; c. 64.]

I do not disagree with that. That was not the point I was making, and that is the premise on which I start now.

Clause 2 deals with arrest and surrender. Article 91.1 of the treaty states:

``A request for arrest and surrender shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for it in article 87, paragraph 1 (a).''

Article 87.1(a) states:

``The Court shall have the authority to make requests to State Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession.

Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of Procedure and Evidence.''

That goes to the heart of my point. The statute says that each state party, upon ratification, will designate appropriate channels. On ratification, what will the Minister designate as an ``appropriate channel''? As the statute says, the request may be

``made by any medium capable of delivering a written record''.

Does the Minister intend to use e-mail as a vehicle for the transmission of such a warrant or of papers pertaining to it? If not e-mail, what will he designate on ratification? What will he lay out before us for approval and how will we get that approval? If e-mail is going to be used, what are the security implications—for example, what about tampering? The White House has said that it will no longer take e-mails. It is a simple question but a technical one: what appropriate channels will be designated by the Government under article 87.1(a), and will all that apply to Scotland, or will Scotland have powers to designate its own medium?

I hope that I have been brief in making my genuine request for information, which relates to my original point that we need some form of clarification following ratification, which the Minister did not fully understand when he replied to me on the first day of Committee. I look forward to hearing what he has to say now.

John Battle (Labour, Leeds West)

It is fair to say that we have had a full and wide-ranging debate. I do not resent that in any way. Further to the intervention of the hon. Member for Reigate, the difficulty with considering Bills in Standing Committee is that, often, we want to debate matters that should really be debated later, and we have to bring some contextual matters forward and debate them earlier. I do not resent that, because we have had a full debate that has enabled us to tease out the real issues and the serious problems. The point raised by the hon. Member for Chesham and Amersham is fair, and I will come to it in a moment.

We must always remember that the purpose of the ICC is not to sort out the past but to put down the marker for the future. That makes it different from truth and reconciliation commissions. I do not want to enter into a debate on truth and reconciliation now, but I should say that there was much that was excellent in the hon. Lady's speech on the subject of truth and reconciliation commissions. There were parts that I disagreed with, but I hope that the fact that she raised the topic in the way that she did has resonance outside the Committee. I would prefer to have a full debate on those matters on the Floor of the House or elsewhere at some point in the future—there may be an opportunity when we are under less pressure.

The work of truth and reconciliation commissions is important. The work on memory and reconciliation being done in Northern Ireland, together what is going on in Chile, Guatemala, Cambodia and South Africa, can contribute massively to amassing experience on which we can build, so I thank the hon. Lady for raising that topic. However, the ICC will not prevent or block future truth and reconciliation commissions. There may be a further debate on the matter when we reach new clause 2, which raises themes that could perhaps be teased out in more detail, but let us look briefly at the example of Sierra Leone. There, a special court that will work alongside the truth and reconciliation commission has been created with international support. The work of the two bodies will be complementary and they will not undermine each other in any way. You guided us away from discussing countries' internal matters, Mr. Cook. That subject, too, could be addressed in connection with new clause 2.

Tribunals are different from the ICC: the ICC is a different animal, a different institution, a different organisation. Tribunals are an international obligation imposed by the United Nations Security Council. They are not directly complementary to the ICC—they have primary jurisdiction. We should bear that in mind. It is important to note that the ICC will deal only with future crimes; therefore, Governments ratifying the statute and their nationals will be fully aware of the possibility of prosecution by the ICC if they commit certain offences. I was asked whether there was any provision in the statute for flexibility. There is. I hope that the very existence of the ICC will deter people from committing war crimes and crimes of genocide. People will know that the court exists, so they will not undertake such activities.

Edward Garnier (Conservative, Harborough)

May I bring us back to some sort of reality and talk about timing? When does the Minister think that the ICC will be up and running? We will be perhaps the 30th country to ratify the treaty, which means that 30 more will have to ratify it, because the court cannot start to operate until 60 have ratified the treaty; and after the 60th country has ratified, at least a year will be needed to get the court up and running. There may well be many administrative and other details to be worked out, for example, the rules of procedure relating to the mechanics of the courts. Am I completely out of the time frame when I say that the beginnings of the court may not emerge for a decade, or are we in fact talking about something that may happen next year?

John Battle (Labour, Leeds West)

I not sure in what way that is relevant to clause stand part.

I hope that the hon. and learned Member for Harborough (Mr. Garnier) is out of the time frame, because other countries are currently debating the treaty preparatory to ratifying it. We may find that we are not the 30th country to ratify; we could be the 40th, because there are at least 10 others lining up to do so. The establishment of the court could move faster than we envisage, rather than slower. I hope that it does. I am not concerned about that—I am simply trying to get support for the idea.

Crispin Blunt (Conservative, Reigate)

Just before the intervention by my hon. and learned Friend the Member for Harborough, the Minister said that he hoped that the existence of the ICC would prevent crimes from taking place, because it would be up and running and people would be subject to its jurisdiction. I agree that that might be so, but will he elaborate, either now or in the debate on new clause 2, on the consequences that that will have for truth and reconciliation commissions? Will he also explain about the flexibility not to investigate that he implied the ICC had? Can he relate that to the example of a victim who is determined to seek justice and therefore to take a case to the ICC?

John Battle (Labour, Leeds West)

The crimes that the ICC will prosecute are those for which amnesties are rarely likely to be appropriate. We should start from that premise and remember that the clause deals with convicted criminals. We must keep the process in perspective. The ICC prosecutor has discretion not to institute a prosecution in the interests of justice. That might be appropriate where a fair and democratically supported amnesty has been proclaimed.

The fact that the ICC will deal only with future crimes means that the Governments ratifying the statute—those include many of the Governments that have truth and reconciliation commissions, such as South Africa, so they are on side in this matter—are fully aware of the possibility of prosecution. The key point is that the nationals of those countries know that it is possible that they will be prosecuted if they commit those crimes—they could be ``got'' by the ICC. That will act as a deterrent.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

If I have understood the Minister—please correct me if I am wrong—he just said that crimes that would be considered within the truth and reconciliation process are not be the sort of crimes for which an amnesty would be given. Earlier, I mentioned 15 TRCs of which I had become aware having read the Centre for Study of Violence and Reconciliation report to see what crimes were covered. In Argentina, for example, there were 8,960 disappeared but an unspecified number of victims of torture or prolonged detention. In other cases, such as Chad, there were victims of torture and arbitrary detention as well as disappeared. Those crimes would be prosecutable under the ICC yet they are crimes for which individuals received an amnesty, so I am not sure that I follow the Minister's argument. Is he saying that these processes are not affected and could carry on despite the ratification of the ICC statute?

Crispin Blunt (Conservative, Reigate)

I draw the Minister's attention to Northern Ireland and to article 7 of the Rome statute, ``Crimes against humanity''. We have let out of prison early people who are guilty of murder under article 7.1(a) and people who are guilty under article 7.1(k) of

``Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.''—

for example, all those guilty of kneecapping in Northern Ireland. It would be nice to believe that kneecapping was going to end the moment we ratified and the ICC came into action, but I fear that that will not happen.

John Battle (Labour, Leeds West)

I do not understand the logic of the hon. Gentleman's argument. The reasons why people have been released early in Northern Ireland are a separate issue. They would not have been incarcerated in the first place if they had not been through the process and been tried and convicted. That is not what we are talking about.

Gerald Howarth (Conservative, Aldershot)

Will the hon. Gentleman give way?

John Battle (Labour, Leeds West)

No, I shall try to answer some of the points that have been made first. Northern Ireland is not relevant. The hon. Member for Chesham and Amersham mentioned South Africa, Chile, Argentina and Sierra Leone. It is important to note that many of the countries that have wrestled with crimes of the past are among the strongest supporters of the ICC.

Clause 2 sets out the procedure to be followed when a request is received from the ICC for

``the arrest and surrender of a person alleged to have committed an ICC crime,''

or for that of someone who has already been convicted by the ICC. That is the purpose of the clause. The nature of the crimes is a subject that comes later in the Bill. Let us get to that part of the Bill, rather than try to bring that debate forward—if you agree that that is a fair way to proceed, Mr. Cook.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

On a point of order, Mr. Cook. I rose to my feet before the Question was put to ask the Minister to reply to the specific point to which you so kindly allowed me to return when I could not find my papers. The Minister has completely ignored my question, which is rather unfortunate in an otherwise good-natured discussion. Can you assist me as to when the Minister may be able to give me a response?

John Battle (Labour, Leeds West)

Further to that point of order, I shall write to the hon. Lady. I was distracted by an intervention at the time, but I will send her an e-mail. However, I can tell her that the Foreign Office will be the designated channel as it always has been and as was explained in the House of Lords when the matter was debated there. Clause 3 Request for provisional arrest

Clause 3 - Request for provisional arrest

Frank Cook (Labour, Stockton North)

Is it the Committee's will that clause 3 stand part—

Mrs. Gillan rose—

Frank Cook (Labour, Stockton North)

Order. I will not be distracted by hon. Members of whatever status standing up, opening bottles of water, and wandering around the Committee, as has been happening today. Can we introduce some real discipline into the Committee and behave in accordance with normal practice?

Do I take it that the hon. Member for Chesham and Amersham wants a debate on clause 3 stand part?

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Yes, Mr. Cook, I would.

Frank Cook (Labour, Stockton North)

I advise the hon. Lady that we had a lengthy discussion on the clause led by the hon. and learned Member for Harborough when considering amendments Nos. 17, 18, 19 and 21. If I hear any repetition at all, I shall call an abrupt halt to the debate.

Question proposed, That the clause stand part of the Bill.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Thank you for permitting a debate on clause 3 stand part, Mr. Cook. I seek some clarification because of the history of the clause.

Amendments to the clause were tabled by the Government in another place, and this is the first opportunity that we have had to debate the clause since those amendments were made. I seek clarification from the Minister about the letter dated 5 March about the Government amendments, sent by Baroness Scotland to Lord Lester of Herne Hill. Although the Government tabled amendments to several clauses on Report in another place, it will be useful to refer to the amendments to clause 3.

During the Committee stage, the Government accepted the amendment—I believe that it was amendment No. 12—tabled by the Opposition on the request of the Law Society of Scotland. That means that those Conservative Mems who have sought to scrutinise the Bill constructively have made a contribution to its improvement. Despite the consultation process to which the Bill was subject, it was not until Report stage in another place that the Government decided that they needed to table the amendments. The amendments have improved the Bill, and it is good to see that certain disparities between the procedures for applying for a provisional warrant in Scotland and those in England and Wales have been dealt with. Following further consideration by the Scottish Executive—

Des Browne (Labour, Kilmarnock and Loudoun)

Before the hon. Lady goes any further, I assure her that I have had recent and detailed conversations with the Law Society of Scotland. We are now satisfied that the Government have responded to all the concerns about the Bill voiced by the legal profession in Scotland, and that the Bill is in an appropriate state to reflect the requirements of devolution.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am grateful to the hon. Gentleman, who now appears to speaking for those sitting on the Front Bench—may he soon be promoted. I am sure that that we all look forward to that. Unfortunately, reassurances are required from Ministers and from the Government, not from humble Back Benchers, however eminent in the law they may be.

The question is simple. The original motivation behind the amendment, as Ministers know, was to correct the anomalies between the position in England and Wales and the position in Scotland. I seek an assurance—the hon. Member for Kilmarnock and Loudoun got ahead of me—that the legislation is definitely free of such anomalies.

There is a further pertinent point. I am raising the matter on clause 3 stand part because of the history of the clause. The Scottish Parliament is not considering the Bill until long after this House has done so. I think that I am correct—the Minister will tell me—that although the Bill has already been presented to the Scottish Parliament, it will not consider it for several weeks. What would happen if any further anomalies came to light during the passage of the Bill? For example, what would happen if any changes were made to the Scottish legislation during its passage through the Scottish Parliament? What would be the implications for the UK statute? What remedying devices exist and what if there was a gap between the two statutes? I accept that that is hypothetical, but the situation is unusual, and, as we have established, the legislation will be in place for decades to come.

I understood that, under devolution, the Scottish Parliament did not take the lead in matters of foreign affairs. However, it is not crystal clear which body takes precedence. Through the device of clause 3 stand part, Mr. Cook, far from trying to annoy you or get up your nose in any way, I seek clarification from the Minister. He is at least nodding and smiling at me, which is more than some people are doing—I do appreciate that. There may be implications for the Bill and it is right and proper that we ask these questions now. I hope that the Minister can throw light on the matter.

Ross Cranston (Labour, Dudley North)

I have three brief points. First, it is true that in the other place the Opposition tabled amendments at the suggestion of the Law Society for Scotland. I do not criticise them for doing that. We took those amendments on board and reworded them, and the Law Society of Scotland is now happy with the drafting of the clause. It simply brings the procedure in Scotland into line with that in England and Wales.

Secondly, on the correspondence between provisions here and in Scotland, I am sure that the hon. Lady is aware of clause 80, which states expressly that if necessary the Secretary of State can make regulations to bring the provisions into line, so that the provisions of the Act that the Bill will become are co-ordinated with the provisions of any corresponding Act of the Scottish Parliament.

Thirdly, the Scottish Executive is entirely content with the Bill as it now stands, and the Scottish Bill will have no direct impact on this part of the Bill.

Question put and agreed to.

Clause 3 ordered to stand part of the Bill.

Clause 4 ordered to stand part of the Bill.

Clause 5 - Proceedings for a delivery order

Crispin Blunt (Conservative, Reigate)

I beg to move amendment No. 60, in page 4, line 3, after `court', insert—

`or service court in the case of service personnel'.

I am grateful to my hon. and learned Friend the Member for Harborough and my hon. Friend the Member for Chesham and Amersham for allowing me to table this amendment with their support. The amendment is a redrafted version of amendment No. 23 that should be consistent with the language used in the Bill. Service courts are defined in clause 75, and the term ``service court'' is therefore more appropriate than ``court martial''. The amendment is needed because service courts are not identified in clause 26 as a competent court for the purposes of section 5. I want to explain why it is important that they are included for proceedings against service personnel under the Act.

In his reply to the debate about who would serve as judges on the ICC, the Minister drew attention to the merit of judges with military experience, saying:

``We agree that it is important to have top-quality judges and juries. There will be judges who are experienced in humanitarian law, but—this may help the hon. Member for Aldershot—there will also be military judges who are experienced in the rules and laws of war.''—[Official Report, Standing Committee D, 24 April 2001; c. 103.]

In the case of the Army, assistance in service courts is normally available from the Office of the Judge Advocate General of the Forces. Its representatives are not mentioned as officers whose presence would enable a service court to be a competent court for the purpose of the relevant proceedings.

I hope that the Government will accept the amendment. It is important to remember the circumstances in which the ICC will seek the arrest of a British subject under the Act. As we debated on Tuesday, the United Kingdom will have decided not to bring someone to justice or will be thought to have done so inadequately. Inevitably, the circumstances will be controversial. It would be infinitely better for service men to go through the process at the hands of service courts. Let me explain why.

My hon. Friend the Member for Chesham and Amersham asked me to move the amendment because of my 12 years in the Army. Soldiers, sailors and airmen regard the military discipline system as just. Let us assume that the amendment is not accepted. The ICC will exercise its jurisdiction, having overridden the principle of complementarity and because we have decided, for whatever reason, not to bring a soldier, sailor or airman to justice. Technically, it could be argued that it will make no practical difference if the service man goes before a civilian court for the purposes of clause 5, but it will make the greatest difference to morale and confidence in the system in the services themselves.

We must acknowledge the services' proper concerns about the Bill. They have been expressed, virtually on the record, by the Chief of the Defence Staff. It is important that the Government listen to concerns about the conduct of the process and, as far as possible, find ways to allay them. Therefore, when a service man is to be delivered to an international jurisdiction outwith that of the United Kingdom, it would be infinitely preferable for a service court, which is part of the military justice system, to make the order.

Des Browne (Labour, Kilmarnock and Loudoun)

Will the hon. Gentleman explain to those of us who do not have a military background why our military, according to him, has no confidence in the system of civil justice in this country?

Crispin Blunt (Conservative, Reigate)

I did not say that the services had no confidence in the civil justice system. I said that they probably have more confidence in the military justice system.

Des Browne (Labour, Kilmarnock and Loudoun)

It is the same thing.

Crispin Blunt (Conservative, Reigate)

I do not accept that. My experience suggests that when there was an opportunity for either system to try him and a soldier left the military justice system and was sent to be tried by the civil justice system, he would have much more confidence that he was going to get a fair trial, ironically—

Several hon. Members rose—

Crispin Blunt (Conservative, Reigate)

I shall not give way. I merely relate my experience of how soldiers work, how they think and how they approach the discipline system. I can understand that hon. Members who do not have service experience might find it difficult to understand, but with the benefit of my experience I am telling the Committee that soldiers have confidence in the military justice system; they have more confidence that that system will be fair and just with them than they do in the civil system. Not surprisingly, it is the military justice system that they see working day to day—minor parts of the system when they are under commanding officers' orders, but they might occasionally see friends and colleagues end up in front of a court martial.

Mark Hendrick (Labour, Preston)

Is the hon. Gentleman also of the opinion that where police complaints are concerned, only police should investigate?

Crispin Blunt (Conservative, Reigate)

I understand that that is precisely what the police do.

The point is that if a service man is to be handed over to an international jurisdiction, it is preferable for the services for it to be seen to be a part of the service discipline system that makes that order. That will be regarded with much more respect and understanding in the services than if the service men were transferred from the military justice system that they understand to a civilian justice system that surrenders them to an international jurisdiction.

Des Browne (Labour, Kilmarnock and Loudoun)

I understand the hon. Gentleman's point, but it is a conclusion arising from personal perception. He has military experience that most of us do not have, although I have taken part in a court martial and know something of the military system of justice. Without going into the detail of my experience, I do not entirely agree with his observations. Can he, from his experience, tell me why our service men apparently get better justice before the military service courts than they would get in the civil system? Secondly and most important to the way in which they will respond to this amendment, does he agree with them?

Crispin Blunt (Conservative, Reigate)

I did not catch the last phrase.

Des Browne (Labour, Kilmarnock and Loudoun)

Does the hon. Gentleman agree that there is a better system of justice in the military courts than there is in the civil courts, and what shall we do about it?

Crispin Blunt (Conservative, Reigate)

My view is that the military system is more just than the civil system, which I believe has more faults than the military system. The military system is not without its flaws, but I wonder whether the hon. Gentleman's experience of taking part in a military trial was that the defendant was able to get a fairer deal than he might have anticipated: perhaps he enjoyed success against a member of the Army Legal Corps that he might not have done had he taken on a member of the Crown Prosecution Service. However, the perception within the military is that when one goes in front of a court martial, it will bend over backwards—not least at the hands of the Judge Advocate General, who conducts the proceedings at a military court martial—to ensure that the proceedings are absolutely fair and explicit. One comes into the military court martial system from what was, until we passed the wretched Armed Forces Discipline Act 2000, a system of justice at unit level that was rough and ready but just. It has not had to be, until now, involved with the details of the Police and Criminal Evidence Act 1984, or concerned with the least serious military order offences. To go before a court martial is to go before a system that is palpably fair.

The principle involved is of concern to a service man. If he is to be surrendered to an international jurisdiction, is it better for him to be surrendered by a military court, which he understands as part of his chain of command and is a system to which he belongs, than to be handed over to a civilian system, which is foreign to his conduct? The situation will be one in which he has committed an offence as a soldier. Are we to allow our service men confidence in a system that will be responsible for their surrender to another jurisdiction?

Des Browne (Labour, Kilmarnock and Loudoun)

There might be one in the pipeline, but will the hon. Gentleman say whether there is to be an amendment tabled that suggests that all civilians should be dealt with by such a system, if it is fairer?

Crispin Blunt (Conservative, Reigate)

I think that the hon. Gentleman is being rather flippant. The military experience is based on the totality of being in the military. Civilians do occasionally face courts martial: for example, before the fall of the Berlin wall, when the British Army of the Rhine was in place, civilians working for the forces in Germany were subject to military discipline and, on occasion, spouses of military personnel faced courts martial.

If you told the average civilian population that they could face a military court martial, I do not imagine that they would think that they would receive justice in front of a court that was totally foreign to them. The hon. Gentleman has therefore proved my point. Service men will have more confidence in decisions made by a justice system of service courts because they are familiar with it. A civilian in front of a court martial would wonder, ``What on earth is going on'', if he was not supposed to be under that jurisdiction. My point, which the hon. Gentleman has kindly adduced, is that the military are more likely to have confidence in service courts.

Des Browne (Labour, Kilmarnock and Loudoun)

Will the hon. Gentleman give way?

Crispin Blunt (Conservative, Reigate)

No—the hon. Gentleman has been helpful enough in making my case. I look forward to the Solicitor-General's response. I hope that he will make it clear that he will accept the amendment and thus show faith in the service court system and give our armed forces confidence in the process on which we are embarking.

Ross Cranston (Labour, Dudley North)

Unfortunately, the amendment is based on a faulty premise. The hon. Gentleman suggested that service personnel are never subject to civilian courts—but they are. If they commit murder or offences of the sort referred to in part V of the Bill, they are subject to ordinary courts. There is nothing unusual in service personnel being brought before civilian courts.

Crispin Blunt (Conservative, Reigate)

The Solicitor-General does not have to go down that road. Of course, I accept his point. The amendment is not based on that premise, and he will note that it states:

``or service court in the case of service personnel''.

The way that it is phrased gives flexibility about whether it is appropriate to put service personnel in front of a competent civilian court or a service court, and that offers the same choice that faces service personnel in the United Kingdom. Service personnel are, however, liable to come before a civilian court for civilian offences.

Ross Cranston (Labour, Dudley North)

Service personnel are subject to civilian courts, so I think that my point answers the argument about the issue of confidence.

The next fallacy is more fundamental. Courts martial—the service courts that he mentioned—are not standing courts, nor are they courts of general jurisdiction. They are ad hoc courts that come into being to deal with a particular case. They deal with certain offences committed by service personnel. They do not have a general role in, for example, extradition proceedings, so in our view, there is no role for them in the process under discussion.

Military personnel will have their interests protected and safeguarded in the same way as other accused persons arrested under an ICC warrant. I do not want to enter a large debate about the alleged concern of people in the armed services about the Bill. The Ministry of Defence was involved in the negotiations in Rome and in the drafting of the Bill. My hon. Friend the Minister of State, Foreign and Commonwealth Office quoted the exact words of Admiral Sir Michael Boyce on the Floor of the House and I do not want to get into that debate. The MOD and the armed services are fully on board with regard to the Bill.

Crispin Blunt (Conservative, Reigate)

I am disappointed by the Solicitor-General's response, as he will have anticipated. It is a pity that the Government are showing a lack of understanding of the armed forces with regard to the amendment, as they have shown in other respects.

I accept that the Bill as drafted provides the opportunity for a service man to go before a court to be delivered. However, it is a shame that the Government have demonstrated their lack of understanding of the armed forces through the Solicitor-General's abrupt refusal to consider the amendment.

Gerald Howarth (Conservative, Aldershot)

Did my hon. Friend hear the Solicitor-General say that the services were ``fully on board with regard to the Bill''? I do not know if that means with regard to my hon. Friend's amendment. Does my hon. Friend think that the Solicitor-General's remark squares with the public statement made by the Chief of the Defence Staff to the House of Commons Select Committee on Defence?

Crispin Blunt (Conservative, Reigate)

My hon. Friend is quite right—it does not. There are concerns in the armed forces and the amendment would have gone a short way toward meeting those concerns. I do not want to press it, but I think that this is an example of the Government's failure to understand the armed forces as they should. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 24, in page 4, line 10, at end insert—

``, and

(c) that there is a prima facie case, on the evidence to be heard.''.

I do not want to undermine what my hon. Friend the Member for Reigate has just said, but I agreed with a good deal of what the Solicitor-General said, not least his remarks relating to the current position in respect of courts martial, whereby serious crimes such as murder are dealt with by civilian courts instead.

Crispin Blunt (Conservative, Reigate)

My hon. and learned Friend is, of course, aware that that is the position in the United Kingdom. However, when our armed forces are stationed abroad, such serious issues are very properly dealt with by the service court system. I have been involved in two such cases when a soldier was accused of rape.

Edward Garnier (Conservative, Harborough)

Fortunately, however, the amendment that my hon. Friend the Member for Reigate was discussing is now past history and I can now discuss amendment No. 24. I made that remark not to undermine my hon. Friend—much—[Laughter.]—but to encourage the Solicitor-General to deal fairly with the amendment that my hon. Friend the Member for Chesham and Amersham and I have tabled. The amendment was explored briefly in the other place, but not adequately dealt with by Ministers there. It is quite clear, and I invite the Solicitor-General to tell me why it should not be included in the Bill.

Ross Cranston (Labour, Dudley North)

The answer is straightforward and twofold. First, we have an obligation under the statute. If the hon. and learned Gentleman looks at article 59.4 of the statute, he will see that it is not

``open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued''.

We are not allowed to second-guess the ICC. That would be inconsistent with our obligations under the Rome statute.

My second point, not addressed by the hon. and learned Gentleman when discussing a previous clause, is that under the existing precedents—the tribunals for former Yugoslavia and for Rwanda—there is no such provision. Those tribunals were approved by statutory instrument by the previous Government, as I mentioned the other day, and we commend them for that. They do not allow discretion. If the hon. and learned Gentleman examines paragraph 6 of the United Nations (International Tribunal) (Former Yugoslavia) Order 1996, he will see that the provision that he proposes is at odds with the arrangements there.

Those are the two grounds on which I cannot accept the amendment, and I invite the Committee to resist it.

Gerald Howarth (Conservative, Aldershot)

I should like question the Solicitor-General. It is important to understand that he is saying that there is complete automaticity: if the ICC serves a notice on the British Government through the channels that the Minister of State indicated—the Foreign and Commonwealth Office—the competent court can only satisfy itself that the warrant has been issued by the ICC in accordance with clause 5(2) and that the person is the right person, as we have already discussed. The court has no other authority whatsoever. Even if it were felt that there was a prima facie case for questioning the warrant, it would not be possible to do so. Under the legislation that we are being asked to enact, we will have absolutely no power to intervene in delivering up a British citizen to a court when we feel that it is not justified.

Ross Cranston (Labour, Dudley North)

We have gone over this ground before, but such protection is contained, for example, in clause 5(4), which we will come on to shortly, and in the statute itself. Article 17 of the statute makes it quite clear that if we make an attempt to deal with someone, the ICC will not have jurisdiction. We have long maintained the position that the ICC is the best place to decide whether someone has a case to answer, if we have not dealt with them, and that our courts should not attempt to second-guess it. That is set down in the statute.

Edward Garnier (Conservative, Harborough)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 26, in page 4, line 36, at end insert—

``, or

(c) that there is reason to believe that the person would not receive a fair trial in accordance with principles of United Kingdom law''.

Frank Cook (Labour, Stockton North)

With this it will be convenient to consider new schedule 1—Rights of person delivered up to the ICC—

``1. All persons delivered up to the ICC under this Act shall be entitled to all the rights, protections and privileges which would be afforded to them in English law if they were facing a trial on indictment in England and Wales.

2. No person shall be delivered up to the ICC whether under this Act or otherwise or be subject to any of its powers whether set out in this Act or otherwise, in the absence of a written notice served in each specific case by the ICC at the time of arrest or detention of such a person which guarantees the provision of such rights, protections and privileges.

3. The said rights and protections and privileges in paragraph 2 shall include but not be limited to the following—

(a) the presumption of innocence until proven guilty;

(b) a public trial unless the defendant consents to a trial in secret;

(c) the rights to confront and cross-examine witnesses;

(d) conduct of proceedings in the defendant's choice at the public expense;

(e) the right to remain silent without the drawing of adverse inferences for such silence;

(f) all proceedings whether by jury or otherwise to be conducted in the first language of the accused, or with the provision by the ICC to the defence and accused of appropriate and competent interpretation; and

(g) a party who has been acquitted of an offence may not be retried for the same offence, or an offence on the same or similar facts.''.

Edward Garnier (Conservative, Harborough)

Much of what is set out in amendment No. 26 and new schedule 1 is uncontroversial. It might be said that there is no need for them because their contents are already present within the Bill or the statute of Rome itself.

A number of points need to be clarified, not least because the Bill is not a simple replication of the statute of Rome. It requires one—this is what we are paid to do—to assimilate various parts of the Bill, both its main text and the schedules, with the statute of Rome. I want briefly to refer to the procedures and standards that we expect the ICC to apply to defendants and to the cases that come before it when it is set up—whenever that may be.

I remind the Committee that amendment No. 26 would add a new paragraph (c) to clause 5(2), which would state a third reason. Clause 5(2) would then read:

``If the competent court is satisfied—

(a) that the warrant—

(i) is a warrant of the ICC and has been duly endorsed under section 2(3), or

(ii) has been duly issued under section 2(4), and

(b) that the person brought before the court is the person named or described in the warrant,''—

and this is the third alternative—

``or

(c) that there is reason to believe that the person would not receive a fair trial in accordance with principles of United Kingdom law''.

So the court would have to be satisfied on those three bases before it could make a delivery order.

I accept that at least some of our proposals in new schedule 1 are already included in the statute, but the schedule sets out the basic standards that we would want to be included in any proceedings. We in this country and this Parliament are careful to ensure that the rights of victims are properly recognised and protected by the criminal justice system; equally, in doing so, we must ensure that the rights of defendants are adequately protected. As legislators, we have two interests. First, to make sure that the perpetrators of criminal acts are brought to trial, but secondly, to make sure that when they are brought to trial, they are treated according to the proper standards that we expect of our judicial and criminal justice system. We should expect no less of an international criminal court. It does not matter whether we are talking about the rights of UK nationals or the rights of citizens of other countries who are arrested in this country, either because they are here temporarily or because they have fled here to avoid justice in their own countries for war crimes.

The first paragraph of new schedule 1 proposes that:

``All persons delivered up to the ICC under this Act shall be entitled to all the rights, protections and privileges which would be afforded to them in English law if they were facing a trial on indictment in England and Wales.''

I can foresee a practical difficulty straight away, because if one is tried for murder in a civilian court in this country, the chances are—subject to the defendant pleading guilty and, therefore, not requiring a full trial—that one would expect a jury trial, as one would for all indictable-only offences. However, as I understand it, the statute of Rome makes no provision whatsoever for jury trials. Indeed, I can see that there would be difficulties in assembling a jury for an ICC based in The Hague because from where would such a jury come? Although I am not a criminal lawyer myself, it would obviously be attractive to those who practise in the English courts—perhaps I should say the British courts, because juries are available in Scotland as they are in England and Wales—if, in the event of a British defendant being transferred to the ICC, he was tried there by a judge and a British jury.

However, there would be huge practical difficulties with that. It would be almost impossible to find 12 or any other number of British citizens who could be transported to take part in what could be a very long trial. I say that only because of the experience that we have of the Yugoslavia tribunal, which is currently sitting. Some of the trials involving defendants from the former Yugoslavia have taken a very long time, so I accept that there is that difficulty with paragraph 1.

A jury trial may therefore not be possible. However, there is no reason why those defendants who are caught by the Act that the Bill will become in our jurisdiction should not have the protection and privileges that would normally be afforded to them under English law if they were facing trial on indictment in this jurisdiction. That is the preamble. It may well be described as no more than motherhood and apple pie, but I hope the Minister responding to the debate will salute it, even if he does not wish to see it jump into his ministerial car.

In paragraph 2, we suggest that

``No person shall be delivered up to the ICC whether under this Act or otherwise or be subject to any of its powers whether set out in this Act or otherwise, in the absence of a written notice served in each specific case by the ICC at the time of arrest or detention of such a person which guarantees the provision of such rights, protections and privileges.''

Again, I confess that, at least in part, that is provided under the Rome statute. Paragraph 3(a) of article 61, entitled ``Confirmation of the charges before trial'', states:

``Within a reasonable time before the hearing, the person shall:

(a) Be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial; and

(b) Be informed of the evidence on which the Prosecutor intends to rely at the hearing.

The Pre-Trial Chamber may issue orders regarding the disclosure of information for the purposes of the hearing.''

I accept that, under that provision, a defendant will be given at least an outline—and one would hope rather more—of the case that he will have to answer and the basis upon which the prosecution intends to prove his guilt.

It seems to me—no doubt the Solicitor-General has studied this at greater length than I—that there is room, without damaging the statute, and without damaging the policy behind the Bill, to include if not new schedule 1(2) itself, then something along those lines. It must be acceptable to all of us, whichever side of the Committee we are on, to introduce into the Bill a provision that requires that no one shall be delivered up to the extra-territorial court in the absence of a written notice, served in each specific case by the court when the arrest is made, guaranteeing the provision of the rights, protections and privileges referred to in new schedule 1(1).

I would imagine that the Solicitor-General could easily draw up overnight a pro forma document that could be handed to a defendant—

Tony Worthington (Labour, Clydebank and Milngavie)

It could be photocopied.

Edward Garnier (Conservative, Harborough)

That is right, it could. It could be handed to the defendant, saying, ``These are your rights.'' I dare say that there are protocols or other such written memoranda in international jurisprudence that are used in the cases of those brought before the Yugoslavian or Rwandan tribunals; there may well have been something similar in the Cambodian or Laotian court that the United Nations set up. In any event, it cannot be beyond the wit of man, let alone the Opposition, to draw up a written document that sets out a defendant's guaranteed rights, protections and privileges. That is surely a secretarial task, which does not require the input of huge legal thought or intellect.

Article 64 of the statute relates to the ``Functions and powers of the Trial Chamber''. It deals in part with the concerns expressed in paragraph 3 of the new schedule. Other articles on pages 36 to 38 of the statute may assist me, but I want the Government to confirm their understanding of the statute. Paragraph 3 of the new schedule states:

``The said rights and protections and privileges in paragraph 2 shall incude but not be limited to the following—

(a) the presumption of innocence until proven guilty''.

It does not take a brain surgeon or rocket scientist to go much beyond article 66, in which one sees that the presumption of innocence is incorporated into the statute. The article states:

``Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.''

That is fine as far as it goes. The onus is on the prosecutor to prove the guilt of the accused and the standard of proof required in paragraph 3 is something that we would all recognise.

Paragraph (b) of the new schedule states that there shall be

``a public trial unless the defendant consents to a trial in secret''.

That is almost dealt with in the statute, but not quite. Article 64.7 states:

``The trial shall be held in public. The Trial Chamber may, however, determine that special circumstances require that certain proceedings be in closed session for the purposes set forth in article 68, or to protect confidential or sensitive information to be given in evidence.''

One could imagine any number of circumstances in which it would be appropriate to have a criminal trial in the absence of the press and the public—one thinks of national security trials in this country. Although parts of such trials would have to take place in open court, it is only right and proper when dealing with espionage matters or matters of acute national security that the public should be excluded, subject to the defendant being given proper protection. Otherwise, the whole purpose of the secrecy system covering our intelligence and security services would be destroyed.

Article 64.7 does not, however, meet the concern that we want met in paragraph 3(b). The choice of whether the trial should be held in public or in secret appears from the article to remain with the court and to allow no input from the defendant. I turn to article 67 to see whether any of the rights of the accused which it sets out give me any assistance. Perhaps I have been hasty, but I do not think that that article deals with the issue set out in paragraph 3(b). I look forward to hearing the Government's view on that.

Tony Worthington (Labour, Clydebank and Milngavie)

Indeed.

Edward Garnier (Conservative, Harborough)

There we are—cast a fly across the water and the little chap will bob up. The important point is that the prosecution in this country must at least identify the inference—[Interruption.] It was not in this case. The prosecution must identify the inference before the jury is invited to draw an adverse inference from silence at arrest or interview or from a failure to give evidence. I would like confirmation that sub-paragraph (g) is compliant with paragraph 3(e) of new schedule 1.

Paragraph 3(f) of new schedule 1, which provides for

``all proceedings whether by jury or otherwise to be conducted in the first language of the accused, or with the provision by the ICC to the defence and accused of appropriate and competent interpretation'',

has been dealt with, up to a point, by my argument on paragraph 3(d). Article 64(3) of the statute states:

``Upon assignment of a case for trial in accordance with this Statute, the Trial Chamber assigned to deal with the case shall . . .

(b) Determine the language or languages to be used at trial''.

I assume that, in line with the ordinary rules of natural justice, the court will determine the language or languages to be used at trial in such a way that the defendant will not be disadvantaged. I am sure that that is uncontroversial. However, there may be circumstances in which the defendant speaks a language wholly unknown to the bank of translators or interpreters at the Hague.

To introduce an almost irrelevant note of levity I am reminded of the candidate at All Souls who was studying Serbo-Croat and wanted to be examined orally in that language at Oxford so that he could complete his postgraduate studies. The university authorities wrote to the then Yugoslav embassy to inquire about the most appropriate and sensible choice of person to conduct the examination, only to be told that that would be the candidate himself. That has nothing to do with the ICC but it demonstrates that from time to time languages or dialects that are known by only a few people may crop up. We must be sure, in setting up the ICC, to establish access to a sufficient breadth of language knowledge, so that no defendant, whether a citizen of the United Kingdom or of some other country, will be disadvantaged by a failure with respect to language.

Paragraph 3(g) of new schedule 1 would provide that

``a party who has been acquitted of an offence may not be retried for the same offence, or an offence on the same or similar facts''.

Article 20.1 of the statute states:

``Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.''

Articles 22 and 23 are complementary to that. In the context of article 23, I want to know the Government's view on who decides whether article 20 bites—the domestic courts in this country or in the other jurisdiction contesting the ICC's jurisdiction, the pre-trial chamber or the full court? If a challenge is made on the ground of autrefois acquittal or conviction, who will reach the necessary conclusion? Should the competent court in this country, when asked to deliver up a defendant, be able to reach a final decision, or should its decision be open to re-examination by the pre-trial chamber or the ICC?

I have been engaged in a dry discussion that has not been exactly a laugh a moment, but the matters involved need to be examined. I want reassurance from the Government about them, not least because—I do not blame anyone for this—we are operating under a constrained timetable. The House, in its wisdom, has decided that we should have only a certain number of days to discuss the matter in Committee and only a certain number of hours to discuss the Bill on Second Reading and Report, and very little discussion took place on these matters in another place. Although they might not be hugely fascinating to all those concerned, I believe that it is appropriate to raise them and seek reassurance from the Government. We should not allow ourselves to be overtaken by the enthusiasm for the ICC thta—albeit to greater or lesser degree—we all share and rush through the Bill to take our country into the ICC without taking proper account of the need to ensure that the machinery is in place, not only to deter bad guys wherever they may be, from being bad, but to protect the innocent from being convicted.

Gerald Howarth (Conservative, Aldershot)

I rise briefly to support my hon. and learned Friend the Member for Harborough. I have looked through several of the articles—in fact, I reviewed them again on the train this morning—and I marvel at his wonderful ingenuity in seeing potential pitfalls, which I, in my rude and rudimentary, non-legal fashion have failed to detect.

It is clear that there is an attempt in the statute of Rome to ensure that there is comprehensive protection for accused persons. Throughout our proceedings, the Government have sought to reassure us of their great confidence in the court and the structure that establishes it. We heard an enthusiastic presentation from the Government about how the court would be independent and unable to gang up on countries, about how excellent the judges would be, and how all the structures that have been put in place are designed to give us confidence that the ICC will be a proper and respectable court. I put it to the Minister, however, that articles can be changed.

It is my understanding that, in accordance with paragraph 7 of article 112,

``Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute:

(a) Decisions on matters of substance must be approved by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting''.

I understand that to mean that the quorum for voting will be at least 50 per cent. of the states parties and that any vote taken must have a two-thirds majority of those present and voting. Therefore, articles of the statute could be changed by one-third of the membership.

The Government will, no doubt, tell my hon. and learned Friend the Member for Harborough that his fears are unfounded because all the articles provide more than adequate protection for persons who are likely to be brought before the ICC. Nevertheless, if the Government were to accept my hon. and learned Friend's amendment, it would enact into UK law a real safeguard in the event of the articles of the statute being changed—by the mechanism that I have mentioned, if I am right—in a way that might remove from accused persons the kind of protections that we in the United Kingdom expect.

The new schedule proposed by my hon. and learned Friend would not in any way conflict with the statute. It would, however, provide some reassurance that the Government were prepared to include in the Bill a provision that any citizen of this country who was delivered up to the ICC would be entitled to all the rights, protections and privileges that they would be afforded under English law if they were facing indictment and trial in England or Wales.

That would do nothing to invalidate the Rome statute, and thereby cause problems for the present Government. However, it would be a way of saying that if an attempt were made to change the articles of the statute in a way of which we did not approve, such as to diminish the rights of accused persons, our domestic legislation would give power to a future Government to deal with the matter.

I hope that the Government appreciate that we are trying to learn the lessons of the past and use them to foresee how the court might work out in practice. If we raise hypothetical cases that cause us, Ministers and other Government Members concern, I is because we are trying to foresee the unforeseeable. That is our duty when setting up a permanent international criminal court.

Ross Cranston (Labour, Dudley North)

I understand that the spirit in which the amendment and the new schedule have been proposed is one of genuine concern for the rights of accused persons. However, I want to reassure the Committee that they are unnecessary in terms of protecting the rights of accused. To introduce the provision would be in breach of our obligations under the statute.

The hon. and learned Member for Harborough took us in some detail through the provisions of the relevant articles of the Rome statute. He rightly pointed out the presumption of innocence in article 66 and the right of public trial in article 67, and that even in our jurisdiction a criminal trial can sometimes be conducted before a closed court if, for example, it involves evidence that touches on a matter of national security. It would be appropriate in certain circumstances for that to occur in the ICC, as recognised in the Rome statute.

The hon. and learned Gentleman raised the question of whether the accused would have any input into that. Natural justice is a well-accepted principle of international law. The statute provides clearly for a right of representation, so for the ICC not to accept representations by counsel for the accused as to whether the court should be open or closed would be inconceivable; it would be a clear breach of international law. I can reassure him on that matter.

The hon. and learned Gentleman also pointed out the right of cross-examination, and raised an interesting point about the right to remain silent in article 67.1(g). It could be argued that the provision in the Rome statute is more extensive than the rights laid down in domestic law. No doubt, like me, he has directed juries that in some cases adverse inferences can be drawn from the silence of the accused in domestic law. My reading of the provision is that that is probably not possible under the terms governing the ICC. On the interesting point of whether preventing the accused himself from cross-examining witnesses is in breach of article 6 of the European convention on human rights, he will know that there is a relevant case currently before the House of Lords in its judicial capacity. We await judgment on that controversial matter. However, I anticipate that the ICC would act in accordance with the decision of international tribunals such as the International Court of Human Rights.

The hon. and learned Gentleman mentioned, in relation to article 67, the right of the accused to have benefit of competent interpretation and translation in the language that the accused ``fully understands and speaks''. That provision is quite clear. The Rome statute provides that English and French be the two working languages of the ICC, and there are provisions about working languages in the rules on procedure and evidence. I will let him examine those rules later. However, I can assure the Committee that the accused will be fully protected in terms of adequate interpretation and translation.

The hon. and learned Gentleman also raised article 20, which concerns the right not to be tried twice for the same offence. He asked whether the domestic court would decide that particular matter. I interpret the wording of the statute to mean that if, for example, an English court had decided the issue under part V of the Act that the Bill will become, the ICC would decide that the person in question had already been tried. That brings us back to the issue of complementarity, with which we have dealt on previous occasions. The ICC will have jurisdiction only if the domestic jurisdiction does not deal with the matter in a bona fide way.

Article 55 deals with the rights of the accused person during an investigation. The statute clearly lays down those rights. As I have said, in at least one respect the statute goes beyond the rights given to an accused person in our domestic jurisdiction. It could also be argued, although it is a more academic point, that it goes even further, beyond the rights that are set out in article 6 of the European convention on human rights.

My second point, to which I referred at the outset of my remarks, was that introducing the provision into the Bill would place us in breach of our obligations. We have gone over that ground before. The Committee is already aware that nothing in the statute allows a state to refuse to surrender a person to the ICC because the ICC has not issued a written notice on the subject of rights at the time of the arrest, so to introduce the proposed provision would place us in breach of our obligations under the Rome statute. I give the Committee my assurance that the rights of the accused person will be protected at least to the extent provided for in domestic law. The provision would put us in breach of our obligations.

The hon. Member for Aldershot (Mr. Howarth) raised an issue about the amendment, which perhaps he will clarify.

Gerald Howarth (Conservative, Aldershot)

My concern is that the statute's articles have the power to be amended by only a third of the membership. If we enact the new schedule, perhaps with amendments, it would provide a safeguard against reducing the defences available to an accused person.

Ross Cranston (Labour, Dudley North)

I can take the hon. Gentleman through the provisions in the statute. Yes, it can be amended after seven years, but if he goes through the amendment provisions closely, he will see that that can be done only if there is a two thirds majority in the assembly, and then only if seven eighths of the assembly members have accepted the change. It is inconceivable that the ICC will move away from well-accepted international standards about the rights of accused persons in either the investigation process or the trial procedure.

Edward Garnier (Conservative, Harborough)

I shall be brief because I expect that we will be called downstairs before long. I am grateful for the Solicitor-General's reassurances. He will be the first to agree that those important rights need to be proclaimed, no matter how keen we all are that war criminals are brought to justice.

We are working under not only time constraints, but procedural constraints, because we are dealing with a statute that we cannot amend. I find that hugely and increasingly frustrating. We are currently discussing clause 2; I doubt that we will ever get on to schedule 3, or even schedules 1 and 2, which deal with the manner in which procedures are imported into our system. The Solicitor-General rightly mentioned article 55, but that is hidden away in schedule 3 on page 54 of a lengthy piece of legislation.

I am worried that we might push through an important Bill too quickly. People might say, ``So what? We all want to see an ICC—end of story.'' The Government are entitled, with their majority, to get their business through. I think, however, that we should be careful and, from time to time, think a little more deeply about what we are doing in this Room. I hope that we will not lose sight of that. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.

Clause 6 - Supplementary provisions as to proceedings before competent court

Edward Garnier (Conservative, Harborough)

I have one or two very brief questions about clause 6. We all know that the competent court means the domestic court that will deal with the transmission of the defendant to the ICC. I want to ask the Government about costs.

I note that in clause 6(2) provision is made for the payment of

``defence costs on dismissal of proceedings''.

If a defendant is brought before the competent court and it dismisses the information against him, he would be entitled to recover his costs, which I assume would be obtained from the Crown Prosecution Service or the Foreign Office. I expect that it would be the CPS because it would be acting for its client—the Foreign Office or the ICC—just as the CPS acted for the Government of Spain in the Pinochet matter. In the event that the case is dismissed and the CPS is required to pay the defendant's costs, will the CPS—and I ask the question as protector of taxpayers' money—be able to recover, on an indemnity basis, what it has paid from the ICC?

John Battle (Labour, Leeds West)

When the hon. and learned Gentleman moved the amendment on the previous clause, he commented that we must address the detail of the Bill and get it right. I concur. We are not content to say simply that the Bill is a good idea, so let us get on with it.

Clause 6 contains practical provisions that will ensure the proper and efficient conduct of proceeding on a delivery order. It enables a competent court to exercise certain powers relating to the conduct of proceedings; for example, it can adjourn the case and remand the arrested person. It provides for the arrested person to have access to criminal advice, assistance and representation through the criminal defence services. As for what would happen in the event of a discharge, the arrested person's costs would be paid out of central funds.

Edward Garnier (Conservative, Harborough)

I am grateful to the Minister, but my question went a little further. Will the CPS be able to recover the outgoing costs that it has to pay from its client—the foreign extra-territorial body? While he is taking instructions, and I mean that in the nicest—

John Battle (Labour, Leeds West)

I am not insulted. I apologise for the delay.

Edward Garnier (Conservative, Harborough)

No, I am delighted. I want the Minister to have all the information that he needs.

In the extradition case, the kingdom of Spain was the client of the CPS, which may—I do not remember—be insusceptible to an order for costs, and that case may have gone all the way through the Lords and back. Under the Bill, will the ICC be required to pay the CPS's costs for doing the ICC's work?

John Battle (Labour, Leeds West)

That is a good question. I apologise for consulting the Solicitor-General, but his advice, as usual, is spot on. Article 100 refers to costs, and makes it clear that costs would be borne by the state, not by the ICC, so they would come back home to us and we would have to find them from central funds.

Question put and agreed to.

Clause 6 ordered to stand part of the Bill

Clause 7 - Consent to surrender

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I have not tabled an amendment to the clause, but seek clarification following the proceedings in another place. Clause 7 deals with consent to surrender and provides that where an arrested person gives written consent

``in the presence of the justice of the peace or, in Scotland, a sheriff,''

the competent court will make a delivery order and the person will have been taken to have ``waived his rights'' to appeal against the order. According to the notes on the clauses, that reflects the provision in article 92.3.

Clause 7(2)(b) states that consent to surrender may be given

``in circumstances in which it is inappropriate for the person to act for himself, by reason of his physical or mental condition or his youth, by an appropriate person acting on his behalf.''

The definition of incapacity was brought up in another place, but I want to probe the matter further because, as I am sure that the Solicitor-General will agree, it is important to establish the circumstances in which another individual can take on the onerous burden of consenting to surrender for the person who is the subject of the warrant.

In our discussion of clause 2, we saw that a person already convicted can be the subject of a warrant and therefore in extremis—he or she has nothing to lose. Yet here we have a situation in which a person purporting to take the burden from the shoulders of the person arrested will take on the role of mouthpiece. That has serious implications for the liberty of the person arrested. Given that the provision gives total discretion to the other person acting on that individual's behalf, the ability to consent to surrender should be given to another person only in very restricted circumstances in which the person arrested cannot give consent.

My noble Friend Lord Kingsland moved an amendment to that effect, No. 37, in another place. The Attorney-General, Lord Williams of Mostyn, tried to give a reason for rejecting the amendment, but the discussion was not a full one and it represented something of a dismissal of the case that had been advanced quite succinctly. The Solicitor-General should have the chance to make further comment on the definition of incapacity, given the severity of the consequences. It is important to ensure that the court is satisfied of the individual's incapacity prior to accepting consent from another party.

Ross Cranston (Labour, Dudley North)

As the hon. Lady rightly says, there is a provision whereby, in circumstances in which it is inappropriate for a person to act for himself or herself, someone acting on his or her behalf can give consent, that is, in the event of incapacity. Our domestic courts will not take such a matter lightly. They will want to be satisfied as to the incapacity and to test both it and the appropriateness of somebody else acting on the person's behalf. It is right that the Opposition raise such cases, although we think that they are extremely unlikely to occur, if at all.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The Solicitor-General says that such cases are unlikely to occur. However, one condition in 7(2)(b) is ``by reason of . . . youth''. Child soldiers are used extensively in certain warring areas, so it is not unreasonable to assume that a situation might arise in which a minor—I would like the Solicitor-General to clarify any possible age limit—is subject to having to give consent to surrender, but is incapable of doing so and requires someone to do it on his or her behalf. I am not sure what the Solicitor-General means when he says that that is impossible. It might be unlikely, but it is possible or even probable in certain circumstances.

Ross Cranston (Labour, Dudley North)

The courts will not have jurisdiction over persons under the age of 18. The key point is that the court will test the matter—if there is any dispute about the person's capability, the court will decide. I am sure that our courts will exercise that power rigorously.

Sitting suspended for a Division in the House.

On resuming—

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.

Clause 8 - Procedure where court refuses order

Edward Garnier (Conservative, Harborough)

I have only a few brief questions on clause 8. Subsection (1) states:

``If a competent court refuses to make a delivery order, it shall—

(a) make an order remanding the person arrested''.

Will the Solicitor-General confirm that remand can mean remand in custody and remand on bail? Will the usual domestic rules for the granting or otherwise of bail apply? Is it anticipated that special rules, which are different from the usual criminal bail rules, will apply? The Solicitor-General is being handed a piece of paper—

Ross Cranston (Labour, Dudley North)

I do not need it.

Edward Garnier (Conservative, Harborough)

I know that the hon. and learned Gentleman does not need any help.

Clause 8(2) states:

``If the court is informed without delay that an appeal is to be brought under section 9 or 10, the order remanding the person arrested shall continue to have effect''.

Could both the Crown—acting for the ICC—and the defendant appeal if they were dissatisfied, or is an appeal open only to the defendant?

Ross Cranston (Labour, Dudley North)

I can give the assurance that the hon. and learned Gentleman seeks on the first point. Clause 16 provides for remand to include remand on bail. The ordinary bail rules would apply. That is also true of appeal—the hon. and learned Gentleman's third point.

Edward Garnier (Conservative, Harborough)

Subsection (2) contains the phrase:

``If the court is informed without delay that an appeal is to be brought under section 9 or 10''.

Clause 9 deals with appeals against refusal of a delivery order in England and Wales and clause 10 deals with such appeals in Scotland, although I will not worry about that because it is way beyond my ken—whoever he is. However, I want to be clear that there is a two-sided appeals system in clause 9. Or is it only one-sided? I might have wholly misunderstood the thrust of clause 8, in which case the Solicitor-General can correct me.

Ross Cranston (Labour, Dudley North)

In this case, the piece of paper did help me. The Secretary of State can appeal if there is no order, and the accused can appeal if there is. I hope that that gives the hon. and learned Gentleman the assurance that he seeks.

Question put and agreed to.

Clause 8 ordered to stand part of the Bill.

Clauses 9 and 10 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. McNulty.]

Adjourned accordingly at two minutes to Five o'clock till Tuesday 1 May at half-past Ten o'clock.