Clause 5 - Proceedings for a delivery order
International Criminal Court Bill [Lords]
3:15 pm

Mr Crispin Blunt (Reigate, Conservative)

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.

Mr Des Browne (Kilmarnock and Loudoun, Labour)

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?

Mr Crispin Blunt (Reigate, Conservative)

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.

Mr Des Browne (Kilmarnock and Loudoun, Labour)

It is the same thing.

Mr Crispin Blunt (Reigate, Conservative)

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—

Mr Crispin Blunt (Reigate, Conservative)

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.

Mr Mark Hendrick (Preston, Labour)

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

Mr Crispin Blunt (Reigate, Conservative)

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.

Mr Des Browne (Kilmarnock and Loudoun, Labour)

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?

Mr Crispin Blunt (Reigate, Conservative)

I did not catch the last phrase.

Mr Des Browne (Kilmarnock and Loudoun, Labour)

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?

Mr Crispin Blunt (Reigate, Conservative)

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?

Mr Des Browne (Kilmarnock and Loudoun, Labour)

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?

Mr Crispin Blunt (Reigate, Conservative)

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.

Mr Des Browne (Kilmarnock and Loudoun, Labour)

Will the hon. Gentleman give way?

Mr Crispin Blunt (Reigate, Conservative)

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.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

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.

Mr Crispin Blunt (Reigate, Conservative)

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.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

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.

Mr Crispin Blunt (Reigate, Conservative)

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.

Mr Gerald Howarth (Aldershot, Conservative)

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?

Mr Crispin Blunt (Reigate, Conservative)

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.

Mr Edward Garnier (Harborough, Conservative)

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.

Mr Crispin Blunt (Reigate, Conservative)

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.

Mr Edward Garnier (Harborough, Conservative)

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.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

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.

Mr Gerald Howarth (Aldershot, Conservative)

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.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

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.

Mr Edward Garnier (Harborough, Conservative)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Edward Garnier (Harborough, Conservative)

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''.

Mr Frank Cook (Stockton North, Labour)

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.''.

Mr Edward Garnier (Harborough, Conservative)

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—

Mr Tony Worthington (Clydebank and Milngavie, Labour)

It could be photocopied.

Mr Edward Garnier (Harborough, Conservative)

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.

Mr Tony Worthington (Clydebank and Milngavie, Labour)

Indeed.

Mr Edward Garnier (Harborough, Conservative)

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.

Mr Gerald Howarth (Aldershot, Conservative)

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.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

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.

Mr Gerald Howarth (Aldershot, Conservative)

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.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

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.

Mr Edward Garnier (Harborough, Conservative)

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.