Mr Edward Garnier (Harborough, Conservative)

The schedule belongs with clause 24, and I shall ask the Government some brief questions. First, paragraph 2(3) on page 48 states:

``If a delivery order is made and the criminal proceedings are still pending or in progress, the Secretary of State . . . shall consult the ICC before giving directions for the execution of the order''.

In this context, what does ``consult'' mean? Does it imply that the Secretary of State may not do anything without the consent of the ICC and that he will take into account its answer in some way, or does it simply mean that the Secretary of State will inform the ICC of what he wants to do before doing it? My question applies equally to paragraphs 12(2) or 13(4), and to other examples that may exist within schedule 2 of the use of the words ``consult'' or ``consultation''.

Paragraph 2(5) states:

``This discontinuance under this paragraph of criminal proceedings in respect of an offence does not prevent the institution of fresh proceedings in respect of the offence.''

Will the Solicitor-General confirm that article 20 overrides that provision? That question relates also to paragraph 4(5).

Paragraph 5 deals with the effect on custodial sentences. How will the schedule affect the Rehabilitation of Offenders Act 1974? I appreciate that most of the sentences that ICC defendants will receive will be lengthy and may well be life sentences, so the Rehabilitation of Offenders Act 1974 may not bite. However, in the event that the ICC hands out a short sentence that comes within the current provisions of the Act, will the provisions of the Act apply to such a sentence?

Paragraph 12(2) in part 3 of the schedule states:

``The Secretary of State shall inform the court of the request and of the outcome of the consultations.''

Is the word ``inform'' used in the straightforward sense of a person simply telling somebody what is being done— to tell the court of the request and the outcome of consultations—or is there an extra meaning that should be read into the word? Such concerns are similar to those that I had about the word ``consult''. These questions may not detain the Solicitor-General for long, but I ask him to address them before we proceed.

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

In terms of paragraphs 2 and 12, there are two ends of the spectrum. At one end, there is the matter of simply informing someone of something—``consult'' may mean that; at the other end is a situation in which the person informed has a veto. Consultation falls across the spectrum. One consults rather than simply informs because one discusses the matter with a person and takes into account what a person may say. As the explanatory memorandum makes clear, the purpose of consultations would be to

``determine when and how the surrender will take place.''

Consultation would occur so that matters would be discussed and taken into account before a decision was made. The ICC would not have a veto. However, paragraph 12 contains the word ``inform''—there is no consultation there. That deals with the first and fourth points made by the hon. and learned Member for Harborough.

The second point that the hon. and learned Gentleman made was about paragraph 2(5). There is a distinction between discontinuance of proceedings, and a situation in which proceedings are taken to completion. Under article 20 a person who is tried cannot be tried for a second time following an acquittal. However, one may start proceedings that are discontinued, which under our domestic law is not a bar on restarting proceedings.

Mr Edward Garnier (Harborough, Conservative)

Would the normal abuse applications apply? If a matter was discontinued and subsequently restarted, would the defendant be able to apply to have the proceedings stayed on the basis that they were an abuse?

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

In terms of the ordinary rules, the abuse argument would prevent the prosecution from starting again. The hon. and learned Gentleman knows that there are discussions continuing with the Law Commission on whether we should change our domestic proceedings on abuse applications, so that the prosecution could apply to have a judge's decision on abuse set aside. However, at present, a stay resulting from an abuse application means that the matter cannot be started again.

I will probably have to write to the hon. and learned Gentleman about the matter relating to the Rehabilitation of Offenders Act 1974, but I might be able to tell him about it later today.

Question put and agreed to.

Schedule 2 agreed to.