Clause 11 - Procedure where court makes order
International Criminal Court Bill [Lords]
10:30 am
Mrs Cheryl Gillan (Chesham and Amersham, Conservative)
Good morning, Mr. Cook. We have made good progress so far and I hope that we shall make even more progress today. Before passing clause 11, I want to clarify what happened in another place and tease out the Minister's thinking on the changes that have been made to the clause, to which the Opposition tabled amendments.
I refer specifically to clause 11(1)(b), which states that the court shall
``inform the person of his rights under section 12 (right to review of delivery order) in ordinary terms and in a language which appears to the court to be one which he fully understands and speaks''.
The keys to the provision were the level of understanding and the language that would be used. The proposal in the Bill as originally drafted was to use ``ordinary language''. The commendable ensuing debate explored the amendment tabled by Lord Lester of Herne Hill to remove ``ordinary language'' and replace those words with the term
``a language he fully understands and speaks''
and the spirit of that proposal was accepted by the Government. The Attorney-General, the right hon. Lord Williams of Mostyn, said:
``I shall certainly have a look at this matter.''
He undertook to write to Lord Lester and said that he would
``place a copy of the letter in the Library for those noble Lords who may be interested. We want exactly the same thing. I believe that the words `ordinary language' have a virtue even in this Committee.''—[Official Report, House of Lords, 8 February 2001; Vol. 621, c. 1319-20.]
However, the virtue of those words was not fully appreciated. When I went to the Library to discover the history of the clause, I perused the letter to which the Attorney-General referred—the letter dated 5 March to Lord Lester of Herne Hill. It dealt only with the Government amendments made on Report; it did not deal specifically with the amendment about ``ordinary language''.
I reiterate for the Committee's edification that the Bill was subject to a supposedly long consultation process—although I believe that it was too short. The Government implied that, as a result, the Bill was perfect; however, it proved so imperfect that many amendments had to be made on Report in another place, including the one to introduce the terminology now in the Bill. Instead of accepting Lord Lester's amendment which would have inserted the phrase:
``a language he fully understands and speaks'',
the Bill now contains the phrase:
``a language which appears to the court to be one which he fully understands and speaks''.
The letter dated 5 March to Lord Lester explaining the amendments to clause 11 states:
``During the debate on 8 February, the Government agreed to look again at the provision on `ordinary language' in Clause 11(1)(b). In line with views expressed in committee, the amendment seeks to incorporate the need for the person to be informed of his rights to seek a review both in non-technical terms and in a language which it appears he fully understands. The amendment draws and expands upon the wording of the Statute to ensure that each of these distinct considerations is covered.''
I should have thought that to cover the considerations in the statute, the word ``appears'' was otiose. To use the phrase
``a language that he fully understands and speaks''
places a different burden of proof on the matter than inserting the word ``appears''. In the other place, the Earl of Onslow made the eminently sensible suggestion that we could have the best of both worlds if the replacement for the term ``ordinary language'' were:
``the ordinary language that he fully understands and speaks''.
Why did the Government not accept the Earl of Onslow's suggestion, but insist on the higher burden contained in
``which appears to the court to be one which he fully understands and speaks''?
Why have the Government inserted the word ``appears''? How will a court fulfil that section of the statute? What tests will the judge apply to find out whether the person committed to custody understands the language used? How will that person appear fully to understand the language being used? That is especially important given that we may be dealing with people of many nationalities who speak a variety of languages or dialects and who may, as we discussed earlier, be mentally or physically infirm or below the age of consent. At this stage in the scrutiny of the Bill, it is important that the Minister explains fully what is meant by
``appears to the court to be one which he fully understands and speaks''.
and explains what tests the court will apply to ensure that that provision is fulfilled.