Plenary, 18 Jan 2001

Meeting date: Thursday, January 18, 2001

Official Report 747KB pdf

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International Criminal Court Bill

Let us move on—I do not want to take up any more time on points of order. The motion is on the international criminal court UK legislation.

The 20th century was scarred by a series of international conflicts, with all too many examples of war crimes, genocide and other crimes against humanity. The need to protect civilian populations from those terrible crimes has led to the proposals that we are considering today. A permanent international criminal court will be a powerful deterrent, will help to end accusations of selective international justice, will be based on fundamental principles, and will allow for a quick response. For the first time, such a court is within our grasp.

The bill that was introduced in the House of Lords on 14 December and the equivalent Scottish bill that we plan to introduce in this parliamentary session will enable the UK to give effect to the statute of Rome, which is the treaty that was signed by 120 states in July 1998 allowing for the establishment of the court.

Will the minister join me in welcoming to the gallery Diana Miloslavich Tupac, who is a human rights activist from Peru? As one of its first actions, the provisional Government in Peru has signed that treaty, and I know that the chamber would like to congratulate Peru on doing so.

I am grateful to Linda Fabiani for that intervention. I, too, welcome our distinguished international guests and congratulate the Peruvian Government on signing the treaty.

I will now discuss the aspects of the UK bill that we propose should be dealt with under the Sewel convention. I apologise that some of the arguments are unavoidably rather technical and that the time for the debate is short, but the points are set out in full in the memorandum.

The first aspect is the privileges and immunities that will be conferred on the international criminal court. Some of those could undoubtedly have been conferred on the court by the Parliament. However, other privileges and immunities that are normally conferred on equivalent international bodies, such as exemption from border controls and from taxes and duties, are not within the competence of the Parliament. We consider that it makes sense not to divide up the provisions and replicate some of them in the Scottish bill, but rather to deal with all of them in the UK bill. The privileges and immunities will be conferred by an order in council, which will require to be agreed in draft by the Scottish Parliament.

The second aspect is arrest and surrender. In our view, legislation providing for the arrest of criminals and their surrender to the international criminal court is within the competence of the Parliament. However, it could be argued that arrest and surrender is equivalent to extradition, which is reserved to Westminster under the Scotland Act 1998. We believe that it would be irresponsible to allow the possibility of such a loophole, which could permit an individual who was being pursued for the most heinous crimes to slip through the net. We believe that the sensible course is to allow for those provisions to be dealt with in the UK bill so that there is no doubt whatever as to the legality of the arrest and handing over of such persons by Scottish police and Scottish courts.

The third aspect is provisions dealing with the movement of prisoners to, from or within the United Kingdom, for instance, to take part in other criminal proceedings. Although some aspects are within the competence of the Parliament, others, such as the provision of authority in English law for Scottish prison officers to escort prisoners in transit, for example when entering the UK through Dover or Heathrow, are not. Also, the provisions are required to mesh seamlessly where cross-border operations are contemplated. To ensure that Scottish officials have the necessary authority for the cross-border movement of prisoners and to avoid complex provisions to deal with such situations, it is our view that it makes sense from a practical and operational point of view to include all the provisions in the UK legislation.

We have throughout co-operated closely with the UK Government to find the most effective solutions with regard to provisions, regulations and arrangements that are often difficult and complex in their practical application.

I move,

That the Parliament endorses the principle of establishing the International Criminal Court in the legal systems of the United Kingdom and agrees that the provisions within the International Criminal Court Bill that relate to devolved matters should be considered by the UK Parliament.

As I have done before during Sewel motion debates, I want to place on record—yet again—my concern at the frequency with which that mechanism is being employed in the Parliament. I presume that it was to reinforce the doctrine of Westminster parliamentary sovereignty, as opposed to the sovereignty of the people, that Westminster made sure that the Scotland Bill contained a catch-all clause allowing Westminster to go on legislating for Scotland, even on devolved matters. The power was supposed to be used only rarely, as was recognised by the late Donald Dewar when he said:

"there is a possibility, in theory, of the United Kingdom Parliament legislating across those areas, but it is not one which we anticipate or expect."—[Official Report, House of Commons, 28 January 1998; Vol 305, c 402-03.]

What might have been more difficult to anticipate was the readiness of the Executive to allow Westminster to use that power so regularly.

In previous debates on specific topics, I have conceded that there might be some practical expediency in using Sewel motions from time to time. However, the Parliament should not be about practical expediency only. I am not convinced of a pressing need for the issue to be dealt with in that way. After all, I understand that we are scheduled to have an international criminal court bill introduced in the Parliament in April.

The SNP is more than happy to endorse the international criminal court itself. However, we could find ourselves in a situation in which the Parliament will, properly, legislate in areas that concern it and are to do with the court—with the important scrutiny that stage 1 allows—but, for other purposes that are equally within the competence of the Parliament, it will not legislate. Why not? I do not believe that the justification as set out in the Executive's memorandum, or as set out today by the minister, is sufficient. I have one reason for saying that: the operation of international criminal court orders, judgments, warrants and requests in Scotland is a very important matter. Why should that not be subject to the scrutiny of the Parliament as well as anywhere else in the UK?

Normally, when these motions come to a vote, the SNP allows them to go through. However, I am reserving judgment on this one until I have heard all the contributions. It seems extraordinary that, notwithstanding the separate Scottish legislation that is planned, and which we will support, we are proceeding in this fashion. One day, I hope that the Executive—or the Government or whatever—will come to its senses and cease to use this procedural device, which was never meant to be anything other than a rarity. This is Scotland's Parliament; let Scotland's Parliament legislate.

The Conservative party recognises the importance of the motion, and of the bill that is going through the House of Lords. We acknowledge that this is a United Kingdom matter. It is to the benefit of us all that all the nations of the union should go forward together and give their support, so that we have a level playing field for the implementation of the bill. As I have said, Westminster is the right place to determine the issue.

Scotland sends MPs to Westminster to deal with such issues and they must have regard to Scotland's interests in the matter. They have that responsibility. Let us hope that those who voted on a devolved issue at Westminster yesterday can regain some dignity by adding value to the bill when it comes before the House of Commons.

We must learn from the hasty incorporation of the European convention on human rights. We must ensure that UK law and Scottish law go ahead hand in hand. We look to the Executive to ensure that the details of the bill that it will present to Parliament align fully with the International Criminal Court Bill. There must be no loopholes: otherwise, the United Kingdom and perhaps the Scottish Parliament will be a laughing stock.

We will support the minister unequivocally. We look forward to a strong debate in the House of Commons on the issue. We have some concerns, but it will be for Westminster members and the Westminster Parliament to determine the issue. I ask the minister quickly to put before Parliament a draft bill dealing with Scottish issues. We do not want another instance, as happened with the Regulation of Investigatory Powers (Scotland) Act 2000, of being caught at the tail end. However, as I said, we will support the minister.

Human rights and the law have been prominent in the Scottish Parliament since it began. The European convention on human rights is raising standards for citizens across Europe. By signing the statute of Rome in 1998, the Labour Government in Westminster spoke on the international stage. In particular, I am pleased—as I am sure are others—that our Government is a founder member of that treaty and is not dragging its heels on such an important issue. I hope that internationalism will continue to be an important theme in the Scottish Parliament.

The need for a permanent international criminal court has been under discussion since the end of the second world war and the Nazi war trials. There is an on-going need to deal effectively, on an international basis, with suspected war criminals and those who are responsible for crimes against humanity. Those people with blood on their hands and who have ordered mass tortures, executions and disappearances, such as Pinochet and Milosevic, will not be brought to trial under that court—unfortunately. However, when the legislation comes into force, international law will be much clearer in future cases.

The passing of the treaty and the subsequent domestic legislation should make clear rights and obligations under international law. In the past, the deterrent against crimes against humanity has been weak. Other codes of practice and international understanding have allowed for selective international justice. Now we will have core principles based on crimes specified in statute. That should allow a quicker response, which is important.

The Executive has already announced its intention to introduce a Scottish bill on the international criminal court, to be placed alongside the UK bill. We will be able to fulfil our obligations under the treaty. The Scottish part of the bill will allow the international court to ask the Scottish authorities to question a person whom the court is investigating or prosecuting. It will allow the taking of fingerprints and non-intimate samples to enable the international court to identify a person in whom it has an interest and to investigate suspected criminals.

I hope that members will take an international perspective on what today's Sewel motion is trying to achieve. We should co-operate across the UK, because this is a global matter for the greater good.

Only one member has requested to speak in the open debate. Mr Robson, you have three minutes.

I welcome, as does the Liberal party, the establishment of a permanent international court. It is an important development and we are right to introduce appropriate legislation.

My point is simple. The intention is to introduce a Scottish bill in April and there is rumoured to be a major political event taking place on 3 May. If the bill at Westminster did not complete its passage by the due date—some time in early April—what would happen? Would we need to consider extending the scope of the Scottish bill or even delaying it? Would the Scottish bill be able to operate on a standalone basis? During the passage of the Regulation of Investigatory Powers (Scotland) Act 2000, questions to ministers made it clear that the Scottish bill and the UK bill were complementary. It would be helpful to know whether the Scottish international criminal court bill could proceed if the events that are in the minds of many occur.

We must wait to see the content of the bill. I would be interested to hear the minister's comments.

Two other members wish to speak and I shall allow them a couple of minutes each.

I pressed my button first, so I hope to be allowed to speak for two and a half minutes.

I understand why the Minister for Justice thinks it reasonable and good practice to have Westminster undertake the necessary legislation to expedite the UK's ratification of the treaty to establish a permanent ICC. The UK will be the signatory, because foreign affairs such as this are reserved for the big brains—I nearly said big heads—in Westminster.

The minister, however, thinks that the treaty is anomalous. It is based on the need—as Pauline McNeill said—to create a better system of human rights throughout the world and to extend such rights to all humanity. It is based on big political and moral considerations and it depends on the intermeshing of the world's legal systems. Although Scotland has a Parliament, we do not have the mechanisms that would allow us to interact with other nations of the world in developing the intention and direction of the international criminal court. But we have a legal system, so I do not take the minister's attitude that the situation is anomalous, and that we should just allow Westminster—which has the political system and the right to sign an international treaty—to pass the legislation that is required for our legal system to interact with other international legal systems. My attitude is that an international treaty that recognises the world's legal systems should recognise the Scots legal system.

Why should it be that, according to part II of the bill—I must congratulate the drafters of the explanatory notes that came with the bill, because they are comprehensive—someone who is arrested in Scotland might be able to argue their way out of appearing before the court because they could argue that it was part of an extradition process, which is reserved to Westminster? Should not it say in the treaty that there is such a thing as Scots law, and that if someone is arrested in Scotland under the terms of Scots law, that will be recognised in the international criminal court?

I oppose the minister's view because I have a different way of looking at the world—I would like to join it. I would like to play a proactive part in building the treaty. I would like Scotland to be properly informed about all the questions that underlie the treaty. I want Scottish people to discuss and understand properly why the incoming American Administration has said that it will not ratify the treaty, when one of the last things that Bill Clinton did on his way out the door was to say that he would. I want Scots to understand that if, in future, Scottish squaddies who are involved in an international effort, say in Kosovo, Bosnia or something like it, are hauled up for the sort of action that saw two squaddies from Scotland in front of a court because they wrongfully shot someone in Belfast—as judged by people in Ireland—that will be a matter for international debate.

Scots must understand those issues and must make their voices heard in the world, and this is the place where that should be decided. I urge the Minister for Justice to listen to Roseanna Cunningham.

Presiding Officer, I read your hand signals, so my point to the minister will be brief.

Perhaps the minister could tell us what will happen to the Scottish Prison Service and Scottish prisons. If we are talking about an international criminal court, what about proper conditions in some of our jails, and the medical services that are provided to prisoners?

The debate has been useful. It is important to emphasise the main objectives of the International Criminal Court Bill. Mention was made of Peru signing up to the Rome statute, and I welcome the fact that one of the final acts of the Clinton Administration of the United States was to do so. The main purposes of the court are that its existence should act as a deterrent, that it will end accusations that the international community is selective in where it seeks to see justice done, and that it will enable an immediate response to acts that offend the international community. It places responsibility for such acts on individuals, rather than on communities, and in doing so can help further reconciliation.

If I may, I will address some of the detailed points. Euan Robson's point with regard to a possible election is not a matter for me or the Executive. However, there is an expectation that the UK Parliament will make good progress to complete the passage of the bill, and it is important that we continue with our proposals to legislate. The Scottish Executive and, I think, all in the Scottish Parliament would support the UK Government on the matter. The UK will be among the first 60 nations to ratify the treaty, so it is important that we put in place the Scottish provisions. However, ratification clearly could not take place solely on the basis of the Scottish legislation. Ratification will also require Westminster legislation, so if, for any reason, the bill falls in Westminster, it will have to be brought back before the UK Parliament.

Margo MacDonald made an interesting point, but it is not a question of treaties, it is a question of the Scotland Act 1998, which says that extradition is a reserved matter. As I indicated in my opening remarks, the Executive believes that it has the legislative competence to deal with arrest and surrender, but we do not wish to take the risk.

As everyone knows, some lawyers can advance a very sophisticated argument. We could introduce legislation in good faith, and say that we believed that it was within our competence, but we are not infallible. I am sure that Roseanna Cunningham would be one of the first to denounce us if, for example, someone who faced charges before the international criminal court was allowed to go free because we had anticipated this point but not done anything about it. Ensuring that the legislation is practical and watertight is far more important than breast-beating about what the Parliament can or cannot do.

The Parliament could do it. Even within a short time the Parliament has achieved the maturity and the confidence to take that strong, pragmatic view and not to allow a loophole to emerge. Likewise, the Parliament does not lose its sense of identity and its importance if, rather than duplicate the list of privileges and immunities, we legislate for them all in the UK bill. Again, we do not want any possibility of a challenge to Scottish prison officers escorting alleged international criminals through England. It is for those strong, pragmatic reasons that the Sewel motion is brought before the Parliament; I ask the Parliament to endorse it at 5 o'clock.

As the minister said, the decision will be taken at 5 o'clock. I will allow a two-minute overrun for the next item, because of the earlier points of order.