Justice 2 Committee, 12 Sep 2001

Meeting date: Wednesday, September 12, 2001

Official Report 202KB pdf

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International Criminal Court (Immunities and Privileges) Order 2001 (Draft)

Item 3 is on subordinate legislation. We have with us the Deputy Minister for Justice and his team.

All Executive engagements today have been cancelled, but my attendance is an attempt to minimise disruption to the committee's business. It will be the only business that Executive ministers will be undertaking today.

Minister, you are required to move motion S1M-2057, in the name of Mr Jim Wallace. Members will then ask questions, if they so wish. The debate may last for up to 90 minutes, but I hope that it will not.

The draft order before the committee is necessary for the United Kingdom to be able to meet certain of its obligations under the Rome statute and is thus required prior to ratification of the statute. The draft order is made under the International Criminal Court Act 2001, which, members will recall, received royal assent on 11 May 2001. Section 1(3) and paragraph 1 of schedule 1 of the 2001 act contain the relevant powers to make the order. Paragraph 4 of schedule 1 stipulates that the Westminster and Scottish Parliaments must approve the order, which will then be submitted to the Privy Council. The draft order completed its passage through the Westminster Parliament on 12 July.

The draft order implements articles 4.1 and 48.2 of the Rome statute. Article 4.1 stipulates that the court is to have

"such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes."

Article 48.2 states:

"The judges, the Prosecutor, the Deputy Prosecutors and the Registrar shall, when engaged on or with respect to the business of the Court, enjoy the same privileges and immunities as are accorded to heads of diplomatic missions".

Accordingly, the draft order makes provision to implement both of those articles. Article 4.1 is implemented by paragraph 3 of the order and article 48.2 is implemented by paragraph 4 of the order.

The order will recognise the international criminal court as a body corporate and will permit the authorities to extend immunities and privileges to ICC officials to enable them to carry out their duties effectively. For instance, under the order, judges and other officials would be immune from legal actions that might be raised against them in connection with the exercise of their duties for the ICC.

The draft order is a small, but necessary part of the legal framework that is needed to enable the ICC to function effectively. I commend the draft order to the committee.

I move,

That the Justice 2 Committee recommends that the draft International Criminal Court (Immunities and Privileges) Order 2001 be approved.

Do members have any questions on the draft order?

I have a small question. The minister talked about the privileges and immunities that would apply to officials of the court. I understand—from the note on the background to the order that members have—that there is provision for those privileges and immunities to be waived. Will the minister clarify under what circumstances that would happen and who would be the arbiter in such considerations?

It might be that you slightly misunderstand the issue of the waiving of immunity. Article 4(2) of the order states:

"Privileges and immunities may be waived:-

(a) in the case of a judge or the Prosecutor, by an absolute majority of the judges;

(b) in the case of a Deputy Prosecutor, by the Prosecutor;

(c) in the case of the Registrar by the Presidency."

That means that the privileges and immunities that the order will confer could be waived by more senior members of the court.

Scott Barrie, did you wish to ask a question?

I was only going to show that I had read the order by pointing out what the minister has just said. I only raised my hand because I knew the answer to Tavish Scott's question.

He just wanted to show off.

I am intrigued that article 4(1)(b) says that the judges, the prosecutor, the deputy prosecutors and the registrar shall be exempt from domestic taxation. Bearing in mind that, unlike a member of the diplomatic corps, those people will spend the bulk of their time under UK jurisdiction, I am unsure why they are to be exempt from income tax. I am sure that there is a degree of logic, but I await your explanation with interest, minister.

The statute covers the domestic tax regimes of all those who sign up. It is important that the same arrangements apply whatever the domestic tax arrangements might be in the country in which the prosecutors and so on were acting. Also, if someone is involved in lengthy investigations, it is quite possible that they could end up spending a lot of time in a country in which they do not normally reside.

Of course, the tax regime in those countries might be more benign than this country's. That is a point, is it not?

The basis of this part of the order is the standard provision for diplomatic immunity. The point that you make may be correct, but the position is consistent with that of diplomats.

The fact that it may be standard and consistent does not mean that it is right.

There being no further questions on the draft order, the question is, that the motion be agreed to. Are we all agreed?

Motion agreed to.