Subordinate Legislation
International Criminal Court <br />(Remand Time) Order 2008 (Draft)
Item 2 is consideration of a draft order under the affirmative procedure. I draw members' attention to the draft order and the cover note.
Before we move to the formal procedure on the motion at item 3, members may ask the Cabinet Secretary for Justice and his officials questions. I welcome to the meeting Kenny MacAskill; Iain Hockenhull, who is a policy manager in the Scottish Government's criminal procedure division; Dianne Drysdale, who is a policy executive in that division; and Andrea Summers of the Scottish Government legal directorate.
I invite the cabinet secretary to speak to the draft order.
Thank you. I welcome the opportunity to contribute to the committee's consideration of the draft order. It might be helpful if I briefly explain why it is required.
The International Criminal Court is an independent, permanent criminal court based in The Hague. It operates under the auspices of the United Nations and tries only persons who are accused of the most serious international crimes.
Part 2 of the International Criminal Court Act 2001 put in place an expedited procedure to execute ICC requests for the arrest and delivery of persons. An arrest may be made under section 2 of that act where the request is accompanied by a warrant of arrest that has been issued by the ICC or where it relates to a convicted person and is accompanied by certain documentation; or under section 3, where a request is made for provisional arrest on the ground of urgency and the documentation that is required in support of a section 2 arrest cannot be delivered in advance.
Section 4 of the act sets out what is to happen if a person is arrested under a provisional warrant. It reflects article 92 of the Rome Statute of the International Criminal Court. The person must be brought as soon as is practicable before a competent court, which is required to remand him until such time as a section 2 warrant is produced. If a section 2 warrant is not produced in the required time, the court is required to discharge him.
A time limit was not included in the act because, at that time, the rules, like various other subsidiary documents to the ICC statute, had not been finally adopted and the time limit had not been finally agreed. That agreement did not occur until the first meeting of the Assembly of States Parties, which took place only after 60 states had ratified the statute. For that reason, section 4(4) requires a period of remand to be specified in an order in council.
The order completes the power to remand persons following a request for provisional arrest from the ICC. We do not expect that there will be a large volume of such requests. It provides for limits on the length of time that a court may remand a person who has been arrested under a provisional warrant that has been issued under section 3 of the act pending the production of a warrant issued under section 2. It sets 18 days as the period for which a person may be so remanded at any one time, which reflects the time limits in the Rwanda and former Yugoslavia tribunals. That means that the matter will require to be brought before the court after each period of 18 days. The order sets a maximum total period of remand of 60 days, so if the appropriate documentation has not been received from the ICC within 60 days from the date of provisional arrest, the person is entitled to be discharged.
The order is necessary to comply with the requirements of the International Criminal Court Act 2001, which implements the United Kingdom's obligations under the Rome Statute of the International Criminal Court. It requires the approval of the Scottish Parliament and of both Houses of the Westminster Parliament before it can be made by Her Majesty on the advice of her Privy Council.
I understand that the Home Office laid a draft order in the same terms as the one that is before the committee in the Westminster Parliament on Monday 6 October. It is hoped that that order can be made following the December meeting of the Privy Council. I invite the committee, for the reasons that I have given today, to recommend that the draft order be approved by the Parliament.
Thank you, Mr MacAskill. That seems to be fairly straightforward. Do members have any questions?
I understand what the cabinet secretary says about the need to comply with the international arrangements. However, 18 days and 60 days seem to be quite long periods of time for what appears to be a relatively technical issue to do with the production of the warrant and appropriate documents. What is the reason for having limits of those lengths?
It is to do with the international nature and complexities of the cases that we are dealing with. You are right to say that 18 days and 60 days are substantial periods of time, but we are not dealing with minor breaches of the peace; we are dealing with matters that have transnational implications. For that reason, some latitude has to be given.
As I said, we do not anticipate a great number of these cases. The previous cases have involved Rwanda and Yugoslavia, where there have been international complexities. The reason for picking these fairly arbitrary time limits is to provide some balance between the protection of the rights of the individual, and the complexities of issues that have significant baggage and international implications.
It is also important that the court has a duty and a reasonable opportunity to keep matters under review. The time limit of 18 days that we suggest is in line with the equivalent provisions in relation to provisional arrest under the United Nations (International Tribunal) (Former Yugoslavia) Order 1996 and the United Nations (International Tribunal) (Rwanda) Order 1996. Those were successfully adopted, so we are to some extent proceeding on international precedent.
I see that there are no further questions, so we move to item 3, which is formal consideration of the motion to approve the order.
Motion moved,
That the Justice Committee recommends that the draft International Criminal Court (Remand Time) Order 2008 be approved.—[Kenny MacAskill.]
Motion agreed to.
I suspend the meeting to allow the witness panel to change.
Meeting suspended.
On resuming—