Coroners and Justice Bill

I shall rise now. It was important that the three Members of the House—I know that there were others—who were most actively engaged in talking to the Government and moving us from our original position should speak first in this debate. Their amendment is first, and mine follows. I am delighted to respond to their amendment and to set out the reasoning behind ours and explain what they will do. First, I warmly thank particularly the noble Lords, Lord Carlile and Lord Hannay, and the noble Baroness, Lady D’Souza, for the enormous amount of time that they have taken in trying to persuade us that our original position was wrong. I thank them equally for not holding out for so long that we could not find a solution to a problem that is crying out for one. I am most grateful to them, as I am to my officials, and I am grateful for the thanks that have been expressed to them. They have worked extraordinarily hard to get what I hope the House will agree is a satisfactory conclusion to this difficult issue. I thank all those who originally pressed us to look at the possibility of taking the highly unusual step of making the offences of genocide, war crimes and crimes against humanity in the International Criminal Court Act 2001 retrospective, and we have subsequently engaged in discussing and developing our position. Obviously they include Members of this House and the other place, some non-governmental bodies and both the Joint Committee on Human Rights and the Justice Select Committee. We are now proposing a real step forward in dealing with those who commit terrible crimes. Let me deal with retrospection first. It is the terrible nature of the crimes in question that justifies us taking the radical step that we now propose to make the legislation retrospective. They are international crimes of the most serious gravity and demand an exceptional response. When we met in Committee on 7 July and I undertook to bring forth amendments, I said that we would cover the period from 1 January 1991 as far as the legal principles applicable to retrospection would allow. Our amendments deliver that. The date is pivotal in the development of international law. It is the date from which the International Criminal Tribunal for the former Yugoslavia had jurisdiction to prosecute these three types of crime. It allows us to adopt the same date for all three areas, and it is not too far back to make successful prosecution impractical. Our amendment is complex but it reflects the complex nature of the circumstances and the 2001 Act. We spent the summer studying in depth each element of the offences listed in the 2001 Act to identify the extent to which they could be properly tracked back to 1991. This has been a long and arduous task. We are satisfied that this can be done in a straightforward way for genocide and some categories of war crimes. It is clear that those offences and all their elements were fully recognised in international law by 1991, and our amendments reflect that. The position in the other areas is less straightforward. While the vast majority of offences were recognised as criminal in international law by 1991, a small number may have been recognised at that time in a narrower form than appears in the 2001 Act, and a very small number may not have been sufficiently recognised at all in 1991. Indeed, international law naturally developed over the period in question, and it is important that our clauses cater for this to ensure the maximum possible coverage for that period—1991 to 2001. We have therefore developed a hybrid approach providing absolute certainty where possible, but elsewhere including a requirement that the relevant conduct amounted in the circumstances at the time to an offence under international law. I pause briefly to observe that the hybrid approach does not mean that the offences where the requirement is not specified can be prosecuted even if they did not amount at the time to offences under international law—quite the contrary. It is only because there can be no doubt that they were fully recognised as criminal in international law throughout the relevant period that the requirement is not needed to ensure that we comply with the legal principles applicable to retrospection. I make one last point on the subject. With the same caveat as to the need for the conduct to have constituted a criminal offence in the circumstances under international law, our amendments provide for the ancillary offences and other forms of liability in the 2001 Act also to be tracked back to 1991. I turn to the question of penalties. Our amendments broadly provide for the same penalties for the earlier period as in the 2001 Act. These are 30 years, or life where murder is involved. However there are two areas where, because domestic offences already existed at the relevant time, we are limited by the ECHR, as we cannot now impose a higher penalty than existed at the time. Those are domestic genocide—hopefully, fairly rare—which was covered at the time by the Genocide Act 1969, and grave breaches of the Geneva Conventions, covered at the time by the Geneva Conventions Act 1957. Where murder is involved, a life sentence is available. Otherwise, the maximum penalty is 14 years. Our amendments therefore adopt that maximum penalty in those two areas only, but otherwise provide for a maximum penalty of 30 years. I turn to the important question of who the offences should apply to, which has taken up many hours of discussion and controversy. This is the issue dealt with in the amendment tabled by the noble Lord, Lord Carlile. This has been the subject of much discussion, and I am more than delighted that we have reached a decision on which we can agree. We fully understand the concerns of those who argue that we should take jurisdiction over all those present here in respect of heinous offences, but to do so would be a highly unusual step. The arguments for retaining a definition based on residence—albeit residence plus—are strong. First and foremost—and here absolutely on line with what the noble Lord, Lord Carlile, said, we believe that our overriding objective must be to deny the UK as a safe haven for serious criminals of this kind. It is arguable that those who are here only briefly might not be using us as a safe haven. Such jurisdiction is not required by international law, and we have always, whichever Government have been in power, been—in my view rightly—wary of assuming jurisdiction beyond our nationals and, exceptionally, residents without a clear international consensus to do so. However, we must take our responsibility for those who are living here very seriously. Our first aim must always be that they should face trial in the country where the terrible crimes of which they are accused were committed. Where the countries concerned need help to bring their systems up to the point where they can meet human rights requirements, we will continue, as now, to work with them to help them to achieve that, but where trial in the country where the alleged crimes took place is not possible and the people concerned are living here, we must be able to act. The definition of "resident" in the 2001 Act is left to the common sense of the courts to apply. We believe that the courts will do just that, but as was said in July, the amendments are intended to provide more certainty in some crucial areas of concern. First and foremost, I must put firmly on record that what we are proposing here is limited to this legislation. It is justified by the extreme nature of the offences in question. We do not intend the amendments to impact on the meaning of the term "resident" in other legislation. Our proposals have two elements. First, they contain a specific list of categories of people who are to be treated as resident to the extent that this would not otherwise be the case. Again, the caveat is important. The fact that someone falls into a specific category has no bearing on whether, if we had not taken this action, he might or might not have been considered a resident, and the provision of the list does not change the basic test—as before, any person who is a UK resident, regardless of whether they fall within this list, is covered by the Act. Secondly, we have included a non-exhaustive list of considerations that a court must take into account in determining the issue of residence. I will turn first to the categories. They may well appear somewhat complex and daunting. I will run through them briefly. In broad terms, they are categories of people who are living here or want to live here or who are working or studying here. In more detail, the first group covers all those in the UK who have applied for indefinite leave to remain here, including those who are in the UK and whose application has been rejected. Those who have such leave will be covered wherever they are. In similar vein, the amendments cover all those who apply for asylum or make a human rights claim from the moment they arrive here, irrespective of the stage reached in their application or failed application. This will therefore include those whose applications have failed but who cannot be deported for any reason. Those whose claims have succeeded will also be covered wherever they are. Both these categories also cover anyone else who is here in the UK and who is covered in the claim; in other words, dependants, including spouses, named in the claim. The amendments also cover any other person who is liable to be removed or deported from the UK but who cannot be removed or deported for human rights reasons or practical reasons, including those against whom a deportation order has been made. The third group comprises anyone who is here illegally, including illegal entrants or those who have overstayed their entitlement to be here. The fourth group comprises persons who are due to be deported on the ground that it is conducive to the public good to do so but who are still here because they are appealing that decision. The fifth group are all those here in lawful custody as defined in the amendment. Finally, the amendments cover all those in the UK who have leave to enter or remain to work or study. Secondly, the amendments include a non-exhaustive list of considerations a court may take into account. These cover time—the period someone has been or intends to be here—purpose—why the person has come here—family or other connections to the UK and property. This list is non-exhaustive, but we think all these are points that it is worth ensuring a court bears in mind. It is a complex definition, but we believe it will provide certainty in crucial areas, and we believe it meets the valid concerns of those, including the proponents of the amendment moved by the noble Lord, Lord Carlile, that first, we must be able to deal with those living here who are alleged to have committed such heinous crimes; secondly, we must be able to deter others from coming here; and thirdly, if such people come here, we can ensure that, once detected, they will depart. It is also important to point out that if individuals arrive in the UK and are known to be suspected of an offence of such a serious nature, they can be turned back at the port of entry. If it comes to light that a person who has been allowed in to visit the UK is a war criminal, he can be deported on the ground that it is conducive to the public good to deport him. There is no question that we have to tolerate non-residents here who have committed these sorts of crimes. The provisions will apply to England, Wales and Northern Ireland. Any similar changes in Scotland would be a matter for the Scottish Parliament and Scottish Executive to consider. I understand that the Scottish Executive is considering the issue as we speak. To answer the questions asked by the noble Lord, Lord Hannay, I cannot refer to individual cases, but in respect of the two examples he referred to, on the military education study question, visiting armed forces who come to this country for the purposes of military training and study will not be within the list of categories of new Section 67A(1). They do not require leave to enter or remain in the UK. UK forces are already fully covered by the 2001 Act, as the offences apply to all persons subject to UK service jurisdiction. The list at new Section 67A(1) includes persons given leave to enter or remain for the purposes of work or study. Those coming here for the specific purpose of business for six months will be coming here for the purpose of work. As I understand it, the Rwandans would be caught by the provisions in our Bill. I am sorry that I have taken so much of the House’s time, particularly so late, but, as the noble Lord, Lord Henley, said, these are important amendments that have been tabled late in proceedings. We are all united in the desire to tackle heinous crimes of this nature as effectively as possible, and I hope the House agrees that our amendments achieve this. As I said, I am grateful to the noble Lord, Lord Carlile, and his co-signatories for their amendment and for the constructive and helpful discussions that we have had. I hope that, when the debate finishes, the noble Lord will withdraw his amendment and the government amendments can proceed into law. We believe that, when they do, Parliament will have played its part in improving this country’s standing in the world.