Coroners and Justice Bill

My Lords, I am grateful to the Minister for the very clear way in which he has explained these important and complicated amendments, and I pay tribute to my noble friend and all those others who have done much more than I have to achieve the position that we have now reached. I speak really only because I am a member of the Joint Committee on Human Rights, which produced a report in August on the impunity gap in the UK with regard to genocide, war crimes and crimes against humanity. We recommended that the residence test be changed to a presence test. What is most welcome about the government amendments is, as has been said, the decision to extend the jurisdiction of UK courts to prosecute genocide and so on back to 1 January 1991. That closes a very important impunity gap whereby Rwandan genocide suspects living in the UK could not be brought to account. However, the Government have not changed the law to allow suspects who are present in the UK to be prosecuted unless, as I understand it, they are either a national or resident in this country. The JCHR, and if I may say so the noble Lord, Lord Hannay of Chiswick, regarded a presence-based test as far simpler than a residency test not least because the lack of a single definition of residence under the law of England and Wales made the test of residency uncertain. The International Criminal Court Act 2001 gives the rather unhelpful definition of a UK resident as a person who is resident in the UK. When Sir Ken Macdonald QC gave evidence to the Joint Committee on Human Rights, he confirmed that there was no settled definition of what residency amounts to in English law and that residency means different things in different statutes. The witnesses who came to the committee expressed concern that several groups of suspects might benefit from the flexibility of a residence requirement. I mention this because I should be grateful if the Minister could confirm my understanding. Four groups in particular were identified: short-term visitors, such as those in transit or on holiday in the UK; people who are in the country for a longer period to undergo medical treatment; asylum seekers waiting for decisions; and short-term students. As the Minister has explained, the Government have in essence given a detailed and unusual extended definition of residence that comes very close to a presence requirement. I welcome this but I want to be sure that I have got this right. The Minister keeps emphasising that, only for the purposes of this legislation, some of the categories that one would not normally regard as resident at all are to be treated as such for this extended definition. For example, one would not normally regard a failed asylum seeker as resident for other legislation, but such a person quite rightly is included here. I have mentioned four categories: short-term visitors in transit or on holiday, people undergoing medical treatment, short-term students and asylum seekers waiting for decisions. As I understand it, asylum seekers awaiting decisions are covered and are to be treated as resident for this purpose. The same is to apply to short-term students who are lawfully here, I hope that that is right. I am not sure about short-term visitors in transit or on holiday, but I imagine that they are covered. Equally, I am not sure about people undergoing medical treatment, and whether they would be regarded as resident for the purpose of the extended definition. Finally, at Second Reading I raised the problem of the nationality requirement. The alternative basis for jurisdiction is UK nationality. The problem I mentioned was the position of a UK and an Iraqi citizen involved in a crime against humanity fleeing to the UK. The UK national could be prosecuted here in the UK, but the Iraqi national could not be unless he satisfied the residence requirement. I do not know whether what I have just said is correct. Those are my points and I hope I have correctly understood the way in which the Government have moved. What it comes to is that they have moved close to a presence test but have prescribed on the face of the statute that which would otherwise be unclear, which is the special meaning of residence and which I regard as welcome. I should be grateful if my understanding could be corrected if I have got it wrong, as I probably have.