Police Reform and Social Responsibility Bill

Baroness Scotland of Asthal Excerpts

Thursday 16th June 2011 Lords Chamber

[Baroness Tonge]

My Lords, I do not wish to detain the House much longer. However, not having been in the Bishops’ Bar earlier and not being a lawyer, I beg leave to give the view of the common man—or the common woman doctor, if you like. It comes from experience gained in the other place and here of going to places where horrendous war crimes have been committed.

When I was in the other place, I visited Rwanda soon after the genocide. I visited Kosovo and Albania when the atrocities were going on, and I cannot describe to you the injuries suffered by some women who had managed to run down to Albania and get into the hospitals there. Southern Sudan has seen atrocities committed over decades. More recently, I was in Gaza very soon after the conflict there. People who have had that experience and who have seen what happens feel very strongly that we should do everything in our power to try to bring the perpetrators to justice. That is where I am coming from. It is not in the case of a particular country although many people may think that it is—it is not. These crimes are being committed all over the world, as my noble friend Lord Carlile has told us.

I welcome this group of amendments which I hope will allow the Government to look again at Clause 154. They are suggestions of amendments and Clause 154 has caused huge consternation among those who care about universal jurisdiction. I also hope that the Government will give the real explanation—and a plausible one, please—for introducing the clause in the first place. I repeat that the right to initiate a private prosecution is an ancient common law right of the people of England and Wales and it provides a valuable safeguard for people like me, not lawyers, against political interference by the Executive.

If we ever have a Bill of Rights it should surely include the right of any citizen to approach the courts with an application for the arrest of a suspect who may have committed the sort of crimes that I have seen. This right has not been abused: 10 applications in 10 years is hardly politically motivated people manipulating the law—10 in 10 years, with only two successful ones. Will the Minister explain what abuse has taken place over the last 10 years or is it, as many people outside this House feel, an attempt to regain some sort of political control over this process?

This is why I support the amendments. Amendment 245, tabled by Lord Campbell-Savours, says,

“apply to the Director of Public Prosecutions for advice”.

That implies a long wait before that advice is received —he can take his time and it might delay the process too much—but nevertheless we should consider it.

Amendment 245A, tabled by the noble Baroness, Lady D’Souza, and my noble friend Lord Lester, proposes that instead of being given the right of veto over the arrest, the DPP should be allowed to give evidence of his views to the court as an additional safeguard against vexatious applications. The timing would be out of his hands and therefore there would be less delay. Amendment 245AZA, tabled by my noble friend Lord Phillips, makes this even clearer, giving the DPP the opportunity to attend the court to give his opinion.

My noble friend Lord Carlile says that there will be no delay, and this has been emphasised by other lawyers in this House: “There is no delay. The DPP does not delay. These things are very urgent. They have to be dealt with immediately”. I am a doctor and I would say that too. If anyone said to me that I might be late turning up or might delay or not make a decision on a patient in time, I would say, “No, of course not. I deal with things immediately. I always go when I am called. I am never at a dinner party when someone wants my advice. I will never, ever delay”. We all say that, in whatever profession, but sometimes there are reasons why there is delay and that is what concerns me. Delay occurs not deliberately but because of business and the pressure of work.

If the House wishes to retain a veto over applications for arrest warrants by the DPP, that will in my view be regrettable. However, if the Government insist, they must set out the circumstances in which the DPP will not use the veto, which is essential to preserve the independence of his office. I appreciate the comments that have been made about Amendment 245AA tabled by my noble friend Lord Macdonald and presented in his absence by my noble friend Lord Thomas. I think that it would achieve some of our objectives. It provides that the DPP must consent to the issuing of arrest warrants when he believes that the evidence establishes a prospect of conviction or when there are reasonable grounds to believe that such evidence will be forthcoming within a reasonable period. He will keep the case under review and take it over in order to discontinue it if the evidence is not produced. I have already dealt with the question of someone being unjustly held under an arrest warrant for a short time.

I cannot understand anyone who professes to believe in universal jurisdiction for crimes against humanity nor war crimes opposing any of these amendments or seeking to improve Clause 154. I do not approve of the clause at all—I would rather the status quo was maintained. However, if we are to have Clause 154, then anyone who believes in universal jurisdiction should look again to make sure that we implement it fairly and justly, and in a way that means that we can apprehend international criminals.

Finally, it gives me great pleasure to welcome the new clause tabled by my noble friend Lord Carlile. He and I have many disagreements but that does not mean—I say this very sincerely—that I do not hugely respect him and his opinions and judgments. As I said, we have many disagreements but on this matter we agree, and I trust that the Government will find a way of accepting his amendment.

[Baroness Scotland of Asthal]

My Lords, I am very conscious of the time and therefore shall try to be telegraphic, as Lord Kingsland used to say when standing at this Dispatch Box.

We have clearly had a very energetic and well informed debate. I reassure the noble Baroness, Lady Tonge, that the previous Government were extremely proud of having introduced and expanded universal jurisdiction. There was a real determination to make plain that this country would not provide a safe haven for those accused of war crimes and the other serious offences in the schedule, and I am confident that the current Government share that aspiration. The whole purpose of having universal jurisdiction is so that we can address those issues. It is important that these grievous offences are prosecuted with vigour. I say straight away that I share the concern of the noble Lord, Lord Carlile, about whether we currently have sufficient resources to ensure the vigorous and effective prosecution that we all seek. We hope that the Government will be able to make those resources available. We think that Amendment 246 should be strongly supported and we hope that the Government will give it favourable consideration.

Noble Lords will be relieved to hear that I agree with the analysis given by the noble Lords, Lord Carlile of Berriew and Lord Pannick, and by my noble and learned friend Lord Goldsmith in relation to this amendment. Specifically, I endorse and agree with the approach adopted by the current Director of Public Prosecutions, Keir Starmer, who made it plain when he gave evidence before the committee that because of the seriousness of the cases to which universal jurisdiction applies, if the evidential test was met, it would speak very powerfully in favour of a prosecution. I would respectfully agree with that view.

--- Later in debate ---

[Lord Phillips of Sudbury]

The noble and learned Lord, Lord Goldsmith, made no reference to the advice given by the Joint Committee on Human Rights, and the noble and learned Baroness has made no such reference. Does that mean that she sets its advice at nought?

[Baroness Scotland of Asthal]

No, my Lords, certainly not. I was seeking to relieve the Committee of the burden of listening to me for more than was absolutely necessary, bearing in mind that we are now at 9.19 pm and the Government have yet to respond. Of course, it is for the Government to deal with these matters. I simply wanted to make plain that we on this side would support the analysis made by the noble Lords, Lord Carlile and Lord Pannick, and my noble and learned friend Lord Goldsmith. I thought that that would be the fastest way. I am sure that we can return to this on Report. If the Committee would love to hear from me on that basis, I am sure that I could entertain your Lordships for some considerable time. But, at this time of night, something told me that the Committee would not thank me. For that reason, I have curtailed my remarks. I am sure that the noble Lord, Lord McNally, need have no such restraint.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, sometimes the House throws up, well outside the usual hours of attention, debates of immense importance. There is no doubt that this debate will be read and studied outside the confines of the House to great advantage, because it was extremely thorough, with arguments deployed on both sides with great passion but also, in the tradition of the House, with great courtesy. As one of the non-lawyers participating, I very much benefited from listening to the learned side of the House dealing with matters of law.

Of course, as with all these things, it is a matter of judgment. We get advice from many quarters. It is not a matter of setting the view of the Joint Committee on Human Rights at nil; our judgment is carefully considered. However, as the two former Attorneys-General pointed out, somebody then has to make a judgment. The judgment that we have made is that the purpose of Clause 154 is to ensure that in respect of offences over which the United Kingdom has asserted universal jurisdiction, an arrest warrant is issued on the application of a private prosecution only where there is a real prospect of a viable prosecution. This outcome is achieved by requiring the consent of the Director of Public Prosecutions before the warrant can be issued. The Government have decided that this is the best way forward.

The detail of this debate indicates that more than one opinion can be honestly held, but nothing that I have heard today has dissuaded me from thinking that this is the right way forward. However, we will return to this on Report. I hope that some issues were clarified in the debate. Certainly I will look at the resource issue that was raised by the noble and learned Lord, Lord Goldsmith, the noble Lord, Lord Carlile, and the noble and learned Baroness, Lady Scotland, but I am a little worried about the answer that I will be given—[Interruption.] It is always worrying when there are interventions. It is bad enough when the noble and learned Lord, Lord Mackay of Clashfern, intervenes, but when the thunderous intervention seems to come from an even higher authority, one gets really worried.

I pay tribute to the previous Government on their record on universal jurisdiction. The two officeholders responsible can take rightful pride in it. I also put on record the confidence of this Government in the independence and abilities of the present DPP. The way that the noble Lord, Lord Campbell-Savours, introduced the debate set a tone that encouraged the exchange of honest and informed opinions. Although I will ask noble Lords, given the nature of the Committee stage, not to press their amendments, it is clear that the debate will influence further discussions on how we go forward.

I will deal with some of the issues. The noble Baroness, Lady Tonge, finished her remarks by expressing her concern that there would be unnecessary delay. That concern was also expressed by the noble Baroness, Lady D’Souza. It was answered very clearly by the noble Lords, Lord Carlisle and Lord Pannick. In some ways, I shall try to shorten my remarks because I do not know whether the noble Lord, Lord Pannick, is after my job, but his speech answered many of the questions raised, including on delay. The DPP has made it clear that anyone who wants to pursue a crime of universal jurisdiction should engage very early with him. Giving evidence, he said:

“They should come to us with whatever evidence they have, and we will undertake to look at it and to advise”.—[Official Report, Commons, Police Reform and Social Responsibility Bill Committee, 20/1/11; col. 124]

We have already heard evidence about the amount of resources and the 24/7 nature of that coverage.

It is not a matter of trusting the judges to do their job. The noble and learned Lord, Lord Goldsmith, put the problem far better. The actual case put to the judge is not the one that causes the problem in that, as the noble and learned Lord rightly pointed out, it may involve somebody being detained on very spurious grounds. We are all experienced politicians and we have seen examples. The gain for those wanting to raise these issues is not in the trial or the verdict but in the publicity gained by getting the individual into the situation in the first place. As the noble Lord, Lord Phillips, and the noble Baroness, Lady Tonge, suggested, it is not in any way that we wish to take away the right of the private citizen to pursue matters of universal jurisdiction, but simply that we believe that the present situation is unsatisfactory and extremely difficult in terms of law. I know that there have been very few cases but, as the noble Baroness, Lady Ramsay, pointed out and the noble and learned Baroness, Lady Scotland, confirmed, the previous Government were looking at this issue and feared, as do we, that there is a risk that the present weakness of our system could be exploited at a time when we would want to use all our influence.

One accepts the point raised by the noble Baroness, Lady D’Souza, that there may be a chill factor in asking for that hurdle to be cleared. As the noble Lord, Lord Pannick, argued, there may be a deterrence factor. We have had to weigh those things, and we have come down in favour of trying to remove that deterrence factor while not removing the line to universal jurisdiction. We are asking a non-political officer to look at the issue and asking those wishing to take it forward to clear what is in many ways a very modest hurdle if the situation is as clear as they would claim. There is no point in allowing the court to issue a warrant in a case where the director has concluded that there is no realistic prospect of a viable prosecution. That is why we believe that the first three amendments cast the Director of Public Prosecutions in an advisory role to the court, which is not welcome.

Amendment 245 requires the court to apply to the DPP for advice on the advisability of granting a warrant or summons. It goes on to make it clear that such a warrant or summons cannot be issued without taking into account the DPP’s advice. As was acknowledged by those who tabled the other amendments, the thrust of them is to move from giving responsibility to the DPP to putting him in an advisory role. The DPP was clear in his evidence to the Public Bill Committee about the degree of detail in which applications for consent are examined and the specialist resources that are available for him in doing so. If the DPP concludes that the tests under the code for the Crown prosecutors are not met, it is difficult to see what purpose will be served by the court nevertheless issuing a warrant or why it would wish to do so.

Amendment 245AA is obviously intended to place in the Bill the test used by the DPP in considering whether to grant this consent. I will not go into great detail at this point because I would be afraid of rekindling the fire between the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Thomas. But I ask readers of Hansard to turn to those exchanges to judge again whether we have got the balance right. I think that we have. I am not persuaded that it is necessary to embody the guidance in the clause. The tests are of general application but they are not set out in statute and it would be strange to do so in this context.

The amendment in the name of my noble friend Lord Carlile is designed to monitor the arrangements for investigating and prosecuting certain grave international offences and for assisting the International Criminal Court. I understand the interest in reviewing the effectiveness of these arrangements but I am not sure that what is proposed would be helpful. Prosecutions for one of these exceptionally grave offences are rare and when one takes place it is newsworthy enough for a reporting requirement to be superfluous. Investigations that do not end in prosecution are a different matter and reporting on them would not be straightforward.

As the exclusions built in the amendment recognise, it would not be right to disclose personal details, but without such details the information is unlikely to be meaningful. The information that the report provided would therefore be so incomplete as to make it effectively useless. What would be of value would be for the Director of Public Prosecutions to monitor any case for which his consent is sought under Clause 154, which applies to offences that to some extent overlap with those listed in this amendment, and to publish the number of cases and the outcome. I understand that the director would be content to carry this out.

The amendment includes a requirement to report on the assistance of the International Criminal Court. The Foreign and Commonwealth Office produces an annual human rights command paper, which includes details of the UK policy on criminal justice and the rule of law. It is subject to the scrutiny of the Foreign Affairs Committee. The command paper makes clear the UK’s commitment to the principle that there should be no impunity for the most serious international crimes and that we should provide details of the practical support which we have provided to all six existing international criminal tribunals. The paper does not currently provide the level of detail which the amendment would require but the Foreign and Commonwealth Office will give careful consideration to extending it to include more specific details of assistance provided as envisaged by this amendment.

I would ask the noble Lord, Lord Carlile, and the noble Baroness, Lady Tonge, when they have time to look at those two responses, to see whether they are satisfactory. I will be happy to meet with them on these points, but I hope that they go a long way to meet what they say. If not, of course, we can return to this on Report or clarify it further in discussions. I invite the noble Lord to withdraw his amendment, but with real and personal thanks both for the spirit and the level of engagement in this debate which I hope will help to reassure people about where we are coming from. I think that both in this House and in this Parliament there is cross-party commitment to pursuing those who perpetrate horrific crimes that are committed all over the world and which were so graphically described by my noble friend Lady Tonge. As a country, we have been for many years a leader in this, and we will continue to be.

I can make a personal commitment. At the Ministry of Justice and within this Government, I am the Minister responsible for civil liberties and human rights. I would not stand at the Dispatch Box advocating this clause if I did not believe that it was absolutely foursquare with our continuing full commitment to the universal jurisdiction. It is not a step towards political control. It gives us a law that is fit for purpose, a very noble purpose, if we all continue to pursue it.