Chamber
Plenary, 14 Jun 2001
14 Jun 2001 · S1 · Plenary
Item of business
International Criminal Court (Scotland) Bill: Stage 1
Not unexpectedly, after our marathon sitting yesterday, our numbers are somewhat depleted today. Perhaps the opportunity to debate the stage 1 report on the International Criminal Court (Scotland) Bill this early in the morning has failed to entice many colleagues beyond the Justice 2 Committee to join us. That is a pity, because we had a number of interesting evidence-taking sessions. One of the features of sitting on the former Justice and Home Affairs Committee, or the new Justice 1 Committee or Justice 2 Committee, is the frequency with which we see regular contributors to our evidence-taking sessions. We think of them fondly as our usual suspects, and we are genuinely grateful to them; however, for stage 1 of the International Criminal Court (Scotland) Bill, we were advised in our evidence sessions by people and sources who were new to us.
As a side issue, it is about time that we were more aware of the financial burden that we place on charities when we ask them to give evidence to committees. We were pleased to welcome in person Dr Iain Scobbie, who did not have far to travel, but Mr Sherman Carroll of the Medical Foundation for the Care of Victims of Torture travelled some distance.
Members who have read our report will know that the Justice 2 Committee was concerned about the time scale of the bill, as Roseanna Cunningham said, particularly in the light of the date of introduction at the Westminster Parliament. We understand the eagerness to be among the first 60 states to ratify the treaty, but that is not an excuse to expect the committee to gallop through the bill.
While the International Criminal Court (Scotland) Bill is broadly similar to the UK legislation, it must be borne in mind that we are dealing with a distinctive legal system. Many of our inquiries prior to stage 1 centred on protecting the integrity of our current practice. We wanted to ensure that there was no seepage to the detriment of the Scottish legal system. For those who are not legally qualified, that was technically demanding. For my part, I am happy to admit that. I leave to others the opportunity to take members through the minute details of those aspects. I hope that there will be some takers.
Now to the main issues in the bill. The universal approval of the bill by those who gave evidence was welcome, and allowed us to go into greater detail in examining its finer points. Universal jurisdiction—this is the third time that it has been mentioned, and I am sure that it will be mentioned again—was a discussion point at every meeting, and for a good reason: it is not a requirement of the Rome statute, but neither does the Rome statute prohibit it. I suppose that sounds like wanting to have one's cake and eat it. We are presented with the opportunity for Scottish courts to prosecute offences such as genocide, crimes against humanity and war crimes if they are committed in Scotland, or beyond UK borders by UK nationals or residents. Here follows the technical part, which caused the committee much deliberation. I quote from the Justice 2 Committee's report:
"Crimes committed outwith Scotland, by a non-UK national or resident, could not be tried in Scotland even if the accused was currently present in Scotland."
Defining residence is no easy matter. I remember from my previous experience in the Inland Revenue that under tax legislation, 40 days is the critical figure—so critical that people would provide airline tickets showing dates of departure and return to justify why they should not be liable for UK tax. However, the concept of residence is not a regular feature of criminal law here. The issue was eased somewhat on the basis of evidence from the Medical Foundation for the Care of Victims of Torture, which presented another option:
"Universal jurisdiction would allow the pursuit of any person suspected of an ICC crime, regardless of their connection with Scotland. There are two different forms: ‘pure' universal jurisdiction where an arrest warrant could be issued regardless of whether the suspect was in Scotland and a more limited ‘presence test' which requires the person (if not a UK national or if the crime was not committed in Scotland) to be present in Scotland before an arrest warrant could be issued".
We were urged several times to go the whole hog and opt for universal jurisdiction. The Law Society was especially encouraging with its advice that
"we should not be shy about embracing it if there is the political will."—[Official Report, Justice 2 Committee, 15 May 2001; c 187.]
Perhaps that is the acid test. The weight of opinion fell heavily in favour of universal jurisdiction to close potential loopholes, and it appears that the concept is readily accepted internationally, as several countries have plumped for it.
As a side issue, it is about time that we were more aware of the financial burden that we place on charities when we ask them to give evidence to committees. We were pleased to welcome in person Dr Iain Scobbie, who did not have far to travel, but Mr Sherman Carroll of the Medical Foundation for the Care of Victims of Torture travelled some distance.
Members who have read our report will know that the Justice 2 Committee was concerned about the time scale of the bill, as Roseanna Cunningham said, particularly in the light of the date of introduction at the Westminster Parliament. We understand the eagerness to be among the first 60 states to ratify the treaty, but that is not an excuse to expect the committee to gallop through the bill.
While the International Criminal Court (Scotland) Bill is broadly similar to the UK legislation, it must be borne in mind that we are dealing with a distinctive legal system. Many of our inquiries prior to stage 1 centred on protecting the integrity of our current practice. We wanted to ensure that there was no seepage to the detriment of the Scottish legal system. For those who are not legally qualified, that was technically demanding. For my part, I am happy to admit that. I leave to others the opportunity to take members through the minute details of those aspects. I hope that there will be some takers.
Now to the main issues in the bill. The universal approval of the bill by those who gave evidence was welcome, and allowed us to go into greater detail in examining its finer points. Universal jurisdiction—this is the third time that it has been mentioned, and I am sure that it will be mentioned again—was a discussion point at every meeting, and for a good reason: it is not a requirement of the Rome statute, but neither does the Rome statute prohibit it. I suppose that sounds like wanting to have one's cake and eat it. We are presented with the opportunity for Scottish courts to prosecute offences such as genocide, crimes against humanity and war crimes if they are committed in Scotland, or beyond UK borders by UK nationals or residents. Here follows the technical part, which caused the committee much deliberation. I quote from the Justice 2 Committee's report:
"Crimes committed outwith Scotland, by a non-UK national or resident, could not be tried in Scotland even if the accused was currently present in Scotland."
Defining residence is no easy matter. I remember from my previous experience in the Inland Revenue that under tax legislation, 40 days is the critical figure—so critical that people would provide airline tickets showing dates of departure and return to justify why they should not be liable for UK tax. However, the concept of residence is not a regular feature of criminal law here. The issue was eased somewhat on the basis of evidence from the Medical Foundation for the Care of Victims of Torture, which presented another option:
"Universal jurisdiction would allow the pursuit of any person suspected of an ICC crime, regardless of their connection with Scotland. There are two different forms: ‘pure' universal jurisdiction where an arrest warrant could be issued regardless of whether the suspect was in Scotland and a more limited ‘presence test' which requires the person (if not a UK national or if the crime was not committed in Scotland) to be present in Scotland before an arrest warrant could be issued".
We were urged several times to go the whole hog and opt for universal jurisdiction. The Law Society was especially encouraging with its advice that
"we should not be shy about embracing it if there is the political will."—[Official Report, Justice 2 Committee, 15 May 2001; c 187.]
Perhaps that is the acid test. The weight of opinion fell heavily in favour of universal jurisdiction to close potential loopholes, and it appears that the concept is readily accepted internationally, as several countries have plumped for it.
In the same item of business
The Deputy Presiding Officer (Patricia Ferguson):
Lab
Our first item of business is a debate on motion S1M-1838, in the name of Mr Jim Wallace, on the general principles of the International Criminal Court (Scot...
The Deputy First Minister and Minister for Justice (Mr Jim Wallace):
LD
I thank the Justice 2 Committee for its careful consideration of the bill and for its report, which, I acknowledge, was produced to a tight timetable. The re...
Phil Gallie (South of Scotland) (Con):
Con
Will the minister comment on why so few countries have ratified the statute, given the amount of support that has been signalled for it?
Mr Wallace:
LD
I am afraid that I cannot give the reasons why a range of countries have not yet ratified the statute. However, as Mr Gallie is aware, it often takes a consi...
Christine Grahame (South of Scotland) (SNP):
SNP
What evidence did the Minister for Justice and his team take on universal jurisdiction prior to presenting the bill?
Mr Wallace:
LD
I am not quite sure what Christine Grahame means by "evidence". The consideration that we gave to whether the notion of universal jurisdiction should be inco...
Christine Grahame:
SNP
Perhaps I should clarify my point. Whose views did the minister seek in relation to universal jurisdiction and the Scottish legal system and practice before ...
Mr Wallace:
LD
I do not think that one needs to seek views on a matter that is a principle of Scots law, and this is about the principle of territoriality, on which Scots l...
Ms Margo MacDonald (Lothians) (SNP):
SNP
Will the minister give way?
Mr Wallace:
LD
I would like to develop my point—I will come back to Margo MacDonald.
Ms MacDonald:
SNP
My question is on this point.
Mr Wallace:
LD
All right.
Ms MacDonald:
SNP
We would like to think that that decision was taken for the reason outlined by the minister—that is, on the basis of the territorial principle in Scots law—r...
Mr Wallace:
LD
The fact that we are legislating in this Parliament is indicative that we believe that the matter is properly for the Scottish Parliament. Given our distinct...
Ms MacDonald:
SNP
Legal experts carried out much research into universal jurisdiction in compiling the Rome statute. The statute is in many respects a hybrid measure involving...
Mr Wallace:
LD
The basis of the bill is the implementation of an international treaty. Inevitably, in any negotiation of an international treaty, there is give and take and...
Phil Gallie:
Con
The minister will be aware that there have recently been considerable pressures on the Crown Office and the prosecution service in getting cases in our own j...
Mr Wallace:
LD
As I indicated, that is one reason why—in terms of the volume of work that could be required—it is not appropriate to take universal jurisdiction. In the bil...
Phil Gallie:
Con
I accept the minister's good intent, but he must recognise that we have problems in our own court and procurator service. I asked him what priority our cases...
Mr Wallace:
LD
I do not think that this is a question of either/or—it is a question of both/and. It is highly unlikely that any request will be such that the entire resourc...
Roseanna Cunningham (Perth) (SNP):
SNP
It is worth reminding ourselves, at this early stage in the debate, of the overriding principle that has driven the whole idea of an international criminal c...
Mrs Lyndsay McIntosh (Central Scotland) (Con):
Con
Not unexpectedly, after our marathon sitting yesterday, our numbers are somewhat depleted today. Perhaps the opportunity to debate the stage 1 report on the ...
The Deputy Minister for Justice (Iain Gray) rose—
Lab
Scott Barrie (Dunfermline West) (Lab) rose—
Lab
Mrs McIntosh:
Con
I will take Scott Barrie's intervention first.
Scott Barrie:
Lab
Sorry, minister.Given what Lyndsay McIntosh has said and given that she has taken members through the evidence that the Justice 2 Committee took, am I right ...
Mrs McIntosh:
Con
I am waiting to hear why we should not support the idea. I am waiting to be advised and informed. That is part of the process. We will hear about that at sta...
Iain Gray:
Lab
My intervention follows on from Scott Barrie's. I want to ask Lyndsay McIntosh—
Mrs McIntosh:
Con
Have I clarified the matter? I said that the issue was part of the debate.
Iain Gray:
Lab
Surely Lyndsay McIntosh has answered her own question in considering the evidence that was provided. Is there not a conflict between the desire to maintain t...