Devotees of this blog may know that we are battling with the Coroners and Justice bill. An important bill but one which has several contentious issues such as, mandatory life sentences, secret inquests, relationship between coroners and the justice courts, free speech (including whether or not criminals can benefit from the publication of memoirs, seditious libel and blasphemy) and justice for those suspected of genocide.
The genocide issue will come up on Monday. Previously the anomalies of the law prevented those genocide suspects from being prosecuted if the crimes had been committed before 2001, the date at which the International Criminal Court was ratified. This allowed those suspected of involvement in the Rwandan genocide of 1994 to continue living in the UK with impunity. Thankfully, this was overturned during the Committee stage of the bill following an amendment tabled by myself and three other peers, and cross party support.
The Government however remained resolute about the ‘residency’ requirement. Essentially this anomaly only allowed those resident in the UK to be prosecuted and those from whatever country and for whom there is sufficient evidence of involvement in heinous crimes to remain here and for others to come as tourists, visit their offspring at school here, or to receive medical treatment. We objected to this in the strongest terms possible and indeed tabled an amendment forewarning the Government of the strength of feeling to see this loophole in the law addressed.
There followed several meetings with the relevant Minister and the bill team and last Thursday the Government moved even further than we expected in meeting our concerns. Henceforth (if the House agrees on Monday -which it will!), while certain categories such as members of a national government or its armed forces will continue to have diplomatic immunity from prosecution – almost all other categories of suspect visitors will be liable to arrest. Crucially, what the Government amendment then says is that anyone lawfully detained will be treated as resident and thus not immune.
This extremely welcome concession brings the UK into conformity with current practice in a number of other countries including the US and Canada – and perhaps also illustrates both how the Lords revises legislation and holds the Government to account.
Lady D’Souza, That’s very helpful, I was not quite up to speed on what was happening on the ‘genocide’ bits of the Bill. I guess it must be raining and windy where you are too for us both to be blogging on a saturday afternoon, it’s horrible here in Norfolk!
It also shows that the government implements retrospective legistlation.
Puts an end to the lie from MPs that retrospective legislation about their expenses is wrong. (There isn’t any in fact. Green book and the code of conduct were in force at the time).
So if you are prepared to do this, when it comes to the changes in the Law for the Lords, why aren’t you going to make it retrospectively illegal to sell changes in the law for money?
Wolfgang: Probably because no one has sold changes in the law for money.
With very great respect, Lord N, I think this ascertion would perhaps be challengable in a pre-Great Reform Act Westminster, at least at some stage in a very long history!
And even now, maybe a progressive legislature would not wait for a case to arise to act in such a matter?
So attempting to do so isn’t a crime?
http://www.timesonline.co.uk/tol/news/politics/article5581547.ece
LABOUR peers are prepared to accept fees of up to £120,000 a year to amend laws in the House of Lords on behalf of business clients, a Sunday Times investigation has found.
Four peers — including two former ministers — offered to help undercover reporters posing as lobbyists obtain an amendment in return for cash.
Two of the peers were secretly recorded telling the reporters they had previously secured changes to bills going through parliament to help their clients.
Lord Truscott, the former energy minister, said he had helped to ensure the Energy Bill was favourable to a client selling “smart” electricity meters. Lord Taylor of Blackburn claimed he had changed the law to help his client Experian, the credit check company.
….
“categories such as members of a national government or its armed forces will continue to have diplomatic immunity from prosecution”
I can’t see exactly what this is supposed to achieve that wouldn’t/isn’t already covered by normal diplomatic immunity and state immunity?
lordnorton: No one has been caught and prosecuted but I’m less convinced than you of the absolute certainty that it has never happened. There has been some pretty grubby links between lobbying/donations and government policy changes.
Croft and Wolfgang: There’s a difference between offering money to someone to pursue an amendment and achieving a change in the law. Individual parliamentarians may table amendments, but to get an amendment enacted one has to persuade a minister – and his or her officials – that it is desirable and the minister then has to get it cleared within government, and then – in the Lords – persuade the House, including parties other than the minister’s own, that it is an improvement on what exists. The story gives too much credence to the influence of individual members and also rests on their own claims as to their influence in the past. The claims made by Lord Taylor of Blackburn are well considered in the committee’s report, which merits re-reading. Anyone taking money to pursue an amendment should be dealt with severely, but my point relates to the effect that individuals can actually have.
Actually I doubt individual backbenchers are are any real threat in terms of cash for laws. My view was rather that the danger is much higher up where there have been some very big donations to the individual parties and their policy has looked like it reflected the interests of the donors.
Croft: I agree with that.
Baroness D’Souza,
If you take my suggestion as historical context it will not seem so antiqurian. I know the word piracy and the term “piracy laws” still exist but in fact thaey do not exist curently just as a homicide is not a murder unless law creates murder. Piracy law under the “hostis humanis” formula is so old that it was formalized as an old law by the Roman republic and only recently have peopled decided it was useless.
Such real piracy law could not be used to prosecute SS genocides in Germany but in Poland, Slovakia and other places it might apply. Likewise unless Darfur can be shown to have colour of sovreignty Sudan would be exempt but all the other actors ( and there are some)might be prosecuted.
Piracy laws existed when few laws did. They basicaly allowed that any government of any kind or nature could apprehend a worker of wanton destruction,mass murder and pillaging outside of his own country and prosecute them to the fullest extent of the law. The whole of humanity was bound to stand by this prosecution of a common enemy and could not claim to have been offended by improper jurisdiction unless they could show that the defendant had not been a pirate. The high seas indicated piracy but were not an essential element.
I think the ancients got a lot of things right. Without something similar I think we are sliding into ages far darker than the period moderns call the dark ages. We have no effective legal regime for dealing with many threats resembling ancient piracy. It is no doubt a terrifying kind of law but such people are not motivated by any thing but terror.
There is no difference. It is buying people resonsible for the law of this country to get the law changed for cash.
The problem is you haven’t accepted that its more than a misdemeanor. A bit like a 5,000 fine for breaking the law. Waters of a ducks back.
Now I’ve read one of your previous posts where you said the Lords was going to deal with it going forward. Are you proposing making it a crime? Nope.
So were are back to your defence, that because they were incompentent it’s not really a problem. They were selling the law, but there is no evidence that it might have worked.
So if I plan a murder, lets do it with a piano, cartoon style. After all, it only works in the movies, its not that you prosecute me for trying to kill some.
Nick
Nick: I suggest you read my comments more closely. Where have I said it is nothing more than a misdemeanor? The powers of the Lords are to be considerably enhanced under the Constitutional Reform and Governance Bill. On criminal offences, there is little point in duplicating what already exists, a point made by senior lawyers during the passage of the Parliamentary Standards Bill.
Peers were not “selling the law”, since they are not able to do so.
It seems like some of the members of the upper house will soon be needing ‘safe haven’…
http://www.timesonline.co.uk/tol/news/uk/article6889016.ece
“The Government however remained resolute about the ‘residency’ requirement. ”
http://order-order.com/2009/10/25/sunday-sleaze-7/
And the Government are great at defining ‘residency requirements’ accurately, are they not ?
Croft, right! Which is why I wrote “will continue to have diplomatic immunity” – ie no change from existing law.
Bedd Gelert – the point is that the Government has now revised the definition of ‘residency’ to include another category of those suspected of genocide.
I have to say that this seems rather far from the ‘main residence’ of MPs and Peers debate that continues
Speaking of Genocide, how do I prosecute HMG since it appears that the Indigenous British people are to become minorities under Sharia Law without so much as a by your leave.
And the recent Neather revelation simply confirms my suspicion that this is not down to stupidity.
Thank you for the summary of this situation. I liked your final remark about holding the government to account. I think all this highlights the vital importance of maintaining the House of Lords’ greater independence of the government compared to the Commons.
Baroness D’Souza,
Fair point – I posted this early this morning as the ‘latest post’ before having a chance to review your article.
It did occur to me later on reading the ‘Sindie’ that few people are aware of Jack Straw’s plan for secret inquests, no doubt to avoid the embarrassment of another public one which brought the ‘friendly fire’ issue to the fore, and thus protect the US from being ‘named and shamed’. [sorry, I can’t find the article online].
Would be interested to know about the ‘free speech’ clauses on ‘seditious libel’ and blasphemy. I seem to recall the Guardian being upset a few years ago that running an article postulating getting rid of ‘Her Maj’ might have led to a prosecution under the ‘Treason Felony Act’ or somesuch.
I don’t have high hopes the governments response to libel tourism, the costs of such court cases (140 times the average for the rest of Europe apparently!). The Blasphemy issue puzzles me – I was under the impression that it had already been abolished in 2008 (Criminal Justice and Immigration Act). Though in many respects the change may be moot as the broad brush terms of the recent anti-religious hatred bill makes much that was formerly actionable but not enforced under blasphemy laws actionable and more likely to be enforced.
This is an excellent example, IMHO, of the excellent work the House accomplishes in its difficult task. Thank you, Baroness.
Nevertheless, it has, let us say, significantly ameliorated the situation. Some would perhaps question even that, though all, of course, can never be satisfied all the time!
The Rwandan genocide is, of course, only one example of these barbarous activities. Perhaps that involving the German nation
in the decade leading up to 1945 is the most famous – the Holocaust.
I myself spent many years as a journalist in God’s County, as Lord Norton would (IMHO quite rightly!) see it: Lincolnshire.
It is frequently also known as Bomber County, I’m sure Lord Norton has at least one copy of the book, probably several, of that name, and may well have assisted its author.
As a result, Lincoln and Lincolnshire and indeed parts of Nottinghamshire have a very high Polish population. This is a most interesting group of people. They are the result of the Polish air force’s presence in the area in 1939-45, whose parents stayed 1939-?, mostly now in second and third generations, sometimes relatives and friends who have migrated over the years.
I would digress too far to elaborate, but there were certainly rumours (no more) in that population of persons responsible at some levels of participation in the Holocaust living locally.
My question is, if they have been living peacefully since and contributing to their families and communities, what good would be done by achieved by the law change?
Retribution, yes. An example to others, yes, and perhaps that’s the best argument. But at what cost? That for me is the problem.
Such hypothetical person(s) in Lincolnshire or Nottinghamshire. They would by now, of course, be very old, but then, we have just buried our last of World War I, and Hitler’s Reich was a relatively good place for promotion for young men compared to Field Marshall Haigh’s trenches, IMHO, but I may be wrong.
You see, maybe the Bill goes too far. As I understood it, the Act of Limitations used to be what? Seven years?
Do we really want to drag extremely elderly and frail people off their zimmer frames in old folks’ homes and put them through hell in a court for something they allegedly did in another time and place over 75 years ago? And how will their families cope with the media pack at what is probably a time of immense family tension?
True, the victims didn’t deserve what happened to them (which, to be strict, doesn’t deserve the halo of ‘innocent civilian’ which all wars seem to create for some reason) but the families fall under the heading of victims through our actions as a society.
Hitler’s Deputy, Hesse, was apparently attempting to make a peace attempt (many theories I know), yet he never got out of gaol – just like Myra Hindley, a very junior partner in Bradey’s crimes at the very impressionable age of 17.
Having said all that, I am sure the vast bulk of persons who come to trial as a result of this new legislation should do so, deserve to, and ought to cope with the process.
Our old Statute of Limitations, I think, was a good one. In rare cases, it may need tiering above or below seven years (if that was it!), but there should be good reasons, carefully visited and revisited, for the change.
PS Lord N – have you ever read Brookbank’s poems about WW2 as experienced from a Lincolnshire RAF base? Copies are very rare, but Lincoln Central Library has a copy – maybe other libraries in Lincs, I definitely recommend! Or try National Poetry Library.
stephenpaterson: Surely the people to whom you refer have nothing to fear, since they are resident in the UK and, if any had been suspected of an offence in wartime, covered by the War Crimes Act?
Bedd Gelart and Croft – You are of course quite right, Blaspemy was abolished as an offence in the 2008 Criminal Justice and Immigration Act – but it continues to be an offence in Northern Ireland. Given that N Ireland is NOT fully devolved we are taking the opportunity of the Coroners and Justice bill to change this and at least have consistency across the UK.
Croft – you will remember that there was a hard won free-speech clause in the religious hatred bill?
stephenpaterson – a difficult point. My own view is that the old and frail erstwhile perpetrator of heinous crimes must still be liable for prosecution BUT I am not sure that he or she should be imprisoned. I know this sounds a bit like a cop out – the rationale is that justice in the form of a free and fair trial is essential for society and perhaps most importantly for the victims and their families.
One of the really key elements of surviving torture and similar terrible crimes is that they be ACKNOWLEDGED – it is not the punishment that matters so much but that society recognises the wrong that has been done to them. To release perpetrators from trial is to forget their crimes, to absolve them from punishment is possibly to forgive?
Baroness D’souza.
You’re going to get the opportunity to do something about it.
Move to withhold evidence in torture collusion claim
Any evidence of MI5 and MI6 involvement in torture of Guantánamo Bay Britons now seeking damages must be heard in secret, court told
http://www.guardian.co.uk/uk/2009/oct/27/torture-collusion-claim-evidence-secret
Somehow I suspect the Lords is going to be completely ineffectual.
Just like Habeas Corpus, trial by jury, retrospective legistlation, ….
To be fair the free-speech clause was indeed a hard won clause – which the government has been trying to remove ever since – and I was delighted it stayed and the Lords’ stood firm. However I’m not entirely convinced that the clause is a sufficiently robust protection. Too much of the anti hatred laws seem to quite deliberately muddy the waters between inciting hatred and causing hurt/anger or offence in the process of legitimate comment.
Perhaps I’m mistaken but I was under the impression that blasphemy is still an offence in Scotland but that it may have fallen into desuetude and may be unenforcible. I have no time for blasphemy laws but doesn’t ‘your’ idea of uniformity of laws become rather problematic when you have devolution.
On stephenpaterson’s point I thought part of the reason the Lords defeated the government in the 90s over trying WW2 war crimes was the sense that so long after a fair trial was questionable. The sorts of places war crimes tend to occur are after all not generally those amenable to a proper investigative process.
Croft: On war crimes, you are correct that this was the view taken by the Lords. MPs took a diffrent view and the War Crimes Act was one of only four (it was the first of the four) to be passed since 1949 under the provisions of the Parliament Act.
I did think of commenting on the fact that it was imposed via the parliament act – the only use by a conservative government iirc – but felt myself heading for a longer post than intended and stopped. I should have known my vague form of words would be picked up and corrected by you LN.
🙂
Would I be correct it understanding that we are therefore in the position that you will be able to tried for crimes ’39-45 & 91-present but not for any of the same crimes ’45-91?
Croft, I think (not for the first time) sums up my question admirably from my first post when he says “Would I be correct if understanding that we are therefore in the position that you will be able to tried for crimes ‘39-45 & 91-present but not for any of the same crimes ‘45-91?”
If Lord Norton is correct, 1939-45 would presumably not be tried due to the War Crimes Act?
But we seem to be drawing lines with different legislative measures in a world hopelessly complicated by international standards, the latter drawn up over-hastily due to “globalisation” and without respect to the cultural differences and traditions of the peoples involved.
When there is prima fascia evidence that a UK resident person, settled here over a significant period, and with no significant criminal record here, has committed a crime against humanity such as genocide, it seems we are hopefully in the realm of rare cases – cases in which it may be best for a small number of key people to determine the best way forward on an ad hoc basis.
This might include such persons, perhaps, as the Attorney General and the DPP, other persons who might serve ex officio on such a body may occur to readers of this comment. We probably lost our powers in this respect a long time ago, maybe at the time of the European Convention?
Nevertheless, there may also be other reasons to leave such a person in situ in this internet age for intelligence gathering purposes, at least for a period. This in itself, of course, leads to innumerable tangents over rights and privacy.
But the cases surely need to be dealt with consistently, and in a manner which bares in mind the interests of all stakeholders, including costs to the public puse (including in this case, the international public purse).
How many International Disaster Emergency Committee tents could be bought for the estimated cost of one Radovan Karadzic trial?
This is not meant to be facetious, but it is an uncomforting question.
More uncomforting, to me, in this case is that the prosecution is led by a US lawyer, albeit no doubt an extremely competent one with qualifications from here to Mars and back, but in a world where other prosecuters who are not Anglo-American are available.
Now I am not anti-American, but this sends out all the wrong messages to the places where we don’t want such messages heard.
Perhaps he is not from the US, maybe he’s Canadian, or wherever, by birth, but it’s the perception that counts.
As indeed, will the perception of all legislation, all legislators, and, indeed, the countries from whence they came, to the historian.
stephenpaterson – yes the field of international human rights laws is complex and unwieldy – in part due to the different dates at which countries decide to ratify these laws and the bits they derogate from.
Nevertheless the important fact is that standards are being set by these means and in time the expectation is that ALL countries will conform …and can be criticised until they do! Universal jurisdiction is the goal we are all aiming at.
There is no way that the UK anti-torture laws could have been drafted and enacted in the absence of the UN Convention against Torture. Similarly the adoption by the UN of the Statute of the 1991 International Criminal Tribunal for the Former Yugoslavia has enabled the most recent amendments to allow prosecution of genocide committed before 2001.
Another advantage of this blog, Baroness D’Souza, is that it is amazingly educational!
It is akin to being at a dozen universities at once, but with no tuition fees!
(Now there’s a good one foe the Hansard Society’s marketing material!)
Sadly, there’s no degrees at the end of it, though. Still, can’t have everything!
But you see, I always have to be awkward and ask “Why?” Why could not the UK anti-torture laws could have been drafted and enacted in the absence of the UN Convention against Torture?
I appreciate there are conflicts over, for example, multilateral nuclear disarmament, but basic civilsed behaviour is another matter. In terms of torture, one perhaps thinks of the original script of ‘The Long and the Short and the Tall’ as a stage play in this context. This is very different from the film.[1]
Futhermore, we do have bodies such as Liberty. We also have Amnesty International, which is very good at simple issues like torture so long as you don’t give it complex issues like abortion and sex workers’ rights, when it rapidly turns bright purple and eventually explodes.
Surely this incapacity over torture must somehow be related to our legislature and failure to develop our framework for civilised central Government within our own democracy?
[1]
See, for one man’s view of differences from stage to film:
http://www.amazon.co.uk/review/R3MAWT2JC7PURE/ref=cm_cr_rdp_perm/
This interesting Independent review of a recent production may reveal more (or as much) about changes in culture in modern London (not British) society as it does faults in the play:
http://www.independent.co.uk/arts-entertainment/theatre-the-long-and-the-short-and-the-tall-albery-theatre-london-1317721.html
stephenpaterson – it was probably an infelicitous use of language on my part; of course we COULD have had anti-torture laws in the UK without an international Convention – the fact is we probably WOULDN’T.
The value of UN and other international Conventions is precisely that they set standards. Few governments will willingly enact laws which restrict their authority, cost them more money or even threaten to embarrass them. If however standards exist and there is a reasonably active civil society, the latter will push until such standards are acknowledged, ratified and implemented.