Considered in Committee
[Sir Alan Haselhurst in the Chair]
Clauses 1 to 3 ordered to stand part of the Bill.
Application of section 2
I beg to move amendment 1, page 2, line 33, leave out subsection (3).
This is a probing amendment. As the Bill is currently drafted, clause 4(3) limits the application of the offences defined in clause 2(1) and (2) to British nationals and companies alone when the alleged offence relates to actions outside the United Kingdom rather than to those on UK soil. My amendment would remove that limitation and extend liability equally to people and companies that were not British and that had committed the offences defined in clause 2.
My question to the Minister is this: why have the Government chosen to include the limitation in clause 4(3) of the Bill? It is conceivable that the offences defined in the Bill could be committed by people who are resident here but who are not British citizens. Plenty of people who live here are legal but temporary residents and others have indefinite leave to remain; there are Commonwealth citizens; European Union nationals in Britain exercising their rights under the treaty of Rome; and some who have always been resident in Northern Ireland identify themselves as Irish rather than British citizens under the terms of the Belfast agreement. All those people could—hypothetically—commit one of the offences defined in the Bill, but they would seem to be exempt from prosecution in respect of an offence committed outside the UK, whereas their next-door neighbour committing the same offence could, on my reading of the Bill, be caught by it and convicted.
Therefore, the purpose of the amendment is to get the Minister to elucidate the purpose of that exclusion and to see whether the Government believe it is justified and whether they are prepared to review it.
I share my hon. Friend’s concern. He said that it is a probing amendment, but of course, in the context of the Bill, which comes from the House of Lords and is now in its final stages, the Minister’s answer will have to be definitive; otherwise, it will not be a probing amendment and it will be made very rapidly.
The measure seems extraordinary, because clause 4(2) states:
“Section 2(2) applies to assistance, encouragement and inducements in the United Kingdom or elsewhere”
and clause 4(3) confines the application to conduct that arises under clause 2(1)
“and to assistance, encouragement and inducements”
that arise under clause 2(2).
However, “conduct” arises only in respect of clause 2(1) and the other matters—
“assistance, encouragement and inducements”—
apply only in respect of clause 2(2).
We are often accused—particularly those of us who are lawyers—of being rather pedantic, but the truth is that legislation is about law. I am not suggesting that the Minister would do this in the context of the debate, but it would seem rather absurd to accuse us of being either pedantic or pernickety when we draw attention to inconsistencies. There are strange aspects to the Bill, and given its object, I concur with what my hon. Friend said. I look forward to both an explanation and a definitive answer from the Minister, because we are in the later stages of our consideration of the Bill, and what he says may determine what we do after Committee stage.
I understand the nature of the argument made by the hon. Member for Aylesbury (Mr. Lidington), but I want to explain why I think he is wrong.
Clause 2(1) applies to conduct in the United Kingdom or elsewhere—that is about conduct—and clause 2(2) applies to
“assistance, encouragement and inducements in the United Kingdom or elsewhere.”
However, clause 4(3) applies to what happens outside the United Kingdom. Although it is perfectly legitimate for us to extend the provisions that we make for British people who engage in such activity outside the United Kingdom, creating an offence for people who are not British and who are from other parts of the world, over whom we therefore have no jurisdiction, would be inappropriate. Article 9 of the convention on cluster munitions, on which all our legislation has been based, obliges states parties to impose penal sanctions to prevent any prohibited activity from being
“undertaken by persons or on territory under its jurisdiction or control.”
Obviously, the rest of the world is not under our jurisdiction or control. That is why we have not sought to act against foreigners abroad. We are acting against British people abroad, and against anybody in the UK, but not against foreigners abroad.
That is at the nub of the point that I raised on Second Reading. Things are not quite as simple as the Minister makes them sound. Bosnia is a classic example; in that case, cluster munitions were used by British forces, and were inevitably transferred to other forces because of where those munitions ended up. Where would we be if the Bosnians chose to use those munitions, given that we are entirely responsible for that situation? I would be happy to be told that negotiations will ensue. The Minister is looking quizzical, but that is a real-life case; cluster munitions are still there, and could be used by a third party.
I am not sure that my hon. Friend is right on that last point about there being cluster munitions that could be used by a third party there. We are destroying all our stockpiles, full stop. That will all be done by the end of 2013. We are moving forward to try to make sure that all countries sign up to and ratify the convention, so that cluster munitions become a thing of the past. It would be a step too far, and not a step that the convention requires us to take, to legislate for those who are not British and not operating in the United Kingdom.
I understand the Minister’s argument, but surely it leads us towards the following perhaps unlikely, but still possible, hypothetical situation. Two people live next door to each other in a British city. Both go abroad, commit one of the prohibited actions defined in the Bill, and return to Britain. As the action took place overseas, the British citizen could still be prosecuted, but his next-door neighbour, who is a British resident but of a different nationality, could not. That seems to introduce a contradiction into the Bill.
The hon. Gentleman rather gave away his argument, because he said at the beginning of his comments, “It’s rather unlikely, but I suppose it’s theoretically hypothetical.” I am not very good at dealing with a “theoretically hypothetical.”
I will not deal with a theoretical, a hypothetical or a speculative; as may be judged from my demeanour, I will go straight to the issue on which the Minister and I have had so many disputes—the European Union. In the United Kingdom, which is a member of the European Union, the situation that my hon. Friend the Member for Aylesbury (Mr. Lidington) has set out could easily arise. The Minister has repeatedly asserted the virtues of measures such as the European arrest warrant. There is a thing called aiding and abetting, and there is the question of accessories, too. A whole range of criminal law considerations can arise in relation to matters of the kind that we are discussing. The provisions deal with questions relating to offences—that is what clause 2 is all about. Those offences are serious. Indeed, a person guilty of an offence
“is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years”,
so we are dealing with very serious matters. Will the Minister confirm that there is indeed a problem regarding the European Union?
No, of course I will not. The important point is that many other countries are already signatories. If a French person lived next door to a British person in the UK, and went to another country and engaged in the use of cluster munitions, he would be offending under French legislation. That is the general way in which all the conventions have proceeded. That is precisely the process that we adopted for the Landmines Act 1998, and there have not been significant problems in that case. Clause 3(3) is a similar, parallel, sort of arrangement, implementing precisely what was in the Ottawa convention.
I think that the hon. Member for Aylesbury (Mr. Lidington) has a point. If someone is permanently resident in the UK, even though they are a foreign national, they are under British jurisdiction in the UK and have British permission to stay in the UK the whole time. Is the Minister saying that it is legally impossible for us to continue that jurisdiction when they travel abroad and then return to the UK? Surely that cannot be the case.
For the most part, when a non-British national goes abroad and breaks the law in another country, obviously it is for the laws of that country to deal with them, and in the vast majority of cases, that is precisely what would happen. There is an issue, obviously, because some countries are signatories and others are not and have no intention of being state parties. I honestly suggest to the hon. Gentleman, however, that this is not the big problem that he thinks it is.
I will give way one final time to the hon. Gentleman.
This is the Committee stage—and it is on the Floor of the House, too—so it is important that we get these things completely right. I have to say that, again, I dispute what the Minister has said. He referred to the legislation on land mines, but he, above all Members of the House, will know that that long predated the European arrest warrant. That is the reason why, I suspect, the Bill has not taken sufficient account of the legislation that currently applies.
The Minister shakes his head, but I think he said that the land mines legislation was enacted in—
So it predates the European arrest warrant, which means my point remains. The situation I have in mind could easily be affected by that new European arrest warrant, so there is a problem and the Minister is not addressing it—he is simply saying that we are wrong, without understanding that problem.
I give way to the hon. Gentleman.
I do not believe the issue has anything to do with the European arrest warrant; it relates to whether British courts and British law can have jurisdiction abroad over permanent British residents who are not British nationals. This issue is directly relevant not only to the Bill but, in a way, to all aspects of law where Britain has decided to exercise jurisdiction in foreign countries in relation to British citizens—for example, when British citizens have gone abroad and committed sex offences. Such issues must have been considered before, so the Minister must be able to get some sort of briefing and guidance on this. If other legislation has dealt with the problem of international jurisdiction, how is it being dealt with in the Bill?
I think we are making slightly heavy weather of this. In an ideal world, the whole world would be ratifying this convention at the same time and we would be seeing an end to cluster munitions. There is a difficulty for us, however, because some countries are not. So, for instance, a national of a country that is not ratifying who uses cluster munitions in another part of the world—not in the UK—and who has no involvement in the UK, could, when travelling through the UK, be arrested for something that is perfectly legal in their own country and in the country where they operated. That is the difficulty that would come about were we to get rid of subsection (3). For instance, because the United States has not ratified, and—unfortunately—has no intention at the moment of doing so, American military personnel engaged in the use of cluster munitions in another part of the world could be arrested immediately when passing through the UK. I do not think that is what people really want to countenance. That is why I disagree with the amendment and urge Members to vote against it, I am afraid.
Will the Minister give way?
I have finished.
Order. An hon. Member may speak more than once, as indeed can the Minister.
I would like to take up the Minister’s last point, in the context of a provision to which we have not referred, namely clause 4(4). The terms of that subsection are apparently in contradiction to the provisions in clause 4(3), because under subsection (4) clause 2(2) is said to apply
“whether or not the conduct assisted, encouraged or induced takes place, or (if it takes place) will take place, in the United Kingdom or elsewhere.”
However, in subsection (3), which we have just been discussing—and on which I have not received a satisfactory answer from the Minister regarding the European dimension—there is a clear contradiction because subsection (4) could, in certain circumstances, displace or run parallel to subsection (3). This is a very strange piece of drafting.
The Minister is just asserting that my hon. Friend the Member for Aylesbury and I are wrong, rather than giving us a considered assessment of the situation. I understand that he is not a lawyer, and that lawyers are not always right, but there is an inconsistency here. I suspect that the draftsman has gone back to the landmines legislation of 1998 and simply adopted it without having regard to the advances and changes in the law that have taken place since. It is possible that nothing will come of this, because of the probing nature of my hon. Friend’s amendment, but I believe that there is a difficulty involved, and the Minister does not take us any further merely by asserting that we are wrong. We have very little opportunity to get this right, and there could be a problem with this provision in a year or so—[Interruption.] The Minister shakes his head, but he cannot see into a crystal ball any more than I can.
I had not intended to speak to this amendment, but the hon. Member for Aylesbury (Mr. Lidington) has convinced me by the force of his argument that there could be a problem here. I am not suggesting that we should stand in the way of the Bill making proper progress, which is why we should, unlike the hon. Member for Stone (Mr. Cash), approach this as a probing amendment; there is cross-party support for the Bill.
However, right hon. and hon. Members will know that there are many non-British nationals living permanently in their constituencies. I have such people coming from many countries around the world, including parts of the European Union. They have come to this country and want to make it their permanent home, but they want to keep their original nationality. My understanding of the law is that they often have to get special papers to allow them that extra status. The Minister, in trying to undermine the arguments from Conservative Members, gave the example of an American transiting the UK being subject to arrest if the hon. Member for Aylesbury had his way. I do not think that that argument holds, however. We are not talking about visitors to this country or about people who are transiting it. We are talking about people who have special status and who have become permanent residents.
I am sorry, but that is completely and utterly untrue. There would be no distinction. Any foreigner from anywhere in the world—who would be subject to the British courts only if they were physically in the United Kingdom—would be caught by this. There would be no distinction between foreign nationals who were permanently resident or domiciled here and those who were merely transiting the UK.
The Minister argues that point with great conviction, and he might be right, but I would seriously urge him and his officials to check with the Home Office officials who have to work through the byzantine labyrinth of Home Office legislation on nationality and residence these days. The law has changed many times, and I do not know whether parliamentary draftsmen from the Home Office were involved in the drafting of this Bill, but I would urge him to take advice on this point.
I am beginning to sense that the hon. Gentleman is taking a pragmatic and sensible view of this matter. We are faced with a problem, in that the Bill is supposed to go through the Committee like a dose of salts this afternoon, but the point that he and my hon. Friend the Member for Aylesbury and I are making is about nationality and residence, about whether certain people have signed the convention, and about the interaction between the European Union and the criminal justice system that is being set up under those arrangements. There is an important point involved here, and the hon. Member for Kingston and Surbiton is latching on to it.
Perhaps we are in agreement, which might be a first, but I am not convinced that the issues regarding the European Union are so relevant to this matter, although they are part of the wider picture. I am not going to try the Committee’s patience too much, as I have made my point. I hope that the Minister will go away and take further advice. I do not think that the issue should stand in the way of this legislation, but I am grateful to the hon. Member for Aylesbury for raising this important point.
I rise to support my hon. Friend the Member for Aylesbury (Mr. Lidington) and others, having listened to the Minister’s response. There is a way for the Committee to distinguish between the visiting American who is changing planes in Heathrow, and the foreign resident who is paying utility bills and has an address in the United Kingdom.
Clause 4 makes it clear that the Bill is designed to regulate and control the conduct of people in foreign countries as well as at home. On this occasion, it makes a lot of sense to assert that extraterritorial jurisdiction. Most hon. Members, the Minister and I wish to see an end to this type of munition and we wish to use any reasonable legal power we can take to pursue that aim. I think it makes sense, as the Minister recommends, to assert that we need to control conduct abroad as well as at home. That confronts us, however, with the real dilemma that my hon. Friend the Member for Aylesbury raised—that it would be grossly unfair if two people resident in the UK went off and committed a crime under this legislation in a foreign country, yet only one of them could be prosecuted because only one met the rather tight definitions for prosecution in the Bill while the other one, as the neighbour, got off scot-free. That person, as the neighbour, is clearly in a different category from the American in transit, whom the Minister—I think understandably—wishes to exempt from the extraterritorial jurisdiction. I hope that the Minister will think again.
My hon. Friend the Member for Aylesbury suggests striking out the provision in subsection (3). We need something in there to make it clear who is being governed by the legislation, but it should be broader than under subsection (3)(a), (b) and (c) in order to capture the hard cases that the Minister has not dealt with.
In response to the hon. Member for Kingston and Surbiton (Mr. Davey), of course we have consulted the Home Office, which was intimately involved in the whole process. We and the Home Office are perfectly confident that this is the right way to deal with the situation. Unfortunately for the right hon. Member for Wokingham (Mr. Redwood), the only proposal on the table for us now is to delete subsection (3). No other amendment was tabled in a different direction, so my argument is simply that deleting the subsection would lead to greater hazards and would be injudicious because it would capture every foreign national operating outside the UK whenever they chose to come to the UK.
I am not giving way again. [Interruption.] I am sorry, but I am not going to give way.
The Minister is not answering the question.
I am at liberty not to give way again, I’m afraid. But the hon. Gentleman has now made me lose my direction of travel, so I had better give way to him.
I am extremely grateful to the Minister. While he finds his lodestar, let me come back to a simple point. He has defined the problem extremely well and has also indicated that if there were some way of dealing with the problem, he would try to do so. Does the Minister really believe that there is no problem in respect of foreign nationals who come from the European Union, because the arrest warrant and all that goes with it does apply in these circumstances and could raise quite difficult problems in the future?
I do not accept that, because the European arrest warrant works in a very different way and is not at all relevant to this discussion. In fact, the vast majority of European countries—I hope all European countries—will sign up to the convention and will ratify it in fairly short order. France and Germany already have. The nationals of those countries will already be caught by the legislation in those countries, so there is no need for us to legislate to make provision for the French, German or Italian person who is going abroad. That is why I believe that the amendment is unnecessary and why it would be inappropriate to accept it.
This has been an interesting short debate, not least because of the historic concordat between Kingston and Surbiton and Stone. That is unprecedented in the annals of the House. I accept the point that the Minister put to the House: the purpose of the Government’s drafting had been to protect citizens of countries that have not subscribed to the convention. He referred to visiting American citizens who might even have been acting under orders in handling cluster munitions, which would be lawful in the United States but would not be lawful here, if the Bill becomes law.
However, that leaves us with the difficulty that I sought to identify in my amendment and that the hon. Member for Kingston and Surbiton (Mr. Davey) and my right hon. Friend the Member for Wokingham (Mr. Redwood) have both probed in greater detail: people who have permanent rights of residence in the United Kingdom but who would be exempt from certain categories of offence under the Bill, whereas British citizens would be covered. With all respect to the Minister, it is not correct that every member state of the European Union has signed up to the convention. In particular, Poland—the United Kingdom has a significant Polish community—has declared that it has no intention of signing or ratifying the convention on cluster munitions. Although the Minister said that corresponding legislation in other European countries would close the loophole that I and others have identified, his case is not as watertight as he made out.
Will my hon. Friend confirm from the Front Bench that were the Minister to come up with a way of dealing with the problem, the Conservative party would give it fair and easy passage if it appeared on a future Order Paper before the House breaks?
I am happy to give the assurance that my right hon. Friend seeks. Subject to your discretion, Sir Alan, it is even possible for that to happen later today, as my understanding would be that if an amendment were passed in Committee, including the Government amendment, we would proceed to Report, when it would be open to the Chair to accept manuscript amendments from the Minister or any other Member. That might provide us with a route to solve the problem identified by Opposition Members, to which the Government have not yet provided a wholly persuasive answer.
In referring to Opposition Members, not necessarily of the same party, I think my hon. Friend was fairly careful not to include me. I hope that was not because he was embarrassed to have to agree with me on a matter relating to the European Union, and in this case the European arrest warrant, but he should not be so cautious. Does he not agree that clarification is required, and that the mismatch between the convention and the European Union is a problem? We are within the framework of European law, so the matter requires amendment. Adding the words, “notwithstanding the European Communities Act 1972” might be a convenient amendment to table on Report.
I will not commit myself to putting my name to such an amendment at this stage, but I agree with my hon. Friend that the questions he posed have not been answered in full. As he suggested earlier, the number of years that have elapsed since the House voted to implement the landmines convention gives us cause to pause and reflect on whether the design of the legislation needs to be updated.
I want to be as helpful as I can, and I should like to be able to consider the idea of a manuscript amendment that would help us along. If, however, we were to include a fourth category of UK residents, we would immediately be in conflict with international legislation on jurisdiction. That is why, in my view, it is legally impossible to separate the two categories that the hon. Gentleman wants—US personnel travelling through the UK who have done something elsewhere but have no residence here, and foreign nationals who happen to live here.
The Committee is in some difficulty, because our time is limited, and this is the only opportunity that we shall have to debate the detail of the Bill. We must therefore take on trust the Minister’s assertion that the international legal provisions are as he has described them.
It is difficult for us to accept that, given the number of gradations of status for tax purposes in this country, which are well defined in British law and which have been subject to considerable interest recently.
There are certainly many gradations of tax status. There are also—as the hon. Member for Kingston and Surbiton said, and I can vouch for it from my own constituency experience—many gradations in the rights of foreign nationals to reside within the United Kingdom, permanently or for particular lengths of time, unconditionally or subject to various conditions imposed by the Government.
There is also the question of the defence that might be raised in relation to what the Bill defines as an offence. I see that my hon. Friend is reaching for clause 9, and he is right to do so. Clause 9 provides a defence for a person charged with an offence in certain circumstances when international military operations and activities are taking place. A problem could be posed by a person who came from within the European Union, but fell within the provisions of clause 9. Does my hon. Friend agree that there is a serious question mark over this—that is all we are saying at the moment—and that the issue needs to be resolved so that that some people do not get away with it while others are implicated?
My hon. Friend has made a good point, which illustrates the extent to which legislation benefits from detailed scrutiny. It is a pity that we have not been allotted enough time to scrutinise this Bill sufficiently today. The facts that it has cross-party support and that no party wishes to slow its progress to the statute book should not prevent us from trying to examine its detailed implications, particularly as it creates new criminal offences that would bind British citizens.
Having listened to the debate, I return to the point with which I began in my opening contribution. Amendment 1 is intended to probe. I shall reflect further on what my hon. Friends and other members of the Committee have said about the possibility of a manuscript amendment should we proceed to Report, and I hope that the Government will reflect further on clause 4(3) and the possibility of a redefinition that might fill the gap that we have identified.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 ordered to stand part of the Bill.
Clauses 5 to 8 ordered to stand part of the Bill.
International military operations and activities
Question proposed, That the clause stand part of the Bill
It would be helpful to the Committee if the Minister gave an explanation of how likely he thinks the defence in the clause would be and how likely it is that it represents some form of block or impediment to the intention of the Bill. The proposal relates to international military operations and to where members of the UK forces may be involved with other states that are not party to the convention. How big a loophole might this be, as against the intention of trying to get rid of the weapons?
I would like to take up a point made by my right hon. Friend the Member for Wokingham (Mr. Redwood) to which I alluded at Second Reading. It struck me at the time that the proposal was a significant loophole that had been devised for a specific reason: the Government’s embarrassment at the fact that some of our allies do not agree with them. Poland has been mentioned and I suspect that other allies are deeply worried about this measure. I invite him to tell us which ones they are so that we can get a better idea where the difference arise.
In legislation on criminal offences, it is extremely important to have consistency and for the criminal law to apply equally to all those affected by it. This is not just about the merits of the question of cluster munitions; it is about whether the prohibitions, included in brackets in the Bill’s title, apply with equal effect under criminal law to all those against whom it is intended to apply.
It is clear that United Kingdom nationals might fall within the terms of clause 4. Also, the range of people who have the opportunity of defences arising from clauses 5, 6, 7 and 8 have half a let-out. Clause 9 must be seen in the context of greater convergence of military matters, some of which I disapprove of because I believe in alliances and not locking in under St. Malo agreements and things of that kind. We must bear in mind the fact that there is talk of a European army; I do not think that the Minister will disagree with that. Joint operations that apply can be in conflict with matters arising from activities in the Balkans and other parts of the world where cluster munitions are already a recognised problem, which is why the Bill is being introduced in the first place. The object of the Bill is significantly undermined by the degree of exemptions, qualifications and offences and by the European dimension. I know that the Minister does not like to hear these truths, or this realistic analysis.
My hon. Friend has made a better study of this than me and is a trained lawyer. Does he agree that members of the United kingdom armed forces could handle and be involved with cluster munitions if they were in joint operations with a state that was not party to the treaty?
Absolutely. Some people are not familiar with and simply do not know about the St. Malo agreement and the structure of the extremely detailed operational framework that has been created—I invite them to examine it when this debate is over—whereby commanders come from different countries and orders are given by people to others of different nationalities. We must also consider the south Mediterranean military framework. The bottom line here is that on a raft of matters serious interaction takes place between different nationalities, in terms not merely of alliances with separate lines of command, but of the interaction and integration of operational activities involving the line of command of a military operation. As clause 9 states,
“‘military operation’ includes any naval or air force operation.”
Thus, we are dealing with all the services, with all the different nationalities and with different criminal criteria, which apply in different countries under the convention, yet the convention itself is interactive with the European Union.
I have mentioned the European arrest warrant as but one relevant example, and I simply make the point that it is extremely important to bear certain things in mind. The Minister does not listen to the arguments because he has made up his mind that this is going to go through anyway—that is his problem. Although he happens to be rather a nice Minister, he is very assertive about the things in which he believes passionately. The very mention of the word “Europe”, or any slight indication that there might be something awry in the drafting of a Bill for which he is responsible and that suggests that there might be something amiss with the European dimension of it, is enough to send him into a spasm.
There are problems on this issue. I have made my point. I simply repeat that this stand part debate has raised important questions and these things will come home to roost. I do not think that we have yet been given an answer—
I have not spoken about this yet.
Indeed the Minister has not spoken about this yet, but I can almost predict that he will take exactly the same line as he has previously, and he will do so in the knowledge that barring the tabling of a manuscript amendment, we will have almost no time or opportunity to do anything about it. That is not good law-making.
Order. I have heard of predictive text, but not of predictive speeches. I call Mr. Lidington.
My question to the Minister is rather narrower than the important issues raised by my right hon. Friend the Member for Wokingham (Mr. Redwood) and my hon. Friend the Member for Stone (Mr. Cash). My understanding is that clause 9 intends to make it possible for British armed forces to continue to take part in joint operations with allied powers—the United States and others—which have not ratified the convention on cluster munitions and which still have such munitions in their arsenals. Active military operations these days involve not only members of the armed services, but often civilian staff, and perhaps contractors’ staff, who are working under military discipline while providing support and ancillary services to Her Majesty’s armed forces. Are civilians working with the armed forces on those operations every bit as covered by the protection given by clause 9 as soldiers, sailors and airmen themselves?
You referred to predictive texting and predictive speeches, Sir Alan. Earlier today, I tried to send a text to somebody to ask them whether they would like a meal tonight. Unfortunately, predictive texting can change that to, “Would you like a neck this evening?” That came as a bit of a surprise.
The direct answer to the hon. Member for Aylesbury (Mr. Lidington) is that he is absolutely right: this provision does apply to civilians too. I am sure the hon. Member for Stone (Mr. Cash) knows that the clause mirrors very precisely the provisions under article 21.3 of the convention. As he rightly says, so many military operations around the world now are joint operations between many different countries, some of which will be state parties that have signed up to the convention and some of which will not. Thus, the whole aim of the clause is to ensure that there is no legal peril for those states’ members—military personnel—who are engaged in those alliances. Otherwise, that would simply dismantle military alliances—
I will give way, if the hon. Gentleman will let me make a little further progress with my argument.
That is why we have made this provision. Otherwise, the danger would be that British personnel would be constantly at legal peril in relation to their work not only with the United States of America but with Poland and a series of other countries that retain the use of cluster munitions.
I am grateful to the Minister. In fact, the EU dimension that I have mentioned, which causes some hilarity with him, is a serious one. He knows that. A priority for EU member states that have signed or ratified the convention will be to persuade other EU members to sign it —he has indicated as much himself, and he said that he thinks that they will do so. Finland, Poland, Romania, Estonia, Latvia, Slovakia and Greece are yet to sign. Some of them might have signed since the information that I have in front of me was produced—I do not know, but perhaps the Minister could elucidate. Poland, as he rightly says, has explicitly indicated that it does not intend to sign, but Finland, Estonia and Slovakia were among the countries that adopted the convention in May 2008. There are some hopes that they will sign—I do not need to go into the distinction between signing and ratification with the Minister, but he knows that it can be a serious obstacle.
Absolutely. We hope that all countries will sign and ratify the convention and that they will take their obligations seriously. We certainly take seriously our obligations to try to persuade all other countries to move towards ratification. Key among those countries are those with which we work most closely in military operations—not least the United States of America, but also European Union countries such as Poland. I would refer to two other countries as key: Turkey and Brazil.
What about Georgia?
The hon. Gentleman mentions Georgia and it—and Russia, for that matter—is likewise key.
The reason for having this clause is that we would imperil our British armed forces in most of the operations in which they engage if it was not included in the Bill.
I am very keen that we do not imperil and put at legal risk our forces when they are doing their duty. I favour the purpose, but I think that we need to know a little more about the extent to which the protection of armed service personnel will get in the way of the noble intention, which is to get rid of this type of munition in our activities. Under this law, does the Minister envisage that British forces will be instructed not to handle these munitions in any combined operation and to leave it to their allies if they are going to use them, or will they be allowed under our instructions to handle these munitions when one of our allies has decided to use them?
That is a fair point, but the word “handle” could stretch its meaning in many different ways. That is why we want to ensure that there is legal certainty for our armed forces. The convention and the Bill would not allow British armed forces to use cluster munitions, despite the fact that they were in a coalition. They would not be allowed to request the use of munitions where the choice of munitions was within their exclusive control.
We do not expect that the British armed forces would suddenly say, “I’m sorry, we are not going to allow that aeroplane to land on this airstrip because we know that it is an American aeroplane that has used or might be going to use cluster munitions or that has them on it.” The point is about where we have exclusive control, and that is key, but, in addition, the very fact that we have said that we will ratify the convention and the fact that the United States of America has decided to review its cluster munitions means that there will be no American cluster munitions in the UK.
Is the Minister aware of any of the problems relating to cluster munitions arising in a far more imminent field of operations that we are continually concerned about—in Afghanistan? Much of what goes on there is affected by what happened when the Russians were there. Will the Bill apply in relation to the safety of our forces, the line of command and our relationships with other nations within NATO as well as with the United States?
It will indeed. That is a further reason why we think it important to provide the legal certainty that is enshrined in this clause. For that reason, I strongly hope that the House will support the retention of this clause in the Bill.
We have not had a very full explanation from the Minister. Of course my colleagues and I share his wish that our forces should not be placed in impossible positions in combined operations and that they should have the legal protection they deserve. They are fighting soldiers in those situations and are not expected to be lawyers, so we need to ensure that they are legally protected.
The Committee is also owed a fuller explanation of how much of a limitation there will be, because we are doing this with some allies but not with others. Anyone studying this area will come to the conclusion that the prohibition on these nasty munitions will work only if all the main countries of the world do the same; it cannot work if a limited number do not play along.
I do not know whether my right hon. Friend has noticed this, but clause 34(1) states:
“This Act comes into force on the day on which it is passed.”
For practical purposes, from the moment the Bill goes through, which will presumably be today, our forces in Afghanistan will be affected by its implications, let alone by any other considerations that we have already discussed, looking more to the future.
Indeed. I hope there will be proper guidance and briefings for all our military personnel who might become involved in combined operations with allies. This area will clearly be complex. As the Minister has begun to hint to us, there is a whole gradation of things that could happen. I am glad he says that we will not say to our allies, “You’ve got cluster munitions, and we think we should use them in this particular circumstance,” as it would clearly be against the spirit and intention of the legislation for our armed forces to do that. However, there is a whole series of other situations in which our armed forces could act against the spirit of the legislation because of combined operation. Those in junior command positions could be instructed by senior commanders from allied forces that they need to operate those types of munition. As the Minister has said, our forces could have to facilitate the transport of offensive weaponry, which could include a cluster munition package, or they could be on a battlefield on which our allies are using those weapons but our section is not.
Of course, I am very much in favour of the intent of the legislation, but we have to be realistic. We must understand that if we are doing this in a set of complex alliances in which not everyone is agreement, we owe it to our forces not only to give them legal protection—I hope that the measure gives watertight and good protection—but to set out how they should operate day by day where we do not have complete agreement with our allies about getting rid of those weapons.
The points that the right hon. Gentleman has made are right. We need to ensure that our forces have clear guidance and are protected in case allies on the same operations use such weapons. There is no way that we should have any situation in which our armed forces could be prosecuted because allied commanders have decided to use those weapons. However, another way of looking at this is that, as Britain is signing up to the convention and because we work with so many allies, we might be able to spread good practice and persuade others to come into line with us and eventually sign the convention. One of the many advantages of working with NATO and our European partners is that we can try to encourage them. My understanding of the convention that lies behind the Bill, and which we have signed, is that we now have a duty as a country to promote the convention and encourage others—states and non-states—to sign it. Although the interoperability point raises concerns for our servicemen and women, it is also an opportunity to try to get the convention taken up more widely.
The truth is that we would not have the convention if it had not included the interoperability provision. It was a key part of the brokerage that the Prime Minister advanced in Dublin. All the voluntary organisations calling for a cluster munitions convention were delighted that we managed to achieve it, and have, therefore, been supportive of the interoperability clause. As article 21(2) states:
“Each State Party shall notify the governments of all States not party to this Convention…and shall promote the norms it establishes.”
In other words, states parties have to make sure that any other states with which they are working understand the basis on which their personnel will be engaged. Yes, the right hon. Member for Wokingham (Mr. Redwood) is completely right to say that we have to make sure there is clear guidance for personnel, so they know exactly what they can and cannot do. That is already in hand. Consequently, Sir Alan, I very much hope that the clause will stand part.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Clauses 10 to 15 ordered to stand part of the Bill.
Power to enter premises and destroy immobilised prohibited munitions
Question proposed, That the clause stand part of the Bill.
We are rushing through these clauses, so it would be helpful if the Minister explained why so many of them relate to premises in the United Kingdom and what the position would be if the weapons were overseas. We have already discussed—briefly—the fact that many of the cases that might arise under the legislation could do so as a result of events that take place outside our country, but relate to British nationals. What powers, if any, are there to establish the nature of the crime if it takes place outside the UK?
We do not seek to introduce new powers in British legislation for us to have access to buildings and properties in other parts of the world. Other countries would probably declare our power to do so rather ultra vires.
Question put and agreed to.
Clause 16 accordingly ordered to stand part of the Bill.
Clauses 17 to 20 ordered to stand part of the Bill.
Power to search and obtain evidence: issue of warrant
Question proposed, That the clause stand part of the Bill.
I come back to the point that we have just briefly debated, because it is also relevant to this clause. The Minister said, understandably, that he cannot assert jurisdiction abroad, but could he tell us what arrangements he intends to put in place, should the legislation pass, for collaboration with overseas jurisdictions? It is much more likely that an offence under the Bill will take place outside the United Kingdom than inside. How would the evidence be garnered and the case presented, given, understandably, that none of the powers relating to the UK can relate to a possible offence in an overseas jurisdiction?
The issues that we have already discussed have been covered as adequately as we can, given the constraints of time and opportunity. We put the arguments on the record. It is the Minister’s responsibility to make sure that there is no uncertainty and that we have answers to the questions that we pose.
I am not sure what charge, allegation or accusation was implicit in the comments of the extremely charming, assertive, aggressive, but usually wrong hon. Member for Stone (Mr. Cash).
The right hon. Member for Wokingham (Mr. Redwood) is right to say that we need to make sure that it is possible to investigate. Of necessity, in other jurisdictions in times of war, that will be a complicated process because there will be many different actors involved—that is to say, many different countries will potentially be involved, some of which will be states parties and some of which will not. That is why, when the convention was being drawn up, we were keen to make sure that the requirement was included—that it was not just a matter of an individual country signing up, but that it had to commit itself to trying to make sure that the rest of the world abandoned cluster munitions as well.
It is obviously difficult for us to advance that argument in jurisdictions which have not ratified the treaty, have no intention of doing so and are determined to use cluster munitions indefinitely. The right hon. Gentleman referred to the situation overseas. We have jurisdiction over some overseas territories, which we may debate later. There we are keen to advance, in the same way as in the United Kingdom, but subject to the constitutional arrangement that we have with each of the overseas territories.
In this context, I do not think there is a genuine peril. It is difficult for us to announce legislation that has effect in Afghanistan, except in so far as it affects British nationals.
Let us consider a country such as Afghanistan. Let us suppose that British troops broke our law and initiated the use of these weapons contrary to what the Minister, the law and their commanding officer said. Would that be a matter for military discipline or would those troops face a civilian trial at home? Who would collect the evidence? The most natural people to do it would be their commanding officers.
Those troops would have committed a criminal offence, subject to up to 14 years’ imprisonment and/or a fine, as was mentioned earlier. It would be the police who investigated, and the usual HMRC procedures would be used to bring a prosecution, if that were possible.
When we are dealing with questions of evidence, we have to admit that there is not only the question of the arrest warrant, which I have already mentioned, but the evidence warrant directive. That has raised many problems. I have served on the European Scrutiny Committee now for 26 years. Over that time I have seen many problems which, when they were first identified, were considered fantasy for the future, but which have come true. Does the Minister accept that there are serious problems with the clause? The question of evidence and the power to search in relation to these matters, with the legal uncertainty that we have established in Committee, are aspects that he will have to examine carefully.
Twenty-six years is considerably longer than the hon. Gentleman would get for using cluster munitions. He should feel that at some point he might be released by the Whips from his obligations on the European Scrutiny Committee, but I have a sneaking fear that he likes serving on the Committee.
As I said earlier to the right hon. Member for Wokingham, it is difficult for us to legislate for the British police to have specific powers in specific countries around the world. However, when a country is also a signatory, co-operation will obviously be more straightforward and simple.
On that point, will my hon. Friend give way?
Of course. Another cellmate.
The hon. Member for Stone (Mr. Cash) and I make interesting cellmates.
I understand what the Minister is saying on that issue, but what happens when British forces are involved in action with a non-signatory country that decides to use cluster munitions? That situation is not impossible to envisage, and if it is likely to happen what protection will British forces have?
My hon. Friend is a splendid chap, but I think he missed the debate on clause 9, which we have already decided will stand part of the Bill, and which lays all that out pretty clearly. He is absolutely right to highlight the issue, but I am afraid that he has missed that particular part of this boat.
Without further ado, I hope that clause 21 will stand part of the Bill.
Question put and agreed to.
Clause 21 accordingly ordered to stand part of the Bill.
Clause 22 ordered to stand part of the Bill.
Disclosure of information
Question proposed, That the clause stand part of the Bill.
Just by looking at the clause, I note that its origins and inherent problems clearly involve questions of terrorism, because it deals with section 18 of the Anti-terrorism, Crime and Security Act 2001, which applies to matters that are dealt with under the Bill. Subsection (2) also deals with section 17 of the 2001 Act, and there are very big problems. The Minister will understand what I am saying, because many issues that arise in relation to cluster munitions in Afghanistan, for example, are affected by activities on the boundary between Pakistan and Afghanistan. Furthermore, it so happens that there are Afghanistan matters relating to fundamentalists, who also have operations that could and, as far as the intelligence services are concerned, certainly will have implications for the United Kingdom.
There is a question that we need to bear in mind, therefore, but I shall not go any further than this at the moment. The clause states:
“(1) This section applies to information if—
(a) it was obtained under, or in connection with anything done under, this Act or the Convention, and
(b) it relates to a particular business or other activity carried on by any person.”
There are qualifications about disclosure and the exceptions to that disclosure; again, there is an issue about the seriousness of the offence in question; and there is also the context of the uncertainty that, I believe, the Bill itself creates.
I understand the objectives and, like my right hon. Friend the Member for Wokingham (Mr. Redwood), I happen to support the Bill. It has good intentions, but the Minister is making a discovery or, at any rate, will do so, because he has been rather impervious to the arguments this afternoon. I understand why: he has nowhere to go and is in a cul-de-sac. I simply make the point that although he puts forward a series of assertions that, “The Opposition are wrong and, in particular, the hon. Member for Stone is wrong,” it does not alter the fact that he cannot answer the questions and there is no time in which to do so. I understand the dilemma and the problem, but we will simply watch the clock tick and see whether in due course some of those issues arise.
The Minister has had to make an acknowledgement in the course of these proceedings. He started out by suggesting that any opposition was all nonsense and nothing that anyone would say would make any substantial difference, but the Liberal Democrats, my Front Benchers, my right hon. Friend the Member for Wokingham, the hon. Member for Stroud (Mr. Drew) and I have all been raising issues, not just to be difficult, but because there is uncertainty.
The uncertainty is inherent in the mismatch between the convention; the European Union; British domestic law; the whole question of the interaction of criminal activities, international operations, alliances, and command and control; and the fact that the people who will get caught up in this are those whom we least want to get caught up—in particular, soldiers on the ground. This is not just about some kind of theoretical exercise, and it is not even about land mines: it is about cluster munitions, which are part and parcel of tactical weaponry that has been used and that some countries intend to continue using. When British soldiers, who should be our main concern, are given orders, or when such information is made available, they will get caught up in this complex web of legal conduct.
Is the Minister able to tell us that very clear guidance will be given, in a manual, for the services—not only the Army but the Navy and the Air Force? However persistent and tenacious I may be on this subject, my prime concern is to protect the British soldier, and the Minister has an obligation to tell us that there will be a manual that accurately describes the relative responsibilities and duties in the very complex web of military operations that will arise from this legislation.
The hon. Gentleman must have slipped out of the Chamber when I answered a similar question from the right hon. Member for Wokingham (Mr. Redwood) about what guidance will be provided for our personnel. The hon. Gentleman is absolutely right that it is imperative that we produce unambiguous, clear, straightforward guidance for our personnel so that they know how to avoid moral and legal peril. That is also why we have tried to construct the legislation in a way that ensures that our British personnel, although they may frequently be operating alongside personnel from countries that still retain cluster munitions, are not imperilled. He said that I was in a cul-de-sac, but I am afraid that in relation to clause 23, on the disclosure of information, he is in a cul-de-sac. He has not tabled any amendment, so I am not sure why—or whether, for that matter—he disagrees with the clause standing part of the Bill.
We are debating clause stand part. It was my intention, in line with the remarks of my hon. Friend the Member for Aylesbury (Mr. Lidington), to conduct these Committee proceedings, and indeed the Report stage to come, on the basis that we have supported the Bill and that we want it to work, but we expect the Minister to answer our questions, which is his responsibility in an accountable Parliament. We are not just probing; we are challenging, but it is not necessary to table an amendment to achieve that objective. The Minister may be slightly out of order in suggesting that I should have tabled an amendment on clause stand part.
I would not dare suggest that the hon. Gentleman table an amendment, or do anything in particular. My point was that I find it difficult to know precisely the nature of his question about disclosure of information. We believe that it is important, in line with the provisions of the convention, to protect information that may be gathered in the process of implementing the Bill and the convention, and that is why the clause is in the Bill. I did not understand from his remarks that he was opposed to that provision, which we believe to be important.
I shall try to be helpful so that I am not chided for missing something. If I understood correctly what the hon. Member for Stone (Mr. Cash) said, I certainly concur with it. He was saying that British forces must have very clear rules of engagement, which must be understood by any allied force with which we are involved. They must preclude the use of cluster munitions, even if that other allied force is willing to use them. Otherwise, British service people could be subject to the will of the Bill.
I am afraid that that has nothing to do with clause 23, which is about the disclosure of information. My hon. Friend is absolutely right to say—I have tried to make this point a couple of times now, and I will take a third stab at it—that there have to be clear and unambiguous guidelines for British personnel. Those guidelines have to be available not only to our personnel, so that they fully understand the position that they are in and what they can and cannot do, but to forces of other nationalities with whom we are operating.
As I said earlier—I think my hon. Friend missed it—it is right that we should ensure that where British personnel have exclusive control over what munitions are used, they do not seek the use of cluster munitions. However, it would not be right for British troops to refuse to use an American aeroplane in Afghanistan, for instance, because they knew that it had been or might be used for cluster munitions at some point. That is a clear distinction that is laid down in the convention and the Bill, although not in clause 23, which I hope will stand part of the Bill.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Consent to prosecution
Question proposed, That the clause stand part of the Bill.
This is a very important clause, because when we bring all the arguments that we have addressed so far down to the crunch, the question is whether a prosecution would ever actually be pursued. Consent for any prosecution would have to be given by the Attorney-General in England and Wales or the Attorney-General for Northern Ireland, but I believe that only yesterday, there may have been a change to the latter post. There is apparently a new provision for an Advocate-General in Northern Ireland in relation to justice and policing. I may be wrong, but I took part in the debate yesterday and I believe that there is to be a change in the nomenclature for a person who carries out the functions specified in the clause. The hon. Member for Foyle (Mark Durkan), who knows far more about the Northern Ireland provisions than I do, might want to intervene and help me out.
It is not often that I am called in aid by the hon. Gentleman, so there is a blue moon this evening. Under devolution, there will be a devolved Attorney-General for Northern Ireland, but the Attorney-General in London will for certain purposes serve in the role of Advocate-General for Northern Ireland. The Advocate-General for Northern Ireland will be the Attorney-General here in London and will deal with such matters as national security. The Attorney-General for Northern Ireland will deal in the main with matters under devolved law.
I am extremely glad that the hon. Gentleman is here, by an accident of fate, because that has helped me, and I believe the Committee, to understand the matter. I suspect that we may still require an amendment. I am not sure about that, but no doubt the Minister will look to those advising him to decide whether that is the case. I see a lot of shaking of heads, and I will be delighted if this minor matter of nomenclature alone does not lead to the Bill’s being held up unnecessarily.
That is not to say that the question of consent is not important. I would be interested to know what discussions the Minister has had with the Attorney-General, because this provision is not a cul-de-sac but a longstop. Given what we regard as the uncertainties in the law that we have discussed this afternoon, he must have discussed with the Attorney-General in what circumstances the latter’s consent would be required, so as to ensure that proceedings on an offence could be halted where necessary.
What are those circumstances? Do they relate to the complications that we discussed in the debate on clause 9 and the intricate web of conventions, EU law, English domestic law, the role of the Attorney-General, and the changes to that role made by the Constitutional Reform and Governance Bill, which is currently in the House of Lords? Those issues are extremely important to the soldiers on the ground and their commanders. Indeed, they are important for the rules, guidance and manuals that the Minister kindly told us he has addressed. Those matters are important, but right at the heart of them is this question: what indications has the Minister had from the Attorney-General as to when she will or will not give consent?
We could have left out clause 24, which would have meant that the Attorney-General had no role to play. However, there are several reasons why we decided that it was important to include such a measure, the first and foremost of which is the severity of the penalty, which, as has been cited, is up to 14 years’ imprisonment. Secondly, there is an extra-territorial element to the Bill, which means that a much more complicated set of decisions must be made before a prosecution can go ahead. Thirdly, in legislation such as the Landmines Act 1998, we have included a similar provision to require the Attorney-General’s consent.
I am not particularly troubled about the Northern Ireland-UK dimension, because the prosecution of someone in Northern Ireland could in any case be started in England and Wales. I therefore do not think that any further amendments are necessary.
I am very glad in one sense to hear what the Minister has just said. On whether consent for prosecution would be given, he has admitted that there are serious questions in the context of the complexity of the Bill—he earlier implied that I was making too much of a meal of that. The consent of the Attorney-General would be required in the circumstances that I described and, as the Minister said, the offence is very serious, with 14 years on the line, so who is and is not guilty and the question of their intent—mens rea—must be defined.
There are other very important questions, including whether there are accessories, aiders and abetters, and whether a particular commander, foot soldier or other was involved. The severity of the criminal offences might in almost every case be aimed at members of our service personnel, so those questions are important.
I would assert that our job in this Committee is to try to protect those who might otherwise be unfairly or unreasonably caught by the provisions because of what the Attorney-General decides.
I give way to the hon. Gentleman.
I thought that it was still my speech and that the hon. Gentleman was intervening; I gave way to him, so he cannot give way to my hon. Friend the Member for Foyle (Mark Durkan).
On a point of order, Mrs. Heal. I apologise to the Minister, because I thought that he had finished his speech. The Annunciator might not say that he has done so, but that does not mean that that is right.
Order. I thought that the Minister was intervening on the hon. Member for Stone (Mr. Cash).
I hope that you meant that the other way round, Mrs. Heal, but anyway, now that we have cleared that up, the hon. Member for Stone (Mr. Cash) is absolutely right to say that the issues are complex. I have never wanted to question the fact that the application of the measures and their inter-operability is complex, which is why I have had discussions with the Attorney-General. We would want to prosecute wherever we can.
I should just say that the hon. Member for Stone made one inadvertent mistake. He said that using a cluster munition and aiding and abetting are two different offences, but they are actually the same under clause 2.
I thank the Minister for giving way; he is very generous—and creative.
Other hon. Members have referred to the possible impact of the measures on members of the armed forces. Of course, businesses and firms that conduct activity that is questionable under both the convention and the Bill will also be affected. The Minister stated that he had discussed that with the Attorney-General and that the Government were determined that prosecutions would take place where possible. Does the issue of public interest arise? Is there a possibility that prosecutions of firms under the Bill will be stayed because the Prime Minister or someone else intervenes owing to so-called public interest considerations, as in the case of the Serious Fraud Office investigation of BAE Systems?
The Attorney-General’s role is different from that of a politician. A politician might come up with all sorts of arguments for what they want, but the Attorney-General will decide on the basis of law whether she wants to proceed with an individual prosecution. I do not think that my hon. Friend expects me to state on her behalf when she will and will not give her consent.
As I said, we take our commitments under the convention extremely seriously, and we want to ensure that cluster munitions become a thing of the past. That means that investigations into companies that are thought to be flouting the law could begin—if so, we would expect full compliance as quickly as possible. I very much hope that clause 24 will stand part of the Bill.
Question put and agreed to.
Clause 24 accordingly ordered to stand part of the Bill.
Clauses 25 to 28 ordered to stand part of the Bill.
Power to modify Act
Question proposed, That the clause stand part of the Bill.
I want to ask the Minister why he believes that the pretty draconian enabling powers in the clause are necessary. The clause gives the Secretary of State power, by means of a statutory instrument subject to the affirmative procedure, to amend not just the Bill, once it becomes an Act, but any other enactment, past or future, and any Act of the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly, if he considers it necessary or desirable to do so because of amendments to the convention on cluster munitions.
The kernel of my challenge to the Minister is this: why does he need the powers, given that the Bill is proceeding with cross-party support? One assumes that any later amendment to the cluster munitions convention would also have pretty broad-based support, both in the House and internationally. In those circumstances, why can we not simply rely on full parliamentary procedures? That would allow proper time for scrutiny, for detailed inspection of the Government’s legislation, and for the meaning of the proposed change to be elucidated in full.
The Minister and I both know that often, statutory instruments are passed with no debate at all. In the House of Commons, at best we are talking about a 90-minute debate upstairs in a Committee Room, with a select group of Members of Parliament, as opposed to the whole House being given the opportunity to comment on new legislation proposed by the Government. Why is there need for such an enabling power? Surely primary legislation is a perfectly adequate vehicle.
Obviously, I agree with what my hon. Friend has said, but I would simply add a point. He refers to a Committee upstairs, but having sat on the Select Committee on Statutory Instruments, I know exactly what happens; it is really a kind of dose of salts. I do not want to be disrespectful to the Committee, but when I was on it, I was concerned at the fact that a lot of statutory instruments went through rather easily. We are talking about a statutory instrument that would involve the modification of the Bill. That statutory instrument would be subject to the affirmative procedure, but that in itself is no safeguard.
My hon. Friend is right. If the Bill were modified, there would be issues in the light of the complexities that the Minister now accepts are inherent in the Bill, the interaction of alliances, conventions, different jurisdictions, kinds of law and judicial attitudes, and the whole question of responsibility for control and command. There are also questions that go outside the normal courts; for example, we have not mentioned courts martial at all, but that issue could arise in the context of the matters that we are discussing. I wonder whether the Attorney-General might not be in some difficulty in that respect.
We are talking about serious questions and offences with substantial penalties. Subsection (1) says:
“The Secretary of State may by order…make such modifications”—
this is the crucial set of words—
“as the Secretary of State considers necessary or desirable to give effect to any amendment of the Convention made in pursuance of the…Convention.”
As for the words “considers necessary or desirable”, we have been through that issue before. Anyone who has had experience of this House over a period of time, and any lawyer, knows that the phrase is extremely wide and virtually unchallengeable. The phrase used to be “in the opinion of”; now, it is “considers necessary or desirable”, which is very wide.
The clause goes on to say:
“An order under subsection (1) may also make… modifications of any other enactment (whenever passed or made)”,
“as the Secretary of State considers necessary or desirable”—
there are those words again. That is worse than a Henry VIII provision; it is carte blanche. I would not particularly have wanted such a provision to have applied even in Henry VIII’s reign; it might have been applied not merely to his wives, but anyone else in the entourage, because the provision catches everybody. Henry VIII would have had a field day with it.
Despite the fact that the statutory instrument is subject to the affirmative procedure—here I look to the hon. Member for Foyle (Mark Durkan), with whom I seem to have been having quite a dialogue over the past few days, both in the Chamber and outside it—“enactment” is specifically defined, and not by reference to the interpretation Act. For the purposes of the provision,
“In this section…‘enactment’ means…
(a) an Act of Parliament,
(b) an Act of the Scottish Parliament,
(c) a Measure or Act of the National Assembly for Wales, or
(d) Northern Ireland legislation”.
In terms of the powers conferred,
“a ‘modification’ includes an addition, repeal or revocation.”
I invite the hon. Gentleman to consider that, because as a distinguished member of the Northern Ireland legislature, he will know—as will others who discussed Northern Irish questions relating to justice, criminal law and policing yesterday—that however familiar people have got with totally undesirable legislation that legislates in order to legislate further, and to undo legislation, both retrospectively and in the future, that that is a very bad way to go about handing out sentences, with or without the consent of the Attorney-General, to our soldiers on the ground.
We are talking about a very severe penalty of 14 years. It would be different if we were talking about a minor piece of legislation. I do not know what went on in other parts of the precincts of Parliament and in the other House, but the consideration that we are giving to the Bill today, at rather short notice and on a fairly tight programme, ought to reflect the seriousness of the offence that is being imposed. As the hon. Member for Foyle rightly indicated, those affected could be bodies corporate, businesses or partnerships. I have insisted on the point about the effect on the soldiers fighting in Afghanistan, or on duty in Bosnia, where there are a lot of cluster munitions.
There are the problems of the exceptions that arise by virtue of the fact that a fairly substantial number of people have not signed up to the convention. We also have difficulties in relation to our allies, some of whom would not even supply us with ammunition during the Iraq war. I do not regard them as being much use. That is a serious matter. In addition, there are a significant number of people who are supposed to be engaged in Afghanistan with us. We have soldiers dying daily in Sangin and Helmand, and other countries are simply not taking an active part; that is a serious problem.
The cluster munitions provisions affect our operations on the ground in Afghanistan. In all fairness, I know that the Minister recognises that. He also knows that there are serious penalties in the Bill. The powers in the clause to modify the Act in such an extremely wide manner, over a very wide and complicated landscape, are completely unwarranted. I am sure that the Whip on duty will listen to this—oh, there is no Whip here. I am not a Whip, or in the slightest degree interested in being a Whip, but I would have thought that we ought to vote against the provision, because it goes too wide on too serious a matter—a matter that has a serious implication for our armed services.
The hon. Gentleman raised concerns about the clause, and touched on possible implications for devolved interests, and specifically Northern Ireland, which is the area of concern to me.
I hope that the Minister, when he replies, can offer some assurance on a number of matters. First, I want to stress that those of us who strongly support the Bill want to see within it provision to ensure that, as the convention changes, modifications can be made to the Bill. Clearly, this is a significant convention; it is the most significant disarmament treaty for a decade—hopefully, not the most significant for the decade to come, but it might be. However, if it is changed, and if it grows, obviously we want legislation here to be able to track and reflect that. So providing some instrument for ready and reliable modification is a matter of sensible and good intent on the part of the Government.
To that extent, and if that is the motivation behind the clause, I am comfortable with it. However, concerns arise about how the clause is then used. As the hon. Member for Stone (Mr. Cash) said, it is premised on what the Secretary of State “considers necessary or desirable” to give effect to any amendment made to the convention. In the first instance, two questions arise: first, the clause gives the Secretary of State the power so to modify the Bill. We know that there have been changes to various other international conventions that many hon. Members have lobbied to have reflected in law here, only to find that the Government, for whatever reason, have been dilatory in doing so or have decided that they do not think it necessary or desirable to reflect changes to conventions enacted elsewhere in the law here. So, if the Secretary of State chooses not to make such a modification, is it possible in any other way for House to make such modifications?
Secondly, what happens if the Secretary of State uses a change in the convention not just to introduce a change to the Act that everyone else agrees is necessary and sensible, but to bring forward other changes that many people might not agree are necessary and uses the provision as a cover for various other modifications that would be equivalent to a derogation from the convention?
The hon. Gentleman is right, of course, because although subsection (1) is definitely tied to
“any amendment of the Convention made in pursuance of the…Convention”,
subsection (2) states:
“as the Secretary of State considers necessary or desirable in consequence of the modifications of this Act made by that order.”
So it is in consequence of the modification; it is not so tightly tied to the convention. Does he not also agree that, given the points that he is validly making, and which, I believe, I am validly making, it would not be a bad idea, as a matter of law, to require the Attorney-General to give her advice on whether a modification was necessary, given the complexities?
I thank the hon. Gentleman for that relevant observation, although I am not sure that we can await the consideration of the Attorney-General, given the exigencies of the situation today. However, I would like the Minister to tell us just how wide the interpretative sweep available to the Secretary of State is. What he may consider necessary or desirable might either fall well short of what is actually required to match changes to the convention or exceed them in a number of ways. The Secretary of State may use the contrivance of changes in pursuance of changes to the convention to water down other aspects of the Bill.
The big problem is that although the House might feel it all very well to give the Secretary of State the power so to change legislation of this House, should he also have the power of fiat to change the legislation of other Assemblies and Parliaments in relation to any enactment? For instance, there is no reference to legislative consent motions or anything else. It might be that future changes to the convention put in place particular obligations and restrictions on what Governments do with, or for, companies that might, or might not, have been involved in contraventions of the ban on cluster munitions.
It is slightly extraordinary that the Bill gives rise to so many complications, and, in many ways, I am rather concerned that we are having to spend so much time on it, but these are not trivial matters. For example, in the context of the Scotland Act 1998—effectively, the same is now the case in Northern Ireland, as of last night—the degree of devolution is such that serious questions will arise, in relation to offences, about whether the advice of the Attorney-General, or her equivalent in each country forming part of the United Kingdom, should be taken. In particular, the question arises about whether the clause should be amended so that the advice of whoever is the appropriate person is included in its terms to ensure that the consent of the Attorney-General, or whoever, is mirrored in the Secretary of State’s use of those wide powers.
Again, I thank the hon. Gentleman for those points. All I ask of the Minister—obviously he cannot accede to the advice of the hon. Member for Stone—is that he seek to offer us some assurance that the Government are sensitive to the concerns and considerations being voiced here and to reassure us by indicating that any modifications to devolved legislation would use the facility of a legislative consent motion, to ensure that they are not imposed without consent, particularly on a point of potential controversy. Will he also indicate that there will be clear concordats and protocols in relation to the interests of devolved Assemblies and their relevant Governments and Executives in terms of anything that the Secretary of State would propose to do under the powers given to him in the clause? The clause characterises a wide and sweeping power that has no regard to anyone else’s thoughts, interests or prerogatives other than what the Secretary of State considers necessary or desirable.
I confess that I am not a big fan of the clause. I do not generally like such clauses, and I think that it is better, when one can, to ensure that we proceed with primary legislation. However, in relation to a convention such as the one on cluster munitions, which contains express provisions for amendment, and when such a convention is not yet binding on the whole world and recognises, at its very core, that some countries will be states parties and others will not, it is important that we have some means of amendment.
It is always better, of course, to make amendments through primary legislation, but my difficulty is that we are taking through this Bill later than I would have liked. It is a shame that, although we were one of the front-runners in moving forward the debate on cluster munitions, we have ended up outside the first 30 countries to ratify the convention. That is because there will always be a pretty hefty parliamentary work load. The legislation has been ready for some time, but it has taken a while to find a slot in the parliamentary programme—and, who knows what will happen to programming after the general election? The difficulty is, I suggest, that if we insisted on primary legislation for any amendment to the convention, there would probably be a delay in getting it on to the statute book.
I assure the Minister that I was not looking for an insistence on primary legislation, and I accept the motivation behind the clause—the aim of ensuring that there can be ready and realisable amendment and modification when necessary. Our concern is about the purposes for which the clause might be used, given that it is so wide in its sweep.
I understand that, and I was not making such an allegation against my hon. Friend. One of the difficulties is that we cannot be precise about any amendment that might be necessary, as an amendment might not have been sparked by us within the convention. None the less, it might be an amendment that we wished to pursue or that we might be required by the convention to bring into our own legislation.
That is also why we were keen to ensure that these changes would happen under the affirmative resolution procedure. In that way, the House would be able to take a view on the matter. I subscribe to the view—which is shared by quite a lot of people—that we do not do statutory instruments very well. Many hon. Members are not particularly keen to sit on the Committees, and one sometimes feels as though one is there as just a piece of voting fodder. That is problematic in regard to the way in which we take legislation through, but it is not a matter that I can resolve during the passage of this Bill.
But I am sure that the Minister will appreciate my point that a very simple manuscript amendment could be tabled on Report if necessary and desirable—to use the language of the Bill. We in this House have the right to insist on being able to table such amendments at this time. Just as the Secretary of State will be able to decide what is necessary and desirable, so this House can make a decision about tabling amendments on Report using exactly the same criteria.
It would, however, be open to the Minister to agree—without making concessions or climbing down—that the complexity that has emerged in the course of the debate, and the effect on the individuals who will be subjected to it, could easily be remedied by combining in the clause a further provision. In subsection (1), after the words
“The Secretary of State may by order”,
we could insert the words “with the advice of the Attorney-General”, before the phrase
“made by statutory instrument”.
In other words, we could include in the process the Attorney-General, whose consent would be required in relation to the provisions of the Bill itself. By including a reference to the Attorney-General in this clause, we would ensure that the complexity of the amendments that the Minister seems to accept will arise would be dealt with, because the Attorney-General would be part and parcel of the Secretary of State’s consideration of the amendments and modifications. Does the Minister not agree that that is a reasonable proposition?
The hon. Gentleman is attempting to table an amendment orally, but unfortunately it has not been tabled—[Interruption.] Now he is asking me to table it, but I do not want the amendment that he has suggested. If he had really wanted us to debate it, he might have tabled it himself. Earlier, he was trying to take the Attorney-General out of the equation; now, he seems to want to put her in, but at a different point—[Interruption.] I understand, but I am afraid that I must—assertively and, I hope, charmingly—disagree with him on this point. [Interruption.] My hon. Friend the Member for Glasgow, South (Mr. Harris) has finally woken up—
No, I have just arrived.
He says that he has just arrived, but he has been here for some time. He has clearly given up on texting me, however—and, no, I am not going to karaoke this evening!
My hon. Friend the Member for Foyle (Mark Durkan) asked for some assurances on how we would proceed with this provision. Let me make it clear that, if there were to be substantial changes, I think that there should be primary legislation. If there were to be changes that directly affected any of the devolved Administrations, there should be proper consultation with them and a proper process should be undergone, rather than some kind of fiat coming down from the Secretary of State. With those assurances, I hope that we can agree that clause 29 should stand part of the Bill.
Question put and agreed to.
Clause 29 accordingly ordered to stand part of the Bill.
Clauses 30 and 31 ordered to stand part of the Bill.
Question proposed, That the clause stand part of the Bill.
The clause specifically states:
“This Act binds the Crown.”
It goes on to say:
“No contravention by the Crown of a provision of this Act makes the Crown criminally liable.”
The various other subsections include the provision:
“Nothing in this section affects Her Majesty in her private capacity.”
The clause then deals with matters relating to the Crown Proceedings Act 1947.
This is rather like having one’s cake and eating it, when dealing with cases involving military personnel. We have had a great deal of debate on these matters, and on whether soldiers, commanders or those involved in prosecutions should have certain defences available to them. We have explored the loophole argument, and discussed international operations. Here we are, however, discussing the application of the legislation to the Crown. The clause states, quite rightly, that the Crown is bound by the legislation, and that Her Majesty should not be affected by it in her private capacity, but it also states:
“No contravention by the Crown of a provision of this Act makes the Crown criminally liable.”
I should like some elucidation from the Minister as to what he has in mind here; I have a suspicion that he does not know the answer.
The hon. Gentleman is very perspicacious. I might have to write to him about this. I do not think that he wants the clause not to stand part of the Bill, however, so I shall not be interfering with the proper scrutiny of the Bill by doing that. I will write to him to provide further elucidation.
Question put and agreed to.
Clause 32 accordingly ordered to stand part of the Bill.
I beg to move amendment 4, page 21, line 29, leave out “may” and insert “shall”.
With this it will be convenient to discuss amendment 5, page 21, line 29, leave out “any of”.
Clause 33 covers the extent of the proposed Act. My amendments seek to strengthen the provisions which, as drafted, will allow the Government to extend by Order in Council the provisions of the legislation to cover the Channel Islands, the Isle of Man and the British overseas territories.
Amendment 4 would replace the provision that gives the Government the power to extend the coverage of the Act, should they choose to exercise it, with an insistence that the Secretary of State bring forward such a scheme to cover the British overseas territories, the Channel Islands and the Isle of Man. Amendment 5 would require such an extension to cover all those territories, which would prevent any Government from holding back and choosing not to apply the provisions of the convention to one or two particular territories.
On Second Reading, the Minister was at pains to assure the House that the Government fully intended to extend the provisions of the legislation to cover the British overseas territories, the Channel Islands and the Isle of Man. He gave an indication that the Government wished to move forward on that front sooner rather than later, and I hope that he will repeat that assurance now. Given that that is the Government’s declared intention, however, I would have thought that they might accept these modest amendments—especially amendment 4—and accept the imposition upon themselves of a duty so to act.
I would add one further point. Two of the British overseas territories—Ascension island and Diego Garcia—play host to United States military bases. As I understand it, there are different leasing agreements in respect of those two territories. There is quite understandable concern that the British Government intend to extend the provisions of the cluster munitions convention to those territories, along with the others. It would help the Committee if the Minister indicated whether he foresaw any particular obstacles, given the legitimate presence of US forces on those two islands or whether in discussions between the British and the US Government any such problems have been overcome.
I rise briefly to say that the amendments are good proposals. I see no reason for having “may” and not “shall”, so we need clear assurance from the Minister. To be fair to him, when my hon. Friend the Member for East Dunbartonshire (Jo Swinson) pressed him on this matter on Second Reading, particularly in respect of Diego Garcia, he gave some clear commitments and explained that the stockpiles of cluster munitions there at the moment will be taken away by 2013. That is good. That being the case, however, I cannot see why there is any problem opting for “shall” rather than “may”. I hope that the Minister can help us out on that.
I participated in a Westminster Hall debate initiated by the hon. Member for Islington, North (Jeremy Corbyn) only a few days ago on the issue of the British overseas territories, particularly the two just mentioned. The Chagos island disputes and the whole question of Diego Garcia were considered, as was the extent to which there were continuing problems of displacement and compensation and whether people could return to their properties. My hon. Friend the Member for Aylesbury (Mr. Lidington) alluded to aspects of those problems.
There is no doubt, on the basis of what the hon. Member for Kingston and Surbiton (Mr. Davey) said and other evidence—or, at least, other assertions—that cluster munitions are stockpiled or lying in those territories. The formula adopted in clause 33(3) is not that unusual, but if we leave aside the Channel Islands and the Isle of Man, which I do think are likely to present problems, we need to look at the acute difficulty arising for the British overseas territories, particularly those mentioned by me, by my hon. Friend the Member for Aylesbury and by the hon. Member for Kingston and Surbiton. It is essential to clarify this matter, because there will otherwise be a serious contradiction.
Because these are British overseas territories, all the debates we have had about the interaction between ourselves and, say, the United States or other allies, arise in a very practical sense in this provision. This is about cluster munitions, the question of nationality, the question of residence and territorial rights and the question of whether cluster munitions are in a certain place. We should leave aside Afghanistan, where there is an essential, immediate and practical clear and present danger of these provisions impinging on persons within the jurisdiction of the UK. We are looking for a very specific answer from the Minister. I am sure he has got one, but I hope that it is going to be satisfactory.
I will do my best. We want to make sure that all the overseas territories are fully compliant with the convention as swiftly as possible. There are two complicating elements in that. First, each of the overseas territories has its own constitution and its own legal set-up. Consequently, when we introduce the convention in each of those countries, we have to take cognisance of that. That is why, although there is very little difference in practice between “shall” and “may”, I would prefer to stick with “may” because “shall” implies that the overseas territories themselves will have no say in the way in which implementation is brought forward. That is the only difference between us on that issue.
The Minister will understand why I immediately refer him back to clause 29 and the power to modify Acts. One wonders about the extent to which it is within the framework of the UK Parliament to make adjustments to the constitutions of the British overseas territories, and I do not know what the Minister has in mind. The constitutions or the treaties made with other allies might affect the manner in which the residents of the overseas territories could be unreasonably damaged or inhibited in how to deal with cluster munitions, particularly in the specific territories mentioned. Is the Minister prepared to take power, using clause 29, which provides for the power to modify Acts, in order to achieve those objectives, or is he just going to talk to the local legislature and ask if it might be interested or prepared to make the necessary changes? How is he going to go about it?
It varies significantly from one overseas territory to another. Obviously, the Falklands is different from Pitcairn, which is very different from the British Indian ocean territory. The term of conviction on indictment in previous legislation that we wanted to introduce across all the overseas territories to match UK legislation had to be replaced by reference instead to convictions by the supreme court of the territory, because the concept of conviction on indictment is unknown in the British Antarctic or the British Indian ocean territory.
That is why the two amendments proposed by the hon. Member for Aylesbury (Mr. Lidington), with whose direction of travel I entirely sympathise, are inappropriate. They rather conflict with the policy that we tried to adopt with the overseas territories, which is to bring them with us rather than simply impose upon them. There is also the element of wanting to ensure that the precise way in which the individual clauses are applied to each of the overseas territories works within the legal context of the respective territories. As I say, they are very different. Over the last few years, we have dealt with each of the overseas territories, bringing in new constitutions that meet a series of other considerations, such as the European convention on human rights or the Human Rights Act 1998 in the UK.
The absolute assurance I can give is that whether or not we end up with “may” or “shall” in amendment 4 and whether or not we accept amendment 5 will make not a single bit of difference to the process we will engage in or the swiftness with which we expect to be able to engage in it.
The Minister has argued that because some of the terms in the Bill are not consistent with the legal frameworks in some of the overseas territories, the amendments would not be appropriate. Surely, however, clause 33(3) states:
“Her Majesty may”—
the amendment would say “shall”—
“by Order in Council provide for any of the provisions of this Act to extend, with modifications (including additions or omissions)”.
If aspects of the Bill do not rhyme with provisions in some of the overseas territories, it can obviously be taken into account in the legislation that would be made.
But, if my hon. Friend will allow me to say so, that is to forget amendment 5, which is to remove the word “any”. That is precisely the point. If we remove the word “any” and turn “may” into “shall”, we would have to introduce everything as it is. There is no difference of view over the end-point that we want to arrive at, which is that there should be no cluster munitions on British overseas territories or anywhere under UK jurisdiction. We will move as quickly as we possibly can and I want to be able to do so with the assistance of the overseas territories.
Does the Minister have it in mind that 2013 will be the date by which the convention and the Bill will take effect in all these territories?
Yes, absolutely. In relation to Diego Garcia in particular, as I said last week, the United States has made it clear that it will remove all its stockpile in the UK by the end of the year, and across the whole of the UK’s jurisdictions by 2013. With that, I hope that hon. Members will not feel the need to press the amendments.
I listened with interest to the Minister’s comments, and I am grateful for the support of my hon. Friend the Member for Stone (Mr. Cash) and the hon. Members for Kingston and Surbiton (Mr. Davey) and for Foyle (Mark Durkan) on the matter. The Minister certainly persuaded me with regard to amendment 5—I can see that to delete the words “any of” would introduce an unsuitable element of inflexibility. I am less persuaded, however, by his assurances about whether “shall” or “may” is the more appropriate word to use.
I do not doubt the Minister’s sincerity when he says that the Government’s intention is to press forward as soon as possible, and I accept to some extent his point that the Government are anxious not to offend the susceptibilities of the British overseas territories and want to bring them with the Government, so that they feel they have some ownership of the legislation as it extends to their parts of the world. On the other hand, amendment 4 would not insist that legislation is extended to the British overseas territories in a particular form. As the hon. Member for Foyle pointed out, subsection (3) provides for “any of the provisions” to be extended; it does not insist that all are extended at once, or at all, to each of the territories. It makes express provision for modifications, including additions or omissions. The Government have less cause to be concerned about amendment 4 than they do about amendment 5. The amendment offers us a way to improve the Bill in a modest but worthwhile fashion, and I intend to press it to a vote.
Question put, That the amendment be made.
The Committee proceeded to a Division.
I ask the Serjeant at Arms to investigate the delay in the Aye Lobby.
23 March 2010
The Committee having divided:
Question accordingly negatived.View Details
Clause 33 ordered to stand part of the Bill
Commencement and short title
I beg to move amendment 6, page 21, line 36, leave out subsection (3).
This is very straightforward. The necessity for clause 34(3), inserted in the House of Lords, refers to the financial privilege that obtains to the House of Commons pursuant to the resolution of 1671:
“That in all aids given to the King by the Commons, the Rate or Tax ought not to be altered by the Lords”—
something to which the Lords have tacitly assented since their 1702 resolution.
In the Lords, the subsection was inserted to maintain the fiction that a Bill originating in the Lords would not require a money resolution in the Commons. Now that the Bill has already been in the Lords and we have maintained that fiction, we no longer need the subsection. The amendment merely removes that subsection so that we can proceed. It will not mean that the Bill would be subject to ping-pong.
I am more interested in facts than fictions. I am concerned about clause 34(1), which says:
“This Act comes into force on the day on which it is passed.”
There is no need for me to make a speech on the subject because I have made my reasons quite clear in previous speeches on other clauses, but the measure is precipitate, unnecessary and dangerous—
Order. May I remind the hon. Gentleman that we are discussing amendment 6? Perhaps his remarks could be directed to that.
I am glad to have got the point on the record.
Amendment agreed to.
Clause 34, as amended, ordered to stand part of the Bill.
New Clause 1
Duty of the Secretary of State in respect of stockpiles
‘(1) The Secretary of State shall, within six months of Royal Assent, lay before both Houses a plan for the destruction of all stockpiles of prohibited munitions held under United Kingdom jurisdiction.
(2) The Secretary of State’s plan shall provide for the destruction of all stocks of prohibited munitions within eight years of Royal Assent.
(3) The Secretary of State shall present an annual report to Parliament on progress made in destroying stocks of prohibited munitions.’.—(Mr. Lidington.)
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
The convention imposes on all states parties a duty not only to introduce a prohibition against the possession or use of cluster munitions but to destroy existing stockpiles of cluster munitions that fall under the jurisdiction and control of that state party. The new clause would impose on the Secretary of State explicitly a duty to publish a plan for the UK to destroy its existing stockpiles of cluster munitions. It would further require the Government to provide in that plan for all stockpiles to be destroyed within eight years, the time limit set by the convention. It would oblige the Secretary of State to report annually to Parliament on progress made or not made in adhering to the published plan.
The thing that has puzzled me about the Bill is that although there is a clear duty laid on states parties by the convention and although there is no doubt about the Government’s commitment to seek to deliver on the requirement to destroy stockpiles of cluster munitions, there is no mention of that convention duty and no requirement to be imposed by law on the Secretary of State to ensure that the destruction of stockpiles is carried out. The new clause would make certain that the Government delivered on what they have promised and what, in signing the convention, they have undertaken to do.
I have great sympathy with the new clause and I hope that the Minister will explain that it is not needed. If it were needed, I would encourage the hon. Member for Aylesbury (Mr. Lidington) to push it to a vote. I suspect that it is not needed because, as I understand it, signing the convention with respect to the commitment to get rid of the stockpiles is legally binding on the Government. However, the rest of the Bill contains those items that the Government must put into domestic law to make it legally binding on others who might commit an offence, so the convention has the force of law on Her Majesty’s Government. Therefore, I do not think the new clause is needed, but I shall be interested to hear what the Minister says.
I also hope that the provision is not necessary. Without wanting to be too pedantic—or precise, to put it another way—the expression
“held under United Kingdom jurisdiction”
in the new clause might be better expressed as “within UK jurisdiction”. Munitions are held in the British overseas territories—Diego Garcia being a good example. To say that these are held under United Kingdom jurisdiction is not correct; it is within UK jurisdiction but not held under UK jurisdiction. I do not want to criticise my hon. Friend the Member for Aylesbury (Mr. Lidington) but I want to perform my function, which is to try to elucidate. There is a problem but it can be overcome; the Minister can do that with assurances that the intentions behind the measure will be implemented.
Would that my assurances always satisfied the hon. Member for Stone (Mr. Cash). He apologised earlier for being a lawyer, but in fact he is doing us a service in this regard. I think I am right in saying that when Peter the Great visited this Parliament, he complained to the then monarch that there were far too many lawyers. So far as he knew, there were only two in his country and when he returned, he was going to execute one of them. One lawyer is fine; two is always a problem.
The hon. Gentleman is absolutely right that there is a problem in the new clause in relation to the phrase
“held under United Kingdom jurisdiction”.
The convention specifically refers to “jurisdiction and control”. Not all the cluster munitions that are currently physically within our jurisdiction are under our control. I am afraid that the amendment falls on that count but, more importantly, as the hon. Member for Kingston and Surbiton (Mr. Davey) said, it is unnecessary.
We are already obliged under article 7 of the convention, which has one of the most rigorous systems of transparency that I have seen in an international convention, to make clear what our programme is for the destruction of our stockpiles—those within our jurisdiction and under our control. I hope that nobody will doubt our intent on this, because before signing the convention a whole type of cluster munition—the HE M483A1—had been destroyed. In the month that the UK signed the convention, all types of 755 sub-munitions had been destroyed. In July last year, following the inclusion of the Cluster Munitions (Prohibitions) Bill in the draft legislative programme, the destruction of all CRV-7 MPSM M73 sub-munitions was completed. In total, more than 14 million sub-munitions have been destroyed so far, which was some 37 per cent. of the UK’s entire stocks, so we are very confident that we will beat by a considerable margin the target period of eight years and that we will have destroyed all our stock by 2013.
Finally, I should say that new clause 1 is undesirable because if the Bill were to be thus amended, it would be required to go through a process of ping-pong with the other place. That is not, of itself, a precondition that means we should not amend the Bill, but it might be a more significant consideration at this particular point, especially given that nobody has yet really argued that this is an essential new clause.
I thank the Minister for his helpful clarification. Can he go further by assuring us that annual reports will be made to Parliament detailing the progress on decommissioning the stockpile?
Annual reports certainly will be made, because that is provided for in the article. I am therefore happy to undertake that the report that we have to make under the convention will be made available to Parliament too. Thus, I very much hope that the hon. Member for Aylesbury (Mr. Lidington) will not press this new clause to a Division and will not take the approach he took to the previous amendment, which he suddenly did press to a vote.
I am grateful to the Minister for his explanation and, in particular, for the assurance that article 7 of the convention, in itself, provides a legally binding instrument to govern what the United Kingdom has to do in respect of stockpiles. In view of those assurances, I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
Schedules 1 to 3 agreed to.
The Deputy Speaker resumed the Chair.
Bill, as amended, reported.
Bill, as amended, in the Committees, considered.
I beg to move, That the Bill be now read the Third time.
I hope that all hon. Members will agree that this is an important piece of legislation. Interestingly, the tone of this debate has been very different from that of any debate we would have had about such a matter a mere four, five or six years ago. Then, people would have argued much more forcefully for retaining cluster munitions as an essential tool of the trade necessary to our armed forces. The facts that have emerged over the past few years have changed people’s minds: the fact that a third of those most affected by cluster munitions have been children; the fact that thousands of people are killed by these weapons not only in the process of war, but in many cases a long time after the war because cluster submunitions lie around unexploded; and the fact that at least 60 per cent. of those who have been killed or maimed were not in the field of combat but were engaged in their ordinary daily business. Those things have made many people—those of a military disposition or career, as well as those who have worked for non-governmental organisations—conscious of the fact that we needed to change how we engage with this issue.
I pay tribute to the Norwegian Government, who were key in asserting the Oslo declaration and trying to persuade everybody to come forward with the convention; to the Irish Government, who brought together the diplomatic conference in Dublin; and to our own Prime Minister, who played a specific role in brokering a deal that meant that it was possible for the convention to be agreed. As we have discussed this afternoon, the Bill has come about in large measure because of the necessity to provide legal certainty for the personnel of armed forces that have decided not to use cluster munitions who may be operating alongside personnel from countries that have not taken that decision. I very much hope that we will be able to make progress as swiftly as possible and that all countries—certainly all our allies—will sign up to and ratify the convention.
I am grateful for the work that has been done on this Bill by people in the Foreign Office, who are not often involved in introducing legislation. I am also grateful to the hon. Member for Aylesbury (Mr. Lidington), who has conducted the debate in a spirit of fair-minded probing, as of course have all hon. Members. I very much hope that we will be able to agree to give the Bill its Third Reading.
Conservative Members are happy to welcome the Bill on to the statute book. As the Minister fairly pointed out, this debate would previously have been conducted on different terms by both his Front-Bench team and mine. There is now much greater parliamentary and public recognition of the appalling number of casualties that cluster weapons inflict, mostly on civilians and often on children. What has also changed is that our armed forces and the Ministry of Defence have felt able to accommodate a ban on cluster munitions without significantly impairing the effectiveness of our defence preparedness. The Bill’s provisions to protect the position of British servicemen and women engaged on joint operations with allied countries that have yet to ratify the convention on cluster munitions are particularly important.
We currently devote a great deal of time and attention to weapons proliferation issues. We also debate the rising threat of nuclear proliferation and chemical and biological risks, the need for progress to be made in tackling the trade in small arms and the very slow progress being made towards those objectives. Therefore, it is good that this evening we are able to mark a small step towards ridding the world of at least one particularly unpleasant category of lethal weapon.
At the moment, British politics, and this place in particular, is held in low regard by the public. We are about to enter a period when partisan politics will be at their greatest, because it will be election time. This Bill and today’s debate have shown this Parliament at its best and have shown how parties can work together to secure things about which people out there have campaigned. This measure is a response to the ordinary people who have written to MPs in this country—and other countries, to be fair—arguing for a change in the law in order to ban such weapons. It is a welcome move for that reason in itself.
The substance of the Bill is a fantastic development. We are leading the way. This country, working with Norway, Ireland and the 30 other countries that have now signed and ratified the convention, are leading the way to ridding the world of these appalling weapons—weapons that have caused such destruction and have served almost no military purpose. Let us be absolutely clear: all the evidence, from all the groups that have considered and studied this matter, shows that these weapons achieve almost nothing militarily. The vast majority of people who have been killed by these weapons—I have seen figures ranging from 85 to 98 per cent.—have been civilians. As the Minister rightly said, these weapons leave a legacy that lasts for years and that might still be with us for decades to come.
I hope that, having passed this legislation, Britain will now do two things. I hope that we will ensure that where our forces have used cluster munitions we take responsibility for clearing them up and ensure that they are not left littering the farms and lands of other countries. I also hope that we will give further leadership on the convention, as many countries and friends across the world have yet to sign the convention. This Bill is a first step, and we have taken it, but we have to go further. Having listened to and read the Minister’s speeches, I know that he is committed to doing just that. He has shown good leadership in wanting to use our diplomatic good offices to push that aim with our friends and allies. I hope and believe that that wish is shared across all the parties. We have a responsibility now to move on from this good legislation and to give that global leadership. I strongly support the Bill.
When the Minister opened this debate, he rightly paid tribute to the Norwegian Government’s leadership in the Oslo process towards achieving the convention, which is supported by the Bill. He also acknowledged the role of the Irish Government in the diplomatic conference in Dublin. On Second Reading last week, I put on record the role in steering that conference played by Daithi O’Ceallaigh—a man who is known to many in this House as a former Irish ambassador in this city.
The Minister also rightly identified the important, decisive and positive role played in the Dublin diplomatic conference by the decisions of our Prime Minister. I know that the Prime Minister was dealing with conflicting impulses and advice from within the Government system. Various establishments had their views, as other hon. Members have reflected in their speeches, but the Prime Minister nevertheless made the positive decision to clarify the UK position and to move from the wrong side of the argument on this significant and effective convention to the right side.
It is right that we should pay tribute to all the non-governmental organisations and others who have campaigned over many years for a convention and ban, such as the Cluster Munition Coalition and the various bodies that made up that coalition. It is right to acknowledge the long-standing role played by many hon. Members, including some who will not be standing again in the election, in the long fight to extend the ban on land mines to cluster munitions—these aerial land mines, with all of their consequences. Credit for that campaign extends to Members in another place, too, who also campaigned very positively.
Back in 2008, in the build-up to the Dublin diplomatic conference, when it looked as though the British Government were going to be on the wrong side of the argument, I tabled an early-day motion along with other hon. Members of all parties. I was glad at that time that there were various YouTube video campaigns in support of that, including from SDLP Youth. The hon. Member for Kingston and Surbiton (Mr. Davey) rightly acknowledged the decisive contribution that has been made to our understanding of the issue, what Governments worldwide are committing themselves to through the wider convention, and what the House and the other place have done through this Bill.
It is right and proper that, as we come to the close of this Parliament, we can all look to the Bill as a positive reflection of the dynamics of a democracy and all the different influences and inputs possible. It does not just reflect different interests, outlooks and motivations in this jurisdiction; it reflects and upholds the rights—in particular, the right to life—of vulnerable people in other territories. As other Members have said, cluster bombs have an impact not just in a conflict period but long afterwards, and they take a high toll on the limbs and lives of children. A very high number of women are affected, too, because it is they who go into the fields to work and into the territories to try to find water. Many people around the world are united in saying that there ought to be a law against these weapons and, finally and wisely, that is what we have.
If I have taken up a somewhat disproportionate amount of time on this Bill, I make no apology whatever for having done so—despite the deputy Chief Whip’s obvious concern. We need to give proper consideration to Bills in this House, but we do not do so, and more often than not legislation that some would deem to be less important than this Bill—I happen to believe that it is very important—gets next to no consideration, because the Government programme and guillotine Bills in a totally irresponsible manner. Indeed, had some of us on the Opposition Benches not asked some pertinent questions, we would not have had answers on a number of matters.
We have made a lot of progress today, and I am glad of that because this measure affects innocent people, including children. Those who are concerned about children in whose territories cluster munitions are accumulated will want to know not only that we have passed the Bill but that we will be prepared to take the action necessary to clear the ground. It is one thing to pass legislation, but another to give it practical effect. We have already heard enough today about the complexities that will undoubtedly cause difficulties in achieving certainty, and not merely certainty about the legal position. I am deeply worried for our servicemen, because I think that they will get caught up in this. The penalty of 14 years’ imprisonment is very severe and the Bill has so many problems in it that people will be caught up unnecessarily despite its good intentions and, I hope, its good results.
Let me turn to the precedents for such Bills. The mustard gas that was used in the first world war was eventually outlawed, although not, of course, by Saddam Hussein. The fact is that such action on cluster munitions, which cause unnecessary and unreasonable deaths, is resisted by certain elements of our armed forces, so I am told. Despite the fact that the House of Commons, by consensus, has agreed that this Bill should go through, they do not believe that it is in the interests of our tactical and strategic operations to have such legislation.
Passing a law is a useful step, but it will not necessarily have the effect of protecting the innocent or, indeed, of avoiding complications for servicemen. Those are the crucial questions and it would be extremely helpful if the Minister—if he would listen for a second—would be good enough to put in the Library of the House of Commons the manual or the guidance to which he referred. When this Bill has been enacted and comes into force, its practicality will be tested. I, for one, would like the Minister to confirm that he is prepared to put the manual, with appropriate guidance, into the Library so that we may compare the manner in which the Government have alleged that the Bill will be effective with the manner in which they implement it.
Question put and agreed to.
Bill accordingly read the Third time and passed, with an amendment.