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Cluster Munitions (Prohibitions) Bill [HL]

Volume 716: debated on Wednesday 6 January 2010

Committee

My Lords, I remind the Committee that if a Division is called in the Chamber while the Committee is in session, we will adjourn for 10 minutes from the moment that the Division Bell is first heard.

Clause 1 : Munitions to which Act applies

Debate on whether Clause 1 should stand part of the Bill.

My Lords, I should make it clear at the outset of these amendments that we on this side are strongly in favour of the Bill. We want to see its purposes carried forward and, indeed, to see it have a speedy passage first to the other place and then on to the statute book. At the same time, I hope that your Lordships will agree that no Bill is absolutely perfect and that we have a role and a duty to ensure that we know exactly what we are legislating for and, indeed, that we know the precise coverage and scope of the Bill so that we can offer our advice and recommendations to the other place and improve the legislation.

That brings me straight to the Question of whether Clause 1 should stand part, because that is the clause which raises the issue of the weapons covered in the Bill. There is an easy answer, which I am sure will be avoided, and that is that what is covered in the Bill is what is defined in the Convention on Cluster Munitions. However, anyone who has studied the convention will see that it has a whole range of exclusions in Article 2, including weapons designed to dispense flares or smoke, have air defence capabilities and, according to the convention, electronic effects. I am not sure whether that means electronic self-destruct mechanisms or electronic impact on particular targets.

The convention also excludes weapons with less than 10 explosive submunitions, which to the inexpert, such as myself, certainly seems rather high when we are trying to down cluster munitions as a class. Therefore, I ask the Minister whether the exclusions also include the German SMArt-155, the French BONUS munitions or the American SADARM munitions, which I think were used in Iraq—certainly around 2003 if not later. That is one question that seems to hang in the air.

There is also the question of weapons not yet in service. Does the convention, or the Bill, if we carry it forward, cover larger weapons that are said to be coming along which have sensor-targeting and two failsafe systems? I have in mind here—I have taken this from the briefing—the 155 millimetre fused munition, BSFM, which is an artillery round. Indeed, are land-fired weapons of this kind covered at all? I think that the Israelis fired by artillery means a number of these cluster weapons in the 2006 Lebanon war. The convention seems to imply that we are talking only about air carriage and air-dropped weapons, but what can the Minister say about artillery-discharged clusters?

There is then the broader point that the convention is rightly aimed at—indeed, its central purpose is—banning weapons which “cause unacceptable harm” to civilians. At Second Reading I raised the question of bomb clusters designed not to harm civilians and individuals but to knock out facilities, such as electricity transmission or mobile communications, which were used, so I am informed, in the Kosovo war in bringing Belgrade to a halt. The intention then was to disrupt our systems by producing short-circuits on high-voltage power lines and at sub-stations. There is obviously a balance to be made here. There is a need to consider whether these kinds of weapons, which are not intended to harm civilians and are targeted, are a good or a bad thing.

Can we please have a few answers on these matters of definition and coverage of the Bill before we move on to further clauses?

My Lords, I thank the noble Lord for his comments. I hope that I can clarify to his satisfaction the issues that he has raised. Clause 1 defines the prohibited munitions to which the Bill will apply. These are cluster munitions and relevant explosive bomblets, the definitions of which we have been careful to take exactly from the Convention on Cluster Munitions, as set out in Article 2. I can assure the noble Lord that these definitions are comprehensive. Needless to say, they capture all those munitions that present significant humanitarian risk and cause unacceptable harm to civilians.

As noble Lords will be aware, the convention and therefore the Bill do not apply to munitions which have all of the following characteristics: each munition contains fewer than 10 explosive submunitions; each explosive submunition weighs more than four kilograms; each explosive submunition is designed to detect and engage a single target object; each explosive submunition is equipped with an electronic self-destruction mechanism; and each explosive submunition is equipped with an electronic self-deactivating feature. It was agreed at Dublin that munitions with these characteristics avoid indiscriminate effects and the humanitarian risk posed by unexploded submunitions. The military may therefore maintain necessary capability through their use. Article 2 of the convention excludes munitions with electronic effects.

I know that the noble Lord, Lord Howell of Guildford, expressed concern at Second Reading that in prohibiting cluster munitions we did not limit the technical capability of our Armed Forces. In particular, he mentioned the CBU-94/B, which scatters fibres to short-circuit electricity systems. I can reassure him that this will not be the case and can confirm that the convention’s, and therefore the Bill’s, prohibitions do not extend to munitions designed to produce electrical or electronic effects such as the CBU-94/B.

Amendment 1 would remove from the Bill key definitions, including of prohibited munitions, thereby making the Bill extremely difficult to apply. On this basis, I hope that the noble Lord will withdraw his amendment.

My Lords, I am a little puzzled, because I have not yet moved Amendment 1; I have only spoken to Clause 1 stand part. I am grateful to the Minister for her reply to Clause 1 stand part, particularly as to electronic cluster weapons which do not harm civilians, but I should like to move Amendment 1 in a moment at the proper time.

Clause 1 agreed.

Clause 2 : Offences

Amendment 1

Moved by

1: Clause 2, page 1, line 21, at end insert—

“( ) directly or indirectly provide monies that are used for the development or production of a prohibited munition or component thereof,”

My Lords, it is worth noting both for ourselves and for future discussions in another place that we are dealing with an extraordinarily complex situation in which 34 countries have produced 210 different types of cluster bomb, manufactured from an enormous range of different components from many factories and plants all around those 34 countries and in others as well. Therefore, I think that we recognise that finance for the production of these items is complex and diffuse.

I also recognise that the provision of direct finance for cluster bomb manufacture is clearly made illegal under the convention, but that the indirect issue is much more complicated. The Minister has just spoken a few words about it. During Second Reading, she also made a Written Ministerial Statement, as did her colleague in the other place, Mr Bryant, about the need to prohibit indirect financing of cluster munitions manufacture. The suggestion was that this would be dealt with in due course. In this amendment, I am suggesting that it might be worthwhile having these requirements in the Bill. Without the risk of asking the Minister to repeat herself, will she explain a little more about how the Government plan to work with the financial sector, non-governmental organisations and other organisations to prevent this process? Do they intend further legislation as well? I beg to move.

My Lords, as noble Lords will know, the Convention on Cluster Munitions makes no mention of the provision of moneys in regard to cluster munitions development or production. It is not one of the prohibitions included in the convention. The Bill is designed to implement the convention and therefore does not include specific mention of such financing or investment.

However, in response to the valid interest of concerned parliamentarians and civil society, I clarified the Government’s position on such financing in a Written Ministerial Statement on 7 December 2009. The issue was also debated at Second Reading. If it would be helpful, I am happy once again to outline the Government’s position and to reassure your Lordships of our commitment to preventing the financing of cluster munitions production.

Under the Bill, the direct financing of cluster munitions production or development would be prohibited. In addition, we are committed to working with interested parties to promote a voluntary code of conduct to prevent indirect financing by the private sector. We will also review public investment guidelines to the same end. While reserving the right to legislate in the future, if necessary, I feel strongly that this is the most constructive way forward. It would certainly place the UK once more in the forefront of international action. Only a minority of states parties that have so far ratified have explicitly set out positions on financing. None of these has gone so far as to try to prevent direct and indirect financing in both the public and private sectors.

I do not need to tell your Lordships that some of the financial products that could be covered by a prohibition on indirect financing, such as syndicated loans or participation in revolving credit facilities, can be very complex. They can often involve multiple parties, cross jurisdictions and have ultimate beneficiaries several times removed from the originator. I understand that it can be difficult and costly to exit these arrangements. I therefore fear that legislating without significant prior consultation might place some institutions automatically in breach of the prohibitions once they become law. In addition, we have not had the opportunity to assess the impact of this action on the UK’s financial sector.

This is why we have preferred the voluntary route initially and I am confident that we can make a difference. As noble Lords know, our priority is the passage of this Bill and the ratification of the convention. I am eager, as I know many of your Lordships are, to ensure that the UK becomes a state party as soon as possible. Once this has been achieved, we will be able to work on the consultation process for the private and public sectors. I would therefore hope that the noble Lord will withdraw his amendment.

I should like to ask the Minister a question, following her very helpful statement. I understand entirely the arguments that she has advanced for not changing the Bill as proposed in the amendment. However, would she confirm, as I believe is the case from what she said, that the Government in no way preclude at some much later stage, if it were to prove necessary, amending the Bill to bring direct and indirect financing within the criminal scope of the Bill, but that now is not the time to do it? Could she confirm that the Government are moving to ensure that direct and indirect financing does not take place, and that nothing in the Bill prevents that happening at a later stage?

I thank the noble Lord for asking for that clarification. It is indeed the case that if we do not preclude that eventuality there would be legislation at some later stage. However, at this stage, rather than hold up the process, we think that we should move forward and that noble Lords should be reassured that we take that position clearly at this time.

For the sake of clarity, I think that the noble Lord, Lord Hannay, referred to an amendment at a later stage of this Bill. In fact, I suspect that he had in mind a new piece of legislation after this Bill reaches the statute book.

My Lords, the Minister’s remarks are entirely constructive and helpful and clarify the Government’s mind on this matter. I note the thought that we may be faced with further legislation but, if that is necessary, so be it. Clearly this is a complex matter that cannot be rushed. We need to work out how a more effective grip can be achieved on the many channels through which indirect finance will, I am afraid, continue to be supplied for a time to activities that could lead to the assembly and fabrication of cluster bomb munitions of the prohibited kind. But in the light of the Minister’s remarks, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Clause 2 agreed.

Clauses 3 to 5 agreed.

Clause 6 : Other purposes permitted by Convention

Amendment 2

Moved by

2: Clause 6, page 4, line 43, at end insert—

“( ) The Secretary of State shall publish guidance setting out the maximum number of prohibited munitions that may be considered necessary for permitted purposes.”

We come to Clause 6, which deals with other purposes permitted by the convention—permitted purposes, in other words—by which cluster munitions may continue to be held and treated. I am not sure whether they continue to be assembled as well, but the Minister may be able to clarify that.

The amendment would simply put a little more definition and precision into the question of the amount of munitions that may be necessary for certain permitted purposes. The one in my mind is how many may be kept for research, experiment and development. To what degree will the research and experimentation need to match further weapons development, however regrettable that may be, in countries that are not signatories to the convention and that may continue to want to use these horrific weapons—and not only countries but non-state actors as well, along with certain countries that are irresponsible and do not respond to or act in accordance with the higher aims of global co-operation behind this convention? That is why the amendment is here, and I should be grateful if the Minister could comment on it.

My Lords, following on from the noble Lord’s remarks, it is also important that munitions are kept for training those who may have to deal with disposing of them. It may be that in some guidance greater clarification can be given to that purpose.

My Lords, very much in the spirit of the previous intervention by my noble friend Lord Hannay, I suspect that the figures for this sort of requirement have not yet been worked out. Indeed, I think it took a long time for the figures to be worked out as to what was appropriate in the landmines treaty. The French, in particular, did a great deal of work on this. Again, my question is whether this is something which, in future, could be added to the Bill if it is not possible to work out what the requirements are now. It is something that must be kept under review particularly because, in all the countermeasures that have to be worked out, you cannot do without the weapons themselves.

I thank the noble Lord. I hope that I can offer some of the definition and precision asked for on this matter. The convention includes the assembly of cluster munitions, so that is clearly there. As your Lordships are aware, as a state party to the Convention on Cluster Munitions, we will be permitted to retain a limited number of munitions for certain permitted purposes. I elaborated on what these were in winding up the debate on Second Reading. We were in the process of determining exactly how many we need to retain for training, detection, clearance and destruction techniques, as well as the possible development of countermeasures. The convention does not stipulate any maximum number that may be retained by states parties. Article 3(6) requires that this number should be limited and should not exceed the minimum number absolutely necessary for permitted purposes. That is absolutely clear. I assure your Lordships that this is the Government’s intention.

It is difficult to anticipate how many cluster munitions we may need to retain for the training and development of countermeasures. The number may change depending on current circumstances. The number of anti-personnel mines retained has increased in recent years due to the need for training and development in countermeasures against improvised explosive devices, or IEDs. To set a fixed number in the Bill would make it inflexible and difficult for us to meet such needs.

In implementing the convention, the Bill reflects this restriction. Under Clause 6, the Secretary of State may authorise only the possession or transfer of cluster munitions in numbers necessary for permitted purposes. It is important to note that in doing so the Bill mirrors similar provisions in the Landmines Act 1998. The number retained will also be publicly available for scrutiny. It will be included in our transparency report under the convention, as is the case with the anti-personnel mines that are being retained. On this basis, I hope that the noble Lords will withdraw their amendment.

I have one question on overseas stockpiles. I think we are talking in particular about US stockpiles. I am not quite clear whether there is an obligation on the United States or on any other country that may have such a stockpile to provide details of those stockpiles, or to give a continuous update on their destruction. What information has to be made available by the United States in this regard?

We will be permitted to require them to make such information available to us. The United States is not a signatory to the convention but is obliged to give that information. The Secretary of State will request it, should that be appropriate.

My Lords, I am grateful to the Minister. On the last point, I was coming to the question of those of our allies who regrettably are not yet signatories to the convention and who hold stockpiles of cluster munitions, and how we cope with that, particularly when they are on British soil. Perhaps I can return to that, if the opportunity arises, when we look at later clauses.

I am satisfied with what the Minister says about the guidance sought by our amendment to Clause 6, but the noble Lord, Lord Ramsbotham, makes the very good point that as the thinking evolves—we are in a new area in many ways, although there are similarities with the landmines legislation—it may be possible to have a clearer definition of the amounts and the nature of the weapons and the nature of the systems by which they are stored and held for the future in circumscribing them with the necessary legislation. Perhaps that lies in the future. In the mean time, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Clause 6 agreed.

Clauses 7 to 8 agreed.

Clause 9 : International military operations and activities

Debate on whether Clause 9 should stand part of the Bill.

My Lords, we come to really quite difficult parts of this basically excellent Bill, and I would value clarification in debating whether this clause should stand part of the Bill.

I have heard it suggested, and I feel that there is validity in the suggestion, that greater clarity is needed about the legal status of our forces when they are in contact with cluster munitions and when working with other forces who belong to countries that have not signed up to this convention and that are still using cluster munitions of various kinds, or indeed kinds that may not yet have been developed but that will be brought on to the weapons scene in the future.

I am sure that the Minister and your Lordships would all agree that it is undesirable that those of our fighting forces on the front line and in difficult and tense situations should be unclear at any point about what they are and are not allowed to do, especially when there is a shadow over them that they may be involved in illegal action if they take the wrong course or the wrong decision, even when under intense pressure and having to act at high speed. How will this interoperability, which is what we are talking about in Clause 9, and co-operation with visiting forces, allied forces or third countries be policed? What will the ramifications be if it is learnt that UK personnel are working with troops who are using cluster munitions due to the fact that the forces with whom they are operating still use these munitions? The convention explicitly attempts to aim at banning this type of situation, but here we are, legislating, so that we can sign this convention. Does our Bill do the same thing, or does it provide a loophole?

The Minister in another place said at one stage that the convention, and therefore also the Bill,

“does not alter our ability to work with coalition partners”.

We know that in the real world at present our coalition partners tend to be our American allies, but we may be moving into a world in which our partners will be from all sorts of other countries—they have been, to some extent, in Iraq: for example from Japan and the Ukraine. It is even conceivable in the world into which we are moving that we will have a more unified global approach to rogue activities and work with Russian troops or any others; I do not know. These are no longer quite the fantasies that they were.

How do we ensure that our operations with our coalition partners proceed smoothly in the light of this new legislation? Are we sure that what the Minister said about our ability to work with our allies, particularly the Americans, being in no way compromised or altered is really so? I return to the question asked by the noble Lord, Lord Lee, a moment ago about how we continue to discourage the United States from its own continuing role in stockpiling cluster munitions in UK territories such as Diego Garcia. What will be the procedure by which the pressure of discouragement is brought to these situations? Will the Minister elaborate on how that will develop? Those are my reasons for seeking to question whether the clause should stand part.

My Lords, Clause 9 deals with the issues that arise when our Armed Forces co-operate in a joint operation with those of non-convention countries. It is right that we do everything that we can to protect those of our forces who may find themselves acting with those of other countries that still use cluster munitions. We should not be too sanctimonious about this—after all, it is only very recently that the United Kingdom has come to the view that it should accede to this convention. Other countries will take longer, but will hopefully come to the same view. I accept also that defences should be reasonably widely drawn so that officers do not find themselves inadvertently in a position where they are operating with officers from other countries who may be using cluster munitions. I accept that the defences should be widely drawn. Nevertheless, I have some concerns, and perhaps the Minister will address these in her reply.

Clause 9 makes it a defence for a person charged with an offence specified in the schedule that the person's conduct took place in the course of a joint military operation. Schedule 2(1) refers to offences under section 2(1)(e) or (g). Schedule 2(2) refers to,

“an offence under subsection (2) of section 2 of assisting, encouraging or inducing another person to engage in any conduct mentioned in paragraphs (a) or (e) to (g) of subsection (1) of that section”.

Clause 2(1)(a) makes it an offence to use a prohibited munition. Clause 2(1)(b) makes it an offence to develop or produce a prohibited munition. Clause 2(1)(c) makes it an offence to acquire a prohibited ammunition. Various other dealings with such weapons are listed as offences. Clause 2(2) deals with assisting, encouraging or inducing. It will encompass the offence of assisting, encouraging or inducing the use of a prohibited weapon—a cluster munition. I accept that inadvertently our Armed Forces might find themselves in a position where, looked at with a cold legal eye, they might be said to be assisting, albeit that they are acting properly and appropriately. They might even be described as encouraging. However, Clause 2(2) goes further by mentioning inducement. It might be said that an officer could legally say, in the context of a joint military operation: “We do not have cluster bombs—we are prohibited from using them—but you can use them, and if you do, we could assist you in some other operation.” That would be the inducement. That would be wholly contrary to what we would expect our forces to do. It would also be wholly contrary to the spirit of the convention. Furthermore, I doubt whether it would fully implement the convention, notwithstanding the terms of paragraph 3 of Article 21.

I am sure that that is not what the Government intend by these provisions. It may be that there can be reassurance on the way in which instructions and orders are given to our forces when they are in a joint military operation with a non-convention country. Echoing the words of the noble Lord, Lord Howell, I believe that we need greater clarification not only in terms of our troops and officers for whom we hold a responsibility but also our wider international obligations.

My Lords, I share the views expressed by the noble Lord, Lord Howell, on interoperability and I go along with everything he said. It seems clear to all of us who followed the convention process that if we had stuck in the UN route which required unanimity, we would not now have a convention banning cluster munitions. Of course, in those circumstances, interoperability would not have arisen, but there would not have been a ban.

In order to obtain the ban, the Government—correctly, in my view, and with a little encouragement from others of us—went down this other route which inevitably and inescapably raises the issue of interoperability. You cannot avoid that. The only problem I have with the noble Lord, Lord Howell, is that I cannot for the life of me see how his amendment to leave Clause 1 out of the Bill assists his argument. I hope that he will not insist on it because, although I happen to share exactly the views he has expressed, I came to the opposite conclusion.

My Lords, I agree with what the noble Lord, Lord Hannay, has said. I draw further comfort from the way in which the Ottawa Convention operated. Although some countries did not sign up to the ban on antipersonnel landmines, there has been a significant reduction in their use. Some of the key countries which owned them have not used them at all—the United States, for example. I hope that I am right in that—it is certainly my understanding. I therefore hope that the Americans, although they are still in possession of large stockpiles of cluster munitions, will refrain from using them or regarding them as a main weapon.

That goes further than anything that has been said, and it is an expression of hope. The Ottawa Convention precedent ought to help us a bit there. Of course, there are also arguments within the United States that it, too, should ban these weapons. I know that some leading Senators take that view, but whether they will succeed in persuading the Administration of that I am not sure. I must concede that other countries, such has Russia, have not signed up and have used them. I understanding that cluster munitions were used by both sides in the conflict in South Georgia a couple of years ago. My argument does not hold water in respect of all countries, but I would hope that it will have some weight as regards the United States.

My Lords, I, too, go along with everything said by the noble Lord, Lord Howell, in particular the importance of clarity in the legal status of members of the Armed Forces. That is essential. My concern about this clause is not so much on whether it should stand part, because provision setting that out, however imperfect it may seem, is essential, but about the use of the words “operation” and “co-operation”. By its definition, an international operation is co-operation between those taking part. Is it semantics?

I wondered whether there was confusion over whether a military operation implied something like peace enforcement, where force was being used, and that co-operation implied other activities such as post-conflict reconstruction, in which it was not. Of course, the people taking part in post-conflict reconstruction are hardly likely to be using cluster munitions; they would be clearing them up. That is something that needs to be tidied up, but I took heart from what the noble Baroness said at the beginning: that the Government’s intention was not, as it were, to stick by every letter of this for all time but to be prepared to amend as we go along. In the interests of the clarity requested by the noble Lord, Lord Howell, this point should be considered and then made clear to those who will have to abide by it.

My Lords, I join the chorus of concern on this issue because the confidence of our own troops in our own law is absolutely essential. There needs to be an authoritative statement, possibly not in this Room but in the Chamber of the House, setting out the Attorney-General’s understanding of the meaning of this which can be taken as a guideline for our troops.

I thank noble Lords. I understand very well why the noble Lords, Lord Hannay and Lord Howell, raised this issue. I thank the noble Lord, Lord Hannay, for the realism that he showed in his earlier response and my noble friend Lord Dubs for reminding us of the example that the progress that we made on landmines set us on these matters.

Our ability to continue operations alongside coalition partners who will not be states parties to the convention was raised by a number of colleagues in our Second Reading debate. It occurs to me, as it did then, that the MoD would hardly be likely to have agreed with the points made in the Bill were their points not taken care of in the Bill. It occurs to me very forcibly that the MoD's position takes into account many of the points and concerns that noble Lords have raised.

Interoperability is about the UK, and similarly placed states, being able to continue operating effectively with and alongside coalition partners in all potential situations. It will enable us to play our full and necessary part in coalition operations. That vital security requirement was recognised by countries negotiating the Convention on Cluster Munitions and was expressly provided for by Article 21 of the convention. Clause 9 implements this vital provision, providing the necessary defence for conduct that takes place in the course of military co-operation and operations with non-states parties.

This defence is necessary to ensure that our service men and women are properly protected from prosecution as they work and fight alongside coalition partners who are not yet ready to join the convention. It is right that this protection is comprehensive and covers all appropriate circumstances, including the most exacting combat situations.

While permitting co-operation with non-states parties, Article 21 of the convention also sets clear boundaries on what should be permitted. These restrictions are also reflected in Clause 9. Notably, as I was glad to state at Second Reading, nothing in the Bill will permit UK nationals to develop, otherwise acquire, stockpile, transfer or use cluster munitions. In addition, I made it clear that no UK national will be permitted to request the use of cluster munitions when the choice of munitions to be deployed is within their exclusive control.

Article 21 also obliges states parties to encourage non-states parties to ratify or accede to the Convention on Cluster Munitions, to notify Governments of non-states parties of their obligations under the convention—a point of concern raised by many noble Lords—and to use their best efforts to discourage non-states parties from using cluster munitions. Those obligations are not covered in the Bill, as they do not require legislation to be implemented, but I am happy once again to assure your Lordships that the Government will actively fulfil these obligations.

The noble Lord, Lord Ramsbotham, raised the issue of “operation” and “co-operation”. They are terms taken from the convention and they are defined in the clause. Operation means active, in-the-theatre activities and co-operation is wider military activity that may be in support of the operation. I hope that that clarifies that point.

As I said at Second Reading, the Government’s aim is a global convention and we are actively working towards that goal. The noble Lord, Lord Ramsbotham, also raised the point about inducements in joint operations. That is not what is intended, but we could be involved in logistical planning that involved cluster munitions. That is necessary as a part of high-level strategic co-operation.

The noble Lord raised another point about UK personnel. They will be permitted to call for fire support that may involve the use of cluster munitions by non-state parties, except that they must not expressly request their use where the choice of munitions is within their exclusive control. That is essential to protect the lives of our service personnel, particularly during intense combat where rapid life-and-death decisions may need to be made.

I can give some reassurance to my noble and learned friend Lord Boyd that prohibition on the UK's use of cluster munitions will be reflected through operational policy documents that will outline how UK Armed Forces will operate with coalition partners. Restrictions on the use of weapons and national caveats imposed during coalition operations are, as I am sure many noble Lords are aware, a normal part of a coalition-building process. Those directives will include the national, operationally specific rules of engagement, profiles and national caveats, which will ensure that any action is within the parameters of UK law. Furthermore, a Chief of the Defence Staff directive is issued to all individual embedded personnel explaining the UK's legal position on all the relevant matters.

I would like to clarify another point that was raised. UK commanders and staff officers engaged in military operations should continue to operate in accordance with current practice except that they must not expressly request or direct the use of cluster munitions to achieve a task where the choice of munitions is within the UK’s exclusive control.

On whether we asked the US to remove its stockpiles, since the UK adopted the Convention on Cluster Munitions in May 2008, there have been ongoing discussions with the US with regard to their cluster munitions stockpiles and the necessity of having stockpiles on UK territory.

I hope that I have covered those points. As I said, the aim is to achieve ratification of this global convention. We must be able to work alongside coalition partners effectively. That was accepted in the decisions that were made in Dublin and elsewhere. Therefore, I hope that noble Lords will agree that the clause can stand part of the Bill.

My Lords, I am grateful to the Minister. I have a secret to share with the noble Lord, Lord Hannay. Sometimes, opposition spokesmen move amendments that they do not necessarily want to see passed. In this case, the intention was clearly to seek reassurance and clarification from the Minister. There were indeed invaluable inputs both from the noble Lord, Lord Hannay, and others on this complex situation and to some extent those reassurances have been given.

I hope that the clarity of the convention and the clarity of the Bill provide the right protection for our Armed Forces. The trouble is—and we have this in other areas of legislation—you can put things with great clarity on paper or on the statute book, but in the heat of battle anything can happen. Tensions are enormous and decisions have to be taken with immense rapidity, often without adequate and full information. That is the nature of warfare and operations—increasingly so in this age of asymmetric activity and sudden, unplanned and even unforeseen actions of great violence and danger. That is an area in which it becomes a little difficult to find the right documents to prove that something is legal or illegal. However, one understands the difficulties. I should like to think that as a result of this exchange the Government’s thinking will continue and, as the noble Lord, Lord Ramsbotham, suggests, will find a way in which to make this clearer and easier in an increasingly complicated world for military operations. Contenting myself with that reassurance, I withdraw my intention to oppose this clause stand part.

Clause 9 agreed.

Clauses 10 to 15 agreed.

Clause 16 : Power to enter premises and destroy immobilised prohibited munitions

Amendment 3

Moved by

3: Clause 16, page 12, line 32, at beginning insert “there is evidence that”

My Lords, to be frank with your Lordships, I have a feeling that this amendment might have been better positioned against Clause 12, which also deals with powers of entry, than Clause 16, although the intention behind it would be the same wherever it appeared. It is simply a reaction, which I hope will come as normal to your Lordships or to any legislative Chamber in a democracy, that whenever we give new powers of entry or powers to authorise the Secretary of State to issue warrants of this, that and the other, we should pause and look carefully at the power that we are giving. There is a general presentiment, which we have covered in other debates in your Lordships' House in the past few years, that the rights and powers of authorities of all kinds to enter private premises and people’s homes and dwellings are getting a little too extensive. We need to watch that we ration those powers prescribed to our ruling Secretaries of State Governments and authorities very carefully. When one sees in any Bill that new powers are to be awarded and granted, it is perhaps the time to pause and discuss whether we have got it right.

The proposal behind the amendment is to strengthen the wording to make it harder for the Secretary of State to authorise entering a premises without sufficient evidence-based cause. That is what the wording in the amendment does. I beg to move.

My Lords, I thank the noble Lord and will make every effort to offer the clarification that he requests. Amendment 3 seeks to strengthen the test in Clause 16 for issuing a warrant authorising entry into a premises where there are prohibited munitions. I do not believe that that is necessary, as the current provisions sufficiently provide for such a safeguard. As subsections (3) and (4) of Clause 16 stand, before issuing a warrant authorising a person to enter premises and destroy prohibited munitions, the Justice of the Peace must be satisfied on the basis of information and evidence given on oath that the appropriate conditions for doing so are satisfied. These conditions are established in subsection (3) and comprise a prior warning notice being affixed to the relevant property and the Secretary of State’s decision being obtained.

At Second Reading, the noble Lord, Lord Howell, expressed concern about granting more powers to enter people’s homes. I assure him that in drafting the Bill much thought was put into ensuring that individual’s rights were protected. To that effect, the Bill contains various safeguards—that is the important point—to ensure the most appropriate use of these powers. For instance, entry under a warrant must be effected within one month of the date of issue and there can be entry on only one occasion, and entry other than under a warrant is limited to premises that the public can access or to premises that are occupied by a person who consents to the entry. In addition, whether entry is under a warrant or under an authorisation granted by the Secretary of State, the requirements in Clause 27 will still apply. These provide that evidence must be produced by the person authorised to enter the premises of their identity; that a copy of the warrant must be produced and given to the occupier; that entry must be at a reasonable time; and that unoccupied premises must be left as secure as they were found.

I would also note that a memorandum on the Bill was submitted to the Joint Committee on Human Rights. It included detailed analysis of the Bill’s powers of search and entry. I am happy to say that the committee is fully satisfied that the Bill does not give rise to any human rights issues. On the basis of the assurances that I have given today, I hope that the noble Lord will withdraw his amendment.

My Lords, I thank the Minister and I am reassured as to the concern for individual rights and the careful safeguards which the Minister has mentioned. In the light of that, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Clause 16 agreed.

Clauses 17 to 19 agreed.

Clause 20 : Information and records for Convention purposes

Amendment 4

Moved by

4: Clause 20, page 15, line 19, at end insert—

“( ) Notwithstanding any other provision of this section, the Secretary of State shall issue a notice to any person in possession of cluster munitions for permitted purposes requiring that person to report not less than annually on the quantity and the reasons they are being held.”

My Lords, this amendment is part of a general concern about how the authorities, Parliament and the public can keep track of what is happening; for example, whether the convention has been signed, the laws have been passed or the signatories have signed. The question will then hang in the air as to how we ensure that things are happening: for example, that stockpiles are being reduced, that manufacturing is ceasing and that these horrific weapons are being banished from the face of the earth, except for the permitted purposes which we discussed earlier in our debate. This amendment would require the Secretary of State to have from everyone who holds cluster munitions, for the various permitted purposes under Clause 6 et cetera, a mandatory report not less frequently than annually on the quantity being held and the reasons why, including whether the reasons given in the first place are still valid. This might make it easier to monitor who has these munitions, why they are being kept and the numbers, which would improve transparency and the ability to review the permissions and licences to retain cluster munitions each year. Overall, the intention is to ensure that cluster munitions are not being kept unnecessarily and that the pattern of reduction and elimination is being pursued.

I realise that Article 7 of the convention places a duty on each states party to report progress on implementing the convention no less than 180 days after its entering into force. All states parties are required to meet under the UN Secretary-General within one year of entry into force. Those are grand occasions when Governments and signatories will meet together to say what has been done. In the mean time, we need to see a flow of information to the separate states parties—in our case to our Secretary of State—about what is really happening. When these grander occasions occur our Government would be able to put forward a clear statement of where we have got to, the progress we have made, the difficulties that have been encountered, any reservations that we may have and how the whole spirit of the convention is being turned into realistic and genuine progress. I beg to move.

My Lords, I support the views expressed by the noble Lord, Lord Howell, on this matter, because, as was said at Second Reading, the convention will need very careful watching. I think that we assume—and the Government have given good evidence of it in the Bill—that we will apply it rigorously, but an awful lot of other signatories to the convention may apply it with something less than what we would describe as full rigour. There is no machinery at present to monitor that or any kind of international inspection process to ensure that they are sticking to their obligations.

I know that the Minister gave a helpful response to this point and will be pursuing it at the meeting of state parties which is provided for in the convention, and I do not wish to go down that road again. However, one factor in being able really to press all the signatories to be rigorous in their application is our being able to demonstrate that we are extremely meticulous in our application, which is where the amendment would help.

I am not saying that the only way in which one can do it is by changing the Bill; the Minister might say in her reply that we will require people who are permitted to keep cluster munitions to report regularly so that we can fulfil to the letter our obligations under the convention. I hope that she will say we will be meticulous. It is not really to do with us; it is to do with how we try to get other people to take as tough a line as we do.

I thank noble Lords. I can of course reassure the noble Lord, Lord Hannay, that we intend to take a meticulous and rigorous approach to the implementation of the convention when it is ratified.

The purpose of Clause 20, as the noble Lord, Lord Howell, clearly said, is to implement Articles 3(8) and 7 of the Convention on Cluster Munitions, which require all state parties to submit annual reports regarding national implementation measures and other details, including any cluster munitions retained for permitted purposes. That is already an obligation and we shall pursue it vigorously with other state parties.

Clause 20 facilitates meeting this requirement by conferring on the Secretary of State the power to require people to maintain records and provide information needed for the purposes of the convention. Under subsection (3), the Secretary of State will have the power to specify the form of information and the time within which it should be provided in any notices served for these purposes. The existing provisions in the Bill are therefore sufficient to ensure that we can obtain the necessary information on any cluster munitions retained for permitted purposes. As I have stated previously, this information will be available for scrutiny in the public domain.

It is also worth noting that our reporting requirements under the Convention on Cluster Munitions mirror faithfully those for anti-personnel mines under the Ottawa convention. The Landmines Act 1998 includes similar provisions to those in Clause 20; there is no explicit provision on obtaining information on anti-personnel mines retained for permitted purposes. However, under the authorisation mechanism for permitting retention, the MoD requires that individuals provide annually details on the quantity retained. That provision would apply under the convention. We intend that the mechanism for retained cluster munitions will be the same and that we will follow the same process.

I hope that I have clarified the points raised and that the noble Lord will therefore withdraw his amendment.

Perhaps I may first ask the Minister how the Secretary of State will satisfy himself that the returns being made are truthful.

I imagine that it will be done in the same way as with the landmines convention. The same processes will be applied and I am sure that benchmarks will be clearly set for the Secretary of State to follow to ensure that the information meets the requirements. I can find out for the noble Lord but, as I said, this is the process that we follow under the landmines convention and, as nothing has gone wrong and no difficulties have been created since the process was implemented, I assume that if we follow the same process, it will be fine.

I thank the Minister for her comments and am reassured by her statement that the Ministry of Defence will require information on an annual basis. That goes some way to meeting the concern behind this amendment. We hear that the Ministry of Defence has a very large number of information officers, although noble Lords here may know more than I do about that. Perhaps some of them could divert their activities from “information outwards” regarding the Ministry of Defence and its affairs to “information inwards” and collecting details about the remaining cluster bombs being held under permitted purposes. That suggestion may be regarded as unhelpful but I make it from the point of view of a layman in these affairs. With the satisfaction of the assurances from the Minister, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Clause 20 agreed.

Clauses 21 to 33 agreed.

Clause 34 : Commencement and short title

Amendment 5

Moved by

5: Clause 34, page 21, line 34, at beginning insert “Subject to the Secretary of State issuing a statement on the compatibility of this Act and the Export Control Order 2008,”

My Lords, your Lordships will be pleased to hear that this is the final amendment that I wish to raise in line with certain concerns about the Bill before we send it to another place.

The concern here is with the export control order and compatibility between the requirements of the convention and of the Bill and the order itself. I defer to the noble Lord, Lord Hannay, who specifically raised this matter at Second Reading when he urged a bit more rigour in ensuring compatibility than is found in the provision in the Bill. He asked the Minister to look at this matter again because there is an obvious danger in having two sets of obligations which run in parallel and may not meet each other or reinforce each other in the way that we all want to see. That is the matter as simply stated by the noble Lord and by me, and I should very much like reassurance from the Minister, who touched on this at Second Reading, that this problem can be dealt with effectively and that it will not lead to further loopholes and difficulties in the future which we would look back on and regret. I beg to move.

My Lords, very briefly, I am most grateful to the noble Lord, Lord Howell, for having raised a point which I introduced at Second Reading. I thought that the Minister’s response at Second Reading was helpful but what I am really seeking is a statement—as on the record as possible, if not in the Bill—that there is complete compatibility between the 2008 order and the provisions of the Bill. I am not sure how best this can be done, although it could be through a parliamentary Question or something such as that. When the Minister rises to her feet in this Committee and says that it is so, I do not doubt for one minute that it is indeed so. It would be helpful to the Government as well as everyone else if it was made absolutely clear that these two provisions, which could be construed in slightly different ways, are identical.

Again, I thank the noble Lords for the points that they have raised. I understand that ensuring the compatibility of provisions in the Bill with the export control order is a concern, and rightly so. We all want to ensure that the prohibitions are watertight. We debated this matter at Second Reading. The noble Lord, Lord Hannay, referred to that. I gave assurances that we had worked closely with the Department for Business, Innovation and Skills to ensure the compatibility of these two pieces of legislation. Several noble Lords kindly accepted this assurance at Second Reading, but requested a double check to make absolutely sure. I am happy to say that we have checked again and I remain confident that there are no gaps in the provisions.

The export control order makes it illegal to export cluster munitions—to supply, to agree to supply or to do any act calculated to promote the supply of cluster munitions. This latter restriction covers a wide range of activities known as ancillary services. These include providing financial services for trade in cluster munitions, providing transportation services, and generally promoting this trade. The Bill creates offences of assisting, encouraging or inducing anyone to engage in prohibited activity. The provision of ancillary services, according to the order, could be classed as assisting or encouraging activity under the Bill. The prohibitions in the order and the Bill are therefore complementary and reinforcing.

I think this will address further the point of the noble Lord, Lord Hannay. I hope that noble Lords will not now need further statements of reassurance from the Government on this matter, as envisaged by the amendment, especially since the requirement in the amendment would place an additional stage in the UK’s ratification of the convention. This would increase the risk of delay to our becoming a state party. On the basis of those remarks, I hope the noble Lord will withdraw his amendment.

I do not wish to protract proceedings, but will the definition of cluster munitions be the same in both the order and the Bill?

My Lords, speaking for myself, the reassurances that the noble Lord, Lord Hannay, specified have been given. They were certainly behind my thoughts in moving the amendment. In light of those, I am content to withdraw the amendment.

Amendment 5 withdrawn.

Clause 34 agreed.

Schedules 1 to 3 agreed.

Bill reported without amendment.

Committee adjourned at 4.58 pm.