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Arms Control And Disarmament (Inspections) Bill [HL]

THESE NOTES REFER TO THE ARMS CONTROL AND DISARMAMENT (INSPECTIONS) BILL [HL] AS BROUGHT FROM THE HOUSE OF LORDS ON 30TH JANUARY 2003 [BILL 50] ARMS CONTROL AND DISARMAMENT (INSPECTIONS) BILL [HL]            EXPLANATORY NOTES INTRODUCTION 1.     These explanatory notes relate to the Arms Control and Disarmament (Inspections) Bill as brought from the House of Lords on 30 January 2003. They have been prepared by the Foreign and Commonwealth Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not require any explanation or comment, none is given. SUMMARY AND BACKGROUND 3.     The Bill concerns the Treaty on Conventional Armed Forces in Europe signed in Paris on 19 November 1990 ("the CFE Treaty"). 4.     The CFE Treaty was implemented, so far as necessary, by the Arms Control and Disarmament (Inspections) Act 1991 ("the 1991 Act"). That Act provided the necessary rights of entry to private land so that international inspection teams could carry out challenge inspections under Section VIII of the Protocol on Inspections to the CFE Treaty. 5.     The CFE Treaty was subsequently amended by the Agreement on Adaptation of the CFE Treaty signed at Istanbul on 19 November 1999 ("the Agreement on Adaptation"). The CFE Treaty, as amended by the Agreement on Adaptation, provided for enhanced international inspection. In addition to Section VIII inspections mentioned above, rights of entry are now required to implement inspections under Sections VII and IX of the Protocol on Inspections. [Bill 50-EN]     53/2 6.     The Bill does two things. Firstly, it amends the 1991 Act so as to provide for these additional necessary rights of entry. Secondly, it confers a power to make further amendments to the 1991 Act should they be needed to implement future amendments to the CFE Treaty. Inspections Under the 1991 Act 7.     Section 2 of the 1991 Act provided the rights of entry to private land necessary for Section VIII "challenge" inspections under the CFE Treaty. Under Section VIII, any State Party has the right to conduct a challenge inspection in a specified area up to 65 square kilometres in the territory of another State Party. 8.     Section VIII inspections remain in the Protocol on Inspection as amended by the Agreement on Adaptation (attached). Consequently, the Bill does not affect the substance of the powers of entry for Section VIII inspections provided for in the 1991 Act. Further Inspections being Provided for in the Bill 9.     The Bill provides new powers of entry in relation to two further types of inspection: Section VII and Section IX inspections. 10.     Section VII concerns inspections of "declared sites" - sites which the United Kingdom will declare under the Treaty as containing equipment limited by the Treaty. Section VII inspections are not new to the Agreement on Adaptation. They were already provided for in the Protocol on Inspection to the CFE Treaty. But increased private ownership and operation of military sites in the United Kingdom since the 1991 Act now mean that new rights of entry to private land are required to enable the United Kingdom effectively to implement its Section VII obligations. 11.     Section IX inspections are new and were added by the Protocol on Inspection as amended by the Agreement on Adaptation. They concern inspections of "designated areas" in the territory of a State Party. These inspections may take place if a State Party gives notification that its territorial ceilings for equipment limited by the Treaty are temporarily exceeded (e.g. due to military exercises). Rights of entry to private land are required for this new type of inspection. TERRITORIAL APPLICATION: WALES 12.     This Bill does not affect the National Assembly for Wales or otherwise affect Wales in any way differently from the rest of the United Kingdom. COMMENTARY Clause 1 and Schedule 1: Further implementation of the CFE Treaty 13.     Clause 1 (1) introduces Schedule 1, which makes a number of amendments to the 1991 Act to provide for additional rights of entry to implement inspections. 14.     Schedule 1 to the Bill makes three categories of changes to the 1991 Act: (i)     adding the new rights of entry for Section VII and Section IX inspections; (ii) amending those provisions of the Act which refer specifically to "challenge" inspections under Section VIII so that they refer to all three types of inspection; and (iii) other consequential amendments to reflect amendments made to the Protocol on Inspections by the Agreement on Adaptation. (i)     New Rights of Entry 15.     Section 2 of the 1991 Act provided for the Secretary of State to issue an authorization only in respect to challenge inspections under Section VIII of the Protocol on Inspection. For the reasons given at paragraphs 7-11 above, rights of entry in respect to Section VII and Section IX inspections are also needed. Paragraph 4(4) of Schedule 1 to the Bill therefore inserts a new subsection into Section 2 of the 1991 Act which provides that the Secretary of State may also issue an authorization in respect of Section VII and Section IX inspections. (ii)     Amendments to Make the Provisions of the 1991 Act Refer to all Three Types of Inspection 16.     Sections 1, 2 and 3 of the 1991 Act contains various references to "challenge" inspections and "specified area" which are terms specific to Section VIII inspections. The Bill will confer rights of entry in relation to two additional types of inspection as set out at paragraphs 5-7 above. The various references in Section 1, 2 and 3 of the 1991 Act which were specific to Section VIII inspections therefore need to be removed and, where appropriate, replaced with more general references that cover all three types of inspection. 17.     Schedule 1 to the Bill achieves this in the following way: -     Paragraph 2(3) omits section 1(2)(a) which set out the definition of "challenge inspections". -     Paragraph 2(3)(b) omits the references to "specified area" and "challenge" from section 1(2)(c) of the 1991 Act, which defines "escort team" and "inspection team".      -     Paragraph 3 removes the reference to "challenge" from the cross-heading preceding section 2 of the 1991 Act. -     Paragraph 4(2) removes the reference to "challenge inspections" from the side-note to section 2 of the 1991 Act and replaces it with the more general reference to "inspections pursuant to Sections VII, VIII and IX". -     Paragraph 4(3) removes the reference to "a challenge inspection within any specified area" from section 2(1) of the 1991 Act and replaces it with terminology, which makes it clear that this subsection is referring to Section VIII inspections. This is achieved by replacing it with the words "an inspection pursuant to Section VIII of the Protocol (challenge inspections within a specified area)". -     Section 2(2) of the 1991 Act required that the Secretary of State's authorisation for rights of entry contain a description of the "specified area" concerned. Paragraph 4(5) of Schedule 1 to the Bill replaces that reference by the more general "area to be inspected pursuant to the relevant Section of the Protocol". -     Section 2(3) of the 1991 Act set out the powers which the inspection team were able to exercise within the "specified area" as a result of the Secretary of State's authorisation. Paragraph 4(6) of Schedule 1 to the Bill replaces the reference to "specified area" by the more general "area in respect of which the authorisation is issued". -     Section 2(8) and (9) concerning potential legal challenges to the Secretary of State's authorisation contain references to "challenge" inspection in three places. Paragraph 4(8) and (9) of Schedule 1 to the Bill omit those references to "challenge". -     Section 3(1) of the 1991 Act which sets out the criminal offences in relation to inspections refers to "challenge" inspections. Paragraph 5 of Schedule 1 to the Bill removes that reference. (iii)     Consequential Amendments 18.     The amendment of the Protocol on Inspections to the CFE Treaty set out in the Agreement on Adaptation require various consequential amendments to the 1991 Act as follows: -     Paragraph 2(2) of Schedule 1 provides new definitions of "the Treaty" and "the Protocol" so as to mean respectively the CFE Treaty as amended by the Agreement on Adaptation, and the Protocol on Inspection as so amended. -     Section 1(3)(b) of the 1991 Act contained a cross-reference to paragraph 1 of Section VI of the Protocol which contained the general rules for conducting inspections. That cross-reference is no longer accurate. As Section VI as a whole contains the rules for the conduct of inspections, the paragraph reference has simply been omitted. -     Section 1(4) of the 1991 Act introduced the Schedule to the Act which set out various extracts from the Protocol on Inspections for ease of reference. That extract is no longer accurate and needs to be omitted. Accordingly Paragraph 2(5) of Schedule 1 to the Bill omits subsection 4. For the same reason, Paragraph 6 of Schedule 1 to the Bill omits the Schedule. -     Section 2(5) of the 1991 Act ensured that the rights of entry conferred on inspection teams also applied if those teams divided into sub-teams in accordance with Paragraph 2 of Section VI of the Protocol on Inspections. That paragraph reference is no longer accurate, and the relevant provisions are contained in paragraphs 4 and 5 of Section VI of the Protocol on Inspections as amended. Paragraph 4(7) of Schedule 1 to the Bill therefore omits the reference to "Paragraph 2" and replaces it with "Paragraph 4 or 5".      Clause 2 Implementation of future revisions to the CFE Treaty 19.     Clause 2(1) provides that any future amendments to the CFE Treaty relating to inspections that require implementation in the United Kingdom may be given effect by way of Order in Council. This will avoid the need for further primary legislation for that purpose. Clause 3 Short title, commencement and extant 20.     Clause 3(2) provides that the substantive provisions of the Act will come into force on such day as the Secretary of State appoints by Statutory Instrument. In practice, this will take place when the Government is ready to ratify the Agreement on Adaptation. On signature of the Agreement on Adaptation in Istanbul in 1999, Russia made commitments in the CFE Final Act and its Annexes to withdraw from Georgia and Moldova. The United Kingdom position on ratification is that this can only be envisaged in the context of compliance by States Parties with agreed Treaty limits and consistent with the commitments contained in the CFE Final Act. 21.     Clause 3(4) provides that the power in section 6(4) of the 1991 Act to extend that Act to certain Overseas Territories will also apply to the amendments and repeals made in this Bill, and to any future amendments made under section 2 to give effect to any further amendments made to the CFE Treaty. The 1991 Act has been extended by Order in Council to the Isle of Man, The Channel Islands, and the Sovereign Base Areas of Akrotiri and Dhekelia, in Cyprus. The Government of Gibraltar passed its own Ordinance to give effect to the Act. FINANCIAL EFFECTS OF THE BILL AND EFFECTS ON PUBLIC SERVICE MANPOWER 22.     The Bill will entail no additional public expenditure or changes to public service manpower. There are no tax implications. REGULATORY IMPACT ASSESSMENT 23.     The Bill will have no impact on business. EUROPEAN CONVENTION ON HUMAN RIGHTS 24.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The statement has to be made before second reading. Mr Jack Straw, Secretary of State for Foreign and Commonwealth Affairs, has made the following statement:      In my view the provisions of the Arms Control and Disarmament (Inspections) Bill are compatible with the Convention rights.