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17 Mar 2010 : Column 896

Chris Bryant: I think that that falls somewhat outside the context of the Bill. If the hon. Gentleman wants to make a fuller contribution during the debate, I will have an opportunity, with the permission of the House, to respond to his question in terms when I reply to the debate. However, I am, of course, always happy to take as many interventions as necessary to fulfil the needs of the House.

Let me make a few final points. First, we are in the process of destroying our stockpile. We had 38 million cluster munitions; we have destroyed 14 million and we intend to move as swiftly as possible so that we can destroy the remainder of our stockpile. As I have said, because of the review in which the United States has engaged, it is already committed to withdrawing all of its stockpile in the UK by 2013.

Members have referred to European Union states and NATO states that have not signed the convention. Eight NATO states have not signed, including Turkey and the USA. The major users and producers that have not yet signed include Brazil, China, India, Israel, Pakistan, Russia and the USA, and we will continue our diplomatic efforts both through defence attach├ęs and our embassies in those countries to try to ensure that we move to universal ratification. Two countries that are heavily affected have not yet ratified, which seems odd: Vietnam and Cambodia. Perhaps closer to home, in a sense, 26 out of the 53 Commonwealth countries have yet to sign. That is a long list of countries, and I am sure Members would not want me to trouble them by reading it out in full, but I am more than happy to provide the list to anyone who wishes to see it.

I hope we will be able to move forward with this legislation in unanimity. It will be interesting to hear the debate this afternoon, as it will be very different from the debate we would have had five years ago, when more Members would have argued that we should be able to retain the use of cluster munitions for the protection of our military personnel. I am very grateful to the Ministry of Defence for moving forward so swiftly in changing the way in which it operates. I also hope that by putting these measures on the statute book and encouraging other countries to move forward to ratification, we will ensure that we have a fairer and more peaceful world.

1.35 pm

Mr. David Lidington (Aylesbury) (Con): We welcome the Bill, and it will have our support as it passes through the House. The Minister alluded to the hideous injuries that have been inflicted on large numbers of civilians in different parts of the world-usually in some of the poorest countries-by the use of cluster bombs. As the Minister knows, the problem arises from the fact that although these weapons are designed to explode on contact with an enemy vehicle or some other hard structure, there is a high rate of failure. The unexploded submunition lies on the ground and can then be triggered off when a person picks it up or comes into contact with it.

I take on board the Minister's comment that the MOD has been reflecting on its long-held previous position on their use and has now come to a different view. I hope he will understand, however, why I should like him to use some of his concluding remarks to offer a bit more information on the outcome of the Government's analysis that has now led them to take a different view
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on the military utility of cluster munitions from that they and previous Governments held when the issue has been previously debated. I am aware, for example, that distinguished retired military officers have said in speeches to the House of Lords that, having reflected very carefully on the issue, they are now convinced that these munitions are of little practical use to British forces as they go about their work on behalf of the country.

Chris Bryant: I do not think the issue is whether they might be of limited, or extensive, use; the issue is about disproportionate use.

Mr. Lidington: The Minister makes a fair point, but let me explain what I hope to hear more of when he winds up the debate. I want him to flesh out in a little more detail than we have hitherto heard how the Government have come to make their analysis on disproportionality and have reached the conclusion that the balance of the scales now lies very definitely in favour of an outright ban. While expressing a shared concern with the British Government about the humanitarian impact of cluster munitions, the United States has already publicly stated the following in a 2008 State Department statement of American policy:

It is important that the Government spell out with great clarity why they have come to a different conclusion from that reached by the Government of the United States in respect of the safety of their armed forces. As the Minister indicated by saying that the original stock held in this country was some 38 million cluster munitions, these weapons have been part of the armoury of the British armed forces for many years. Do the Government believe that a ban would in any way seriously impair the effectiveness of our armed forces, and will this ban-with all the humanitarian gains that it undoubtedly will bring-at the same time add to the risks posed to our soldiers as they carry out the orders given to them by the Government of the day?

My understanding is that the original purpose of cluster munitions was to provide the means for an effective counter-attack against a large mass of enemy vehicles. I can see why, in military terms, this made some sense in the context of cold war planning against a possible attack on western Europe from the Warsaw pact. Cluster munitions were available to us in more recent years and we chose not to use them-for example, during Operation Telic in Iraq. However, when my noble Friend Lord Attlee, who served as a reservist in Iraq, spoke on this matter in the House of Lords, he pointed out that we did not need to deploy cluster munitions there because we enjoyed absolute air superiority. I therefore seek some assurance from the Minister regarding what would happen if British troops were asked on some future occasion to deploy in comparable circumstances, in which they might have to face a conflict with an enemy controlling large numbers of vehicles and might not have the air supremacy we enjoyed in Iraq. Is an alternative weapons system available or
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being developed that would give the Army the tools they would need in such circumstances, or do the Government conclude that the risk of that happening is simply too small for such planning to be necessary?

I turn briefly to financing, which the Minister commented on but not in much detail. He pointed out that the Government are taking action to comply with the convention by outlawing the direct financing of cluster munitions. Some signatory countries, although not all, are going further and introducing legislation to prohibit indirect financing, as well. My understanding from the background briefing is that one of the prime reasons why the Government have chosen not to go down that route is simply the complexity of trade and of financial instruments these days. Such complexity would make it very difficult not just for regulatory authorities but for companies themselves to be certain whether or not they are in some way involved in an industrial process that, at the end of the day, is concerned with the manufacture or supply of cluster munitions. However, I note that Switzerland, for example, which has a very sophisticated financial services sector, has decided to legislate on indirect financing. Can the Minister spell out in a bit more detail why this Government take a different view?

A number of my hon. Friends referred in interventions to interoperability and the position of British troops engaged in joint operations with allied countries that have not subscribed to the cluster munitions convention. Does the Bill provide sufficient protection for members of the British forces and for civilians, including contractors' staff, working under military discipline who are deployed on such joint operations? The Minister is right to say that a statutory defence is written into clause 9, but I hope he can assure the House that this has been thoroughly discussed with our senior military commanders, and that he can say in terms that the chiefs of staff are content that the clause provides all the necessary protection.

On stockpiles, the convention imposes an eight-year deadline for a state party to dispose of all stocks of cluster munitions, but the Bill makes no explicit provision for this. We have the Government's undertaking to the House, but there is nothing in the Bill. There is no clause to impose a duty on the Secretary of State to meet that eight-year deadline. Why not? The convention also, as I read it, requires state parties to destroy all stockpiles that lie within their jurisdiction. Do the Government interpret that duty as excluding or including stockpiles held on British soil by allied-in this case, we are pretty much talking about United States-armed forces? The Government say they have had an assurance from Washington that any stocks held on bases here will be withdrawn by 2013, I think the Minister said.

Chris Bryant indicated assent.

Mr. Lidington: That was a measure of reassurance, but clarity on the legal point would also be helpful.

My last point on stockpiles concerns clause 8, which provides a statutory defence for members of visiting forces who possess cluster munitions or move them in or out of the United Kingdom. However, as the Government's explanatory notes point out, no such defence is offered to a British citizen who assisted with the movement of cluster munitions out of the UK. Perhaps this point needs to be explored further in Committee, but does that in any way put at risk, for
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example, a civilian contractor working at a foreign military base? Given the litigious age we live in now, could this conceivably be extended to bring air traffic controllers within the remit of a potential criminal offence? We need to be satisfied on how the detail of the Bill will apply when we are talking about criminal offences and penalties.

I have three further points to make about particular clauses. On clause 2, which defines the scope of the criminal offences, my understanding is that such actions taken within the United Kingdom will be offences whoever is responsible for committing them, unless that person is covered by a statutory defence, but that things done outside the territory of the United Kingdom are offences only if they are carried out by British citizens or British companies. To my mind, on my reading of the Bill, that leaves open the question of foreign nationals living either temporarily or permanently in the United Kingdom, Commonwealth citizens in that position, and, for example, people living in Northern Ireland who are entitled to declare themselves as Irish, rather than British, citizens. It is not clear from the explanatory notes why this distinction has been made between a liability for offences committed within the UK, and a different liability for offences committed outside British soil. That strikes me as somewhat odd.

Clause 33(3) refers to the possibility of the Government extending the Bill's provisions to British overseas territories. Is that in fact the Government's intention, and if so, how quickly do they intend to act? Do Ministers foresee any problem arising in respect of overseas territories where a large part of the land might be made available to an allied power for use by their military facilities? Ascension Island and Diego Garcia are two obvious examples.

Finally, I note that clause 29 would give the Government an enabling power to modify not only this Bill once it is enacted, but any measure passed by one of the devolved Parliaments or Assemblies in order to take account of future changes to the convention that might take place. I could swallow that if we were talking about minor drafting changes to a convention-the sort of thing that in terms of domestic legislation might be represented by a consolidation Bill. I accept that if this convention is to be modified in the future, a huge amount of international negotiation will be required and a widespread international consensus will have to be reached before such amendments can be agreed. None the less, it is an important principle that Governments should not take for themselves excessive powers through primary legislation to modify other primary legislation simply by Orders in Council. Unless the Government provide a good justification for that, we may wish to return to it during later stages of the Bill's consideration.

Having made those detailed points, I wish to conclude by repeating the Opposition's support for the Bill and for the humanitarian objectives that lie behind it. We wish it well, and we will seek to debate it with a view to improving it further as it proceeds through the House.

1.51 pm

Mr. Martin Caton (Gower) (Lab): It gives me great pleasure to contribute to this debate on an important piece of legislation that enables us to play our part in
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delivering on the 2008 convention on cluster munitions and, as the United Nations Secretary-General has said, helps to demonstrate

That has already been referred to by my hon. Friend the Minister.

I have been very concerned for a number of years about the deaths of and injuries to innocent civilians during and after conflicts where cluster munitions have been used. I have tabled a number of parliamentary questions and early-day motions on the issue, and I became the Member in charge of Lord Dubs' Bill on this subject when it reached this place. The Government are to be congratulated on the leading role that they have played, especially in the final conference in the Oslo process, which was held in Dublin in May 2008. I agree with the Minister that the Prime Minister's personal efforts at that time have been acknowledged by all close observers of that process, but it was not always thus. The Minister said that if we had been having this debate some five years ago, it would have been a very different debate, but I should tell him that that would have been the case three years ago-I know that because I secured an Adjournment debate in this Chamber on 23 November 2006.

In that debate, I made the case for our Government to renounce the use of cluster munitions, destroy the stockpiles and take a lead in the international community in seeking a global ban-that is, in effect, what this Bill will help to achieve. I did so because of the danger to civilians that such weaponry presents. That danger first occurs at the time of attack when the weaponry is used in residential areas; the bomblets from the main bomb carpet-bomb an area about the size of three football pitches, tearing to bits everybody in that area, military or civilian. We know that the UK only ever used these weapons against military targets, but we also know that sometimes they have been used in densely populated residential areas, with the inevitable loss of life and injury to innocent children, women and men. Some other countries have used cluster munitions without discrimination and without concern for the humanitarian consequences.

As the Minister and others have said, the initial impact is not the worst aspect of cluster bomb use. Many of the bomblets do not work properly, they fail to explode on immediate impact and are left on the ground after hostilities have ended, to be trodden on by farmers returning to their fields, to be pulled up when families are clearing away rubble from their damaged houses, or even to be picked up as possible playthings by children, who are attracted by their shape and shine. Cluster munitions remain lethal.

I was supported in that Adjournment debate by my hon. Friends the Members for Sunderland, South (Mr. Mullin) and for Stroud (Mr. Drew), but in response the then Minister of State in the Ministry of Defence, my right hon. Friend the Member for East Kilbride, Strathaven and Lesmahagow (Mr. Ingram), did not adopt the same positive and humanitarian approach in 2006 as my hon. Friend the Minister for Europe has done in opening today's debate.

Indeed, the line that the then Minister of State came up with closely reflected what the hon. Member for
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Aylesbury (Mr. Lidington) says is the current American position. The then Minister of State described the UK's cluster munitions as

He went on to say:

To be fair, by the time of that debate Government policy had moved on from its previous blanket defence of the use of all cluster munitions in our arsenal to a differentiation between dumb cluster munitions and smart cluster munitions. The former would be phased out because they had no self-destruct mechanism if they failed to explode on impact or had no target-discriminatory capability. It was argued that the smart munitions had those things and, thus, did not present the same level of danger to civilians. The then Minister of State said that

How things have moved on in less than three years. I congratulate Ministers on being prepared to reconsider their position in the light of evidence.

It was not just the view on cluster weapons themselves that changed over the following few months; the UK position on what was the best way of dealing with the humanitarian debate about the future of cluster munitions also altered. By the time of my debate, Norway had said that it intended to lead an initiative outside the UN review arrangement for conventional weapons. Canada had taken the same approach in securing the land mine treaty 10 years before, using the so-called Ottawa process. In my Adjournment debate, I had urged the Government to join actively in the new Oslo process. The then Minister said that the UN review conference was the approach most likely to achieve "real humanitarian benefits". Thankfully, that view was changed within weeks or months of that debate, and the UK became increasingly engaged in the Oslo process and came to play an increasingly important and beneficial role in it.

As interested observers noted at the time, the change of heart seemed to come out of a robust debate within Government, with the Department for International Development championing a ban, the Ministry of Defence wanting to hang on to so-called smart munitions and the Foreign Office eventually coming down on the side of radical action. When the Minister winds up, he might like to enlighten the House on exactly what happened in those robust discussions.

Chris Bryant: He might not.

Mr. Caton: I suspected as much.

What I believe happened was that the Government came to realise two things. The first was that the failure rate of so-called smart munitions was still very poor, leaving war zones littered with the equivalent of hundreds of thousands of small land mines. In an answer to a written question after my debate, I was advised that the
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failure rate was 6.5 per cent. even for those cluster munitions. Given that each cluster bomb carries about 145 submunitions, we are talking about nine or 10 of those bomblets remaining lethal. The numbers in which cluster munitions are used mean that we are talking about hundreds of thousands of deadly pieces of ordnance.

That clarity of vision and willingness to act is cause for celebration, as is the recognition that there was a head of steam in the Oslo process that could deliver an international agreement that would constitute a major advance on the global disarmament agenda. The speed of progress on this issue across the world since the start of the Oslo process has been remarkable. As the Minister has said, the convention will come into force on 1 August because on 16 February it reached the 30 ratifications needed as a trigger, and that is another cause for celebration.

When we rightly pay tribute to those who have helped to achieve the rapid advances of the past couple of years, we must recognise that the case against cluster munitions is far from a new one. As the Minister said, cluster bombs have been around since the second world war, but they raised serious concerns when they were used extensively by the US during the Vietnam war; villages were carpet-bombed with cluster munitions, some of which were designed deliberately not to explode on impact, so that they created land mine zones on the cheap.

Revulsion at the consequences of the use of such weaponry led in the early 1970s to calls for an international ban. In 1974, Algeria, Austria, Egypt, Lebanon-that seems painfully ironic when one recalls its people's recent experience of cluster munitions-Mali, Mauritania, Mexico, Norway, Sudan, Sweden, Switzerland, Venezuela and Yugoslavia jointly put forward a document that included a section headed "Anti-personnel fragmentation weapons". It said:

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