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Mr. John Redwood (Wokingham) (Con):
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.
Chris Bryant: 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.
Chris Bryant: I am not giving way again. [Interruption.] I am sorry, but I am not going to give way.
Mr. Cash: The Minister is not answering the question.
Chris Bryant: 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.
Mr. Cash: 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?
Chris Bryant: 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.
Mr. Lidington: 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.
Mr. Redwood: 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?
Mr. Lidington: 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.
Mr. Cash:
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.
Mr. Lidington: 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.
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Chris Bryant: 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.
Mr. Lidington: 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.
Mr. Redwood: 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.
Mr. Lidington: 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.
Mr. Cash: 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?
Mr. Lidington:
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 .
Question proposed, That the clause stand part of the Bill
Mr. Redwood: 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?
Mr. Cash: 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.
Mr. Redwood: 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?
Mr. Cash: 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-
Chris Bryant: I have not spoken about this yet.
Mr. Cash: 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.
The Chairman: Order. I have heard of predictive text, but not of predictive speeches. I call Mr. Lidington.
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?
Chris Bryant: 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-
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Chris Bryant: 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.
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