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Mr. Cash:
I am grateful to the Minister. In fact, the EU dimension that I have mentioned, which causes some hilarity with him, is a serious one. He knows that. A priority for EU member states that have signed or ratified the convention will be to persuade other EU members to sign it -he has indicated as much himself, and he said that he thinks that they will do so. Finland, Poland, Romania, Estonia, Latvia, Slovakia and Greece are yet to sign. Some of them might have signed since the information that I have in front of me was produced-I do not know, but perhaps the Minister could elucidate. Poland, as he rightly says, has explicitly indicated that it does not intend to sign, but Finland, Estonia and Slovakia were among the countries that adopted the
convention in May 2008. There are some hopes that they will sign-I do not need to go into the distinction between signing and ratification with the Minister, but he knows that it can be a serious obstacle.
Chris Bryant: Absolutely. We hope that all countries will sign and ratify the convention and that they will take their obligations seriously. We certainly take seriously our obligations to try to persuade all other countries to move towards ratification. Key among those countries are those with which we work most closely in military operations-not least the United States of America, but also European Union countries such as Poland. I would refer to two other countries as key: Turkey and Brazil.
Chris Bryant: The hon. Gentleman mentions Georgia and it-and Russia, for that matter-is likewise key.
The reason for having this clause is that we would imperil our British armed forces in most of the operations in which they engage if it was not included in the Bill.
Mr. Redwood: I am very keen that we do not imperil and put at legal risk our forces when they are doing their duty. I favour the purpose, but I think that we need to know a little more about the extent to which the protection of armed service personnel will get in the way of the noble intention, which is to get rid of this type of munition in our activities. Under this law, does the Minister envisage that British forces will be instructed not to handle these munitions in any combined operation and to leave it to their allies if they are going to use them, or will they be allowed under our instructions to handle these munitions when one of our allies has decided to use them?
Chris Bryant: That is a fair point, but the word "handle" could stretch its meaning in many different ways. That is why we want to ensure that there is legal certainty for our armed forces. The convention and the Bill would not allow British armed forces to use cluster munitions, despite the fact that they were in a coalition. They would not be allowed to request the use of munitions where the choice of munitions was within their exclusive control.
We do not expect that the British armed forces would suddenly say, "I'm sorry, we are not going to allow that aeroplane to land on this airstrip because we know that it is an American aeroplane that has used or might be going to use cluster munitions or that has them on it." The point is about where we have exclusive control, and that is key, but, in addition, the very fact that we have said that we will ratify the convention and the fact that the United States of America has decided to review its cluster munitions means that there will be no American cluster munitions in the UK.
Mr. Cash: Is the Minister aware of any of the problems relating to cluster munitions arising in a far more imminent field of operations that we are continually concerned about-in Afghanistan? Much of what goes on there is affected by what happened when the Russians were there. Will the Bill apply in relation to the safety of our forces, the line of command and our relationships with other nations within NATO as well as with the United States?
Chris Bryant: It will indeed. That is a further reason why we think it important to provide the legal certainty that is enshrined in this clause. For that reason, I strongly hope that the House will support the retention of this clause in the Bill.
Mr. Redwood: We have not had a very full explanation from the Minister. Of course my colleagues and I share his wish that our forces should not be placed in impossible positions in combined operations and that they should have the legal protection they deserve. They are fighting soldiers in those situations and are not expected to be lawyers, so we need to ensure that they are legally protected.
The Committee is also owed a fuller explanation of how much of a limitation there will be, because we are doing this with some allies but not with others. Anyone studying this area will come to the conclusion that the prohibition on these nasty munitions will work only if all the main countries of the world do the same; it cannot work if a limited number do not play along.
Mr. Cash: I do not know whether my right hon. Friend has noticed this, but clause 34(1) states:
"This Act comes into force on the day on which it is passed."
For practical purposes, from the moment the Bill goes through, which will presumably be today, our forces in Afghanistan will be affected by its implications, let alone by any other considerations that we have already discussed, looking more to the future.
Mr. Redwood: Indeed. I hope there will be proper guidance and briefings for all our military personnel who might become involved in combined operations with allies. This area will clearly be complex. As the Minister has begun to hint to us, there is a whole gradation of things that could happen. I am glad he says that we will not say to our allies, "You've got cluster munitions, and we think we should use them in this particular circumstance," as it would clearly be against the spirit and intention of the legislation for our armed forces to do that. However, there is a whole series of other situations in which our armed forces could act against the spirit of the legislation because of combined operation. Those in junior command positions could be instructed by senior commanders from allied forces that they need to operate those types of munition. As the Minister has said, our forces could have to facilitate the transport of offensive weaponry, which could include a cluster munition package, or they could be on a battlefield on which our allies are using those weapons but our section is not.
Of course, I am very much in favour of the intent of the legislation, but we have to be realistic. We must understand that if we are doing this in a set of complex alliances in which not everyone is agreement, we owe it to our forces not only to give them legal protection-I hope that the measure gives watertight and good protection-but to set out how they should operate day by day where we do not have complete agreement with our allies about getting rid of those weapons.
Mr. Davey:
The points that the right hon. Gentleman has made are right. We need to ensure that our forces have clear guidance and are protected in case allies on the same operations use such weapons. There is no way that we should have any situation in which our armed forces could be prosecuted because allied commanders have decided to use those weapons. However, another
way of looking at this is that, as Britain is signing up to the convention and because we work with so many allies, we might be able to spread good practice and persuade others to come into line with us and eventually sign the convention. One of the many advantages of working with NATO and our European partners is that we can try to encourage them. My understanding of the convention that lies behind the Bill, and which we have signed, is that we now have a duty as a country to promote the convention and encourage others-states and non-states-to sign it. Although the interoperability point raises concerns for our servicemen and women, it is also an opportunity to try to get the convention taken up more widely.
Chris Bryant: The truth is that we would not have the convention if it had not included the interoperability provision. It was a key part of the brokerage that the Prime Minister advanced in Dublin. All the voluntary organisations calling for a cluster munitions convention were delighted that we managed to achieve it, and have, therefore, been supportive of the interoperability clause. As article 21(2) states:
"Each State Party shall notify the governments of all States not party to this Convention...and shall promote the norms it establishes."
In other words, states parties have to make sure that any other states with which they are working understand the basis on which their personnel will be engaged. Yes, the right hon. Member for Wokingham (Mr. Redwood) is completely right to say that we have to make sure there is clear guidance for personnel, so they know exactly what they can and cannot do. That is already in hand. Consequently, Sir Alan, I very much hope that the clause will stand part.
Clause 9 accordingly ordered to stand part of the Bill.
Clauses 10 to 15 ordered to stand part of the Bill.
Question proposed, That the clause stand part of the Bill.
Mr. Redwood: We are rushing through these clauses, so it would be helpful if the Minister explained why so many of them relate to premises in the United Kingdom and what the position would be if the weapons were overseas. We have already discussed-briefly-the fact that many of the cases that might arise under the legislation could do so as a result of events that take place outside our country, but relate to British nationals. What powers, if any, are there to establish the nature of the crime if it takes place outside the UK?
Chris Bryant: We do not seek to introduce new powers in British legislation for us to have access to buildings and properties in other parts of the world. Other countries would probably declare our power to do so rather ultra vires.
Clause 16 accordingly ordered to stand part of the Bill.
Clauses 17 to 20 ordered to stand part of the Bill.
Question proposed, That the clause stand part of the Bill.
Mr. Redwood: I come back to the point that we have just briefly debated, because it is also relevant to this clause. The Minister said, understandably, that he cannot assert jurisdiction abroad, but could he tell us what arrangements he intends to put in place, should the legislation pass, for collaboration with overseas jurisdictions? It is much more likely that an offence under the Bill will take place outside the United Kingdom than inside. How would the evidence be garnered and the case presented, given, understandably, that none of the powers relating to the UK can relate to a possible offence in an overseas jurisdiction?
Mr. Cash: The issues that we have already discussed have been covered as adequately as we can, given the constraints of time and opportunity. We put the arguments on the record. It is the Minister's responsibility to make sure that there is no uncertainty and that we have answers to the questions that we pose.
5.30 pm
Chris Bryant: I am not sure what charge, allegation or accusation was implicit in the comments of the extremely charming, assertive, aggressive, but usually wrong hon. Member for Stone (Mr. Cash).
The right hon. Member for Wokingham (Mr. Redwood) is right to say that we need to make sure that it is possible to investigate. Of necessity, in other jurisdictions in times of war, that will be a complicated process because there will be many different actors involved-that is to say, many different countries will potentially be involved, some of which will be states parties and some of which will not. That is why, when the convention was being drawn up, we were keen to make sure that the requirement was included-that it was not just a matter of an individual country signing up, but that it had to commit itself to trying to make sure that the rest of the world abandoned cluster munitions as well.
It is obviously difficult for us to advance that argument in jurisdictions which have not ratified the treaty, have no intention of doing so and are determined to use cluster munitions indefinitely. The right hon. Gentleman referred to the situation overseas. We have jurisdiction over some overseas territories, which we may debate later. There we are keen to advance, in the same way as in the United Kingdom, but subject to the constitutional arrangement that we have with each of the overseas territories.
In this context, I do not think there is a genuine peril. It is difficult for us to announce legislation that has effect in Afghanistan, except in so far as it affects British nationals.
Mr. Redwood: Let us consider a country such as Afghanistan. Let us suppose that British troops broke our law and initiated the use of these weapons contrary to what the Minister, the law and their commanding officer said. Would that be a matter for military discipline or would those troops face a civilian trial at home? Who would collect the evidence? The most natural people to do it would be their commanding officers.
Chris Bryant: Those troops would have committed a criminal offence, subject to up to 14 years' imprisonment and/or a fine, as was mentioned earlier. It would be the police who investigated, and the usual HMRC procedures would be used to bring a prosecution, if that were possible.
Mr. Cash: When we are dealing with questions of evidence, we have to admit that there is not only the question of the arrest warrant, which I have already mentioned, but the evidence warrant directive. That has raised many problems. I have served on the European Scrutiny Committee now for 26 years. Over that time I have seen many problems which, when they were first identified, were considered fantasy for the future, but which have come true. Does the Minister accept that there are serious problems with the clause? The question of evidence and the power to search in relation to these matters, with the legal uncertainty that we have established in Committee, are aspects that he will have to examine carefully.
Chris Bryant: Twenty-six years is considerably longer than the hon. Gentleman would get for using cluster munitions. He should feel that at some point he might be released by the Whips from his obligations on the European Scrutiny Committee, but I have a sneaking fear that he likes serving on the Committee.
As I said earlier to the right hon. Member for Wokingham, it is difficult for us to legislate for the British police to have specific powers in specific countries around the world. However, when a country is also a signatory, co-operation will obviously be more straightforward and simple.
Mr. Drew: On that point, will my hon. Friend give way?
Chris Bryant: Of course. Another cellmate.
Mr. Drew: The hon. Member for Stone (Mr. Cash) and I make interesting cellmates.
I understand what the Minister is saying on that issue, but what happens when British forces are involved in action with a non-signatory country that decides to use cluster munitions? That situation is not impossible to envisage, and if it is likely to happen what protection will British forces have?
Chris Bryant: My hon. Friend is a splendid chap, but I think he missed the debate on clause 9, which we have already decided will stand part of the Bill, and which lays all that out pretty clearly. He is absolutely right to highlight the issue, but I am afraid that he has missed that particular part of this boat.
Without further ado, I hope that clause 21 will stand part of the Bill.
Clause 21 accordingly ordered to stand part of the Bill.
Clause 22 ordered to stand part of the Bill.
Question proposed, That the clause stand part of the Bill.
Mr. Cash:
Just by looking at the clause, I note that its origins and inherent problems clearly involve questions of terrorism, because it deals with section 18 of the Anti-terrorism, Crime and Security Act 2001, which
applies to matters that are dealt with under the Bill. Subsection (2) also deals with section 17 of the 2001 Act, and there are very big problems. The Minister will understand what I am saying, because many issues that arise in relation to cluster munitions in Afghanistan, for example, are affected by activities on the boundary between Pakistan and Afghanistan. Furthermore, it so happens that there are Afghanistan matters relating to fundamentalists, who also have operations that could and, as far as the intelligence services are concerned, certainly will have implications for the United Kingdom.
There is a question that we need to bear in mind, therefore, but I shall not go any further than this at the moment. The clause states:
"(1) This section applies to information if-
(a) it was obtained under, or in connection with anything done under, this Act or the Convention, and
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