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(b) it relates to a particular business or other activity carried on by any person."
There are qualifications about disclosure and the exceptions to that disclosure; again, there is an issue about the seriousness of the offence in question; and there is also the context of the uncertainty that, I believe, the Bill itself creates.
I understand the objectives and, like my right hon. Friend the Member for Wokingham (Mr. Redwood), I happen to support the Bill. It has good intentions, but the Minister is making a discovery or, at any rate, will do so, because he has been rather impervious to the arguments this afternoon. I understand why: he has nowhere to go and is in a cul-de-sac. I simply make the point that although he puts forward a series of assertions that, "The Opposition are wrong and, in particular, the hon. Member for Stone is wrong," it does not alter the fact that he cannot answer the questions and there is no time in which to do so. I understand the dilemma and the problem, but we will simply watch the clock tick and see whether in due course some of those issues arise.
The Minister has had to make an acknowledgement in the course of these proceedings. He started out by suggesting that any opposition was all nonsense and nothing that anyone would say would make any substantial difference, but the Liberal Democrats, my Front Benchers, my right hon. Friend the Member for Wokingham, the hon. Member for Stroud (Mr. Drew) and I have all been raising issues, not just to be difficult, but because there is uncertainty.
The uncertainty is inherent in the mismatch between the convention; the European Union; British domestic law; the whole question of the interaction of criminal activities, international operations, alliances, and command and control; and the fact that the people who will get caught up in this are those whom we least want to get caught up-in particular, soldiers on the ground. This is not just about some kind of theoretical exercise, and it is not even about land mines: it is about cluster munitions, which are part and parcel of tactical weaponry that has been used and that some countries intend to continue using. When British soldiers, who should be our main concern, are given orders, or when such information is made available, they will get caught up in this complex web of legal conduct.
Is the Minister able to tell us that very clear guidance will be given, in a manual, for the services-not only the Army but the Navy and the Air Force? However persistent and tenacious I may be on this subject, my prime
concern is to protect the British soldier, and the Minister has an obligation to tell us that there will be a manual that accurately describes the relative responsibilities and duties in the very complex web of military operations that will arise from this legislation.
Chris Bryant: The hon. Gentleman must have slipped out of the Chamber when I answered a similar question from the right hon. Member for Wokingham (Mr. Redwood) about what guidance will be provided for our personnel. The hon. Gentleman is absolutely right that it is imperative that we produce unambiguous, clear, straightforward guidance for our personnel so that they know how to avoid moral and legal peril. That is also why we have tried to construct the legislation in a way that ensures that our British personnel, although they may frequently be operating alongside personnel from countries that still retain cluster munitions, are not imperilled. He said that I was in a cul-de-sac, but I am afraid that in relation to clause 23, on the disclosure of information, he is in a cul-de-sac. He has not tabled any amendment, so I am not sure why-or whether, for that matter-he disagrees with the clause standing part of the Bill.
Mr. Cash: We are debating clause stand part. It was my intention, in line with the remarks of my hon. Friend the Member for Aylesbury (Mr. Lidington), to conduct these Committee proceedings, and indeed the Report stage to come, on the basis that we have supported the Bill and that we want it to work, but we expect the Minister to answer our questions, which is his responsibility in an accountable Parliament. We are not just probing; we are challenging, but it is not necessary to table an amendment to achieve that objective. The Minister may be slightly out of order in suggesting that I should have tabled an amendment on clause stand part.
Chris Bryant: I would not dare suggest that the hon. Gentleman table an amendment, or do anything in particular. My point was that I find it difficult to know precisely the nature of his question about disclosure of information. We believe that it is important, in line with the provisions of the convention, to protect information that may be gathered in the process of implementing the Bill and the convention, and that is why the clause is in the Bill. I did not understand from his remarks that he was opposed to that provision, which we believe to be important.
Mr. Drew: I shall try to be helpful so that I am not chided for missing something. If I understood correctly what the hon. Member for Stone (Mr. Cash) said, I certainly concur with it. He was saying that British forces must have very clear rules of engagement, which must be understood by any allied force with which we are involved. They must preclude the use of cluster munitions, even if that other allied force is willing to use them. Otherwise, British service people could be subject to the will of the Bill.
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Chris Bryant:
I am afraid that that has nothing to do with clause 23, which is about the disclosure of information. My hon. Friend is absolutely right to say-I have tried to make this point a couple of times now, and I will take a third stab at it-that there have to be clear and unambiguous guidelines for British personnel. Those
guidelines have to be available not only to our personnel, so that they fully understand the position that they are in and what they can and cannot do, but to forces of other nationalities with whom we are operating.
As I said earlier-I think my hon. Friend missed it-it is right that we should ensure that where British personnel have exclusive control over what munitions are used, they do not seek the use of cluster munitions. However, it would not be right for British troops to refuse to use an American aeroplane in Afghanistan, for instance, because they knew that it had been or might be used for cluster munitions at some point. That is a clear distinction that is laid down in the convention and the Bill, although not in clause 23, which I hope will stand part of the Bill.
Clause 23 accordingly ordered to stand part of the Bill.
Question proposed, That the clause stand part of the Bill.
Mr. Cash: This is a very important clause, because when we bring all the arguments that we have addressed so far down to the crunch, the question is whether a prosecution would ever actually be pursued. Consent for any prosecution would have to be given by the Attorney-General in England and Wales or the Attorney-General for Northern Ireland, but I believe that only yesterday, there may have been a change to the latter post. There is apparently a new provision for an Advocate-General in Northern Ireland in relation to justice and policing. I may be wrong, but I took part in the debate yesterday and I believe that there is to be a change in the nomenclature for a person who carries out the functions specified in the clause. The hon. Member for Foyle (Mark Durkan), who knows far more about the Northern Ireland provisions than I do, might want to intervene and help me out.
Mark Durkan (Foyle) (SDLP): It is not often that I am called in aid by the hon. Gentleman, so there is a blue moon this evening. Under devolution, there will be a devolved Attorney-General for Northern Ireland, but the Attorney-General in London will for certain purposes serve in the role of Advocate-General for Northern Ireland. The Advocate-General for Northern Ireland will be the Attorney-General here in London and will deal with such matters as national security. The Attorney-General for Northern Ireland will deal in the main with matters under devolved law.
Mr. Cash: I am extremely glad that the hon. Gentleman is here, by an accident of fate, because that has helped me, and I believe the Committee, to understand the matter. I suspect that we may still require an amendment. I am not sure about that, but no doubt the Minister will look to those advising him to decide whether that is the case. I see a lot of shaking of heads, and I will be delighted if this minor matter of nomenclature alone does not lead to the Bill's being held up unnecessarily.
That is not to say that the question of consent is not important. I would be interested to know what discussions
the Minister has had with the Attorney-General, because this provision is not a cul-de-sac but a longstop. Given what we regard as the uncertainties in the law that we have discussed this afternoon, he must have discussed with the Attorney-General in what circumstances the latter's consent would be required, so as to ensure that proceedings on an offence could be halted where necessary.
What are those circumstances? Do they relate to the complications that we discussed in the debate on clause 9 and the intricate web of conventions, EU law, English domestic law, the role of the Attorney-General, and the changes to that role made by the Constitutional Reform and Governance Bill, which is currently in the House of Lords? Those issues are extremely important to the soldiers on the ground and their commanders. Indeed, they are important for the rules, guidance and manuals that the Minister kindly told us he has addressed. Those matters are important, but right at the heart of them is this question: what indications has the Minister had from the Attorney-General as to when she will or will not give consent?
Chris Bryant: We could have left out clause 24, which would have meant that the Attorney-General had no role to play. However, there are several reasons why we decided that it was important to include such a measure, the first and foremost of which is the severity of the penalty, which, as has been cited, is up to 14 years' imprisonment. Secondly, there is an extra-territorial element to the Bill, which means that a much more complicated set of decisions must be made before a prosecution can go ahead. Thirdly, in legislation such as the Landmines Act 1998, we have included a similar provision to require the Attorney-General's consent.
I am not particularly troubled about the Northern Ireland-UK dimension, because the prosecution of someone in Northern Ireland could in any case be started in England and Wales. I therefore do not think that any further amendments are necessary.
Mr. Cash: I am very glad in one sense to hear what the Minister has just said. On whether consent for prosecution would be given, he has admitted that there are serious questions in the context of the complexity of the Bill-he earlier implied that I was making too much of a meal of that. The consent of the Attorney-General would be required in the circumstances that I described and, as the Minister said, the offence is very serious, with 14 years on the line, so who is and is not guilty and the question of their intent-mens rea-must be defined.
There are other very important questions, including whether there are accessories, aiders and abetters, and whether a particular commander, foot soldier or other was involved. The severity of the criminal offences might in almost every case be aimed at members of our service personnel, so those questions are important.
I would assert that our job in this Committee is to try to protect those who might otherwise be unfairly or unreasonably caught by the provisions because of what the Attorney-General decides.
Mr. Cash: I give way to the hon. Gentleman.
Chris Bryant: I thought that it was still my speech and that the hon. Gentleman was intervening; I gave way to him, so he cannot give way to my hon. Friend the Member for Foyle (Mark Durkan).
Mr. Cash: On a point of order, Mrs. Heal. I apologise to the Minister, because I thought that he had finished his speech. The Annunciator might not say that he has done so, but that does not mean that that is right.
The First Deputy Chairman of Ways and Means (Sylvia Heal): Order. I thought that the Minister was intervening on the hon. Member for Stone (Mr. Cash).
Chris Bryant: I hope that you meant that the other way round, Mrs. Heal, but anyway, now that we have cleared that up, the hon. Member for Stone (Mr. Cash) is absolutely right to say that the issues are complex. I have never wanted to question the fact that the application of the measures and their inter-operability is complex, which is why I have had discussions with the Attorney-General. We would want to prosecute wherever we can.
I should just say that the hon. Member for Stone made one inadvertent mistake. He said that using a cluster munition and aiding and abetting are two different offences, but they are actually the same under clause 2.
Mark Durkan: I thank the Minister for giving way; he is very generous-and creative.
Other hon. Members have referred to the possible impact of the measures on members of the armed forces. Of course, businesses and firms that conduct activity that is questionable under both the convention and the Bill will also be affected. The Minister stated that he had discussed that with the Attorney-General and that the Government were determined that prosecutions would take place where possible. Does the issue of public interest arise? Is there a possibility that prosecutions of firms under the Bill will be stayed because the Prime Minister or someone else intervenes owing to so-called public interest considerations, as in the case of the Serious Fraud Office investigation of BAE Systems?
Chris Bryant: The Attorney-General's role is different from that of a politician. A politician might come up with all sorts of arguments for what they want, but the Attorney-General will decide on the basis of law whether she wants to proceed with an individual prosecution. I do not think that my hon. Friend expects me to state on her behalf when she will and will not give her consent.
As I said, we take our commitments under the convention extremely seriously, and we want to ensure that cluster munitions become a thing of the past. That means that investigations into companies that are thought to be flouting the law could begin-if so, we would expect full compliance as quickly as possible. I very much hope that clause 24 will stand part of the Bill.
Clause 24 accordingly ordered to stand part of the Bill.
Clauses 25 to 28 ordered to stand part of the Bill.
Question proposed, That the clause stand part of the Bill.
Mr. Lidington:
I want to ask the Minister why he believes that the pretty draconian enabling powers in the clause are necessary. The clause gives the Secretary
of State power, by means of a statutory instrument subject to the affirmative procedure, to amend not just the Bill, once it becomes an Act, but any other enactment, past or future, and any Act of the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly, if he considers it necessary or desirable to do so because of amendments to the convention on cluster munitions.
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The kernel of my challenge to the Minister is this: why does he need the powers, given that the Bill is proceeding with cross-party support? One assumes that any later amendment to the cluster munitions convention would also have pretty broad-based support, both in the House and internationally. In those circumstances, why can we not simply rely on full parliamentary procedures? That would allow proper time for scrutiny, for detailed inspection of the Government's legislation, and for the meaning of the proposed change to be elucidated in full.
The Minister and I both know that often, statutory instruments are passed with no debate at all. In the House of Commons, at best we are talking about a 90-minute debate upstairs in a Committee Room, with a select group of Members of Parliament, as opposed to the whole House being given the opportunity to comment on new legislation proposed by the Government. Why is there need for such an enabling power? Surely primary legislation is a perfectly adequate vehicle.
Mr. Cash: Obviously, I agree with what my hon. Friend has said, but I would simply add a point. He refers to a Committee upstairs, but having sat on the Select Committee on Statutory Instruments, I know exactly what happens; it is really a kind of dose of salts. I do not want to be disrespectful to the Committee, but when I was on it, I was concerned at the fact that a lot of statutory instruments went through rather easily. We are talking about a statutory instrument that would involve the modification of the Bill. That statutory instrument would be subject to the affirmative procedure, but that in itself is no safeguard.
My hon. Friend is right. If the Bill were modified, there would be issues in the light of the complexities that the Minister now accepts are inherent in the Bill, the interaction of alliances, conventions, different jurisdictions, kinds of law and judicial attitudes, and the whole question of responsibility for control and command. There are also questions that go outside the normal courts; for example, we have not mentioned courts martial at all, but that issue could arise in the context of the matters that we are discussing. I wonder whether the Attorney-General might not be in some difficulty in that respect.
We are talking about serious questions and offences with substantial penalties. Subsection (1) says:
"The Secretary of State may by order...make such modifications"-
this is the crucial set of words-
"as the Secretary of State considers necessary or desirable to give effect to any amendment of the Convention made in pursuance of the...Convention."
As for the words "considers necessary or desirable", we have been through that issue before. Anyone who has had experience of this House over a period of time,
and any lawyer, knows that the phrase is extremely wide and virtually unchallengeable. The phrase used to be "in the opinion of"; now, it is "considers necessary or desirable", which is very wide.
"An order under subsection (1) may also make... modifications of any other enactment (whenever passed or made)",
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