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"as the Secretary of State considers necessary or desirable"-
there are those words again. That is worse than a Henry VIII provision; it is carte blanche. I would not particularly have wanted such a provision to have applied even in Henry VIII's reign; it might have been applied not merely to his wives, but anyone else in the entourage, because the provision catches everybody. Henry VIII would have had a field day with it.
Despite the fact that the statutory instrument is subject to the affirmative procedure-here I look to the hon. Member for Foyle (Mark Durkan), with whom I seem to have been having quite a dialogue over the past few days, both in the Chamber and outside it-"enactment" is specifically defined, and not by reference to the interpretation Act. For the purposes of the provision,
"In this section...'enactment' means...
(a) an Act of Parliament,
(b) an Act of the Scottish Parliament,
(c) a Measure or Act of the National Assembly for Wales, or
(d) Northern Ireland legislation".
In terms of the powers conferred,
"a 'modification' includes an addition, repeal or revocation."
I invite the hon. Gentleman to consider that, because as a distinguished member of the Northern Ireland legislature, he will know-as will others who discussed Northern Irish questions relating to justice, criminal law and policing yesterday-that however familiar people have got with totally undesirable legislation that legislates in order to legislate further, and to undo legislation, both retrospectively and in the future, that that is a very bad way to go about handing out sentences, with or without the consent of the Attorney-General, to our soldiers on the ground.
We are talking about a very severe penalty of 14 years. It would be different if we were talking about a minor piece of legislation. I do not know what went on in other parts of the precincts of Parliament and in the other House, but the consideration that we are giving to the Bill today, at rather short notice and on a fairly tight programme, ought to reflect the seriousness of the offence that is being imposed. As the hon. Member for Foyle rightly indicated, those affected could be bodies corporate, businesses or partnerships. I have insisted on the point about the effect on the soldiers fighting in Afghanistan, or on duty in Bosnia, where there are a lot of cluster munitions.
There are the problems of the exceptions that arise by virtue of the fact that a fairly substantial number of people have not signed up to the convention. We also have difficulties in relation to our allies, some of whom would not even supply us with ammunition during the Iraq war. I do not regard them as being much use. That is a serious matter. In addition, there are a significant number of people who are supposed to be engaged in Afghanistan with us. We have soldiers dying daily in Sangin and Helmand, and other countries are simply not taking an active part; that is a serious problem.
The cluster munitions provisions affect our operations on the ground in Afghanistan. In all fairness, I know that the Minister recognises that. He also knows that there are serious penalties in the Bill. The powers in the clause to modify the Act in such an extremely wide manner, over a very wide and complicated landscape, are completely unwarranted. I am sure that the Whip on duty will listen to this-oh, there is no Whip here. I am not a Whip, or in the slightest degree interested in being a Whip, but I would have thought that we ought to vote against the provision, because it goes too wide on too serious a matter-a matter that has a serious implication for our armed services.
Mark Durkan: The hon. Gentleman raised concerns about the clause, and touched on possible implications for devolved interests, and specifically Northern Ireland, which is the area of concern to me.
I hope that the Minister, when he replies, can offer some assurance on a number of matters. First, I want to stress that those of us who strongly support the Bill want to see within it provision to ensure that, as the convention changes, modifications can be made to the Bill. Clearly, this is a significant convention; it is the most significant disarmament treaty for a decade-hopefully, not the most significant for the decade to come, but it might be. However, if it is changed, and if it grows, obviously we want legislation here to be able to track and reflect that. So providing some instrument for ready and reliable modification is a matter of sensible and good intent on the part of the Government.
To that extent, and if that is the motivation behind the clause, I am comfortable with it. However, concerns arise about how the clause is then used. As the hon. Member for Stone (Mr. Cash) said, it is premised on what the Secretary of State "considers necessary or desirable" to give effect to any amendment made to the convention. In the first instance, two questions arise: first, the clause gives the Secretary of State the power so to modify the Bill. We know that there have been changes to various other international conventions that many hon. Members have lobbied to have reflected in law here, only to find that the Government, for whatever reason, have been dilatory in doing so or have decided that they do not think it necessary or desirable to reflect changes to conventions enacted elsewhere in the law here. So, if the Secretary of State chooses not to make such a modification, is it possible in any other way for House to make such modifications?
Secondly, what happens if the Secretary of State uses a change in the convention not just to introduce a change to the Act that everyone else agrees is necessary and sensible, but to bring forward other changes that many people might not agree are necessary and uses the provision as a cover for various other modifications that would be equivalent to a derogation from the convention?
Mr. Cash: The hon. Gentleman is right, of course, because although subsection (1) is definitely tied to
"any amendment of the Convention made in pursuance of the...Convention",
"as the Secretary of State considers necessary or desirable in consequence of the modifications of this Act made by that order."
So it is in consequence of the modification; it is not so tightly tied to the convention. Does he not also agree that, given the points that he is validly making, and which, I believe, I am validly making, it would not be a bad idea, as a matter of law, to require the Attorney-General to give her advice on whether a modification was necessary, given the complexities?
Mark Durkan: I thank the hon. Gentleman for that relevant observation, although I am not sure that we can await the consideration of the Attorney-General, given the exigencies of the situation today. However, I would like the Minister to tell us just how wide the interpretative sweep available to the Secretary of State is. What he may consider necessary or desirable might either fall well short of what is actually required to match changes to the convention or exceed them in a number of ways. The Secretary of State may use the contrivance of changes in pursuance of changes to the convention to water down other aspects of the Bill.
The big problem is that although the House might feel it all very well to give the Secretary of State the power so to change legislation of this House, should he also have the power of fiat to change the legislation of other Assemblies and Parliaments in relation to any enactment? For instance, there is no reference to legislative consent motions or anything else. It might be that future changes to the convention put in place particular obligations and restrictions on what Governments do with, or for, companies that might, or might not, have been involved in contraventions of the ban on cluster munitions.
6.15 pm
Mr. Cash: It is slightly extraordinary that the Bill gives rise to so many complications, and, in many ways, I am rather concerned that we are having to spend so much time on it, but these are not trivial matters. For example, in the context of the Scotland Act 1998-effectively, the same is now the case in Northern Ireland, as of last night-the degree of devolution is such that serious questions will arise, in relation to offences, about whether the advice of the Attorney-General, or her equivalent in each country forming part of the United Kingdom, should be taken. In particular, the question arises about whether the clause should be amended so that the advice of whoever is the appropriate person is included in its terms to ensure that the consent of the Attorney-General, or whoever, is mirrored in the Secretary of State's use of those wide powers.
Mark Durkan:
Again, I thank the hon. Gentleman for those points. All I ask of the Minister-obviously he cannot accede to the advice of the hon. Member for Stone-is that he seek to offer us some assurance that the Government are sensitive to the concerns and considerations being voiced here and to reassure us by indicating that any modifications to devolved legislation would use the facility of a legislative consent motion, to ensure that they are not imposed without consent, particularly on a point of potential controversy. Will he also indicate that there will be clear concordats and protocols in relation to the interests of devolved Assemblies and their relevant Governments and Executives in terms of anything that the Secretary of State would propose to do under the powers given to him in the clause? The clause characterises a wide and sweeping power that has
no regard to anyone else's thoughts, interests or prerogatives other than what the Secretary of State considers necessary or desirable.
Chris Bryant: I confess that I am not a big fan of the clause. I do not generally like such clauses, and I think that it is better, when one can, to ensure that we proceed with primary legislation. However, in relation to a convention such as the one on cluster munitions, which contains express provisions for amendment, and when such a convention is not yet binding on the whole world and recognises, at its very core, that some countries will be states parties and others will not, it is important that we have some means of amendment.
It is always better, of course, to make amendments through primary legislation, but my difficulty is that we are taking through this Bill later than I would have liked. It is a shame that, although we were one of the front-runners in moving forward the debate on cluster munitions, we have ended up outside the first 30 countries to ratify the convention. That is because there will always be a pretty hefty parliamentary work load. The legislation has been ready for some time, but it has taken a while to find a slot in the parliamentary programme-and, who knows what will happen to programming after the general election? The difficulty is, I suggest, that if we insisted on primary legislation for any amendment to the convention, there would probably be a delay in getting it on to the statute book.
Mark Durkan: I assure the Minister that I was not looking for an insistence on primary legislation, and I accept the motivation behind the clause-the aim of ensuring that there can be ready and realisable amendment and modification when necessary. Our concern is about the purposes for which the clause might be used, given that it is so wide in its sweep.
Chris Bryant: I understand that, and I was not making such an allegation against my hon. Friend. One of the difficulties is that we cannot be precise about any amendment that might be necessary, as an amendment might not have been sparked by us within the convention. None the less, it might be an amendment that we wished to pursue or that we might be required by the convention to bring into our own legislation.
That is also why we were keen to ensure that these changes would happen under the affirmative resolution procedure. In that way, the House would be able to take a view on the matter. I subscribe to the view-which is shared by quite a lot of people-that we do not do statutory instruments very well. Many hon. Members are not particularly keen to sit on the Committees, and one sometimes feels as though one is there as just a piece of voting fodder. That is problematic in regard to the way in which we take legislation through, but it is not a matter that I can resolve during the passage of this Bill.
Mr. Cash: But I am sure that the Minister will appreciate my point that a very simple manuscript amendment could be tabled on Report if necessary and desirable-to use the language of the Bill. We in this House have the right to insist on being able to table such amendments at this time. Just as the Secretary of State will be able to decide what is necessary and desirable, so this House can make a decision about tabling amendments on Report using exactly the same criteria.
It would, however, be open to the Minister to agree-without making concessions or climbing down-that the complexity that has emerged in the course of the debate, and the effect on the individuals who will be subjected to it, could easily be remedied by combining in the clause a further provision. In subsection (1), after the words
"The Secretary of State may by order",
we could insert the words "with the advice of the Attorney-General", before the phrase
"made by statutory instrument".
In other words, we could include in the process the Attorney-General, whose consent would be required in relation to the provisions of the Bill itself. By including a reference to the Attorney-General in this clause, we would ensure that the complexity of the amendments that the Minister seems to accept will arise would be dealt with, because the Attorney-General would be part and parcel of the Secretary of State's consideration of the amendments and modifications. Does the Minister not agree that that is a reasonable proposition?
Chris Bryant: The hon. Gentleman is attempting to table an amendment orally, but unfortunately it has not been tabled- [ Interruption. ] Now he is asking me to table it, but I do not want the amendment that he has suggested. If he had really wanted us to debate it, he might have tabled it himself. Earlier, he was trying to take the Attorney-General out of the equation; now, he seems to want to put her in, but at a different point- [ Interruption. ] I understand, but I am afraid that I must-assertively and, I hope, charmingly-disagree with him on this point. [ Interruption. ] My hon. Friend the Member for Glasgow, South (Mr. Harris) has finally woken up-
Mr. Tom Harris (Glasgow, South) (Lab): No, I have just arrived.
Chris Bryant: He says that he has just arrived, but he has been here for some time. He has clearly given up on texting me, however-and, no, I am not going to karaoke this evening!
My hon. Friend the Member for Foyle (Mark Durkan) asked for some assurances on how we would proceed with this provision. Let me make it clear that, if there were to be substantial changes, I think that there should be primary legislation. If there were to be changes that directly affected any of the devolved Administrations, there should be proper consultation with them and a proper process should be undergone, rather than some kind of fiat coming down from the Secretary of State. With those assurances, I hope that we can agree that clause 29 should stand part of the Bill.
Clause 29 accordingly ordered to stand part of the Bill.
Clauses 30 and 31 ordered to stand part of the Bill.
Question proposed, That the clause stand part of the Bill.
Mr. Cash: The clause specifically states:
"This Act binds the Crown."
"No contravention by the Crown of a provision of this Act makes the Crown criminally liable."
The various other subsections include the provision:
"Nothing in this section affects Her Majesty in her private capacity."
The clause then deals with matters relating to the Crown Proceedings Act 1947.
This is rather like having one's cake and eating it, when dealing with cases involving military personnel. We have had a great deal of debate on these matters, and on whether soldiers, commanders or those involved in prosecutions should have certain defences available to them. We have explored the loophole argument, and discussed international operations. Here we are, however, discussing the application of the legislation to the Crown. The clause states, quite rightly, that the Crown is bound by the legislation, and that Her Majesty should not be affected by it in her private capacity, but it also states:
"No contravention by the Crown of a provision of this Act makes the Crown criminally liable."
I should like some elucidation from the Minister as to what he has in mind here; I have a suspicion that he does not know the answer.
Chris Bryant: The hon. Gentleman is very perspicacious. I might have to write to him about this. I do not think that he wants the clause not to stand part of the Bill, however, so I shall not be interfering with the proper scrutiny of the Bill by doing that. I will write to him to provide further elucidation.
Clause 32 accordingly ordered to stand part of the Bill.
Mr. Lidington: I beg to move amendment 4, page 21, line 29, leave out "may" and insert "shall".
The First Deputy Chairman: With this it will be convenient to discuss amendment 5, page 21, line 29, leave out "any of".
Mr. Lidington: Clause 33 covers the extent of the proposed Act. My amendments seek to strengthen the provisions which, as drafted, will allow the Government to extend by Order in Council the provisions of the legislation to cover the Channel Islands, the Isle of Man and the British overseas territories.
Amendment 4 would replace the provision that gives the Government the power to extend the coverage of the Act, should they choose to exercise it, with an insistence that the Secretary of State bring forward such a scheme to cover the British overseas territories, the Channel Islands and the Isle of Man. Amendment 5 would require such an extension to cover all those territories, which would prevent any Government from holding back and choosing not to apply the provisions of the convention to one or two particular territories.
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