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Lord Moynihan moved Amendment No. 3:
The noble Lord said: In moving Amendment No. 3, I wish to emphasise that it in no way attempts to impugn the Government's moral motivation in signing the convention, the spirit of which, as I have repeatedly said, we support whole-heartedly. However, in speaking to the amendment I am also speaking to the hole in the heart of this legislation. I hope that my amendment will give your Lordships' House the opportunity to debate this very important issue: namely, the relationship between Clause 5 and the Ottawa Convention about which disquiet has been expressed in many quarters, not least in this House.
The amendment tabled in my name and those of my noble friends refers Clause 5 to Article 19 of the Ottawa Convention. Article 19 serves to disallow reservations to the convention. It states explicitly that the articles of the convention shall not be subject to reservations. We have been told repeatedly that Clause 5 does not constitute a reservation. We have been told that there is no inconsistency between this Bill and the Ottawa Convention. The Foreign Secretary said so in another place. Last week in your Lordships' House the Minister repeated that assertion and once again maintained that
I have in front of me the two documents, one of which should be the mirror of the other. In the one hand I have the Ottawa Convention and in the other hand I have the Landmines Bill. The Ottawa Convention says categorically that no one from a signatory country, under any circumstances, anywhere at any stage, for any reason, can use, develop, produce, possess or transfer anti-personnel mines or assist, encourage or induce anyone else to do so. The convention is clear. It is explicit. It is unambiguous. That is what it says.
I also have with me the Landmines Bill which contains Clause 5. As we know, Clause 5 provides a defence to a Clause 2 offence relating to certain international military operations. In doing so, Clause 5 expressly allows conduct which is expressly denied through the convention. Can the Minister today identify and refer me to the article and paragraph within the convention which gives authority for the Clause 5 which we find in the Bill--for, in all the time that I have spent examining the convention, I have not been able to find one single mention of any exemptions, any exceptions or any exclusions permitted within its terms? Unless the Minister can do so, it means that this legislation drives a convoy of sappers straight through the convention.
Under the clause, in the context of international military operations, if such operations take place wholly or mainly outside the United Kingdom, if they involve the participation both of British Armed Forces and of members of the armed forces of a state other than the UK and if, in the course of those operations there is or may be the deployment of anti-personnel mines by members of the armed forces of one or more states which are not parties to the Ottawa Convention, British forces are then permitted to procure, transfer, modify, adapt or even prime those anti-personnel mines. In summary, they can do anything short of actually laying the mines--a relatively small prohibition, given the massive contravention of the spirit of the convention.
This is no abstract, hypothetical conjecturing. The other government with whose forces we are perhaps most likely to enter into joint operations is the Government of the United States, which is not a signatory to the Ottawa Convention. Leaving aside the purpose of Clause 5, I ask the Minister to confirm that the effect of Clause 5 is that British forces in these circumstances are given full licence by the legislation to breach the Ottawa Convention. Again I ask: where does this provision in the Bill match the provisions of the convention?
Let us compare the convention and Clause 5 a little more closely. The effect of Article 1.1 of the convention is absolutely explicit, unequivocal and indisputable. I put to the Minister Article 1.1 of the convention. I put also to the noble and learned Lord Article 19, which says that there should be no reservations. Taken together, Article 1.1 and Article 19 permit no assistance to be given to any party that is not a signatory to the convention when the forces of that country are taking part in activities that are prohibited by the convention.
According to Article 1.1, if British troops find themselves together in military operations abroad with troops of, say, the United States or Turkey (both fellow members of NATO, but neither of which have signed the convention) or, indeed, of any other country which is not a signatory to the convention, they are not permitted to assist those forces in the activities which are prohibited by the convention--that is to say, anything whatever to do with the laying of landmines. That is what the convention provides.
However, Clause 5 seeks to permit certain activities which would otherwise constitute an offence; in other words; it purports to permit activities which are contrary to the convention. The relevant provisions in Clause 5 bear that out. The germane part of the clause is subsection (2), which reads:
that is, any conduct that would otherwise be prohibited by this legislation--
So far, so good. But the subsection continues by providing that,
That is the only specific conduct prohibited by the clause.
So what is the net effect of subsection (2)? It means that a range of activities categorically prohibited under the Ottawa Convention is permitted under the terms of the Bill. It means that if British forces were engaged in joint operations with a non-signatory state such as the United States, Clause 5 would enable British servicemen to procure an anti-personnel mine, to transport it to the front line, to mark out the precise position where it was to be laid and to transfer it there before handing it over to the Americans and asking them to place it in the ground. British forces could then modify or adapt the landmine and could even prime it. That is what Clause 5 would permit. In such circumstances, none of those activities--procuring, transporting, transferring, modifying, adapting and priming--is prohibited by Clause 5(2). The only activity that Clause 5 expressly prohibits in the course of such joint operations is the actual laying of the anti-personnel landmine itself.
Can the Minister explain at this Committee stage why the terms of Clause 5 have been drafted so very widely and are contrary to the language and, indeed, the spirit of the convention? It is all very well to argue, as the Foreign Secretary has done, that the purpose of Clause 5 is not to prohibit activity but to permit activity. But that is the very point at issue. Clause 5 permits a wide range of activity--in fact, everything except laying a landmine--in direct contravention of the convention. Ministers in another place indicated that such activities would not be permitted according to rules of engagement. But if Ministers would never issue rules of engagement that would take advantage of the loopholes in Clause 5, why place those loopholes in the Bill in the first place?
Perhaps I may now dispose of a potential red herring. In another place--and, indeed, in your Lordships' House last week--we heard passionate and fervent justifications for the inclusion of Clause 5 on compelling military grounds. Powerful examples were given in that respect. The Minister of State for the Armed Forces in another place gave several such examples and the noble Baroness, Lady Symons, gave an equally compelling example last week, which she repeated today. It is important to place on record that I do not believe that anyone in your Lordships' House would disagree with the obligation to defend our allies in such circumstances. But the implication of the Minister's words was that such conduct would be prohibited by the Ottawa Convention and, hence, the provisions of Clause 5 are justified. However, this is the same convention that the Government signed in its entirety. I might add that they did so with much fanfare, except for the shocked and rather angry faces of certain MoD Ministers and officials. The necessity for such provisions is not reflected in it. I say to the Minister: surely they should have been; and why were they not at the time of the negotiation of the convention? The examples that we have been given demonstrate that British forces would indeed be at risk of committing a criminal offence only if their conduct was in breach of the convention.
During the passage of the Bill, criticism of Clause 5 has been portrayed as a willingness to allow British servicemen and women who risk their lives for us to risk also their liberty; and, indeed, as a readiness to threaten the cohesion and effectiveness of NATO. Perhaps I may make this very clear. From these Benches--and I hope this applies to every Bench in both Houses--we would in no way countenance the criminalisation of members of the British Armed Forces carrying out their duties on active service in those circumstances. If British servicemen and women were in some way indirectly implicated in the use of anti-personnel mines by the forces of a state which is not a party to the convention, no one is suggesting that they should potentially be at risk of prosecution and imprisonment for up to 14 years. No one is suggesting placing the men and women of our Armed Forces in that invidious position.
But this is not an issue of the military justification for Clause 5. We on these Benches are not arguing about the merits or the necessity of Clause 5. I see considerable merit in Clause 5 as it is set out in isolation of the convention. We do not say that there is no military argument to justify the exemption from the provisions of the convention that Clause 5 seeks to provide. That is not the issue. The issue here is one of consistency; consistency which a British Government signing up to an international treaty would be expected to demonstrate.
It has always been the practice of Her Majesty's Government to honour the provisions of treaties and conventions that they have signed. But in this case it is absolutely clear that conduct permitted under Clause 5 of the Bill, to which I have referred, would be in complete contravention of Article 1 of the Ottawa Convention; the very same convention to which the
Page 4, line 26, at beginning insert ("Notwithstanding the provisions of Article 19 of the Ottawa Convention,").
"In proceedings for a section 2 offence in respect of any conduct"--
"it is a defence for the accused to prove that,
the conduct was in the course of, or for the purposes of, a military operation or the planning of a military operation".
"the conduct was not the laying of an anti-personnel mine".
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