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The Minister of State, Ministry of Defence (Lord Gilbert): This has been a remarkable debate addressing a single amendment in that both Opposition Front Benches have found it necessary to bring such heavy fire-power to bear on it that both required two spokesmen on their feet. However, I shall do my best on my own to deal with the arguments advanced.
First, I shall deal head-on with the question raised by the noble Baroness, Lady Williams of Crosby, and various other noble Lords as to whether or not Clause 5 is legal and whether it is legally compatible with the Ottawa Convention. All I can say to your Lordships is that the Government have taken the best legal advice available and have received assurances that there is nothing in Clause 5 that is either likely to be challenged at international law or is incompatible with the Ottawa Convention. I have the benefit of the sagacity of my noble and learned friend the Solicitor-General, who is sitting beside me. I am sure that if I get any of this wrong he will be happy to intervene so that we can have two people speaking from this Front Bench, just to preserve a little symmetry in the proceedings.
So far as I know, there have been no challenges offered, suggested or mooted to this legislation. I am advised that, were any challenges so to emerge, they would not result in any delay to our ratification.
I now turn to the question put by the noble and gallant Lord, Lord Craig. As I understand the Bill, Clause 5 is pretty unambiguous. It will cover all Her Majesty's forces, including airmen engaged in the sort of activity that he described.
The noble Baroness, Lady Rawlings, asked three or four questions. I thought that she had received the answers to them previously, but never mind. She asked whether the Bill would stand up in international law. I have answered that question already. Secondly, she asked whether it would be the case that our forces will be free to co-operate in manoeuvres with our NATO allies. I draw the noble Baroness's attention to Clause 5(7), which states:
- "'operation' includes exercises and other activities".
So the protection afforded to our forces by Clause 5 would apply to manoeuvres as well as acts of war. I believe that was the thrust of her question.
The noble Baroness also asked how the French and Germans, who have signed the treaty, have dealt with this problem. I understand the position to be that the French and German governments have put through primary legislation, as have the Canadians, in that respect. They are aware of our proposals; what they do, or do not do, is a matter for them, bearing in mind their own domestic legal arrangements and philosophies. But I know of no reason why they should not be able to continue to participate in NATO or any other combined operations or exercises. I hope that I have dealt with all the questions raised by the noble Baroness.
I now turn to the remarks of the noble Lord, Lord Moynihan. I have some difficulty--and I hope I have the sympathy of the Committee--in that I was not clear whether I was invited to address the amendment standing in the noble Lord's name, or the noble Lord's speech. Their direction seemed precisely opposite. On the face of it, the amendment is intended to be helpful. It reads:
- "Notwithstanding the provisions of Article 19 of the Ottawa Convention".
It would have the effect, if anything, of strengthening Clause 5. However, the noble Lord's speech was directed almost exclusively at attacking Clause 5, and suggesting that it was not necessary or was in breach of the Ottawa Convention. The noble Lord cannot have it both ways. Either he wants Clause 5 or he does not. I am glad to see from the way that the noble Lord is nodding his head that he does support Clause 5.
I should make it clear that Clause 5 does not seek to permit anything that is contrary to the convention. The noble Lord suggests that, because an activity is not criminal, it is permissible. It is not. These activities are prohibited by the convention and will be prohibited by our rules of military discipline. The Bill does all that it needs to do.
I do not seek to detain the Committee any longer on the amendment. When we come to discuss whether Clause 5 should stand part of the Bill, I may say a word or two about what we plan to do to make up the undoubted loss of military capability that we shall accept as a considered risk, on military advice, as a result of signing up to the Ottawa convention. I hope that, with the assurances that I have given, the noble Lord will be able to withdraw his amendment.
Lord Moynihan: I rise somewhat bemused. If, as the Minister informs the Committee, he sees my amendment, as I do, as vitally strengthening Clause 5, why does he not accept it? We have not heard one argument put forward in Committee against accepting such a clear, well defined and sensible amendment. My colleagues behind me call it a simple amendment; I am not sure that I would use that word in the context of this amendment.
I believe that the Minister might find himself in isolation among Members of the Committee in not understanding the point I was making. I was fully supportive of Clause 5. I see the protection in Clause 5 of the Bill as eminently sensible. I went to some length to express my concern that it does not fit with the convention which we are seeking to put into primary legislation today. That is the fundamental point. I deeply regret the fact that the Minister has not addressed that point, save in reflecting momentarily on the legal advice, he has received--admirable, learned and excellent legal advice, I am sure--to the effect that there is no distinction between the convention and the primary legislation.
Learned lawyers in another place and in this House--but I particularly note the speeches in the other House of two notable QCs not normally at one on party political issues--have taken a totally different view. From the
humble position of not being a lawyer, I hoped that the logic of my points would reinforce that view and, if nothing else, lead the Minister to put forward a clear legal analysis as to why I was incorrect. We did not hear that.I remain very concerned that other state parties may determine that Clause 5 amounts to an exemption or reservation from the Ottawa convention, which under Article 19 allows for no reservation, and therefore must clearly be, to both lawyers and politicians alike, inconsistent with the UK's obligations under the convention or, more generally, inconsistent with the spirit of the convention. I am concerned that these state parties will take up the procedures for verification of compliance and settlement of disputes which are contained in Articles 8, 10 and 11 of the convention.
I accept that, although the Ottawa convention does not contain a jurisdictional clause explicitly conferring jurisdiction on the International Court of Justice, Article 8.19 provides for,
- "the initiation of appropriate procedures in conformity with international law".
That worries me, as well. I hope it will not be the case that another signatory initiates proceedings against the United Kingdom in the ICJ if it feels that the UK is in breach of the convention. I am seriously worried that that will be the case.
I fear that what set out to be a defence initiative led and guided by the Foreign Office's ethical policy has become a muddled foreign policy, strongly rewritten at a later stage by the Ministry of Defence. Therefore, it is with some very serious reservations unallayed that I shall withdraw the amendment standing in my name. I shall do so in the hope that this primary legislation will come quickly to the statute book. It has been confirmed to me that, if we pressed an amendment to a vote and that vote led to further consideration in another place and again here, we should not be able to achieve the timetable that all Members of your Lordships' House and Members of another place hope will be achieved. If that is the case, I shall withdraw the amendment, but I do so with very serious reservations on this point.
Amendment, by leave, withdrawn.
12.45 p.m.
Lord Burnham moved Amendment No. 4:
The noble Lord said: The addition of this single word is designed to strengthen and confirm the provisions of Clause 5. I had determined not to move my amendment, but I believe that, in the light of what has been said by the Minister and by my noble friend Lord Moynihan, I should move it in order to give the Minister an opportunity to reply to my noble friend. I beg to move.
Lord Redesdale: I wish to ask a question for clarification. I know that the Minister has agreed to write on the issue of the M181A. In the specific context of joint operations with the Americans, both parties having this form of Claymore mine, since that mine has
Lord Gilbert: Despite the seductive invitation of the noble Lord, Lord Burnham, I think it would be a little odd for me to reply to one amendment while we are debating another one. However, we shall read with care what the noble Lord, Lord Moynihan, said and, if we consider that we can help him by writing to him, we shall be happy to do so. I rely on the advice I have been given that there are no serious legal implications, and all I can do is repeat that assurance.
So far as concerns Amendment No. 4, while I do not doubt that it was intended to be helpful, as was the previous amendment in the name of the noble Lord, Lord Moynihan, the noble Baroness, Lady Rawlings, and the noble Lord, Lord Burnham, it is rather restrictive and I do not believe that it would have the effect that the noble Lord intends. If we were to insert the word "joint" in the two places which the noble Lord suggests in Clause 5(2)(a), it would greatly restrict the protection available to Her Majesty's forces because it would restrict the protection to certain types of military operation and remove the general nature of the clause. In the light of that clarification, I shall be obliged if the noble Lord will see fit to withdraw his amendment.
Page 4, line 35, after ("a") insert ("joint").
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