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Baroness Williams of Crosby: I thank the noble and learned Lord the Solicitor-General for what was an extremely helpful statement. It has cast a great deal of light on the issue that we have been debating perhaps, some would say, to exhaustion. I shall ask him one question and then make one point. I want to ask him about the word "engage". The word "engage" to which he referred--"engage in joint operations"--I believe carries a lot of weight in terms of his statement. It deals with the issue that I raised earlier about the statement made by the Minister of the Armed Forces in another place; namely, whether being engaged in a joint operation includes actually assisting in the laying of landmines as distinct from the physical act of laying landmines. That is one of the issues that we are profoundly concerned about because it appears to be an issue where that statement and the convention were, to say the least of it, difficult to make compatible. The question I want to ask the Solicitor-General is whether he thinks we are in the clear when it comes to Article 8(18) and (19) of the Ottawa convention which allow other state parties to challenge in effect the validity of the actions of one other state party; in other words, is it his view--and I take his reservation about not being able to predict what an international court might decide--that we are not likely to be able to be challenged on that issue?
May I finally say that we take the view on this Bench that it is crucial to get this legislation through. We are not prepared to risk the possibility of it being held over to the spill-over or the following Session because we are well aware that legislation, once it goes into that mill race, may not surface again. For those reasons, while greatly respecting some of the points made by the noble Lord, Lord Kennet, we would not ourselves wish to support any Division of the House on this issue.
Lord Moynihan: It may be of assistance to the noble Baroness and the Solicitor-General if I add one other
question to those already put by the noble Baroness, Lady Williams. I am extremely grateful to the Solicitor-General for coming to the Dispatch Box and giving the statement that he did. Because of, as we saw it, the need for Clause 5, and indeed for the immunity from prosecution for certain cases that may occur in the future and the importance of protecting our Armed Forces in those circumstances, it was a great pity we did not have before this House--I accept there was no desire to have an amendment or reservation--the interpretative declaration to which the Solicitor-General referred. Can he give an undertaking to this House that when that interpretative declaration is drafted it will faithfully and accurately reflect the points that he made which would have the widespread support of all Members of your Lordships' House, and that in so drafting the noble and learned Lord will also give consideration to the other legal issues that were reflected during this debate? I say that because obviously it would have been preferable to have seen a copy of the interpretative declaration in advance of this debate. I have to add that I think it might have curtailed the debate considerably had we done so. I know it has been requested in another place and it has been requested again today.To summarise, I wish to repeat the request from this side of the House to ensure that the interpretative declaration to which the Solicitor-General referred will accurately reflect the comments that he has made during this debate and take into account some of the important legal points that have been raised both in this place and another place.
Lord Falconer of Thoroton: Perhaps I may deal first with the questions raised by the noble Baroness, Lady Williams of Crosby. The word "engaged" was my word. It was intended to summarise what is in Clause 5. In essence, Clause 5 provides the defence to the criminal offence, which is Clause 2, if the conduct which is the subject of criminal proceedings takes place in the course of, or for the purposes of, a military operation to which this section applies. This section applies to an operation outside the United Kingdom which,
- "involves the participation both of members of Her Majesty's armed forces and of members of the armed forces of a State other than the United Kingdom".
The word "engaged" is not used in the clause. Therefore, one should not waste too much time considering precisely what is meant by "engaged". The clause asks, "Are you participating, if you are the United Kingdom, in a joint operation with another state?"
The noble Baroness asked whether I am satisfied that we would win any challenge brought by another country under Article 8 that we had properly adhered to the convention.
Baroness Williams of Crosby: I thank the Solicitor-General for giving way. That was not the question I asked. That would be a foolish question. I asked whether he is satisfied that it is unlikely that we could be challenged under the terms of Article 8(18) and (19) of the Ottawa Convention. I am of course not
asking him to predict what might be the outcome of any such challenge but whether he believes there is little basis--he cannot, of course, say no basis--for any such challenge.
Lord Falconer of Thoroton: I am quite satisfied that there is little basis for a challenge. We will be putting in a declaration at the time we ratify. It will be an interpretive declaration and not a reservation of any kind. I cannot say what its precise terms will be, but it will not be that dissimilar from the Canadian declaration. There has been no suggestion that that contravenes or gives rise to a risk of challenge of the kind indicated by the noble Baroness. So I am moderately satisfied that it is unlikely that there is a real basis for such a challenge.
With regard to the question asked by the noble Lord, Lord Moynihan, it would be wrong for me to give any undertakings in relation to the precise terms of the declaration. It will be published when it is published. It is not right to say that it should reflect what I have said in the House today. It must obviously be consistent with it but it will be doing a completely different kind of job. It will be setting out in two or three sentences the basis of interpretation on which we are ratifying the treaty. Therefore, it would be totally inappropriate for it to go through what the effect of Clause 5 is and what the effect of Clause 2 is. It is doing a completely different job. So I do not think that the question is that well made.
Lord Moynihan: Perhaps I may pursue that point. Can the noble and learned Lord make it clear that the interpretative declaration will make it clear that the convention was not intended and was not perceived to be intended by the United Kingdom to make operations with non-signatories impossible?
Lord Falconer of Thoroton: It will certainly make it clear that mere participation by the United Kingdom's Armed Forces in a joint operation with a non-signatory country which uses landmines will not of itself, as we construe the convention, be a breach of the convention.
Lord Gilbert: Just before we come to the end of the debate on whether Clause 5 shall stand part of the Bill, it may be helpful if I touch on some of the points raised by noble Lords.
The noble Lord, Lord Kennet, whose long-standing interest in and passion for this cause is well-known, has, I hope, had an answer that satisfies him on the legal questions. There is nothing I can add to what my noble and learned friend the Solicitor-General said on those points. I am not sure whether my noble and learned friend mentioned that the jurisdiction of the new International Criminal Court will not extend to anti-personnel landmines.
I listened carefully to what my noble friend Lord Kennet said and I think he may have misheard my remarks. I was certainly not intending to suggest in any way that the German or French authorities had found it necessary to have the kind of declaration that we have. I was merely saying that I thought that, given their legal systems and their legal philosophies, they considered
that their own procedures were adequate and that their troops would be protected and that they saw no reason why their troops could not continue to be engaged in exercises and operations with their allies.
Lord Kennet: I am grateful to my noble friend for allowing me to intervene. It is not that I misheard or misunderstood his remarks. I was referring in particular to remarks made in an earlier debate and to remarks made in general political discussions outside the Chamber.
Lord Gilbert: I am obliged. As I am sure my noble friend knows, we want to have the Bill enacted as quickly as possible not just for reasons of government business but because we want to see the convention carried into effect as soon as possible. The earlier we can go through our procedures, the earlier that will be.
The noble Lord, Lord Redesdale, asked about claymores. I can tell him that all our claymore mines will be used only in the command-detonated mode. They therefore fall outside the provisions of the convention.
There is only one other thing that I can say with some relish before I sit down. While I listened to my noble and learned friend the Solicitor-General, who I would not dream of contradicting on any matters legal, I can correct him slightly on matters military. Wherever your Lordships read references in his remarks to "joint operations", I think you will find them more comprehensible if the word "combined" is substituted for "joint".
House resumed: Bill reported without amendment.
Then, Standing Order 44 having been suspended (pursuant to Resolution of 16th July), Bill read a third time.
1.17 p.m.
Baroness Symons of Vernham Dean: My Lords, I beg to move that the Bill do now pass. In moving this Motion, I should like to extend thanks to all noble Lords who have participated in our discussions. Noble Lords have expressed differences of opinion but the Bill has been considered in your Lordships' usual characteristic and constructive manner. I should like to thank the officials, particularly the officials from the Foreign and Commonwealth Office and from the Ministry of Defence, who have so ably assisted my noble friends and myself in putting forward the Government's arguments.
Whatever the differences on the Bill, I believe that we have all pursued the same objective. We have now taken a firm step in the right direction of ensuring that, eventually, this appalling weapon--the anti-personnel landmine--which causes untold misery to countless people, men, women and children, will be removed from the face of the earth.
Moved, That the Bill do now pass.--(Baroness Symons of Vernham Dean.)
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