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Lord Razzall: I have a great deal of sympathy with the intentions behind the noble Baroness's amendment. However, do we really want to add to this quite complex piece of primary and secondary legislation by attempting to deal with the very wide issues raised by the question of mercenaries? The amendment goes further in its implications than was contemplated under the Bill, on which there has been significant and extensive consultation.
Looking back into political history, I believe that in 2000 the then Foreign Secretary, Robin Cook, promised a Green Paper on mercenary activities which would, presumably, lead to legislation. We have not yet seen that Green Paper, but would not that be a better way of dealing with the noble Baroness's concerns? If the Government were to produce that Green Paper, we could then have an orderly discussion and consultation on what legislation should flow from it. But such legislation should be kept out of this Bill.
Lord Judd: I have a certain amount of sympathy with the case made, with her usual reasonableness, by the noble Baroness, Lady Miller. I always find her reasonableness attractive, but when she speaks with real feeling about an issue it is particularly effective.
This crucially important issue needs to be urgently addressed, but I agree with the noble Lord, Lord Razzall, that it is a large and complex area which
probably deserves attention in specific legislation. However, I look to my noble friend the Minister for an assurance that the Green Paper, to which the noble Lord, Lord Razzall, referred, will be published without further delay. We can then move on to convincing legislation as expeditiously as possible.
Lord Hylton: I congratulate the noble Baroness, Lady Miller, on her ingenuity in producing definitions of both "armed conflict" and "foreign military assistance". As far as I know, the South African Parliament is the only one in the world which has legislation already on its statute book concerning the activities of mercenaries.
It is possible to take many different views of such activities. Some will see them simply and solely as deriving profit from other people's conflicts. On the other hand, a case can sometimes be made out for protecting valuable assets, such as oil and diamonds, from falling into illegal and undesirable hands.
There is a good deal to be said in different directions, but meanwhile—and recognising the point of view of those who said that it would be premature to legislate on this issue now—I hope that the Government will take the amendments seriously and reflect on them deeply.
Lord Burnham: I support the noble Lords, Lord Razzall and Lord Judd, in their request for the publication of the Green Paper, which was originally promised by the Government in November 2000. Earlier today, your Lordships were involved in a discussion about "soon" and "shortly". It would be helpful if we could find out whether the Green Paper will be published "soon" or only "shortly".
The noble Lord, Lord Razzall, suggested that we are widening the subject by bringing in the question of mercenaries. I do not think it can be avoided. In another place, my honourable friends attempted to find a system whereby private military companies could be regulated and renegade mercenary activity banned. Properly licensed private military companies conduct operations when armed forces are unable to do so and their work can be very valuable.
The Government refused to accept the amendments in another place. Initially, Nigel Griffiths, the Parliamentary Under-Secretary for Trade and Industry, stated that he did not believe such change was necessary. When pressed, he conceded that control of mercenary activity was necessary but that the Export Control Bill was not the appropriate piece of legislation in which to lay down such controls. He urged my honourable friends to see what the Green Paper proposes, but as the Green Paper has not been published we are going round in circles.
The Government have recognised for some years that there is a problem with the regulation of mercenary activity directed from the UK, but they
have done nothing about it. In 1998, the Minister of State at the Foreign and Commonwealth Office, Tony Lloyd, stated:
- "We have no plans at present to sign and ratify the International Convention against Recruitment, Use, Financing and Training of Mercenaries. We have doubts concerning its legal enforceability in the United Kingdom. We are looking at options for national domestic regulation of military companies".—[Official Report, Commons, 15/6/98; col. 16W.]
Lord Brooke of Sutton Mandeville: I wholly understand the motivation of my noble friend on the Front Bench in bringing forward these amendments. Sympathy for them has been expressed in different parts of the House, but I, too, share misgivings as to whether they are sensible or appropriate in this Bill.
I have no Scottish blood but I am conscious that, down history, before the role of Engineer to the Empire became available to Scotsmen, serving in the armies of foreign potentates was an absolutely regular employment. In the 17th century, the then Haig of Bemersyde—an ancestor of the World War I commander—served as a mercenary in the army of Gustavus Adolphus.
In the 18th century, David Ogilvy, the advertising man who spent most of his life outside Scotland, told the story of Jamie Keith—who was in the pay of Frederick the Great and was given the responsibility of defending Prague against the Turks. The siege went badly for the defending army, but there was a day's armistice for the burial of the dead. Jamie Keith felt that out of all courtesy he should have a word with the Turkish commander. He approached him, in a somewhat bedraggled condition. The Turkish commander was sitting on a great black horse, he had a great black beard, was wearing a great black fur hat and a great black coat trimmed with fur, with a great black belt and great black boots. Only when Jamie Keith was within earshot of this remarkable figure did there emerge from the great black beard, in a Scottish accent, the words, "Have you had any news from Inverurie lately, Jamie?". So the tradition is a long one, and we might get into difficulties in terms of the wide-ranging series of possibilities that the wording provides were we to add it to every other matter dealt with in the Bill.
When the noble Lord, Lord Davies, responded to Amendment No. 5, he challenged my noble friends on the Front Bench on the subject of whether they could think of a cultural object which could be part of a cultural object, or a vehicle, or a vessel. My mind went back to the face that launched a thousand ships. An effective export policy that could have prevented not only the launch of a thousand ships but also a war that went on for several decades would have been very much to the good. That is an example of just how wide-ranging one can become when one extends the Bill further. Therefore, I join with those who believe that the matter might sensibly be dealt with elsewhere.
However, I want to hang all those remarks on a separate hook—I do not believe that we shall have a clause stand part debate—and ask the Minister to remind us what a "United Kingdom person" is. The term appears both in the wording of the Bill and in my noble friend's amendments.
6.30 p.m.
Lord Sainsbury of Turville: In responding, perhaps I may speak also to Amendments Nos. 14, 57 and 59.
The first part of this group of amendments seeks to introduce two new elements into the Bill. The first concerns "foreign military assistance", which is defined in Amendment No. 59. The second concerns,
- "assistance with any serious criminal activity anywhere",
First, perhaps I may address the amendments on foreign military assistance. The first point I should make is that Clause 3 is already wide-ranging. It allows the Government to impose controls on technical services which are broadly defined in subsection (2) as:
- "services which are provided or used, or which are capable of being used, in connection with the development, production or use of any [controlled] goods or technology".
The power in Clause 3 is already a wide-ranging one but one that is clearly set within the context of an export control regime. The objective of the Bill is to provide a framework for controls on exports and related activities. That is why the application of controls to technical assistance relates directly to the types of goods and technology to which export controls apply. Certainly, some aspects of the activities defined in the related amendment— Amendment No. 59—would fall within the scope of Clause 3, such as training in the use, for example, of military equipment. In addition, the powers on the transfer of technology under Clause 2 and on trade controls under Clause 4 would also be applicable to some aspects of the proposed amendment, such as on the procurement of equipment—mentioned under Amendment No. 59.
However, the amendment before us seeks to introduce a considerably broader power into the Bill, and to extend it far beyond export controls. Here, I take what may be the last opportunity in this debate to agree with the noble Lords, Lord Razzall and Lord
Judd, that this takes us into entirely new ground which is not appropriate for this Bill. If we consider the definition of "foreign military assistance", it includes such matters as personnel, financial support and medical services. That takes us well outside the matters normally subject to control as part of the export control regime.But the amendment goes even further than that. It includes,
- "assistance with any serious criminal activity anywhere".
The question of regulating private military companies or "mercenary" activity, which is presumably one of the reasons behind the amendment, is a complex one. The issue will be addressed in a consultation paper being drafted by the Foreign Office which I understand is in its final stage of preparation. We have had a consistent policy for a long time on this matter and it will be announced shortly. We are not deviating from that policy tonight. My right honourable friend the Foreign Secretary will inform Parliament shortly about the date of publication of the consultation paper. It would not be appropriate to use the Export Control Bill to tackle an issue for which it was never intended, and which is in any case being taken forward separately in the proposed consultation paper.
I now turn to Amendment No. 14. The effect of the amendment would be to create a loophole in the proposed new powers on the provision of technical assistance overseas. The amendment seeks to limit the Government's power over overseas acts of technical assistance to acts carried out only by United Kingdom persons. This amendment would make it possible for unscrupulous UK companies, or individuals wishing to profit from certain proscribed acts of technical assistance overseas, to evade controls introduced under the power by arranging for a foreign national to carry out the actual act on their behalf.
I should emphasise that the extra-territorial power provided by Clause 3(7) governs only the actions of UK persons. It does not allow controls to be introduced on non-UK persons for acts of technical assistance carried out overseas, but only on any UK person who either carries out such acts himself or who directs such acts to be carried out by others.
However, the proposed amendment would significantly undermine the effectiveness of the new control that we intend to introduce under Clause 3. I remind the Committee that the intended purpose of the new control, as set out in the dummy draft orders published last October, is to prevent the provision of any technical assistance overseas which the provider
knows, or has been informed by government, might assist a weapons of mass destruction programme or a related missile programme. This control will implement a European Union joint action agreed in June 2000, which commits all member states to enacting controls on the provision of technical assistance relating to weapons of mass destruction and missiles capable of their delivery.Clause 3(7) has been framed to prevent the possibility arising that a UK person could knowingly provide such technical assistance through a foreign national abroad and yet remain free from prosecution. It must be emphasised that the controls which the Government have announced their intention to introduce under Clause 3 will be essentially prohibitive and will cover activities in which no business is likely to have a legitimate involvement, except in the most exceptional of circumstances.
The overriding consideration in devising the controls must therefore be to ensure that they cannot be avoided. That is why the Government believe that the power in Clause 3 must allow us to control activity that is organised or authorised by a UK person where that person does not himself carry out the act. Not to do so would, as I have said, give unscrupulous individuals a ready and obvious means of providing and profiting from such assistance with impunity, so long as they took care to arrange for a foreign national to carry out the work on their behalf.
In answer to the question about the definition of a "United Kingdom person", I believe that that is adequately defined in Clause 10, which says:
- "'United Kingdom person' means a United Kingdom national, a Scottish partnership or a body incorporated under the law of any part of the United Kingdom".
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