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Lord Joffe: The amendment must be considered in the context of the draft secondary legislation currently available in the form of dummy orders, and of the Government's general election manifesto, in which they undertook to control the activities of arms brokers and traffickers wherever they are located.
That might have been the intention but the proposed legislation falls far short. If an arms broker who is a UK citizen negotiates a deal in the United Kingdom for the export of arms to warring factions in Nigeria, he will need a licence. The proposed legislation obligingly provides the option that if that individual crosses the Channel and negotiates the deal, he will no longer require a licence or be doing anything unlawful under UK legislation.
Mr Nigel Griffiths, the Parliamentary Secretary, pointed out in the other place that arms dealers are often resourceful, cunning and deceitful people—so they are hardly likely to ignore the option that I have described. They will negotiate outside the UK and—except with deals relating to embargoed countries, instruments of torture or long-range missiles—they will not be transgressing the law. This is clearly flawed legislation that fails to achieve its objectives. The loophole is so obvious and wide that it undermines much of what the Bill seeks to achieve. In The Times yesterday, Simon Jenkins wrote—although this may be going a bit far—that the Bill is so weak as to make it an offshore arms dealer's charter.
I agree with the noble Lord, Lord Razzall, on the reasoning behind the creation of the loophole. Unless I misunderstood the noble Lord, Lord Bach, when he spoke on Second Reading, the concern is that some UK arms brokers may not be aware, while transacting deals overseas, of the need to apply for a licence and could unwittingly break the law. Ignorance of the law is no excuse in British law. Moreover, the skilful ways in which many arms brokers manipulate jurisdictional and regulatory frameworks suggests that they pay very close attention to any laws that apply to them. While I would not for a moment suggest that arms brokers carrying on their business lawfully should not be fairly treated, it seems to me that in deciding what legislation is necessary to achieve the objectives, government should weigh up the potential harm to the innocent victims of trafficking if there are no controls against the potential harm to arms brokers if there are controls.
In other words, I suggest that it is necessary to weigh up the potential loss of life and the destruction of livelihoods among the innocent victims of brokers' arms against the possible harm to UK brokers operating overseas who may be unaware of the law. We should also remember that those innocent victims are usually powerless civilians and all too often women and children. However one looks at it, there can be no question but that all brokering deals by UK citizens, wherever based, must be licensed and judged on a case by case basis against the same consolidated criteria used to judge applications for direct exports from the UK.
The Government are to be admired for their manifesto commitment to control the activities of arms brokers wherever they are located. They are to be admired also for being instrumental in creating the European Union code of conduct on arms exports and for bringing forward the Export Control Bill. It is also very encouraging to all of us concerned about Africa that the Prime Minister is there at this very moment, visiting and exploring ways in which the UK can contribute to solving the problems that Africa faces. Against that background, the brokering loophole really does need to be closed; otherwise, as the noble Lord, Lord Judd, suggested, many people will conclude that the Government's rhetoric is not matched by their action.
Finally, I should like to draw attention to one of the Bill's provisions on brokering that may be easily misinterpreted. Long-range missiles are one of only three categories for which controls on overseas brokering are being imposed. Presumably, that category or purpose has been included largely to protect the developed countries rather than the developing ones; I say largely because there are exceptions. However, those controls contrast with the absence of controls on small arms which have already contributed to the death of literally millions of innocent civilians in Africa. I should be grateful if the Minister can explain why controlling the brokering of long-range missiles is more important than controlling the brokering of small arms. I support the amendment.
7 p.m.
The Lord Bishop of Manchester: We on these Benches support the amendment. Reference was made to the most reverend Primate the Archbishop of Canterbury. He is sorry that he cannot be here this evening. I am sorry that he cannot be here this evening. In a moment, your Lordships may be sorry that he cannot be here this evening. However, there are other things that need to be done.
The Bill represents a step forward in approving legislation that is ethically responsible, transparent, publicly accountable and consistent with regard to exports in general and arms transfer in particular. That thinking has been part of the thinking of the General Synod since as long ago as November 1994 when we first debated the subject. However, we need to go further in encouraging what has often been called,
- "a moral presumption generally against arms sales unless the case for a particular transfer can be made out".
As my noble friend the Bishop of Lichfield reminded us six years ago in a similar debate in this House,
- "arms are not like other goods. Of course they are designed to defend but they are also designed to kill, threaten and injure".—[Official Report, 26/2/96; col. 1256.]
There is growing evidence that significant quantities of arms are entering the world's worst affected conflict and human rights crisis zones. They have been transferred so often by arms brokers. In the past, UK brokers have been free to arrange the delivery of weapons from countries outside the UK into conflict zones with impunity. Brokers have often taken advantage of the large number of cheap surplus weapons available in central and eastern Europe and the former Soviet Union—coupled with the existence of weak export controls—to supply arms to groups and governments who violate human rights without needing to apply for an export licence. Evidence shows that some British dealers and freight companies have taken advantage of those opportunities and have participated in significant transfer of arms from third countries into war zones. I shall not name the countries, but your Lordships are aware of war zones in Africa where that has occurred.
Clause 4 gives the Government powers to introduce controls on the trade in controlled goods. Subsection (8) of the clause gives the Government the power to extend those controls extra-territorially to cover the activities of UK passport holders when they operate outside the UK. However, as currently worded, the provision does not oblige the Government to do so; hence, the noble Lord, Lord Razzall, has tabled Amendment No. 18.
It is encouraging that the Bill seeks to deal with the problems of arms brokering; that is good news. Under the new legislation, as I understand it, anyone in the UK who brokers the transfer of arms from one overseas destination to another will require a licence for their activities. However, it seems that the Government do not intend to control the activities of arms brokers and traffickers wherever they are located. That seems to be a gap in the Bill. If I understand the Bill correctly, brokering conventional weapons to non-embargoed destinations will require a licence only when part of the deal takes place in the UK. Extra-territorial controls on brokering will be imposed on deals involving transfers to embargoed destinations, transfers of equipment used in torture and long-range missiles.
The purpose of Amendment No. 18 is therefore to ensure that when secondary legislation is introduced the Government extend the licensing regime to cover all off-shore brokering deals. If the legislation does not have that full extra-territorial reach, British citizens can evade the controls by simply stepping outside the country to conduct their arms brokering deals. As we know, the German controls suffer from that weakness. It has long been said that the German system,
- "catches the good guys and the bad guys have moved to Cyprus".
- "A child of five could work out an easy way to avoid the restrictions. You hop on the Eurostar and shake hands in Lille".
As we all know, there are precedents for the exercise of extra-territorial jurisdiction, such as the Misuse of Drugs Act 1971, the Chemical Weapons Act 1996, the Sex Offenders Act 1997 and the Landmines Act 1998. The Government also consider offences of corruption committed abroad by UK nationals serious enough to warrant extra-territorial jurisdiction. Therefore, using the Home Office's own criteria—reference has already been made to them, so I need not do so again—a very strong case can be made out in favour of full extra-territorial application of the proposed UK arms brokering regulation. That needs to be done.
As we understand from the Minister's reply to the debate on Second Reading, and as the noble Lord, Lord Razzall, has made clear, it seems that extra-territorial jurisdiction will apply only to trafficking and brokering to embargoed countries and in relation to torture equipment and long-range missiles. I ask your Lordships whether that is good enough. What about the fact that so many brokering deals involve conventional weapons that go to non-embargoed destinations? Surely those should be regarded as serious offences. As we have heard, the victims of brokered arms are often very vulnerable groups in society. I myself have seen people in parts of Africa who have been the victims of landmines, and I have seen them sitting in wheelchairs with no legs. That is how the arms trade operates when it is not properly regulated.
Who can doubt that transferring machine guns and helicopters—which are not torture equipment or long-range missiles—to Al'Qaeda supporters in Pakistan and the Philippines should be prevented? Surely it must be. However, limiting extra-territorial controls only to embargoed destinations would not do that. The only way of doing it is to regulate all arms deals brokered by the UK. The aim is not to prohibit legitimate trade but to stop the illegitimate deals and introduce a general regulatory system.
I believe that I have said enough to show that at the end of the day it is not a question of whether or not we support the defence industry; of course we support the defence industry. The real challenge in front of us is not whether we support the defence industry but whether we are willing to see controls extra-territorially applied to regulate the activities of those who seek to avoid scrutiny and are not open to transparent scrutiny. The challenge is to devise a system in which we support the defence industry but do not support those who want to act illegitimately in the destruction of some of the most vulnerable people in the world. As the previous speaker said, if we do not achieve that tonight, we duck the challenge.
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