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Lord Joffe moved Amendment No. 15:
- After Clause 4, insert the following new clause—
The noble Lord said: My Lords, Amendment No. 13 sought to apply controls to a very wide range of goods. Amendment No. 15 limits its application to small arms, light weapons and ammunition. In so doing, it aims to meet the concerns expressed by the Minister in Committee, and indeed this evening, that it is impractical to apply controls to a wide range of goods, some of which are equally capable of civilian use.
For the sake of uniformity, the amendment also includes the three categories which the Government intend to control extraterritorially: long-range missiles, instruments of torture and goods to embargoed destinations. In brief, despite its lengthy wording, the amendment seeks to add small arms, light weapons and ammunition to those three categories.
As the Bill stands, controls on the extraterritorial brokering of small arms and light weapons apply only where part of the transaction takes place in the United Kingdom. The means of evading those controls are, accordingly, so self-evident that it is difficult to avoid the conclusion that there is no serious intention by the Government to impose extraterritorial controls on any goods other than the three categories expressly mentioned.
As Roger Berry, MP, the chair of the Quadripartite Select Committee, stated,
As I understand the situation, the Government choose not to apply extra-territorial controls to small arms and light weapons for three reasons, none of which I suggest stand up to critical analysis. In order to analyse these reasons I fear that I shall need to detain your Lordships a little longer than I—or I am sure noble Lords—would wish.
The first reason relates to the six criteria about which we have already heard, published by the Home Office in 1996 recommending that the extension of jurisdiction could be considered in certain circumstances where at least one of the criteria was present. The Government have selected the third of these criteria, and possibly the second, on which to base their opposition and have conveniently ignored the other criteria, each one of which would justify consideration.
The third criterion on which the Government rely is where international consensus exists that certain conduct is reprehensible and that concerted action is needed. They appear to contend that there is no international consensus that the brokering of small arms and weapons is reprehensible.
In practice, however, there is a growing international consensus that brokering is in urgent need of international regulation. No one knows that better than the UK Government, who, to their credit, are taking a leading role in pushing for a legally binding convention on arms brokering, both within the EU and the UN.
It is hardly open to this Government, who are leading the way on the international control of small arms, to contend that because a handful of countries do not yet support such controls there is no international consensus and that that precludes them from effective controls legislation.
However, even if there were not such international consensus it is not correct that extra-territorial legislation is justified only in such cases. One needs to look no further than this year's Anti-terrorism, Crime and Security Act where the Government legislated that bribery and corruption committed outside the United Kingdom constituted an offence, even though in some jurisdictions this activity is not criminalised. Similarly, the Government have extended jurisdiction extra-territorially for the brokering of torture equipment, even though some of their European Union partners do not control the export of such equipment.
The second reason advanced by the Government is the difficulty of enforcement. While it is clear that enforcement in relation to extra-territorial activities is not easy, mechanisms will in any event have to be established to enforce controls on the three categories in respect of which the Government already propose to apply extra-territorial controls. These same systems can obviously be adapted and utilised in order to control the brokering of small arms, ammunition and light weapons. Can the Minister in his response explain why, if the Government can enforce controls on missiles, torture instruments and goods to embargoed countries, they cannot also enforce controls on small arms, light weapons and ammunition?
It is instructive that in January 2002, as I have said, the Government placed full extra-territorial controls on corruption offences as part of the Anti-terrorism, Crime and Security Act 2002. In the Home Office consultation paper issued in June on the issue, the Government set out their reasoning for introducing such controls in relation to corruption. They stated:
The third reason advanced by the Government is the risk of criminalising the involvement of UK nationals based overseas in what they might think is a legitimate activity. I share the scepticism of the noble Lord, Lord Razzall, about the matter.
The presumption in law that ignorance of the law is no defence seems to have escaped the attention of the Government. However, setting that aside, one cannot help wondering who are these nai
ve UK arms dealers brokering small arms in foreign lands who would be unaware of the provisions of the widely publicised Export Control Bill. Indeed, it is difficult to think of a subject more likely to interest them. Are they a different breed from those labelled by the Minister, Nigel Griffiths, in another place, as "resourceful, cunning and deceitful"? Are they different from those unscrupulous arms brokers who are skilled at creating shell companies and a confusing paper trail through many jurisdictions to prevent proper oversight of their work?
Is it conceivable that UK nationals brokering small arms deals overseas would not know of the Export Control Bill? They might not realise that they require a licence for brokering machine tools, but any UK national earning a living abroad brokering small arms and light weapons would surely check out whether the export control legislation affected him.
Assuming—and this is a large assumption—that such nai
ve and innocent small arms dealers exist—and, if they do, there could not be more than a handful—the Government well know that there is no obligation on them to prosecute them if they feel that an injustice would be done.
In conclusion, while I believe that five out of six of the Home Office criteria would be met, I will draw attention only to two of them, each of which would be considered as sufficiently important to justify the imposition of extra-territorial jurisdiction.
The first one is where it appears to be in the interests of the standing and reputation of the UK in the international community. In that regard, the Government have worked hard to position themselves as playing a leading role in international attempts to develop more responsible attitudes towards the arms trade and especially the control of small arms. Their standing, reputation and credibility to continue to advance these views will certainly not be enhanced by introducing flawed legislation which, while purporting to control the brokering of small arms extra-territorially, does nothing of the kind by providing and creating a loophole which any and every arms dealer will exploit.
The other criterion which seems to have escaped the attention of the Government is where the vulnerability of the victim makes it particularly important to be able to tackle instances of the offence. Arms brokering tends to be prevalent in war zones or localities where
I have difficulty in believing that this Government, which to their credit are introducing the Bill, most of which I warmly support, appear to consider it a higher priority to protect a handful of small arms brokers based overseas rather than to protect countless innocent victims from the impact of brokered small arms. Can the Minister in his response comment on whether that is a correct conclusion on the Government's priorities? I beg to move.
"TRADE CONTROLS: ACTS OUTSIDE THE UNITED KINGDOM
(1) This section applies if—
(a) a national of the United Kingdom or a body incorporated under the law of any part of the United Kingdom does anything in a country or territory outside the United Kingdom, and
(b) the act would, if done in the United Kingdom, constitute a trade control offence (as defined below).
(2) In such a case—
(a) the act constitutes the offence concerned, and
(b) proceedings for the offence may be taken in the United Kingdom.
(3) For the purposes of this section, trade control offences are—
(a) the acquisition or disposal, the movement or activities which facilitate or are otherwise connected with the acquisition, disposal or movement of—
(i) missiles capable of a range of 300km or more, and specifically designed components therefor; or
(ii) any "equipment" falling within PL5001 paragraph (c) or (g) of the Military List;
(b) any unlicensed—
(i) acquisition or disposal;
(ii) movement; or
(iii) activities which facilitate or are otherwise connected with the acquisition, disposal or movement,
of small arms and light weapons, and ammunition for small arms and light weapons.
(4) Other acts done outside the United Kingdom and the Isle of Man may also be defined as trade control offences, but only if they are done by a person who is, or is acting under the control of, a United Kingdom person."
"A child of 5 could work out an easy way to avoid the restrictions. You hop on the Eurostar and shake hands in Lille".
Indeed, UK-based small arms dealers could not have asked for more. The Bill produces extraordinary consequences. While arms dealers based in the UK cannot export British-manufactured small arms without a licence, all they need to do is take the Eurostar to France and there they can, legally under UK law, traffic in Russian-manufactured small arms and weapons to their heart's content. It is a curious result.
"We have also considered whether we should go further and extend nationality jurisdiction to such an offence, recognising that this could send a strong deterrent message that the UK is determined to act against corruption wherever it occurs. This is a message that will have a real persuasive and dissuasive force . . . The Government, whilst recognising the practical problems associated with the prosecution of extra-territorial offences, believes that the balance of advantage rests with assuming jurisdiction over its nationals for offences of corruption committed abroad. Such an assumption of jurisdiction would put beyond doubt the UK's commitment to join forces with the international community and the fight against corruption".
We come here to the fight against extra-territorial brokering. The reasoning adopted is directly relevant to arms brokering. If the noble Lord disagrees it would be helpful if, in his response, he could distinguish
between the two cases. First, why is it in order to criminalise brokering extra-territorially? Secondly, why not criminalise small arms, light weapons and ammunition which are the cause of countless deaths and hardship in many parts of the world?
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