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Lord Avebury: My Lords, in that case, would it be perfectly in order for him to procure arms to be sold to Algeria?
Lord Sainsbury of Turville: No, my Lords. He would have been caught because he was doing it in England, which would clearly have made it an offence.
I turn to the more substantive point raised by my noble friend Lord Brennan.
Lord Redesdale: My Lords, if, however, he held a British passport but did it from Calais, which would have taken him no more than a couple of hours to reach, it would have been legal.
Lord Sainsbury of Turville: My Lords, the point that is always worth remembering in these cases is that the concept that it is very easy to do this without any contact or the use of any measure in England is rather more difficult than people assume; and, of course, there is a list of embargoed destinations which covers the main areas that we want to see dealt with by this kind of legislation.
I turn to the key point made by my noble friend Lord Brennan. I want to answer his question as directly as he put it. I confirm that the Bill will allow the Government to implement any international agreement in arms trafficking and brokering, whether an EU agreement or an agreement in another forum. That is fundamental to the Bill. As the noble Lord, Lord Razzall, pointed out, we have put very transparently into the remit here the fact that at present we do not propose that the regulations should seek to control small arms brokering that takes place abroad, but this Bill gives us the power to do that. At this time we shall use it only for the three areas that I have mentioned.
The amendment proposed by the noble Lords is, of course, similar to the amendment tabled on this issue by the noble Lords, Lord Joffe and Lord Phillips, at Report stage. However, this amendment includes a new provision, allowing extra-territorial controls to be imposed on UK residents as well as UK persons. I shall in a moment return to that issue and the Government's concerns about its implications.
A further difference is that, in the light of the explanation that I gave on the specific point on Report, noble Lords have agreed to omit from the current amendment the outright statutory ban on trade in particular categories of equipment that was contained in the previous amendment of the noble Lord, Lord Joffe. I am grateful to noble Lords for recognising the Government's concern over that particular aspect of the Report stage amendment.
However, I am sorry that noble Lords remain unwilling to take on board the Government's even greater concerns about the implications arising from the central aim of the amendment; namely, to extend extra-territorial jurisdiction to trade in small arms, light weapons and ammunition. Before I expand on the nature of those concerns, I should like to remind the House that the issue before us is not a decision about doing something on arms brokering, or doing nothing. I believe, therefore, that it is wrong to present the amendment in such stark terms. It must not be forgotten that the Government are already committed to taking action on arms brokering that is truly ground-breaking. There will, for the first time, be comprehensive powers in new primary legislation that
allow controls to be imposed on all arms trafficking and brokering carried out both here and, in the case of UK citizens, abroad.We have stated that we shall use the new powers in the Bill to prohibit any UK person, wherever he is located, from trafficking and brokering in arms to embargoed destinations or trafficking and brokering in torture equipment, or long-range missiles, to any destination whatever. At the same time, we are committed to using the powers under the Bill to control anyone in the UK—be he a resident or a UK national—who wishes to trade in any military equipment to any destination. This two-pronged approach will ensure that no one in the UK will be allowed to traffic or broker in arms without a licence, and will provide further that any UK person overseas who, without a licence, engages in trafficking and brokering to embargoed destinations, or in torture equipment or in long-range missiles, will be liable to prosecution if he sets foot again in this country.
The noble Lord, Lord Joffe, cited the Government's manifesto commitment. I believe that the Government are clearly fulfilling their manifesto commitment on trafficking and brokering. The Bill provides for trafficking and brokering controls to be applied in the UK and abroad, and we are already committed to framing controls that will apply both here and overseas. I should remind the House that a small number only of other countries have so far managed to introduce any controls in this area. Therefore, the Government's commitment to legislate to control trafficking and brokering activities of UK persons both here and overseas puts this country in the front rank of nations that are prepared to take serious steps to combat the scourge of illicit trade in arms.
Consequently, it is beyond doubt that the Bill already allows tough and meaningful action to be taken against illicit arms brokering, and that the Government are already committed to taking such action in secondary legislation under the Bill. Instead, the question that needs to be asked is whether the amendment would enable the Government to tackle illicit brokering more effectively than our current proposals would allow. The Government's firm view is that not only would the amendment do little or nothing in practice to strengthen our ability to prevent the supply of arms to conflict zones, it would actually be likely also to undermine our efforts to target the serious activities that our proposed extra-territorial controls on trafficking and brokering already address. Perhaps I may explain why we hold that view.
Trafficking and brokering in arms to embargoed destinations, and trafficking and brokering in long-range missiles and torture equipment, are all activities that the Government would, in almost all cases, be seeking to prohibit in their entirety. They are all activities that are subject to widespread international condemnation. For these same reasons, we believe that any UK person, whether based in this country or settled overseas, could reasonably be expected to know that involvement in such activities would be likely to be an offence.
The same simply cannot be said of trade in small arms, light weapons and ammunition to non-embargoed destinations; nor can it be said of the wide range of activities that may facilitate such trade, such as insurance or marketing, which this amendment seeks also to control. The vast majority of such trade and services are entirely legitimate, and are carried out in full accordance with the laws of the exporting country. There is certainly no international agreement that there should be a presumption against allowing trade in small arms to responsible end-users to continue. Nevertheless, the amendment seeks to oblige the Government to assert extra-territorial control over entirely legitimate commercial transactions carried out in overseas countries. What would the effect of this be?
In the first place, it would make a criminal of any UK person settled and living overseas and involved in exports of small arms with the full blessing of his country of residence, who, for whatever reason, failed to apply also to the UK Government for a licence to go about his job. Perhaps I may give the House an example. It is slightly different from the one cited by the noble Lord, Lord Razzall: it relates to a UK national, who is settled in New Zealand, having lived there for 40 years. He has a contract to supply small arms ammunition to law enforcement authorities in Canada. He exports the ammunition to Canada in full compliance with New Zealand's laws on arms export control, and confidently believes that the business in which he is engaged is both of value and entirely legitimate. However, the instant that this amendment were to enter into force, his actions would be criminalised under UK law. He would then be subject to possible arrest and prosecution upon his return to the UK.
The same would apply in respect of a UK person settled overseas who provided insurance cover for an overseas export of small arms, without first obtaining licence to do so from the UK Government—
Lord Razzall: My Lords, perhaps I may intervene at this point. I do not believe that the Minister has dealt with our bigger concern. It is not the person living in New Zealand; we are concerned with the UK national, who is resident off-shore in a territory that is not regulated. On the Government's admission, such an individual would not be allowed to deal in second-hand torture equipment that he obtains from, say, the Chilean Government because they no longer use it. However, he would be allowed to deal in the small arms that the Chilean Government had used to shoot people after they had been tortured. That is our main worry.
Lord Sainsbury of Turville: My Lords, perhaps I may correct the noble Lord. The three prohibited categories are missiles, torture equipment and arms embargoes. Therefore, that person could not be dealing in such equipment.
Lord Razzall: My Lords, such an individual could not deal in torture equipment, but, under the
Government's legislation, he could deal in the small arms that were used to shoot people after they had been tortured.
Lord Sainsbury of Turville: My Lords, I am sorry that the noble Lord has not recognised that there is a very clear distinction here. I believe that I have made it clear in all the speeches that I have made thus far; indeed, I have already drawn attention to it in this response. There is a clear distinction to be made—the only one to be made in this area—between matters where there is international condemnation, which means that people will be aware of the situation, and areas where there is clearly no international condemnation involved. That is the distinction that applies in this case, and I believe it to be appropriate.
It is well to focus on such differences. These are the kind of people over whom we would be asserting extra-territorial control. Some might point out that the UK enforcement authorities could simply decide to take no action against such persons, and concentrate on prosecuting the more unsavoury types of arms brokers or suppliers who we can all readily bring to mind. However, that will not do; indeed, it would be irresponsible in the extreme for the Government to create a category of offences—namely, unlicensed trade in small arms, light weapons and ammunition—in the full knowledge that action would only be taken on such offences, when identified, in some circumstances, which would probably be unknowable to those concerned.
It would certainly be very difficult to take a decision to prosecute in the hypothetical case that I mentioned, but routinely to ignore such technical breaches of the law would damage the credibility of the new brokering controls across the board. We simply cannot make law that is destined to be enforced only on a "pick and choose" basis. The usual result of such an approach to enforcement of a particular law is that the law for all practical purposes quickly becomes unenforceable.
Another important factor that must be considered is the very considerable difficulty that would be involved in gathering evidence to prosecute UK persons for activities carried out in overseas countries that remain entirely legal there. Successful enforcement of extra-territorial controls depends to a very great extent on securing the full co-operation of the authorities of the overseas country where an offence under UK law by a UK person is alleged to have taken place, not least in helping or allowing UK investigators to gather evidence there. However, there would almost certainly be great difficulty in securing such co-operation in order to prosecute UK persons for actions that had been carried out in an overseas country in full compliance with that country's export control laws.
All these enforcement difficulties would be made even greater by the fact that the amendment also seeks to apply extra-territorial controls to UK residents as well as to UK nationals. The effect of that would be that a foreign national ordinarily resident in the UK who carried out in his country of nationality a small arms export in full accordance with his country's laws
would be subject to possible arrest and prosecution upon his return to this country. Such a sweeping assertion of extra-territorial jurisdiction on the part of the Government would be likely to attract exactly the kind of criticism that the UK has rightly directed at other countries which have extended extra-territorial controls to UK nationals for activities that do not constitute an offence in this country.Suggestions that without the amendment the Government's response to these difficulties will be to do nothing on small arms are quite untrue. What these enforcement difficulties have done is to convince us that the course of action which is most likely to lead to successful eradication of illicit trafficking and brokering in arms is for the Government to press for international agreement. The Government are working to achieve international agreement to take action to regulate the activities of those engaged in brokering in accordance with the UN Programme of Action on Small Arms and Light Weapons agreed in July last year. And of course the EU Common Position recently agreed on trafficking and brokering has provided a basis for the framing of national legislation on trafficking and brokering across the whole EU.
I reiterate in this context the very important point that the Bill as drafted does not preclude the introduction of controls along the lines of those proposed in the amendment. Clause 5 as it stands would allow the introduction of extra-territorial controls on trafficking and brokering in small arms and light weapons and on any other equipment that falls into one or more of the categories set out in the schedule to the Bill. There is therefore no doubt that the UK would be able to implement—the noble Lord, Lord Brennan, asked about that—under the Bill extra-territorial controls on trade in small arms if changing international circumstances warranted that.
In support of the proposal to extend extra-territorial controls to legitimate trade in small arms as well as to prohibited activities, it has been argued that the United States already operates extra-territorial controls on trafficking and brokering in small arms and other military equipment, and that if the US can operate such a system the UK should be able to do so also. In this context I was interested to note recently a report on the US system of arms brokering controls published by the highly respected US non-governmental organisation, The Fund for Peace, which actively campaigns for tougher controls on the arms trade. The report expresses great concerns over the ability of the US authorities to operate and enforce their very wide system of controls on arms brokering. It highlights the very telling fact that not one prosecution has ever been mounted under the US brokering law, either for brokering offences carried out within the United States or overseas. The report goes on to say that while the US law on paper is as comprehensive and far-reaching as it possibly could be, it will only ever be as good as its enforcement, and this the report finds to be "nil".
That demonstrates that there is a world of difference between framing very wide extra-territorial controls in legislation, which need little more than the sweep of a
pen, and trying to give such controls meaning and integrity through ongoing successful application and enforcement. Let me repeat that the Government are already committed to taking very real steps to control arms trafficking and brokering both here and abroad. Under the controls we have proposed it will be an offence for any UK person overseas to traffic or broker in small arms to embargoed destinations or to a third country in the knowledge that the arms are destined for an embargoed destination. Moreover, the proposed licensing regime for trafficking and brokering in all items on the UK's Military List, including small arms and light weapons, will apply where any relevant part of the transaction—be it a single fax or telephone call—takes place in the UK. And do not forget that the Bill already contains the powers that would allow the Government to extend extra-territorial controls to legitimate trade in small arms, for example in order to implement any international agreements reached on this matter.
We believe that all these measures, combined with the measures we are taking to encourage international co-operation on this issue, will be effective in combating illicit brokering of small arms by UK nationals. In contrast, the amendment would create a set of offences in primary legislation that would be unworkable in practice and would risk undermining the credibility of the whole control regime. In view of that, I ask that the amendment be withdrawn.
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