Clause 9 — International military operations and activities

Bill Presented — Sustainability of Livestock Farming and Food Production (Strategy) – in the House of Commons am 5:00 pm ar 23 Mawrth 2010.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Question proposed, That the clause stand part of the Bill

Photo of John Redwood John Redwood Ceidwadwyr, Wokingham

It would be helpful to the Committee if the Minister gave an explanation of how likely he thinks the defence in the clause would be and how likely it is that it represents some form of block or impediment to the intention of the Bill. The proposal relates to international military operations and to where members of the UK forces may be involved with other states that are not party to the convention. How big a loophole might this be, as against the intention of trying to get rid of the weapons?

Photo of Bill Cash Bill Cash Ceidwadwyr, Stone

I would like to take up a point made by my right hon. Friend Mr. Redwood to which I alluded at Second Reading. It struck me at the time that the proposal was a significant loophole that had been devised for a specific reason: the Government's embarrassment at the fact that some of our allies do not agree with them. Poland has been mentioned and I suspect that other allies are deeply worried about this measure. I invite him to tell us which ones they are so that we can get a better idea where the difference arise.

In legislation on criminal offences, it is extremely important to have consistency and for the criminal law to apply equally to all those affected by it. This is not just about the merits of the question of cluster munitions; it is about whether the prohibitions, included in brackets in the Bill's title, apply with equal effect under criminal law to all those against whom it is intended to apply.

It is clear that United Kingdom nationals might fall within the terms of clause 4. Also, the range of people who have the opportunity of defences arising from clauses 5, 6, 7 and 8 have half a let-out. Clause 9 must be seen in the context of greater convergence of military matters, some of which I disapprove of because I believe in alliances and not locking in under St. Malo agreements and things of that kind. We must bear in mind the fact that there is talk of a European army; I do not think that the Minister will disagree with that. Joint operations that apply can be in conflict with matters arising from activities in the Balkans and other parts of the world where cluster munitions are already a recognised problem, which is why the Bill is being introduced in the first place. The object of the Bill is significantly undermined by the degree of exemptions, qualifications and offences and by the European dimension. I know that the Minister does not like to hear these truths, or this realistic analysis.

Photo of John Redwood John Redwood Ceidwadwyr, Wokingham

My hon. Friend has made a better study of this than me and is a trained lawyer. Does he agree that members of the United kingdom armed forces could handle and be involved with cluster munitions if they were in joint operations with a state that was not party to the treaty?

Photo of Bill Cash Bill Cash Ceidwadwyr, Stone

Absolutely. Some people are not familiar with and simply do not know about the St. Malo agreement and the structure of the extremely detailed operational framework that has been created-I invite them to examine it when this debate is over-whereby commanders come from different countries and orders are given by people to others of different nationalities. We must also consider the south Mediterranean military framework. The bottom line here is that on a raft of matters serious interaction takes place between different nationalities, in terms not merely of alliances with separate lines of command, but of the interaction and integration of operational activities involving the line of command of a military operation. As clause 9 states,

"'military operation' includes any naval or air force operation."

Thus, we are dealing with all the services, with all the different nationalities and with different criminal criteria, which apply in different countries under the convention, yet the convention itself is interactive with the European Union.

I have mentioned the European arrest warrant as but one relevant example, and I simply make the point that it is extremely important to bear certain things in mind. The Minister does not listen to the arguments because he has made up his mind that this is going to go through anyway-that is his problem. Although he happens to be rather a nice Minister, he is very assertive about the things in which he believes passionately. The very mention of the word "Europe", or any slight indication that there might be something awry in the drafting of a Bill for which he is responsible and that suggests that there might be something amiss with the European dimension of it, is enough to send him into a spasm.

There are problems on this issue. I have made my point. I simply repeat that this stand part debate has raised important questions and these things will come home to roost. I do not think that we have yet been given an answer-

Photo of Bill Cash Bill Cash Ceidwadwyr, Stone

Indeed the Minister has not spoken about this yet, but I can almost predict that he will take exactly the same line as he has previously, and he will do so in the knowledge that barring the tabling of a manuscript amendment, we will have almost no time or opportunity to do anything about it. That is not good law-making.

The Chairman:

Order. I have heard of predictive text, but not of predictive speeches. I call Mr. Lidington.

Photo of David Lidington David Lidington Shadow Minister (Foreign and Commonwealth Affairs)

My question to the Minister is rather narrower than the important issues raised by my right hon. Friend Mr. Redwood and my hon. Friend Mr. Cash. My understanding is that clause 9 intends to make it possible for British armed forces to continue to take part in joint operations with allied powers-the United States and others-which have not ratified the convention on cluster munitions and which still have such munitions in their arsenals. Active military operations these days involve not only members of the armed services, but often civilian staff, and perhaps contractors' staff, who are working under military discipline while providing support and ancillary services to Her Majesty's armed forces. Are civilians working with the armed forces on those operations every bit as covered by the protection given by clause 9 as soldiers, sailors and airmen themselves?

Photo of Chris Bryant Chris Bryant Parliamentary Under-Secretary (Europe)

You referred to predictive texting and predictive speeches, Sir Alan. Earlier today, I tried to send a text to somebody to ask them whether they would like a meal tonight. Unfortunately, predictive texting can change that to, "Would you like a neck this evening?" That came as a bit of a surprise.

The direct answer to Mr. Lidington is that he is absolutely right: this provision does apply to civilians too. I am sure Mr. Cash knows that the clause mirrors very precisely the provisions under article 21.3 of the convention. As he rightly says, so many military operations around the world now are joint operations between many different countries, some of which will be state parties that have signed up to the convention and some of which will not. Thus, the whole aim of the clause is to ensure that there is no legal peril for those states' members-military personnel-who are engaged in those alliances. Otherwise, that would simply dismantle military alliances-

Photo of Chris Bryant Chris Bryant Parliamentary Under-Secretary (Europe) 5:15, 23 Mawrth 2010

I will give way, if the hon. Gentleman will let me make a little further progress with my argument.

That is why we have made this provision. Otherwise, the danger would be that British personnel would be constantly at legal peril in relation to their work not only with the United States of America but with Poland and a series of other countries that retain the use of cluster munitions.

Photo of Bill Cash Bill Cash Ceidwadwyr, Stone

I am grateful to the Minister. In fact, the EU dimension that I have mentioned, which causes some hilarity with him, is a serious one. He knows that. A priority for EU member states that have signed or ratified the convention will be to persuade other EU members to sign it -he has indicated as much himself, and he said that he thinks that they will do so. Finland, Poland, Romania, Estonia, Latvia, Slovakia and Greece are yet to sign. Some of them might have signed since the information that I have in front of me was produced-I do not know, but perhaps the Minister could elucidate. Poland, as he rightly says, has explicitly indicated that it does not intend to sign, but Finland, Estonia and Slovakia were among the countries that adopted the convention in May 2008. There are some hopes that they will sign-I do not need to go into the distinction between signing and ratification with the Minister, but he knows that it can be a serious obstacle.

Photo of Chris Bryant Chris Bryant Parliamentary Under-Secretary (Europe)

Absolutely. We hope that all countries will sign and ratify the convention and that they will take their obligations seriously. We certainly take seriously our obligations to try to persuade all other countries to move towards ratification. Key among those countries are those with which we work most closely in military operations-not least the United States of America, but also European Union countries such as Poland. I would refer to two other countries as key: Turkey and Brazil.

Photo of Bill Cash Bill Cash Ceidwadwyr, Stone

What about Georgia?

Photo of Chris Bryant Chris Bryant Parliamentary Under-Secretary (Europe)

The hon. Gentleman mentions Georgia and it-and Russia, for that matter-is likewise key.

The reason for having this clause is that we would imperil our British armed forces in most of the operations in which they engage if it was not included in the Bill.

Photo of John Redwood John Redwood Ceidwadwyr, Wokingham

I am very keen that we do not imperil and put at legal risk our forces when they are doing their duty. I favour the purpose, but I think that we need to know a little more about the extent to which the protection of armed service personnel will get in the way of the noble intention, which is to get rid of this type of munition in our activities. Under this law, does the Minister envisage that British forces will be instructed not to handle these munitions in any combined operation and to leave it to their allies if they are going to use them, or will they be allowed under our instructions to handle these munitions when one of our allies has decided to use them?

Photo of Chris Bryant Chris Bryant Parliamentary Under-Secretary (Europe)

That is a fair point, but the word "handle" could stretch its meaning in many different ways. That is why we want to ensure that there is legal certainty for our armed forces. The convention and the Bill would not allow British armed forces to use cluster munitions, despite the fact that they were in a coalition. They would not be allowed to request the use of munitions where the choice of munitions was within their exclusive control.

We do not expect that the British armed forces would suddenly say, "I'm sorry, we are not going to allow that aeroplane to land on this airstrip because we know that it is an American aeroplane that has used or might be going to use cluster munitions or that has them on it." The point is about where we have exclusive control, and that is key, but, in addition, the very fact that we have said that we will ratify the convention and the fact that the United States of America has decided to review its cluster munitions means that there will be no American cluster munitions in the UK.

Photo of Bill Cash Bill Cash Ceidwadwyr, Stone

Is the Minister aware of any of the problems relating to cluster munitions arising in a far more imminent field of operations that we are continually concerned about-in Afghanistan? Much of what goes on there is affected by what happened when the Russians were there. Will the Bill apply in relation to the safety of our forces, the line of command and our relationships with other nations within NATO as well as with the United States?

Photo of Chris Bryant Chris Bryant Parliamentary Under-Secretary (Europe)

It will indeed. That is a further reason why we think it important to provide the legal certainty that is enshrined in this clause. For that reason, I strongly hope that the House will support the retention of this clause in the Bill.

Photo of John Redwood John Redwood Ceidwadwyr, Wokingham

We have not had a very full explanation from the Minister. Of course my colleagues and I share his wish that our forces should not be placed in impossible positions in combined operations and that they should have the legal protection they deserve. They are fighting soldiers in those situations and are not expected to be lawyers, so we need to ensure that they are legally protected.

The Committee is also owed a fuller explanation of how much of a limitation there will be, because we are doing this with some allies but not with others. Anyone studying this area will come to the conclusion that the prohibition on these nasty munitions will work only if all the main countries of the world do the same; it cannot work if a limited number do not play along.

Photo of Bill Cash Bill Cash Ceidwadwyr, Stone

I do not know whether my right hon. Friend has noticed this, but clause 34(1) states:

"This Act comes into force on the day on which it is passed."

For practical purposes, from the moment the Bill goes through, which will presumably be today, our forces in Afghanistan will be affected by its implications, let alone by any other considerations that we have already discussed, looking more to the future.

Photo of John Redwood John Redwood Ceidwadwyr, Wokingham

Indeed. I hope there will be proper guidance and briefings for all our military personnel who might become involved in combined operations with allies. This area will clearly be complex. As the Minister has begun to hint to us, there is a whole gradation of things that could happen. I am glad he says that we will not say to our allies, "You've got cluster munitions, and we think we should use them in this particular circumstance," as it would clearly be against the spirit and intention of the legislation for our armed forces to do that. However, there is a whole series of other situations in which our armed forces could act against the spirit of the legislation because of combined operation. Those in junior command positions could be instructed by senior commanders from allied forces that they need to operate those types of munition. As the Minister has said, our forces could have to facilitate the transport of offensive weaponry, which could include a cluster munition package, or they could be on a battlefield on which our allies are using those weapons but our section is not.

Of course, I am very much in favour of the intent of the legislation, but we have to be realistic. We must understand that if we are doing this in a set of complex alliances in which not everyone is agreement, we owe it to our forces not only to give them legal protection-I hope that the measure gives watertight and good protection-but to set out how they should operate day by day where we do not have complete agreement with our allies about getting rid of those weapons.

Photo of Edward Davey Edward Davey Shadow Secretary of State (Foreign Affairs), Liberal Democrat Spokesperson (Foreign Affairs)

The points that the right hon. Gentleman has made are right. We need to ensure that our forces have clear guidance and are protected in case allies on the same operations use such weapons. There is no way that we should have any situation in which our armed forces could be prosecuted because allied commanders have decided to use those weapons. However, another way of looking at this is that, as Britain is signing up to the convention and because we work with so many allies, we might be able to spread good practice and persuade others to come into line with us and eventually sign the convention. One of the many advantages of working with NATO and our European partners is that we can try to encourage them. My understanding of the convention that lies behind the Bill, and which we have signed, is that we now have a duty as a country to promote the convention and encourage others-states and non-states-to sign it. Although the interoperability point raises concerns for our servicemen and women, it is also an opportunity to try to get the convention taken up more widely.

Photo of Chris Bryant Chris Bryant Parliamentary Under-Secretary (Europe)

The truth is that we would not have the convention if it had not included the interoperability provision. It was a key part of the brokerage that the Prime Minister advanced in Dublin. All the voluntary organisations calling for a cluster munitions convention were delighted that we managed to achieve it, and have, therefore, been supportive of the interoperability clause. As article 21(2) states:

"Each State Party shall notify the governments of all States not party to this Convention...and shall promote the norms it establishes."

In other words, states parties have to make sure that any other states with which they are working understand the basis on which their personnel will be engaged. Yes, Mr. Redwood is completely right to say that we have to make sure there is clear guidance for personnel, so they know exactly what they can and cannot do. That is already in hand. Consequently, Sir Alan, I very much hope that the clause will stand part.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

Clauses 10 to 15 ordered to stand part of the Bill.