Offence of serious violation of Second Protocol

Cultural Property (Armed Conflicts) Bill [Lords] – in a Public Bill Committee am 10:00 am ar 15 Tachwedd 2016.

Danfonwch hysbysiad imi am ddadleuon fel hyn

With this it will be convenient to discuss the following:

Amendment 4, in clause 3, page 2, line 17, at end insert

“, or

(c) a foreign national serving under the military command of the UK Armed Forces.”

Amendment 5, in clause 3, page 2, line 17, at end insert

“or if the act was committed by a private military contractor or an individual employed by a private military contractor, including persons contracted to the UK armed forces.”

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Culture, Media and Sport) (Arts and Heritage)

These are probing amendments in my name and that of my hon. Friend the Member for Tooting. Amendment 3 is a technical drafting amendment that allows amendments 4 and 5 to make sense. We are exploring which military personnel are bound by the second protocol, specifically in relation to foreign nationals embedded in UK armed forces. At the heart of this debate is the question: who is classed as being subject to UK jurisdiction, for the purposes of the convention and the Bill, and who is not?

I said earlier that it is inevitable when ratifying a convention that was written more than six decades ago that some elements will no longer chime with modern reality and practice, and we are limited in how we can amend the Bill because it forms part of an international convention. The hon. Member for Kensington illustrated the complications when referring to whether the difference between a comma and a semicolon could lead to misinterpretation. She said that she had the Spanish translation available; I am sure that my hon. Friend the Member for Rhondda could cast his eye over that. Although I am tempting him, he is not contributing with his fluent Spanish.

The passage of time provides less of an excuse for uncertainty regarding those parts of the Bill that were written more recently, so gaining clarity is all the more important. On amendment 4, which refers to embedded soldiers, I welcome the fact that the Minister, Baroness Neville-Rolfe, said in the Lords that under the Armed Forces Act 2006,

“regular members of the Armed Forces remain subject to UK service law”—[Official Report, House of Lords, 28 June 2016; Vol. 773, c. 1488.]

even when they are embedded within another army. They remain under the UK’s jurisdiction, and so would remain bound by the second protocol. It is also important to note that the UK armed forces already behave, and are instructed to behave, as if they were bound by the convention and its protocols, and that the impact assessment for the Bill showed that their conduct will have to change very little when the Bill becomes law.

However, the Government have not quite clarified the reverse, which is how the convention and its protocols apply when a foreign national is embedded in UK armed forces, particularly if that other nation is not a state party to the convention or its second protocol. That concern is particularly pressing as the use of embedded forces has become much more prevalent since the convention was originally passed in 1954. The Armed Forces Deployment (Royal Prerogative) Bill, which is awaiting its Committee stage in the other place, is testament to the growing concern about how, when and where the UK armed forces use embedded forces.

The uncertainty that amendments 4 and 5 aim to clarify points to one of the Bill’s vague points: while it is clear about which institutions will be affected, it does not address their internal nuances, or how those institutions interact with each other. That is particularly obvious in clause 5; its interpretation and implementation is complicated by the frequency of use of coalition forces, and the rise in the use of private security firms.

During line-by-line scrutiny of the Bill in the House of Lords, Lord Howarth of Newport recalled that private military contractors had participated in terrible destruction of cultural property at crucial archaeological sites during the Iraq war. However, when asked whether such contractors and the individuals in them would be bound by the Bill, Baroness Neville-Rolfe concluded her remarks by saying:

“I think they are covered.”—[Official Report, House of Lords, 28 June 2016; Vol. 773, c. 1489.]

It is not enough, for our purposes, for a Minister to say “I think”, so I look to the Minister to confirm that they are most certainly covered. Given that we all agree on the severity of the crimes listed in the Bill, it is absolutely right and only fair that we ask for more certainty on who exactly is considered to be under UK jurisdiction—and so criminally liable if they commit such crimes.

I appreciate that the Government have previously referred to clause 29, which states that senior managers of private military contractors are criminally liable for actions committed by their company if they were involved in making those decisions. Our amendments are intended to clarify the remaining ambiguity surrounding the criminal liability of individuals who are under the command of UK armed forces without being members of them, and are not necessarily UK nationals.

In the same debate, Baroness Neville-Rolfe went on to say:

“By making explicit reference to embedded forces and private military contractors in the Bill, we could risk creating doubt and confusion in the interpretation of both the Bill and other legislation.”—[Official Report, House of Lords, 28 June 2016; Vol. 773, c. 1489.]

In my experience, doubt and confusion are created by a lack of clarity, not an abundance of it, so clarity is what we need from the Minister in responding to our amendments. Will she provide us with that? Will foreign nationals embedded in the UK armed forces, private military contractors and the individuals in those contractors, including those contracted by the UK armed forces, be bound by the second protocol and the provisions of the Bill?

Photo of Tracey Crouch Tracey Crouch The Parliamentary Under-Secretary of State for Culture, Media and Sport

I thank the hon. Gentleman for tabling the amendments; that allows the Government to reassure the Committee on this important issue. It also allows me to pay tribute to the UK armed forces, which, as he said, already apply the convention in their actions and behaviours. We should take a moment to thank them for doing so. In addition, it allows me to pay tribute to the excellent monuments men and women, who have done a great deal to protect cultural heritage in conflict zones. We cannot praise them enough for what they have done.

The amendments seek to extend the UK’s jurisdiction over the offences described in article 15(1)(d) and (e) of the second protocol. Under the second protocol, the UK is required to establish jurisdiction over such acts only when they are committed on UK territory or by UK nationals. Extending that to foreign nationals committing these acts abroad would be exceeding our obligations under the convention and protocols.

The amendments would mean that foreign nationals committing such offences abroad would come under our jurisdiction if they were serving under the military command of the UK armed forces, or were private military contractors or their employees. To deal with embedded forces first, when any foreign military personnel are embedded in UK forces, a bespoke status of forces agreement or memorandum of understanding is drawn up that sets out responsibility for the individual involved. That will normally outline that the embedded individual continues to be subject to the jurisdiction of their home state. We would expect that same principle to apply to UK military personnel embedded in overseas militaries.

Therefore, if a foreign soldier were to commit an act set out in article 15(1)(d) or (e) while embedded in a UK unit, we would dismiss them and send them back to their home state to be dealt with for disobeying orders. The individual would face the consequences of their actions on their return home, and there is no loophole for embedded forces; that would apply whether or not a foreign state had ratified the convention or protocols, as the individual would be disobeying an order. Similarly, if a UK soldier embedded in the armed forces of another state broke military rules, we would expect them to be dealt with under the UK’s jurisdiction.

Our concern in the Bill must be to focus on protecting cultural property in the UK and to set clear rules for how UK military personnel and UK nationals operate abroad. We should not be extending our jurisdiction to police foreign nationals committing crimes abroad; that is beyond what is required by the convention and protocols. Private military contractors and their staff are already covered and would be criminally liable in the same way as any other legal or natural person. That means that if an employee of a private military contractor who is a UK national or subject to UK service jurisdiction vandalised or looted cultural property, they would be potentially criminally liable under clause 3 on the same basis as any other person.

Clause 29 also ensures that the senior management of private military contractors are personally liable for offences committed by their organisations if they consented to or connived in the offence. That ensures that senior managers cannot escape the consequences of the actions of their organisations if they were personally involved in them. However, in accordance with our obligations under the protocol, that is limited to UK nationals and those subject to UK service jurisdiction for the offences in article 15(1)(d) and (e) of the second protocol.

To extend our jurisdiction to non-UK nationals for all offences committed abroad would be to go beyond what is required to become party to the convention and protocols. It should be remembered that jurisdiction over the acts in article 15(1)(a) to (c) already extends to foreign nationals committing the most grave offences abroad, as required by the convention and protocols. We would be extremely concerned if amendments to the Bill were to lead the UK to extend our jurisdiction beyond what is necessary to become party to the convention and protocols.

I am sure that we all agree that the UK should not attempt to exceed the boundaries set out in this internationally agreed approach, or become a world policeman in going beyond that. I hope that I have clarified the Government’s thinking on this matter, and that the hon. Gentleman will feel able to withdraw the amendment.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Culture, Media and Sport) (Arts and Heritage) 10:15, 15 Tachwedd 2016

I thank the Minister for her response. On amendment 4, I think she was saying that the answer is no—that foreign nationals serving with the UK armed forces will not be covered, and that the Government do not wish them to be included, because that would go beyond the requirement in the convention. We could debate at some length whether it would be desirable for the UK to seek to do that, but given that we accept that the purpose of the Bill is to bring the convention, as written, into UK law, I will not seek to extend our debate and press the amendment to a vote.

On amendment 5, the Minister has made it clear that as far as the UK Government are concerned, contractors are covered by the Bill and the schedules to it. She gave a clearer explanation than her colleague in the House of Lords, Baroness Neville-Rolfe, who said:

“so I think they are covered.”—[Official Report, House of Lords, 28 June 2016; Vol. 773, c. 1489.]

I thank the Minister for being clear on that point.

That raises an interesting question. Prior to this Committee, I asked the Secretary of State for Defence in parliamentary question 52310 how many members of foreign armed forces have been embedded in the UK armed forces in each year since 2010. I thought that information might be of use to colleagues on both sides of the House in understanding how our armed forces operate. I got back an answer from the Minister for the Armed Forces on 14 November at 5 pm saying:

“This information is not held centrally and could be provided only at disproportionate cost.”

I say gently that that is a good example of how Governments—of all colours, before the Government Whip, the hon. Member for Beverley and Holderness, does his usual chunter at me for saying this sort of thing—fail to answer parliamentary questions. That annoys me, as it should annoy us all, whatever side of the House we are on. Lloyd George, when driving in north Wales, once stopped to ask directions from a local farmer—in Welsh. He said, “Where am I?” and the local farmer said, “You’re in your car.” Lloyd George said that was a perfect example of how civil servants draft and Ministers answer parliamentary questions: the answer was short, accurate and told him absolutely nothing he did not know already.

It would be helpful, if we are properly to scrutinise and understand the Bill, if the Minister’s colleagues in the Ministry of Defence made an effort to tell us how many members of foreign armed forces have been embedded in the UK armed forces in recent years. I understand the point that she made about how they would be disciplined in the event of them breaching the Bill, but it would be useful to all of us in the House to know the answer to that question. I do not know whether the Defence Committee is interested in pursuing that. I may pursue it further, depending on my other priorities, but I would certainly like to know the answer to that question. Perhaps the Minister could pass on our concerns to her colleagues in the Ministry of Defence. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Clause 4