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Extraterritorial application of biological weapons offences

Question proposed, That the clause stand part of the Bill.

Mr. Humfrey Malins (Woking): I have a couple of questions for the Minister, but I shall be entirely content if he is good enough to give me answers in writing over the next few days. [Interruption.]

The Chairman of Ways and Means (Sir Alan Haselhurst): Order. I am sorry to interrupt the hon. Gentleman, but I must ask Members who do not wish to stay for this debate not to engage in conversations, but to leave quickly and quietly.

6.45 pm

Mr. Malins: Thank you, Sir Alan.

I have noted the effects of clauses 43 and 44—particularly those of clause 44, which extends United Kingdom jurisdiction over certain offences to acts committed overseas by a UK person. Opposition Members understand the need for the clauses, but we have a brief query.

We note the extent to which clauses 43 and 44 cover activities of any person within the UK, and of UK persons outside the UK. Can the Minister confirm that clause 44 covers either or both of the following persons? The first is a UK-based foreign national—possibly an EU citizen—with rights to work and live here who, while abroad, commits an act that, if committed by a UK person, would be an offence. The second is someone who, although not a British subject, has exceptional leave to remain in this country, and who commits such an act while on a foreign trip.

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We know the position of a UK person outside the UK, and his or her liability. Other people, however, could have rights of abode of one kind or another in this country, and might while abroad commit an offence and then seek to return here. I merely seek clarification of whether such persons will be covered. I shall be grateful if the Minister can clarify that now, but I shall entirely understand if he cannot.

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy): I want to speak to amendments Nos. 51 and 52 later. They have not been called yet.

The Chairman: Order. We are currently discussing whether clause 44 should stand part of the Bill. What the hon. Gentleman says is interesting, but not strictly relevant.

The Parliamentary Under–Secretary of State for Foreign and Commonwealth Affairs (Mr. Ben Bradshaw): I assure the hon. Member for Woking (Mr. Malins) that he will not have to wait for answers. My officials have been very quick off the mark, and have assured me that the answer to both his questions is no.

Mr. Malins: I understand the Minister to have said that the clause would not apply to the people whom I cited. Given that its purpose is to cover a UK person based in the UK but committing an offence abroad, would it not be wise to consider, at some stage between now and when the Bill goes to another place, whether the Government have covered every person whom they feel should be covered? I leave that message with the Minister.

Question put and agreed to.

Clause 44 ordered to stand part of the Bill.

Clause 45

Customs and Excise prosecutions for biological weapons offences

Mr. Bradshaw: I beg to move amendment No. 23, in page 22, line 14, leave out from "involved" to end of line 18 and insert "—

(a) the development or production outside the United Kingdom of any thing mentioned in section 1(1)(a) or (b) above;
(b) the movement of any such thing into or out of any country or territory;
(c) any proposal or attempt to do anything falling within paragraph (a) or (b) above'.

The Chairman: With this it will be convenient to discuss Government amendments Nos. 24 to 29.

Mr. Bradshaw: The amendments fall into three groups. Amendments Nos. 23, 25 and 28 are required to enable Customs and Excise officers to investigate and, where appropriate, prosecute offences concerning the development or production of the relevant weapon overseas. Such offences are likely to involve the transfer into or out of a country of technology relating to the development of biological, chemical or nuclear weapons, or the provision of services overseas. These technical amendments will allow customs officers to investigate all

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relevant offences, and will bring provisions in the Bill more into line with those in the Export Control Bill, which is being considered in the other place.

While cases in Scotland are prosecuted by the relevant procurator fiscal, Customs and Excise officers are responsible for investigation of customs matters throughout the United Kingdom. Amendments Nos. 24, 26 and 29 will make it clear that customs' investigation role in respect of such cases will apply in Scotland, as it does in England and Wales and Northern Ireland.

Amendment No. 27 makes it clear that application of clause 47 is not restricted to acts done outside the United Kingdom. The amendment brings the structure of the clause into line with similar clauses elsewhere.

Amendment agreed to.

Amendment made: No. 24, in page 22, line 38, after "to", insert "the institution of".—[Mr. Bradshaw.]

Clause 45, as amended, ordered to stand part of the Bill.

Clause 46

Customs and Excise prosecutions for chemical weapons offences

Amendments made: No. 25, in page 23, line 4, leave out from "involved" to end of line 8 and insert "—

(a) the development or production outside the United Kingdom of a chemical weapon;

(b) the movement of a chemical weapon into or out of any country or territory;

(c) any proposal or attempt to do anything falling within paragraph (a) or (b).'
No. 26, in page 23, line 28, after "to", insert "the institution of".—[Mr. Bradshaw.]
Clause 46, as amended, ordered to stand part of the Bill.

Clause 47

Use etc. of nuclear weapons

Amendment made: No. 27, in page 24, line 16, at end insert—

'( ) Nothing in subsection (7) affects any criminal liability arising otherwise than under that subsection.'—[Mr. Bradshaw.]
Question proposed, That the clause, as amended, stand part of the Bill.

Mr. Malins: The Minister will note that clause 47(7) states:

Although I have the same question on this provision as I had on previous ones, I understand that the same answer will apply. I shall therefore not prolong matters. However, when the Minister is considering why the persons to whom I have referred are not covered by an earlier clause and whether they should be so covered, will he ask himself the same questions in relation to clause 47(7)?

Denzil Davies: As I was a shadow defence spokesman many years ago, I sit up when I see the words "use of nuclear weapons". Clause 47 seems to make it a prima facie offence—a term that I use advisedly, as there are

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later exceptions—to have nuclear weapons in one's possession. If there were no exceptions, presumably even a Government who have nuclear weapons in their possession would be guilty of an offence. However, as the draftsmen and the Home Office are clearly not that stupid, they have made exceptions.

Clause 48(1) notes:

I take it that that provision will permit "The Secretary of State"—which I take to mean any Secretary of State; I do not know whether the decision would fall to my right hon. Friend the Home Secretary—to authorise the use of the nuclear deterrent. It is a curious and bizarre provision. It must also be the first time that we have made such provision in legislation. I also note that use is permitted in armed conflict without a certificate, and that the Secretary of State can decide what an armed conflict is.

There must be some type of authorisation for the development, possession and participation in the transfer of nuclear weapons. If there were not, the Government presumably would have to prosecute themselves. Perhaps the Attorney-General will be wheeled in for that purpose—he seems to be wheeled in for the purposes of most other parts of the legislation—and will exercise his discretion. I note the matter simply because I find it bizarre.

Llew Smith (Blaenau Gwent): I have a question on tactics and the definition of nuclear weapons used in clauses 47 to 49. Do the Government intend that the Bill should include as nuclear weapons radiological weapons that are made from nuclear waste, spent nuclear fuel or other radioactive-source contaminants that are detonated with conventional explosives?

Mr. Bradshaw: The answer to the last question is no.

The exceptions in clause 48 to which my right hon. Friend the Member for Llanelli (Denzil Davies) referred are required, as he suggested, to prevent essential operational and maintenance activities of authorised persons connected to the UK's independent nuclear deterrent from being an offence. In the course of an armed conflict, it may not be practical for the Secretary of State to issue all the authorisations required to operate the deterrent without imposing unacceptable delay. For that reason, it is necessary to have a more general exception.

Question put and agreed to.

Clause 47, as amended, ordered to stand part of the Bill.

Clauses 48 to 52 ordered to stand part of the Bill.

Clause 53

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