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This is a probing amendment. As the Bill is currently drafted, clause 4(3) limits the application of the offences defined in clause 2(1) and (2) to British nationals and companies alone when the alleged offence relates to actions outside the United Kingdom rather than to those on UK soil. My amendment would remove that limitation and extend liability equally to people and companies that were not British and that had committed the offences defined in clause 2.
My question to the Minister is this: why have the Government chosen to include the limitation in clause 4(3) of the Bill? It is conceivable that the offences defined in the Bill could be committed by people who are resident here but who are not British citizens. Plenty of people who live here are legal but temporary residents and others have indefinite leave to remain; there are Commonwealth citizens; European Union nationals in Britain exercising their rights under the treaty of Rome; and some who have always been resident in Northern Ireland identify themselves as Irish rather than British citizens under the terms of the Belfast agreement. All those people could-hypothetically-commit one of the offences defined in the Bill, but they would seem to be exempt from prosecution in respect of an offence committed outside the UK, whereas their next-door neighbour committing the same offence could, on my reading of the Bill, be caught by it and convicted.
Therefore, the purpose of the amendment is to get the Minister to elucidate the purpose of that exclusion and to see whether the Government believe it is justified and whether they are prepared to review it.
Mr. William Cash (Stone) (Con): I share my hon. Friend's concern. He said that it is a probing amendment, but of course, in the context of the Bill, which comes from the House of Lords and is now in its final stages, the Minister's answer will have to be definitive; otherwise, it will not be a probing amendment and it will be made very rapidly.
"Section 2(2) applies to assistance, encouragement and inducements in the United Kingdom or elsewhere"
"and to assistance, encouragement and inducements"
"assistance, encouragement and inducements"-
We are often accused-particularly those of us who are lawyers-of being rather pedantic, but the truth is that legislation is about law. I am not suggesting that the Minister would do this in the context of the debate, but it would seem rather absurd to accuse us of being either pedantic or pernickety when we draw attention to inconsistencies. There are strange aspects to the Bill, and given its object, I concur with what my hon. Friend said. I look forward to both an explanation and a definitive answer from the Minister, because we are in the later stages of our consideration of the Bill, and what he says may determine what we do after Committee stage.
"assistance, encouragement and inducements in the United Kingdom or elsewhere."
However, clause 4(3) applies to what happens outside the United Kingdom. Although it is perfectly legitimate for us to extend the provisions that we make for British people who engage in such activity outside the United Kingdom, creating an offence for people who are not British and who are from other parts of the world, over whom we therefore have no jurisdiction, would be inappropriate. Article 9 of the convention on cluster munitions, on which all our legislation has been based, obliges states parties to impose penal sanctions to prevent any prohibited activity from being
"undertaken by persons or on territory under its jurisdiction or control."
Obviously, the rest of the world is not under our jurisdiction or control. That is why we have not sought to act against foreigners abroad. We are acting against British people abroad, and against anybody in the UK, but not against foreigners abroad.
Mr. David Drew (Stroud) (Lab/Co-op): That is at the nub of the point that I raised on Second Reading. Things are not quite as simple as the Minister makes them sound. Bosnia is a classic example; in that case, cluster munitions were used by British forces, and were inevitably transferred to other forces because of where those munitions ended up. Where would we be if the Bosnians chose to use those munitions, given that we are entirely responsible for that situation? I would be happy to be told that negotiations will ensue. The Minister is looking quizzical, but that is a real-life case; cluster munitions are still there, and could be used by a third party.
I am not sure that my hon. Friend is right on that last point about there being cluster munitions that could be used by a third party there. We are destroying all our stockpiles, full stop. That will all be done by the end of 2013. We are moving forward to try
to make sure that all countries sign up to and ratify the convention, so that cluster munitions become a thing of the past. It would be a step too far, and not a step that the convention requires us to take, to legislate for those who are not British and not operating in the United Kingdom.
Mr. Lidington: I understand the Minister's argument, but surely it leads us towards the following perhaps unlikely, but still possible, hypothetical situation. Two people live next door to each other in a British city. Both go abroad, commit one of the prohibited actions defined in the Bill, and return to Britain. As the action took place overseas, the British citizen could still be prosecuted, but his next-door neighbour, who is a British resident but of a different nationality, could not. That seems to introduce a contradiction into the Bill.
Chris Bryant: The hon. Gentleman rather gave away his argument, because he said at the beginning of his comments, "It's rather unlikely, but I suppose it's theoretically hypothetical." I am not very good at dealing with a "theoretically hypothetical."
Mr. Cash: I will not deal with a theoretical, a hypothetical or a speculative; as may be judged from my demeanour, I will go straight to the issue on which the Minister and I have had so many disputes-the European Union. In the United Kingdom, which is a member of the European Union, the situation that my hon. Friend the Member for Aylesbury (Mr. Lidington) has set out could easily arise. The Minister has repeatedly asserted the virtues of measures such as the European arrest warrant. There is a thing called aiding and abetting, and there is the question of accessories, too. A whole range of criminal law considerations can arise in relation to matters of the kind that we are discussing. The provisions deal with questions relating to offences-that is what clause 2 is all about. Those offences are serious. Indeed, a person guilty of an offence
"is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years",
Chris Bryant: No, of course I will not. The important point is that many other countries are already signatories. If a French person lived next door to a British person in the UK, and went to another country and engaged in the use of cluster munitions, he would be offending under French legislation. That is the general way in which all the conventions have proceeded. That is precisely the process that we adopted for the Landmines Act 1998, and there have not been significant problems in that case. Clause 3(3) is a similar, parallel, sort of arrangement, implementing precisely what was in the Ottawa convention.
Mr. Edward Davey (Kingston and Surbiton) (LD): I think that the hon. Member for Aylesbury (Mr. Lidington) has a point. If someone is permanently resident in the UK, even though they are a foreign national, they are under British jurisdiction in the UK and have British permission to stay in the UK the whole time. Is the Minister saying that it is legally impossible for us to continue that jurisdiction when they travel abroad and then return to the UK? Surely that cannot be the case.
Chris Bryant: For the most part, when a non-British national goes abroad and breaks the law in another country, obviously it is for the laws of that country to deal with them, and in the vast majority of cases, that is precisely what would happen. There is an issue, obviously, because some countries are signatories and others are not and have no intention of being state parties. I honestly suggest to the hon. Gentleman, however, that this is not the big problem that he thinks it is.
Mr. Cash: This is the Committee stage-and it is on the Floor of the House, too-so it is important that we get these things completely right. I have to say that, again, I dispute what the Minister has said. He referred to the legislation on land mines, but he, above all Members of the House, will know that that long predated the European arrest warrant. That is the reason why, I suspect, the Bill has not taken sufficient account of the legislation that currently applies.
Mr. Cash: So it predates the European arrest warrant, which means my point remains. The situation I have in mind could easily be affected by that new European arrest warrant, so there is a problem and the Minister is not addressing it-he is simply saying that we are wrong, without understanding that problem.
Mr. Davey: I do not believe the issue has anything to do with the European arrest warrant; it relates to whether British courts and British law can have jurisdiction abroad over permanent British residents who are not British nationals. This issue is directly relevant not only to the Bill but, in a way, to all aspects of law where Britain has decided to exercise jurisdiction in foreign countries in relation to British citizens-for example, when British citizens have gone abroad and committed sex offences. Such issues must have been considered before, so the Minister must be able to get some sort of briefing and guidance on this. If other legislation has dealt with the problem of international jurisdiction, how is it being dealt with in the Bill?
I think we are making slightly heavy weather of this. In an ideal world, the whole world would be ratifying this convention at the same time and we would be seeing an end to cluster munitions. There is a difficulty for us, however, because some countries are not. So, for instance, a national of a country that is not ratifying who uses cluster munitions in another part of the world-not in the UK-and who has no involvement in the UK, could, when travelling through the UK, be
arrested for something that is perfectly legal in their own country and in the country where they operated. That is the difficulty that would come about were we to get rid of subsection (3). For instance, because the United States has not ratified, and-unfortunately-has no intention at the moment of doing so, American military personnel engaged in the use of cluster munitions in another part of the world could be arrested immediately when passing through the UK. I do not think that is what people really want to countenance. That is why I disagree with the amendment and urge Members to vote against it, I am afraid.
Mr. Cash: I would like to take up the Minister's last point, in the context of a provision to which we have not referred, namely clause 4(4). The terms of that subsection are apparently in contradiction to the provisions in clause 4(3), because under subsection (4) clause 2(2) is said to apply
"whether or not the conduct assisted, encouraged or induced takes place, or (if it takes place) will take place, in the United Kingdom or elsewhere."
However, in subsection (3), which we have just been discussing-and on which I have not received a satisfactory answer from the Minister regarding the European dimension-there is a clear contradiction because subsection (4) could, in certain circumstances, displace or run parallel to subsection (3). This is a very strange piece of drafting.
The Minister is just asserting that my hon. Friend the Member for Aylesbury and I are wrong, rather than giving us a considered assessment of the situation. I understand that he is not a lawyer, and that lawyers are not always right, but there is an inconsistency here. I suspect that the draftsman has gone back to the landmines legislation of 1998 and simply adopted it without having regard to the advances and changes in the law that have taken place since. It is possible that nothing will come of this, because of the probing nature of my hon. Friend's amendment, but I believe that there is a difficulty involved, and the Minister does not take us any further merely by asserting that we are wrong. We have very little opportunity to get this right, and there could be a problem with this provision in a year or so- [ Interruption. ] The Minister shakes his head, but he cannot see into a crystal ball any more than I can.
Mr. Davey: I had not intended to speak to this amendment, but the hon. Member for Aylesbury (Mr. Lidington) has convinced me by the force of his argument that there could be a problem here. I am not suggesting that we should stand in the way of the Bill making proper progress, which is why we should, unlike the hon. Member for Stone (Mr. Cash), approach this as a probing amendment; there is cross-party support for the Bill.
However, right hon. and hon. Members will know that there are many non-British nationals living permanently in their constituencies. I have such people coming from many countries around the world, including parts of the European Union. They have come to this country and want to make it their permanent home, but they want to keep their original nationality. My understanding of the law is that they often have to get special papers to allow them that extra status. The Minister, in trying to undermine the arguments from Conservative Members, gave the example of an American transiting the UK being subject to arrest if the hon. Member for Aylesbury had his way. I do not think that that argument holds, however. We are not talking about visitors to this country or about people who are transiting it. We are talking about people who have special status and who have become permanent residents.
Chris Bryant: I am sorry, but that is completely and utterly untrue. There would be no distinction. Any foreigner from anywhere in the world-who would be subject to the British courts only if they were physically in the United Kingdom-would be caught by this. There would be no distinction between foreign nationals who were permanently resident or domiciled here and those who were merely transiting the UK.
Mr. Davey: The Minister argues that point with great conviction, and he might be right, but I would seriously urge him and his officials to check with the Home Office officials who have to work through the byzantine labyrinth of Home Office legislation on nationality and residence these days. The law has changed many times, and I do not know whether parliamentary draftsmen from the Home Office were involved in the drafting of this Bill, but I would urge him to take advice on this point.
Mr. Cash: I am beginning to sense that the hon. Gentleman is taking a pragmatic and sensible view of this matter. We are faced with a problem, in that the Bill is supposed to go through the Committee like a dose of salts this afternoon, but the point that he and my hon. Friend the Member for Aylesbury and I are making is about nationality and residence, about whether certain people have signed the convention, and about the interaction between the European Union and the criminal justice system that is being set up under those arrangements. There is an important point involved here, and the hon. Member for Kingston and Surbiton is latching on to it.
Mr. Davey: Perhaps we are in agreement, which might be a first, but I am not convinced that the issues regarding the European Union are so relevant to this matter, although they are part of the wider picture. I am not going to try the Committee's patience too much, as I have made my point. I hope that the Minister will go away and take further advice. I do not think that the issue should stand in the way of this legislation, but I am grateful to the hon. Member for Aylesbury for raising this important point.
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