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Lord Burnham: I accept what the noble Lord says. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 5 not moved.]

On Question, Whether Clause 5 shall stand part of the Bill?

Lord Kennet: Hitherto we have been debating possible improvements to Clause 5. I intend to give the Committee an opportunity to debate a proposal to get rid of Clause 5 altogether.

I start by saying that I am a friend of the Bill; I am a friend of the Ottawa convention; and I am a friend of our Armed Forces, in one of which--although it was not the Army but the Navy--I served for the second half of the Second World War. I applaud the Government's action in this matter in every respect except only in respect of Clause 5.

I want to go back to the beginning of the clause. What is the language of the different relevant texts? It can be easily compared. Article 1 of the convention says,


I repeat, "never under any circumstances"--


    "to assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention".

Clause 2 of the Bill, giving effect to the convention, says that,


    "no person shall assist, encourage or induce any other person",

and so forth, taking up the very words of the convention. However, Clause 5 of the Bill says that that does not apply in the case of international military operations outside the UK in which anti-personnel landmines are or may be deployed by the armed forces of a state which

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has not signed the Ottawa convention. In practice, that means NATO, both in and out of area, and the only two NATO members who have not signed are Turkey and the United States.

The clause in the Bill thus directly negates Article 1 of the Convention in that it specifies the circumstances in which a member of the British Armed Forces may assist, encourage or induce a member of the American or Turkish armed forces, for instance, in an activity prohibited to state parties, even if not to the United States or Turkey. Thus, with Clause 5, we try to exclude our troops from prosecution if they assist the troops of a non-signatory intent on laying mines without themselves doing the laying, which would have to be done by the non-signatory troops.

I should like to raise the question of where they might be prosecuted--we have not considered that enough. Even if Clause 5 stands part, our people would still be open to prosecution in the new International Criminal Court for breach of the convention. At least I think they would; I would welcome the opinion of the Government Front Bench on that. If the new court's prosecutor has, as many believe he should have, power to apprehend without an order from the court, then he could call on the British Armed Forces and police to help him apprehend the accused on British territory. Is that right? Will the new international court be able to send a prosecutor here and arrest a British soldier--I am taking an extreme, but it is good to take logical extremes--for assisting the Americans in laying landmines, even if Clause 5 stands part of the Bill? I believe he will be so entitled. We would not be able to nip in first and claim that the man would be properly prosecuted here in any case under national law and the court should not bother its august head with the case, because Clause 5 is intended precisely to prevent that man being prosecuted here.

The Government's interpretation of the convention as allowing a Clause 5 defence is certainly disputable. On what bit of the convention do they rely in asserting it? I cannot find any text in the convention which will permit that.

The Solicitor-General (Lord Falconer of Thoroton): In the light of the noble Lord's speech in relation to the inter-reaction between the convention and the Bill, in the light of what the noble Lord, Lord Moynihan, said, and the questions asked by the noble Baroness, Lady Rawlings, perhaps I should briefly set out what we believe the position to be.

The convention bans certain activities, including assisting in the laying of landmines. Subject, inter alia, to Clause 5 of the Bill, anyone, either in Britain or abroad, who does such a thing is guilty of a criminal offence. Clause 5 provides a defence in special circumstances. That defence is where somebody is engaged in activity of a joint military nature. What is being said in Clause 5 is that, simply because we are engaged in a joint military operation where some other country which has not signed the convention is laying

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landmines, will not of itself constitute a criminal offence. It is a defence; it is not a permission to do specific things.

Even that defence excludes from it the act of laying landmines itself. That is an unequivocal act which is banned by the convention. There will be grey areas where it will not be clear precisely whether it was banned or not by the convention. I am sure we all agree that in relation to the individual soldier he must know precisely where he stands. However, it is the Government's unequivocal intention to stand by the aims of the convention. We want to do that but at the same time leave the soldier knowing where he stands.

Therefore, in relation to those cases where there may be abuses, we say that that will be dealt with by rules of engagement and standing orders. That is how we intend to comply with the convention. There is an underlying misconception in many of the questions in relation to international law. Britain could be taken to the international court--I cannot say the procedural way in which it would reach there--but the question would not be: does Clause 5 constitute a breach of international law? The question would be whether, on the facts of a specific case, it would constitute a breach of international law.

I have set out clearly our means of complying with the convention. Clause 5 is a defence to Clause 2. It is a part of the process of ratification or the process of compliance. There are other things as well. The noble Baroness, Lady Williams of Crosby, said that the Canadians are only relying on the declaration. That is not right. The Canadians introduced legislation and they too dealt with this question. I cannot give the precise detail, but they have legislation that comprises a defence. It may not be on the same lines as ours, but it deals with it in the same way.

I hope that that clarifies the legal basis on which we proceeded. I cannot give anyone an assurance that we will be bound to win in an international court because I do not know what the facts of a specific case may be. However, I can assure the Committee that the Law Officers advised us on this and are perfectly content that this is an appropriate way to proceed.

Lord Kennet: I am flattered to have provoked such a lengthy and informative explanation from the Solicitor-General, which was firmer than anything we have heard so far on the point he addressed. There remains the question--I do not expect him to answer it now, but it remains unanswered--as to whether it will be possible for the prosecutor of the international court to come to this country and, using his own agents or maybe directing British police and Armed Forces, apprehend the person accused of assisting in the laying of mines contrary to the Ottawa convention. Obviously the Solicitor-General will need to take time to think about that.

It has been argued--and the argument is still rumbling around the Chamber today--that Clause 5 is not so odd or undesirable because it is only one of various other documents. It is worth running through this matter once more and comparing the language.

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We have been told that the Canadian Government, in a declaration made at the time it signed the Ottawa convention in Ottawa, said something comparable. Rather the contrary. The Canadian declaration states that mere participation in operations and so forth conducted in combination with the armed forces of states not party to the convention, which engage in activities prohibited under the convention,


    "would not, by itself, be considered to be assistance encouragement or inducement in accordance with [the Convention]".

For Canada mere participation in the operation is all right, but assistance is not all right. For us, assistance is all right.

It is sometimes said--and my noble friend Lord Gilbert has referred to this today--that the governments of Germany or France have said or may say something like what HMG are saying in Clause 5. I have not found any trace of that and indeed, when I telephoned their military attaches in London, I was informed in both cases that the procedures for their adhesion to the convention have been concluded (including whatever parliamentary consideration was constitutionally necessary) and that no such declaration has been found necessary. So I do believe that we stand alone with the word "assist". That is the point where we part company with our allies. I think we should not, since it half aligns us with the non-signatories: Turkey, India, China, Russia and the United States prominent among them, though of course in practice we are talking overwhelmingly about the United States.

We have heard on earlier occasions (although not yet today) that the deletion of Clause 5 would cause the Bill to be lost, which we should all regret, I no less than anyone else. Well, it is true only up to a point. It will not, of course, be lost if the Government decide on second thoughts that it would be better without Clause 5, for all the reasons that others and I have given at different stages. If, for whatever reason, they decide they must still have Clause 5, it will still not be lost, only delayed by, say, four months until the spill-over. Here we encroach upon territory which is always regarded as somewhat sacrosanct for free debate in either House, and that is the work of the managers of government business. But I think it is permissible to look at that from the outside and see if we can accept the blanket assurances we get that the Bill will be lost for an indefinite time, and therefore in effect destroyed, by the disappearance of a single clause. If Clause 5 has been deleted here and the Government decide they must have it, the Bill will not be lost, but only delayed for four months until the spill-over or, if that is overbooked, by five or six months:- into the new Session.

The argument is heard that in the latter cases we may not be among the first 40 signatories, the number necessary to bring the convention into effect. Well, that is true, and it has a certain symbolic importance. It is also true that the Government put a lot of work into the negotiations and favoured the adoption of the convention in general and therefore have good reason to wish to be among the first, activating, group of 40 signatories. However, we must remember that the convention did not contain anything corresponding to Article 5 of the Bill. Article 5 of the Bill is an

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afterthought, suddenly tacked on after all the good work had been done by the Government. We still lack any explanation of why it was that the Government did not press for wording in the convention itself which would have made this national reservation unnecessary. Now I see that I am going to get the explanation. I suggest that one likely explanation is that after the convention was signed the non-signing United States suddenly realised that the present level of our collaboration with them in planning mine-handling was so high that a change would be inconvenient. If that is not the case, perhaps the Minister will let us know.

I do not myself propose to divide the House because I think it may be better after all if we adhere to the convention and then get taken to task within it under the machinery it includes for breaching it. The Government will not be able to plead ignorance of the objections to Clause 5, which have been thoroughly aired, and it will be interesting, if what I fear will happen does happen, to hear what arguments they do advance. I believe, even if no other noble Lord calls out in favour of deleting Clause 5, that the issue will have been well worth debating because the objections have now been fairly set forth not once but several times.


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