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Lord Wallace of Saltaire: I have a great deal of sympathy with what the noble Lord, Lord Mackay of Ardbrecknish, said on this matter. The civil liberties implications are difficult and clearly this is an area which will be expanded further. However, officials of this Government working for the UN operate under similar powers in Iraq and elsewhere. That is part of the problem That is part of the problem of what I understand to be reciprocity rather than complementarity. If we want international agencies to be able to operate in other countries under conditions which are not always to the benefit or convenience of their own regimes, we have to accept that some of our obligations and prized domestic concerns will be invaded.
I find myself very uncomfortable with this, and I should therefore like to ask the Minister about American responses to this. It seems to me that American practice-- and I have read the Supreme Court practice on the limits of international law overriding American domestic law--are much more restrictive than ours. In trying to balance those two desirable but incompatible objectives, there are some major issues to which, as the noble Lord, Lord Mackay of Ardbrecknish says, we shall have to return.
Lord McIntosh of Haringey: When we were in Opposition, I was proud of succeeding in securing the inclusion into the Police Bill, as it then was, of a provision that the police could not carry out intrusive surveillance--bugging--of domestic premises other than with a judicial warrant from a county court judge. He is quite right in saying that I am, then and now, and he is, now but possibly not then, extremely protective indeed of personal liberty in that way.
I hope to be able to persuade him that in this case, it is not just reasons of precedent but very practical reasons which make it necessary for us to enact the Bill as drafted, and to give the powers which are given here to inspectors of the International Atomic Energy Authority.
The amendments would require the inspectors to exercise the rights which the Additional Protocol requires to be given to them dependent on obtaining a warrant from a magistrate. We say that it would almost certainly place the UK in breach of the Additional Protocol, not because we do not believe it will, but because it has never been tested in the courts, so we are being particularly cautious about that. It seems fairly clear that there would indeed be a breach. For that reason alone, it is not acceptable to the Government. It would indeed be out of line with the precedents, but in any case it is not necessary.
As regards a breach of the Additional Protocol, the access for inspectors to premises for the limited purpose allowed by the Additional Protocol is one of the key obligations placed by the protocol on the United Kingdom. That does not mean, as the noble Lord suggests, that the inspectors can go where they like. They can go only to the location listed in the Additional Protocol and they may do only what the Additional Protocol allows. To take the noble Lord's example, the DTI could not ask an IEAA inspector to go anywhere else for the DTI, nor could an inspector be asked to carry out the types of search which the department is allowed to undertake under Clause 4 or indeed Clause 8, but I shall return to that when we consider Amendment No. 5.
The right of inspection exists exactly for the reasons given by the noble Lord, Lord Wallace of Saltaire. It is necessary, perhaps not so much in this country; but the inspectors should have unfettered access in all the countries whether they are nuclear or non-nuclear weapons countries. Of course, that is particularly true of Iraq.
UNSCOM, which was set up in Iraq under the United Nations Security Council Resolution 687 of 1991, has seen a history of Saddam Hussein and his regime seeking to frustrate the activities of the inspectors who were charged with eliminating the weapons of mass destruction, biological, chemical and nuclear weapons, long-term missiles, and setting up a long-term monitoring system. Time after time, as the inspectors arrive at the front door--be it a warehouse, a factory or one of Saddam Hussein's presidential palaces--they are delayed in conversation while the lorries leave by the back door.
That is exactly what would happen if the inspectors had to go to a British justice of the peace in order to get authorisation. We do not believe that in practice that will happen in this country. However, in order for inspection to work effectively in Iraq, and possibly in other countries, it is essential that we commit ourselves to exactly the same conditions as the other countries about whose motives and activities we have a great deal more suspicion. That is the basis on which the Additional Protocol has been set up. That is the basis on which nuclear weapon states are put on an equal footing with non-nuclear weapon states. There is simply no scope under the Additional Protocol or the safeguards agreement for further limits or conditions to be imposed on this access.
We are bound to ensure that it is implemented without further conditions or limits. That means that, apart from the issue of delay, if the warrant went to a magistrate who either denied the application or varied it in any way, we should certainly then be immediately in breach of the protocol. The noble Lord will not be surprised if I remind him that the Chemical Weapons Act, to which he referred and which he describes as being a poor precedent--the precedents are building up--was enacted as was the Landmines Act 1998 with exactly the same provisions. It was enacted after UNSCOM had been set up and after a great deal of bad experience with obstruction by the Saddam Hussein regime. Indeed, the Nuclear Safeguards and Electricity (Finance) Act 1978, which implements the 1976 Safeguards Agreement, would have the peculiar effect that these are the same inspectors; and for some things they would not have required judicial authorisation whereas for others they would. That really cannot be sensible. I hope that I have made it clear, without going into a great deal more detail-- I am capable of doing so--that these amendments would be undesirable.
Lord Wallace of Saltaire: Before the Minister sits down, perhaps I may ask him to let me know by Report stage what the United States and France are doing in terms of ratification of the Additional Protocol.
Lord Mackay of Ardbrecknish: I am grateful to the Minister. Without flattering him too much, I know that he takes these issues of individual rights very seriously indeed. I fully appreciate that other countries--and Iraq is the classic example--frustrate the inspectors. However, because Iraq frustrates the inspectors, I wonder whether for the third time we should be setting up and allowing an international agency to do things which we would not allow any of our own agencies to do?
As regards the example of the lorries going out the back door, my understanding and knowledge is that, if an official asks a justice for a warrant, the person on the warrant to be served does not know that the official has gone for a warrant. That is certainly the case when police come for a warrant: they have not already told the person, "We are going down the road to contact a justice of the peace in order to get a warrant to come and search your house".
Lord McIntosh of Haringey: I accept that. I accept, too, that the argument for delay is perhaps overstated. I was thinking of the case of a leak of information, which I accept could be rare. The more important point is this. If the justice denies a warrant or imposes conditions on it, those two facts themselves are in contravention of the protocol.
Lord Mackay of Ardbrecknish: I understand that and I understand the international point. I am sure that occasionally police officers feel that they have been frustrated when a justice of the peace does not give them a warrant or qualifies it in some way, when they think they are in deep pursuit of people involved in criminality. That is merely one of the hoops through which we in this country like authority to go. However, I shall not continue with this matter. The Minister kindly wrote to me and I understand the point he makes. It does not resolve my concern that in a year or two's time, we might be back here on another Bill dealing with another international agency and dealing with the same issue again; and because it has been allowed on three occasions, we shall decide that it is all right.
It is just something about which we should be very careful in future. If other people--other countries--do not have a rule of law, it does not mean that we should lessen our regard for our rule of law. The fact that in this country we allow unfettered access to those inspectors will not make too much difference to Saddam Hussein's view and I doubt that anybody thinks it will do. He may pray that in aid if we say that he has to go a justice of the peace but that is rather different from the kind of chicanery he gets up to.
However, I have now given this matter an airing, which seemed only right. On reading the Bill, one notices the distinction made between our own, home-grown officials and officials of this agency and the issue