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6 Jan 2010 : Column GC1
Grand Committee
Wednesday, 6 January 2010
Cluster Munitions (Prohibitions) Bill [HL]
Bill Main Page
Copy of the Bill
Explanatory Notes
Amendments
Committee
3.45 pm
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall): My Lords, I remind the Committee that if a Division is called in the Chamber while the Committee is in session, we will adjourn for 10 minutes from the moment that the Division Bell is first heard.
Clause 1 : Munitions to which Act applies
Debate on whether Clause 1 should stand part of the Bill.
Lord Howell of Guildford: My Lords, I should make it clear at the outset of these amendments that we on this side are strongly in favour of the Bill. We want to see its purposes carried forward and, indeed, to see it have a speedy passage first to the other place and then on to the statute book. At the same time, I hope that your Lordships will agree that no Bill is absolutely perfect and that we have a role and a duty to ensure that we know exactly what we are legislating for and, indeed, that we know the precise coverage and scope of the Bill so that we can offer our advice and recommendations to the other place and improve the legislation.
That brings me straight to the Question of whether Clause 1 should stand part, because that is the clause which raises the issue of the weapons covered in the Bill. There is an easy answer, which I am sure will be avoided, and that is that what is covered in the Bill is what is defined in the Convention on Cluster Munitions. However, anyone who has studied the convention will see that it has a whole range of exclusions in Article 2, including weapons designed to dispense flares or smoke, have air defence capabilities and, according to the convention, electronic effects. I am not sure whether that means electronic self-destruct mechanisms or electronic impact on particular targets.
The convention also excludes weapons with less than 10 explosive submunitions, which to the inexpert, such as myself, certainly seems rather high when we are trying to down cluster munitions as a class. Therefore, I ask the Minister whether the exclusions also include the German SMArt-155, the French BONUS munitions or the American SADARM munitions, which I think were used in Iraq-certainly around 2003 if not later. That is one question that seems to hang in the air.
There is also the question of weapons not yet in service. Does the convention, or the Bill, if we carry it forward, cover larger weapons that are said to be coming along which have sensor-targeting and two failsafe systems? I have in mind here-I have taken this from the briefing-the 155 millimetre fused munition, BSFM, which is an artillery round. Indeed, are land-fired
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There is then the broader point that the convention is rightly aimed at-indeed, its central purpose is-banning weapons which "cause unacceptable harm" to civilians. At Second Reading I raised the question of bomb clusters designed not to harm civilians and individuals but to knock out facilities, such as electricity transmission or mobile communications, which were used, so I am informed, in the Kosovo war in bringing Belgrade to a halt. The intention then was to disrupt our systems by producing short-circuits on high-voltage power lines and at sub-stations. There is obviously a balance to be made here. There is a need to consider whether these kinds of weapons, which are not intended to harm civilians and are targeted, are a good or a bad thing.
Can we please have a few answers on these matters of definition and coverage of the Bill before we move on to further clauses?
The Minister of State, Foreign and Commonwealth Office (Baroness Kinnock of Holyhead): My Lords, I thank the noble Lord for his comments. I hope that I can clarify to his satisfaction the issues that he has raised. Clause 1 defines the prohibited munitions to which the Bill will apply. These are cluster munitions and relevant explosive bomblets, the definitions of which we have been careful to take exactly from the Convention on Cluster Munitions, as set out in Article 2. I can assure the noble Lord that these definitions are comprehensive. Needless to say, they capture all those munitions that present significant humanitarian risk and cause unacceptable harm to civilians.
As noble Lords will be aware, the convention and therefore the Bill do not apply to munitions which have all of the following characteristics: each munition contains fewer than 10 explosive submunitions; each explosive submunition weighs more than four kilograms; each explosive submunition is designed to detect and engage a single target object; each explosive submunition is equipped with an electronic self-destruction mechanism; and each explosive submunition is equipped with an electronic self-deactivating feature. It was agreed at Dublin that munitions with these characteristics avoid indiscriminate effects and the humanitarian risk posed by unexploded submunitions. The military may therefore maintain necessary capability through their use. Article 2 of the convention excludes munitions with electronic effects.
I know that the noble Lord, Lord Howell of Guildford, expressed concern at Second Reading that in prohibiting cluster munitions we did not limit the technical capability of our Armed Forces. In particular, he mentioned the CBU-94/B, which scatters fibres to short-circuit electricity systems. I can reassure him that this will not be the case and can confirm that the convention's, and therefore the Bill's, prohibitions do not extend to munitions designed to produce electrical or electronic effects such as the CBU-94/B.
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Amendment 1 would remove from the Bill key definitions, including of prohibited munitions, thereby making the Bill extremely difficult to apply. On this basis, I hope that the noble Lord will withdraw his amendment.
Lord Howell of Guildford: My Lords, I am a little puzzled, because I have not yet moved Amendment 1; I have only spoken to Clause 1 stand part. I am grateful to the Minister for her reply to Clause 1 stand part, particularly as to electronic cluster weapons which do not harm civilians, but I should like to move Amendment 1 in a moment at the proper time.
1: Clause 2, page 1, line 21, at end insert-
"( ) directly or indirectly provide monies that are used for the development or production of a prohibited munition or component thereof,"
Lord Howell of Guildford: My Lords, it is worth noting both for ourselves and for future discussions in another place that we are dealing with an extraordinarily complex situation in which 34 countries have produced 210 different types of cluster bomb, manufactured from an enormous range of different components from many factories and plants all around those 34 countries and in others as well. Therefore, I think that we recognise that finance for the production of these items is complex and diffuse.
I also recognise that the provision of direct finance for cluster bomb manufacture is clearly made illegal under the convention, but that the indirect issue is much more complicated. The Minister has just spoken a few words about it. During Second Reading, she also made a Written Ministerial Statement, as did her colleague in the other place, Mr Bryant, about the need to prohibit indirect financing of cluster munitions manufacture. The suggestion was that this would be dealt with in due course. In this amendment, I am suggesting that it might be worthwhile having these requirements in the Bill. Without the risk of asking the Minister to repeat herself, will she explain a little more about how the Government plan to work with the financial sector, non-governmental organisations and other organisations to prevent this process? Do they intend further legislation as well? I beg to move.
Baroness Kinnock of Holyhead: My Lords, as noble Lords will know, the Convention on Cluster Munitions makes no mention of the provision of moneys in regard to cluster munitions development or production. It is not one of the prohibitions included in the convention. The Bill is designed to implement the convention and therefore does not include specific mention of such financing or investment.
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However, in response to the valid interest of concerned parliamentarians and civil society, I clarified the Government's position on such financing in a Written Ministerial Statement on 7 December 2009. The issue was also debated at Second Reading. If it would be helpful, I am happy once again to outline the Government's position and to reassure your Lordships of our commitment to preventing the financing of cluster munitions production.
Under the Bill, the direct financing of cluster munitions production or development would be prohibited. In addition, we are committed to working with interested parties to promote a voluntary code of conduct to prevent indirect financing by the private sector. We will also review public investment guidelines to the same end. While reserving the right to legislate in the future, if necessary, I feel strongly that this is the most constructive way forward. It would certainly place the UK once more in the forefront of international action. Only a minority of states parties that have so far ratified have explicitly set out positions on financing. None of these has gone so far as to try to prevent direct and indirect financing in both the public and private sectors.
I do not need to tell your Lordships that some of the financial products that could be covered by a prohibition on indirect financing, such as syndicated loans or participation in revolving credit facilities, can be very complex. They can often involve multiple parties, cross jurisdictions and have ultimate beneficiaries several times removed from the originator. I understand that it can be difficult and costly to exit these arrangements. I therefore fear that legislating without significant prior consultation might place some institutions automatically in breach of the prohibitions once they become law. In addition, we have not had the opportunity to assess the impact of this action on the UK's financial sector.
This is why we have preferred the voluntary route initially and I am confident that we can make a difference. As noble Lords know, our priority is the passage of this Bill and the ratification of the convention. I am eager, as I know many of your Lordships are, to ensure that the UK becomes a state party as soon as possible. Once this has been achieved, we will be able to work on the consultation process for the private and public sectors. I would therefore hope that the noble Lord will withdraw his amendment.
4 pm
Lord Hannay of Chiswick: I should like to ask the Minister a question, following her very helpful statement. I understand entirely the arguments that she has advanced for not changing the Bill as proposed in the amendment. However, would she confirm, as I believe is the case from what she said, that the Government in no way preclude at some much later stage, if it were to prove necessary, amending the Bill to bring direct and indirect financing within the criminal scope of the Bill, but that now is not the time to do it? Could she confirm that the Government are moving to ensure that direct and indirect financing does not take place, and that nothing in the Bill prevents that happening at a later stage?
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Baroness Kinnock of Holyhead: I thank the noble Lord for asking for that clarification. It is indeed the case that if we do not preclude that eventuality there would be legislation at some later stage. However, at this stage, rather than hold up the process, we think that we should move forward and that noble Lords should be reassured that we take that position clearly at this time.
Lord Elton: For the sake of clarity, I think that the noble Lord, Lord Hannay, referred to an amendment at a later stage of this Bill. In fact, I suspect that he had in mind a new piece of legislation after this Bill reaches the statute book.
Baroness Kinnock of Holyhead: That was the presumption that I made also.
Lord Howell of Guildford: My Lords, the Minister's remarks are entirely constructive and helpful and clarify the Government's mind on this matter. I note the thought that we may be faced with further legislation but, if that is necessary, so be it. Clearly this is a complex matter that cannot be rushed. We need to work out how a more effective grip can be achieved on the many channels through which indirect finance will, I am afraid, continue to be supplied for a time to activities that could lead to the assembly and fabrication of cluster bomb munitions of the prohibited kind. But in the light of the Minister's remarks, I beg leave to withdraw the amendment.
Clause 6 : Other purposes permitted by Convention
2: Clause 6, page 4, line 43, at end insert-
"( ) The Secretary of State shall publish guidance setting out the maximum number of prohibited munitions that may be considered necessary for permitted purposes."
Lord Howell of Guildford: We come to Clause 6, which deals with other purposes permitted by the convention-permitted purposes, in other words-by which cluster munitions may continue to be held and treated. I am not sure whether they continue to be assembled as well, but the Minister may be able to clarify that.
The amendment would simply put a little more definition and precision into the question of the amount of munitions that may be necessary for certain permitted purposes. The one in my mind is how many may be kept for research, experiment and development. To what degree will the research and experimentation
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Lord Boyd of Duncansby: My Lords, following on from the noble Lord's remarks, it is also important that munitions are kept for training those who may have to deal with disposing of them. It may be that in some guidance greater clarification can be given to that purpose.
Lord Ramsbotham: My Lords, very much in the spirit of the previous intervention by my noble friend Lord Hannay, I suspect that the figures for this sort of requirement have not yet been worked out. Indeed, I think it took a long time for the figures to be worked out as to what was appropriate in the landmines treaty. The French, in particular, did a great deal of work on this. Again, my question is whether this is something which, in future, could be added to the Bill if it is not possible to work out what the requirements are now. It is something that must be kept under review particularly because, in all the countermeasures that have to be worked out, you cannot do without the weapons themselves.
Baroness Kinnock of Holyhead: I thank the noble Lord. I hope that I can offer some of the definition and precision asked for on this matter. The convention includes the assembly of cluster munitions, so that is clearly there. As your Lordships are aware, as a state party to the Convention on Cluster Munitions, we will be permitted to retain a limited number of munitions for certain permitted purposes. I elaborated on what these were in winding up the debate on Second Reading. We were in the process of determining exactly how many we need to retain for training, detection, clearance and destruction techniques, as well as the possible development of countermeasures. The convention does not stipulate any maximum number that may be retained by states parties. Article 3(6) requires that this number should be limited and should not exceed the minimum number absolutely necessary for permitted purposes. That is absolutely clear. I assure your Lordships that this is the Government's intention.
It is difficult to anticipate how many cluster munitions we may need to retain for the training and development of countermeasures. The number may change depending on current circumstances. The number of anti-personnel mines retained has increased in recent years due to the need for training and development in countermeasures against improvised explosive devices, or IEDs. To set a fixed number in the Bill would make it inflexible and difficult for us to meet such needs.
In implementing the convention, the Bill reflects this restriction. Under Clause 6, the Secretary of State may authorise only the possession or transfer of cluster
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Lord Lee of Trafford: I have one question on overseas stockpiles. I think we are talking in particular about US stockpiles. I am not quite clear whether there is an obligation on the United States or on any other country that may have such a stockpile to provide details of those stockpiles, or to give a continuous update on their destruction. What information has to be made available by the United States in this regard?
Baroness Kinnock of Holyhead: We will be permitted to require them to make such information available to us. The United States is not a signatory to the convention but is obliged to give that information. The Secretary of State will request it, should that be appropriate.
Lord Howell of Guildford: My Lords, I am grateful to the Minister. On the last point, I was coming to the question of those of our allies who regrettably are not yet signatories to the convention and who hold stockpiles of cluster munitions, and how we cope with that, particularly when they are on British soil. Perhaps I can return to that, if the opportunity arises, when we look at later clauses.
I am satisfied with what the Minister says about the guidance sought by our amendment to Clause 6, but the noble Lord, Lord Ramsbotham, makes the very good point that as the thinking evolves-we are in a new area in many ways, although there are similarities with the landmines legislation-it may be possible to have a clearer definition of the amounts and the nature of the weapons and the nature of the systems by which they are stored and held for the future in circumscribing them with the necessary legislation. Perhaps that lies in the future. In the mean time, I beg leave to withdraw the amendment.
Clause 9 : International military operations and activities
Debate on whether Clause 9 should stand part of the Bill.
Lord Howell of Guildford: My Lords, we come to really quite difficult parts of this basically excellent Bill, and I would value clarification in debating whether this clause should stand part of the Bill.
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I have heard it suggested, and I feel that there is validity in the suggestion, that greater clarity is needed about the legal status of our forces when they are in contact with cluster munitions and when working with other forces who belong to countries that have not signed up to this convention and that are still using cluster munitions of various kinds, or indeed kinds that may not yet have been developed but that will be brought on to the weapons scene in the future.
I am sure that the Minister and your Lordships would all agree that it is undesirable that those of our fighting forces on the front line and in difficult and tense situations should be unclear at any point about what they are and are not allowed to do, especially when there is a shadow over them that they may be involved in illegal action if they take the wrong course or the wrong decision, even when under intense pressure and having to act at high speed. How will this interoperability, which is what we are talking about in Clause 9, and co-operation with visiting forces, allied forces or third countries be policed? What will the ramifications be if it is learnt that UK personnel are working with troops who are using cluster munitions due to the fact that the forces with whom they are operating still use these munitions? The convention explicitly attempts to aim at banning this type of situation, but here we are, legislating, so that we can sign this convention. Does our Bill do the same thing, or does it provide a loophole?
The Minister in another place said at one stage that the convention, and therefore also the Bill,
We know that in the real world at present our coalition partners tend to be our American allies, but we may be moving into a world in which our partners will be from all sorts of other countries-they have been, to some extent, in Iraq: for example from Japan and the Ukraine. It is even conceivable in the world into which we are moving that we will have a more unified global approach to rogue activities and work with Russian troops or any others; I do not know. These are no longer quite the fantasies that they were.
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