The First Deputy Chairman
With this, it will be convenient to discuss the following: Amendment No. 3, in clause 5, page 4, line 31, leave out from 'to' to 'the' in line 32 and insert'active assistance in any activity prohibited under'.Amendment No. 4, in page 4, line 37, leave out'was not the laying of an anti-personnel mine'and insert'did not involve active assistance in any activity prohibited under the Ottawa Convention'.Amendment No. 5, in page 5, line 7, leave out from 'Convention' to end of line 8.
Clause 5 stand part.
§ Mr. Howard
I shall begin by disposing of one of the red herrings which the Foreign Secretary, who I am sorry to say has left us, attempted to put into our path during our earlier discussions. It is an instructive red herring. The right hon. Gentleman sought to imply that clause 5 was in some way associated with the ability of British service men to undertake operations that would have the effect of destroying, clearing or dismantling landmines. Clause 5 has absolutely nothing to do with that. There is a separate exemption in the Bill for those operations, which is to be found in clause 4. We have absolutely no problem with clause 4. Indeed, that clause matches and mirrors article 3 of the Ottawa convention. That is precisely what one would expect to find in this legislation—a match between the provisions of the Bill and the provisions of the convention.
The trouble with clause 5 is that it is not matched or mirrored in any way by anything in the convention. I shall make it clear for the avoidance of any doubt that the amendment, together with amendment No. 3 to clause 5, has been tabled so that we can debate the hole at the heart of the legislation. We do not say that there is no military argument to justify the exemption from the provisions of the convention that clause 5 seeks to provide. It may be interesting and illustrative that the impression I gain from 1379 those on the Government Front Bench is that the debate will be replied to by a Defence Minister and not a Foreign Office Minister.
We say, and our charge is, that it has always been the practice of Her Majesty's Government to honour the provisions of treaties and conventions that they have signed. We say that if the Government now find compelling the military arguments that we shall no doubt hear from the Secretary of State for Defence or the Minister for the Armed Forces, which have led them to insert clause 5, they should have found them compelling when they came to sign up to the convention in December 1997. It is the contradictions between the convention and the Bill's provisions on which we seek to focus attention, and they are the thrust of the debate.
On Second Reading, I read out the provisions of the convention. I do not intend to read out article 1.1 again. The effect of article 1.1 is absolutely clear, unequivocal and explicit. It permits no assistance to be given to any party that is not a signatory to the convention when the forces of that country are taking part in activities that are prohibited by the convention. According to article 1.1, if troops of Britain find themselves together in military operations with troops of the United States or of Turkey—a fellow member of NATO—or any other country that is not a signatory to the convention, they are not permitted to assist those forces in the activities that are prohibited by the convention—that is, anything to do with the laying of landmines. That is what the convention provides.
Clause 5 seeks to permit certain activities that would otherwise constitute an offence. In other words, it purports to permit activities that are contrary to the convention. Let us consider the relevant provisions in clause 5. The relevant part of the clause is subsection (2), which reads:In proceedings for a section 2 offence in respect of any conduct"—that is, any conduct that would otherwise be prohibited by this legislation—it is a defence for the accused to prove that…the conduct was in the course of, or for the purposes of, a military operation or the planning of a military operation".We have no problem with that. The subsection continues by providing thatthe conduct was not the laying of an anti-personnel mine".That is the only specific conduct that is prohibited by the clause. The subsection continues by providing thatat the time of the conduct he believed, on reasonable grounds, that the operation was or would be an operation to which this section applies; and he did not suspect, and had no grounds for suspecting, that the conduct related to the laying of anti-personnel mines in contravention of the Ottawa convention.That is what subsection (2) states. It is made clear elsewhere in the clause that if the activity is by forces of a country that is not a signatory to the convention, according to the Bill, that is not activity in contravention of the convention.
What does all that mean? It means that a range of activity expressly prohibited under the Ottawa convention is permitted under the terms of the Bill. It means that if British forces were engaged in joint operations with a non-signatory state such as the United States, clause 5 would enable British service men to procure a landmine, to transfer it to the battlefield, to transport it to the precise spot where they thought that it should be laid and to point to that very spot before handing the object over to 1380 the Americans and asking them to place the object in the ground. British forces could then modify or adapt the landmine. They could even prime it. That is what clause 5 would permit. The only activity that is prohibited in the course of those joint operations by clause 5 is the actual laying of the landmine itself, which is identified in clause 5(2).
There may be military justification to permit such activities. However, it is absolutely clear that those acts would be in complete contravention of article 1 of the Ottawa convention. It is—[Interruption.] From a sedentary position, the Secretary of State for Defence talks about rules of engagement. That is completely beside the point. We are talking not about rules of engagement but about legislation. It may well be that the Government will issue rules of engagement that will prohibit the activities to which I have referred. The point is that the legislation before us would permit them to make entirely different rules of engagement. It is no answer to my argument that the Government intend to make rules of engagement that have a different effect. We must consider the legislation that is before the House of Commons, and that legislation would enable all the activities to which I have referred to take place.
It is no use Ministers saying either that they will not permit those activities according to rules of engagement or that there is a powerful military justification for those activities. If that is the case, they should have thought of that military justification when the convention was negotiated and should, if they felt it necessary, have put forward amendments to the convention. I hope that we shall be told during the debate whether the Government sought to table any amendments to the convention to give effect to clause 5, which would permit activity that is completely in breach of the convention.
§ The Minister for the Armed Forces (Dr. John Reid)
British forces throughout the world will be listening with great interest to what the right hon. and learned Gentleman is saying. The rules of engagement, which this or any other Government would lay down, do not force soldiers to do anything; they permit. The right hon. and learned Gentleman is implying that, despite the Government's signing the convention, passing the Bill and laying down rules of engagement, the honour of British forces would be impugned by activities in which they would be willing to engage in breach of all those things. That is a scurrilous and disgraceful implication and I hope that he withdraws it immediately.
§ Mr. Howard
That is a disgraceful intervention. It is the honour of the Government that is at stake, not the honour of British forces. I would never do anything to impugn the honour of British forces.
The First Deputy Chairman
Order. Hon. Members must calm down. We have the ability to debate these matters in a reasonable manner. I cannot allow arguments across the Floor of the Committee.
§ Mr. Howard
The Minister's intervention shows how little he understands about the Bill's provisions. We are concerned about the legislation.
1381 If the Government say that they would never issue rules of engagement that would take advantage of clause 5, why is it in the Bill? Why on earth do the provisions in the Bill not match what the Government say they will set out in the rules of engagement? The Government cannot have it all ways. They must match the provisions of the Bill to those of the convention.
§ Mr. Menzies Campbell
If the Bill is passed unamended, what would be the nature of the instrument of ratification lodged by the British Government in respect of the convention? Would that instrument of ratification have to contain some reservation or condition in the light of clause 5?
§ Mr. Howard
The hon. and learned Gentleman makes an excellent point. I intended to raise it later in my remarks, but I am content to adopt it because I do not want to prolong my speech. It is a pertinent question and I hope that it will be answered during the debate.
I remind the Committee of the provisions of article 9 of the convention, which states:Each State Party shall take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control.I assume that the Bill is the means by which the Government seek to give effect to article 9. It is the way in which the Government seek to prohibit by British forces activity that is prohibited by the convention. That is why the Government are in breach of their duties under the convention and are putting before the House legislation that is at variance with the terms of the convention.
When did the Government first become aware of the arguments that led them to insert clause 5? Was the Ministry of Defence consulted before the Government signed the convention? Did not the Ministry of Defence then make clear its reservations about joint operations with countries that did not sign the convention? Were those reservations simply ignored by the Foreign Office when it came to negotiate the convention, or did it try to amend the convention to reflect the concerns of the Ministry of Defence? Did it fail? Those questions lie at the heart of the inconsistency with which the Government are approaching the matter, and we must have answers to them.
It is a matter of deep regret that the Attorney-General is no longer with us—
§ Mr. Howard
The shadow Attorney-General is undertaking a series of long-standing engagements today. His deputy is in the House and will actively participate in our scrutiny of the Bill.
Let us get down to the issues that really matter. The Attorney-General intervened earlier in the debate, but in a most general and unhelpful way. He expressed himself 1382 in agreement with a proposition put by the Foreign Secretary, but did so in the most general terms and did not approach the detailed interpretation of the Bill, which is relevant to the consideration of these matters. If the Attorney-General were here now, I am confident that he would be able to confirm that clause 5 will permit all the activities that I identified earlier in my remarks.
The hon. and learned Member for North-East Fife (Mr. Campbell) asked how the Government seek to ratify the Bill and whether they intend to propose a declaration when the time comes. I hope that we shall be told in what circumstances it may be possible for the Government to be taken to the International Court of Human Rights at The Hague, so that its interpretation of the convention may be put to the test.
Reference was made in the debate on Second Reading to the precedent adopted by the Government of Canada. The Foreign Secretary said, if my recollection is correct, that the Government's attitude was similar to that taken by the Government of Canada, but that is far from the case. I have the legislation passed by the Canadian Government before me and it is in very different terms from those of the Bill. It contains an express distinction between what is termed "active assistance" and passive assistance. It is accompanied by a declaration of understanding, which the Canadian Government have entered to the Ottawa convention. The Canadian legislation provides that participation in military operations is to be regarded as permissible so long as that does not amount to active assistance with prohibited activity.
The Secretary of State nods. There are no words to that effect in the Bill. The Government are not following the precedent set by the Canadian Government. The Bill is miles away from the Canadian precedent.
§ Mr. Howard
Perhaps the Minister of State could refer me to the language in the Bill that mirrors the language to which I have just pointed in the Canadian legislation. It simply is not there.
§ Mr. Howard
I have no idea what that intervention means and I doubt whether any other hon. Member does—[Interruption.]
The First Deputy Chairman
Order. Ministers and others on the Government Front Bench must be quiet. I have called the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) to speak, and he is the only person who should be speaking.
§ Mr. Howard
This is not a matter that requires a technical briefing from the Ministry of Defence. It is a matter for the Foreign Office. It is not the Ministry of Defence's view with which we take issue; we take issue with the Foreign Office's view. If the Ministry of Defence, for good reason, wanted to insert something like clause 5 in the Bill—there may be good reason for doing so—we have no argument with that. However, if that is 1383 the view taken by the Ministry of Defence, the Foreign Office should have reflected that view when it negotiated the convention. The problem is not whether clause 5 is needed; it is that it is absolutely inconsistent with the convention. Nothing in the convention would give rise to an exception that comes anywhere near the provisions of the clause. That is the mess that the Government have got into, and, because they have got into that mess, they are asking hon. Members to agree to a Bill that would contravene the Ottawa convention, put this country in breach of its obligations under that convention and make our country depart from its long-standing tradition of honouring, ratifying and implementing in every detail the treaties and conventions that it has signed.
§ Mr. Menzies Campbell
I promise not to get too exercised if my old friend the Minister for the Armed Forces displays his customary zeal in defending the armed services. He has a long tradition of doing that, as a shadow Minister and from the Treasury Bench, and I understand his anxiety to ensure that they are properly protected. He will know that I do not seek to reflect on the honour of the armed services; I never served, but at least one member of my wife's family did, with great distinction. I am as conscious as he is of the importance of ensuring that the armed services are properly instructed and are not laid open unnecessarily to the possibility of conviction, and that we provide a proper legislative framework.
If clause 5 is, as the Minister for the Armed Forces describes it, the "heat of the battle" clause, I should make this point to him. He had reservations about my introduction of the concept of mens rea, or guilty intention, although they were not quite as robust as those of the hon. Member for Bolsover (Mr. Skinner), who has left the Chamber. Every soldier who fights on the battlefield has to obey the Geneva convention. So long as his actions are in accordance with it—or even if they are not, and he has not displayed any guilty intention—he would not be guilty of an offence. The notion of guilty intent is already in the international legal framework by which we determine the actions of soldiers, sailors and airmen when they are engaged in operations on our behalf.
The shadow Foreign Secretary and I share a view about clause 5, but we do not share precisely the same view about the solution. If he were to press clause 5 stand part to a vote, the clause could be taken out of the Bill altogether
§ Mr. Howard
I sought to make it clear at the outset that I do not intend to press the amendment to a vote and that I do not seek to remove clause 5 from the Bill. The purpose of our amendment is to demonstrate the inconsistency between clause 5 and the convention, so there is nothing between the hon. and learned Gentleman and me on that point.
§ Mr. Campbell
It may be that I can persuade the right hon. and learned Gentleman of the merits of our amendments. There is need for a form of what is in clause 5 and for a defence for soldiers engaged on the battlefield. There is not only a need; they are entitled to such a defence. He and I join forces on the fact that that defence should be consistent with the Ottawa convention and not apparently contradictory of it.
1384 It is important to remind ourselves that article 1 of the convention contains a blanket prohibition, the terms of which we are all now familiar with, but only one exception to that is allowed—article 3, which allows forthe retention…of a number of anti-personnel mines for the development of and training in mine detection, mine clearance, or mine destruction".There is an issue there, because I understand that Italy has said that it intends to maintain 200,000 anti-personnel landmines for those purposes. Some people might think that 200,000 was a rather generous margin, and there may be a question about the strength of the language in respect of numbers.
It is understandable, and even desirable, that there should be a defence of the kind that clause 5 creates, but the difficulty is that clause 5(1) further defines the offence created by clause 2. It goes on to provide what is essentially a defence, at subsection (2). The effect of taking the two together is that a person charged with contravention of clause 2 could not be convicted if the conduct that had been complained of did not relate to the laying of anti-personnel mines in contravention of the Ottawa convention.
Likewise, under subsection (2), if proceedings were taken against such a person, it would be a valid defence to say that the conduct took place in the course of, or was for the purposes of, a military operation or the planning of such an operation, and was not the laying of any anti-personnel mines. The effect of that is that conduct up to, but not including, the laying of anti-personnel mines would not be struck at by the criminal provisions.
Our amendments are designed to make the position even clearer than it would be under clause 5 as it stands. We propose in amendment No. 3 the deletion of the words:the laying of anti-personnel mines in contravention of the Ottawa Conventionand the substitution of the words:active assistance in any activity prohibited underthe Ottawa convention. In amendment No. 4, we propose the deletion of the words:was not the laying of an anti-personnel mineand the substitution of the words:did not involve active assistance in any activity prohibited under the Ottawa Convention".For my money, that is much more specific than the current provisions, which operate as much by implication as by express provision. It is right that any British soldier engaged in an international operation should have a valid defence, so long as he or she did not actively assist in any activity prohibited under the Ottawa convention, as those are defined in article 1 of the convention, and so long as his or her conduct did not involve active assistance in any activity prohibited under the convention.
By adopting a formula such as that which I have suggested, one would make the terms of the convention and of the statutory provision virtually identical; indeed, one would be adopting by reference the terms of the convention into the statutory provision. That deals with the point that we should have legislation consistent with the convention; it also has the advantage that it spells out in the clearest possible detail to the soldier in the heat of the battlefield that, so long as he or she does not do something amounting to active assistance, he or she 1385 cannot be the subject of criminal proceedings. If such people became the subject of criminal proceedings, they would be entitled to pray in aid the defence in subsection (2).
§ Mr. Colvin
I am trying to follow the gist of what the hon. and learned Gentleman is saying, and what was said by my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard), our Front-Bench spokesman. When two lawyers get to work, it is sometimes difficult for the rest of us to keep up. I was under the impression that clause 5, which allows for exemptions and reservations, could not be law under the convention. I understood that article 19 of the Ottawa convention ruled out any reservations, so how can we pass the Bill as it stands and honour the convention?
§ Mr. Campbell
We can pass the Bill in any form we choose. The House is not bound to pass the Bill in a form prescribed by the convention, although the form in which we pass it may have consequences for whether we are able to ratify the convention, and whether the instrument of ratification is credible and valid. The hon. Gentleman makes a reasonable point about article 19, but my amendments would meet it by making it plain that so long as the individual concerned was not giving active assistance in any activity prohibited under the convention, he or she would have a valid defence. That would be a much clearer statement of affairs.
Because the laying of anti-personnel mines is specifically referred to, conduct up to, but not including, the laying of mines, would, by implication, be excused. It would be better, and it would be consistent with the convention, to adopt the formula of active assistance. That would make clause 5 consistent with the convention while avoiding any need to enter any reservation when the Government lodge the instrument of ratification. That can only be in our interests, and I hope that the Committee will consider the amendment sympathetically.
§ Ms Oona King (Bethnal Green and Bow)
Clause 5(2)(d) provides a defence for British military personnel whose conduct isrelated to the laying of anti-personnel mines".If the defence is that laying an anti-personnel mine requires the other prerequisites given for the transfer or transport of landmines, how widely can the net be thrown? It is obvious that we need a defence for British personnel, but British forces will not be allowed to use, possess, transfer or transport mines, or to assist others in doing so. Is this not an adequate defence?
If, in the parallel universe occasionally raised by the Opposition today—I mean no disrespect by that, but I worked in Nicaragua in 1986 and saw the effects of landmines—clause 5 allowed any loophole, which I do not believe it does, will my right hon. Friend the Foreign Secretary undertake to review the legislation? Clause 5 hinges on the need for members of NATO and international allies to sign the Ottawa convention, 1386 particularly the United States. It is often said that we are five years behind the USA; let us hope that America will not be five years behind us in this case.
§ Sir Robert Smith (West Aberdeenshire and Kincardine)
I did not intend to speak today, but the opening speeches left me concerned that political divisions sometimes prevent us from scrutinising the details of criminal legislation. At times, people are forced away from accepting reasonable words, such as those of my hon. and learned Friend the Member for North-East Fife (Mr. Campbell) on how to improve clause 5. We should seek consistency, particularly in criminal legislation. When we dealt with the Crime and Disorder Bill, the Government felt it right to draw the criminal net widely, saying that we need not worry about its drawing in people who should not be drawn in because those who implement the law will use regulations to avoid that. Today, they have flipped that logic the other way, arguing that exceptions should be drawn widely, so that people will not be brought into the net who should be drawn in under the convention.
The purpose of the House is to draft Bills and scrutinise them. It is perfectly in order for a Committee to amend a Bill, or to say that amendments can be made in the other place to tighten and improve the Bill. That is the purpose of the Committee stage. I hope that the Government will consider the arguments carefully and seek to bring the Bill more closely in line with the treaty.
§ Fiona Mactaggart (Slough)
I welcome the Bill and the fact that we have set aside special time in which to pass it. However, whenever the House passes legislation relatively quickly, there is a risk that we may inadvertently draft the Bill badly and end up with something that is not quite what we intended. There may be such a risk in the drafting of clause 5.
There is another way of looking at clause 5. It seems odd that people who thought that during the election I was completely outrageous to campaign for the Labour party's position on anti-personnel mines have hinted that clause 5 is designed to enable Britain enthusiastically to participate in joint operations with countries, such as the USA, which are not signatories to the convention, and that we want to slide under the wire the fact that that may involve us in doing things that are wrong, immoral and are prohibited by the convention. I do not believe that that is the Government's intention.
During the progress of the Bill, it may be necessary to consider ways in which we can refine the wording to ensure that it is clear that we are on all fours with the convention, but that, in the circumstances described by the Foreign Secretary and others that are, as it were, closer to the border, the ordinary soldier is not criminalised by the Bill. That is not the intention, and it is absolutely essential that we should make that clear. I am sure that it is possible to draft the Bill in such a way as to achieve that.
I hope that the Minister for the Armed Forces will be able to assure me that the drafting in no way puts us at risk of being outside parts of the convention, as I am worried that it may do so. I am also anxious that, as we have so much business in the other place, if we spend ages considering this matter, other important Government business will disappear. Many of us who have been enthusiastic to get the Bill through have faced that argument. We are in a cleft stick.
1387 I hope that the Minister will reassure us that the intention of clause 5 is merely to ensure that we do not criminalise officers of Her Majesty's forces who are doing their duty, who are working beside other forces that do not have our same international commitments and who unknowingly—that word is significant—participate in activities that may contravene the convention. I am confident that any necessary detailed wording changes can be considered after this debate. I should be grateful for some assurance about the fundamental intention of the clause.
§ Dr. Jenny Tonge (Richmond Park)
I congratulate the hon. Member for Slough (Fiona Mactaggart) on making that point. Many people are worried about clause 5, because they feel that it allows us to cop out of the Ottawa treaty. It enables us to say, "Oh well, it wasn't us. It was the Americans in NATO who said that we were to participate in this action. We weren't there at the time, guv." I hope that that element of clause 5 was not intended, but the feeling is that it provides an excuse.
I am not a military person, and I know nothing of military matters. If we are operating as part of NATO and an American NATO commander gives an order to lay landmines, what is the position of our troops? How does this legislation work in a military exercise? Do our troops become conscientious objectors, and are they sent to peel the spuds? Perhaps the Minister will answer those questions.
§ Mr. Colvin
It is too late to table further amendments, but I cannot understand why the body of the clause cannot be more explicit. Clause 5 is entitled, "International military operations", but its wording throughout omits the word "international". I hope that the Bill will get its Third Reading, but, in the time between the proceedings in this House and in the other place, the Government should consider inserting in clause 5 the word "international", which would make the meaning of the body of the clause far easier for people like me and the world outside to understand.
§ Dr. Reid
I shall start, I hope usefully, by dealing with the issues that were raised by the hon. Member for Richmond Park (Dr. Tonge). She spoke about the Government's motivation; the armed forces, presumably as instruments of the Government's will; and her fears about clause 5 and our troops being given orders within alliances by a commander of a state that had not ratified the convention. I shall deal with those matters in turn.
The hon. Member recognised the balance that we had to consider when we were framing clause 5. Our troops would not carry out such an order because, for them, it would be an illegal order. On motivation, the hon. Lady need not fear that a Government who were prepared to ratify the convention, pass law, take a lead on these matters and lead the world in many ways within days of coming to office should somehow all along have wished to avoid the consequences of their actions. That would be a bizarre interpretation of motivation. I impugn the honour of no hon. Member, and for anyone to imply that not only the Government but British troops would wish to conduct themselves in that way impugns the honour of our troops. That was one of the reasons that I gave, perhaps too robustly, for rejecting the claims made by the right hon. and learned Member for Folkestone and Hythe (Mr. Howard).
1388 I am surprised that many who have spoken in the debates, not only on clause 5 but on the Bill as a whole, seemed to question the Government's commitment to the Ottawa principles and the global elimination of anti-personnel landmines. Clause 5 has been portrayed as some kind of betrayal of the Ottawa convention. Such a claim is extraordinary, especially in view of the identity of some of the accusers: the previous Government were hardly distinguished by the urgency of their commitment to abolish anti-personnel landmines.
I had hoped that, whatever the past contained, the Government and the Opposition would be able to proceed, in the name of the nation, on one of the great humane moves of the 1990s and possibly of the century while protecting the honour and lives of British troops and reducing the practical risks to them. Motivation has featured in the debate. The Government took the lead on this issue, not only in the United Kingdom but throughout the world. Within days of the new Government's coming to office, I was called to the office of my right hon. Friend the Secretary of State for Defence, whose prime responsibility is to balance the great issues of humanity, civilisation, law and liberty. The unique tasks that we discharge through our troops means asking them to act not in rooms in which liberal lawyers have discussions but on the world's battlefields where life and limb are put at risk. On the issue of landmines, there was no question about the side of the fence on which my right hon. Friend the Secretary of State for Defence came down. The same applies to the Chief of the Defence Staff. The British troops were involved in that discussion, as was the Foreign Office.
Apart from taking that lead, and apart from early ratification, we have already introduced an export ban. A moratorium on use has been in place almost since the day that we came into office. Our stockpiles are being destroyed even more rapidly than we anticipated in that first week that they would. We have destroyed 46 per cent. of them—almost 500,000 landmines—since we came into office.
In addition, of the many thousands of mines in the Falkland Islands that have now been located, only one is British. Even though they are not our mines, however, demining of the Falklands is actively being considered. Work on putting appropriate verification arrangements in place is well advanced and we are assisting others in meeting their obligations under the convention.
In addition, we have created the humanitarian mine action section of the Ministry of Defence, as well as the mine information and training centre, which is run by the Royal Engineers with the specific aim of helping non-governmental organisations and others to deal with the blight of anti-personnel landmines that have already been laid throughout the world.
Before today, I did not think that even the Government's worst enemy would suggest that, rather than leading the campaign to eliminate global landmines, 1389 we had somehow been devoting our energies all along to thwarting the campaign—I counted without the shadow Foreign Secretary.
§ Sir Robert Smith
I hope that the Minister will recognise that many of us do not doubt the motivation. We are trying to ensure that the wording is accurately drafted in Committee.
§ Dr. Reid
I am glad that the hon. Gentleman has reminded me of part of my job. Another part of it is to respond to the points that have been raised by hon. Members, and one of them was the motivation question, raised by his colleague, the hon. Member for Richmond Park. It deserved a response because it underlies some of the suspicions, fears and implied criticisms that are being engendered by the shadow Foreign Secretary. However, I maintain that the Government's commitment is not in doubt.
Our motivation is not in question because, in contrast to the previous Government, our actions and practical moves have spoken louder than our words—and the people of Britain know that—but we did not and do not interpret the Ottawa convention to mean that coherent and effective joint operations that are carried out alongside non-signatory, non-ratifying allies should risk criminalising United Kingdom service men and women; our service personnel should not risk prison because of the acts of others. We did not and will not countenance putting our service men and women in that position.
That reading would not only call into question the future cohesion and effectiveness of NATO but would have serious implications for coalition action anywhere in the world, as well as for our service men and women. The important distinctions and nuances of legal interpretation that we are discussing are important, but nothing would give Saddam Hussein, or future Saddam Husseins, greater pleasure than the realisation that the Ottawa convention could be taken to prevent this country from playing an effective role in coalitions that might otherwise repel aggression or enforce peace. I will explain the practical implications of some of that.
§ Mr. David Heath (Somerton and Frome)
I am listening to the Minister's arguments carefully and I agree entirely: we must ensure that our troops are in no doubt whatever about their ability to participate in joint operations. However, will he reflect on the answer that he gave to my hon. Friend the Member for Richmond Park (Dr. Tonge)? On the hypothetical position of a non-ratifying country commander giving an order to a British soldier, the Minister said that the soldier could rightly say that it was illegal to lay a mine, but does he not accept that, under clause 5, that soldier could not give the same reply if he were ordered to assist in laying a mine? As a protection for our troops, would it not be better if the Bill were absolutely explicit, so that no ambiguity existed?
§ Dr. Reid
I am coming to that very point and to the Liberal Democrat amendments. At the moment, I am dealing with the more general objection enshrined in the amendment tabled by the shadow Foreign Secretary, which would delete the whole of clause 5 and leave our 1390 troops without any legal defence whatever. That is different from the amendments tabled by the Liberal Democrats.
§ Mr. Howard
I repeat what I have said at least twice today. The amendment was tabled as a peg for a debate on a very important question about which disquiet has been expressed in all quarters of the House—the relationship between clause 5 and the Ottawa convention. I made it plain from the outset that I was not going to press the amendment to a vote, and that it was simply a peg for debate.
§ Dr. Reid
The right hon. and learned Gentleman is a learned and prestigious Queen's counsel, I think; I am just a common 5' 8". He has had a week in which to table a reasoned amendment and to offer a different legal interpretation, but he has chosen to table an amendment that would delete the whole of clause 5 which provides a defence for British troops. I was merely observing that that is somewhat different from the amendments tabled by the other Queen's counsel, the hon. and learned Member for North-East Fife (Mr. Campbell). I made that distinction in response to the hon. Member for Somerton and Frome (Mr. Heath).
§ Mr. Howard
It may help the hon. Gentleman to deal with the points that I have raised if I say why I tabled the amendment in the form that I did. The problem that the Minister has to address is whether it is possible to retain clause 5 in any form and still adhere to the Ottawa convention. The view that I reached—which is why I did not table a different amendment—is that it was not possible to retain any part of clause 5 and subscribe to the convention. I hope that the Minister will deal with that point. The solution may not be to get rid of clause 5, which he may well seek to justify for good military reasons, but to amend the Ottawa convention. That is at the heart of the dilemma.
§ Dr. Reid
The right hon. and learned Gentleman is now going to extraordinary lengths. I think he is saying that, as it is not possible to amend the convention, we should not ratify it. Not only does he wish us to remove the clause that protects British troops, on the basis that it is incompatible with the convention but he is now urging us not to ratify the convention, which I find even more extraordinary. Added to the fact that he keeps assuring us that he wants the Bill passed quickly so that the convention can be ratified, I think it shows that the confusion lies not with the Government but with the Opposition.
§ Mr. Howard
It is the Government who have caused the confusion. They drafted the Bill and they signed the convention. It is for them to explain, but so far we have not heard a word of explanation in response to the disquiet expressed in all quarters about to how clause 5 can be reconciled with the convention. That is the dilemma at the heart of the debate, and it is what the Government have to explain.
§ Dr. Reid
It has already been explained to the right hon. and learned Gentleman that the Bill is consistent with the convention. He heard it this morning, not only from my right hon. Friend the Foreign Secretary but from the 1391 Attorney-General, who expressed his full agreement. The right hon. and learned Gentleman should know that we cannot amend the convention, but he had the opportunity to try to amend clause 5. If he is so keen to protect our service men and women—as we are doing in the clause—he had a chance over the past week, either in a private briefing by the Ministry of Defence or by publicly tabling an amendment, to make proposals on protecting our troops. However, at the end of that week—with all his learning and experience, and with his obviously strong views on the matter—his suggestion is that we delete clause 5, thereby taking away any protection for our troops.
I should move on, as I wonder whether Opposition Members who so loudly criticise the Bill really intend either that we should leave our troops defenceless if the activities of others are deemed to be criminal or that we should have to avoid multinational operations. Is the right hon. and learned Member for Folkestone and Hythe aware, for example, that it is a fact—it is regrettable, but nevertheless a fact—that neither Kuwait nor Saudi Arabia has so far signed the convention? Does he think that that strategic reality should simply be ignored if the United Kingdom has again to take up arms against a dictator?
Clause 5 is the Government's reconciliation of our duty of care to our troops and our adherence to Ottawa principles. We take both those matters very seriously indeed. We balance—as the hon. Member for Richmond Park asked us to do—those two considerations. Moreover, we will not be the first to enter an interpretive declaration—which is not an amendment or reservation, as the hon. and learned Member for North-East Fife suggested—making it clear that the convention was not intended to make coalition operations with non-signatories impossible. The Canadians led the way on such a provision.
We have given a great deal of thought to the wording of clause 5. Its purpose is to ensure that members of our armed forces cannot be prosecuted for the circumstances of planning and operating alongside troops from states for which the use of anti-personnel landmines remains legal. The clause provides a defence for personnel involved in an international operation alongside troops of a state not party to the Ottawa convention which may use anti-personnel mines.
United Kingdom personnel could not themselves use such mines or give any assistance whatever to a state party to the convention which planned to use such mines in contravention of its international obligations. The clause enables United Kingdom service men and women to engage closely in the planning and conduct of an operation with those who may, lawfully for them, use anti-personnel mines. Without such a provision, United Kingdom service men and women, if they were in some way indirectly implicated in use of anti-personnel mines by the forces of a state that is not party to the convention, would potentially be at risk of prosecution and imprisonment for up to 14 years. We cannot place the men and women of our armed forces in that invidious position.
It has been said that the clause is a licence. It is not a licence but a shield. It is a shield that has to be large enough to protect the men and women of our services in serving a country that has led the world in banning landmines and has absolutely no intention—in ratifying 1392 the convention, in passing the Bill or in the action of our troops—of doing anything other than adhering to the principles in which we have led the way.
§ Dr. Reid
I am coming to the hon. and learned Gentleman's main point.
In the practical circumstances—far from the comfortable surroundings in which we debate the matter—in the fog and heat of battle, in the planning and conduct of hostilities, we will be asking young men and women to make decisions. Their lives already depend on those decisions and, should they survive, we should not ask them to countenance the possibility of unwittingly facing criminal proceedings and penalties despite their sacrifices and the courage they have shown.
Let me give one or two practical examples. Without the clause, if non-ratifying states' vehicles, which could contain anti-personnel landmines, refuelled during hostilities at a United Kingdom refuelling facility, our service men and women could be laid open to criminalisation, criminal charges and penal servitude. Other examples were given earlier. Suppose that a non-ratifying state's forces equipped with anti-personnel landmines crossed United Kingdom-controlled areas of the battlefield, or that our forces were deemed to have benefited in some way from the activities involved in landmine laying by a non-ratifying state or, to use the example given by my right hon. Friend the Foreign Secretary, that a non-ratifying state's forces were to run a lorry full of anti-personnel landmines across a bridge built by our engineers. Without clause 5, all those possibilities could lay our service men and women open to criminal charges. I do not believe that is the will of the House and, more important, I cannot believe that it is the will of the British people. They want landmines removed from the globe and they do not want the reputation or the careers of our service men and women impugned in the course of achieving that aim.
§ Mr. Menzies Campbell
Do I understand from what the Minister has said with some passion in the past four or five minutes that, on the battlefield, in the circumstances that he has described, clause 5 would permit British service men and women to do things that they would not be able to do if the operation were being conducted only by the United Kingdom or within the United Kingdom?
§ Dr. Reid
No. That is not the understanding. There is a balance to be struck. We believe that we have it right, and that is why I am asking the hon. and learned Gentleman not to press his amendment.
I now come to the hon. and learned Member's main point, which relates to active and passive assistance. He could reasonably say that none of my examples would be considered active assistance and that they would all be passive or unknowing assistance.
§ Mr. Howard
I wonder whether the Minister can help me, because I am confused by the answer that he has just given the hon. and learned Member for North-East Fife (Mr. Campbell). Clause 5(3)(a)makes it clear that the 1393 clause applies only to military operations outside the United Kingdom; paragraph (b) makes it clear that it applies only ifit involves the participation both of members of Her Majesty's armed forces and of members of the armed forces of a State other than the United Kingdom";and paragraph (c) makes it clear that it applies only if that other state is not a signatory to the convention. Therefore, is not the position exactly as the hon. and learned Gentleman put it to the Minister—that the clause permits actions to be taken under circumstances that would be illegal if they were taken in the United Kingdom and not in the context of such joint operations? If that is not right, why not?
§ Dr. Reid
I know that the right hon. and learned Gentleman is a lawyer and not a military man. The hon. and learned Member for North-East Fife asked not whether the clause permitted something, but whether troops would be permitted to act in a different fashion. That was the question I was asked, as we will find if we check Hansard. The clause and the Bill cannot be taken as if we were discussing the matter in the abstract; it applies in the context of the rules of engagement, which are part of what a soldier, in the activity on a battlefield, will have to curtail his operations. The rules of engagement will be partly informed by the Bill. Thus, the answer to the hon. and learned Gentleman's question is no, there will not be different circumstances. He has raised a more important point, which is the question of active and passive assistance. The Government take the view that the distinction is an unsafe and imprecise basis for United Kingdom legislation.
My right hon. Friend the Secretary of State used the example of a British sapper building a bridge. What could be more active than building a bridge? The building of a bridge might assist a United States unit deploying landmines over the bridge. The sapper would not be able to rely on any mine rea defence under the Bill if he was capable of suspecting that the bridge might be used by a United States mine-laying unit. To put people in the position in the heat of battle of having to make those decisions would be a dereliction of our duty to protect our troops. So we have another defence that clearly covers that conduct, and it is enshrined in clause 5. We do that because we do not believe that we should put our soldiers, especially in a life-and-death situation, through the further agonies of worrying whether the action that they take will later be argued by lawyers to constitute a violation of the convention, for which they could face up to 14 years in prison.
The hon. and learned Member for North-East Fife made the point that the Geneva convention already implies that soldiers' actions can constitute a violation. I am sure that he accepts that the Geneva convention is of long standing and is not, like the Bill, a new piece of legislation, which we in the House of Commons, with legal minds surrounding us, have disputed. The Geneva convention has clarity, and we have experience of it which is of such long standing that it cannot be compared to the questions posed by the Bill for soldiers in the battlefield. We do not want them to be faced with those awful prospects. It would be a dereliction of duty to allow them to be so. 1394 I do not go as far as my hon. Friend the Member for Bolsover (Mr. Skinner). I do not suggest that the hon. and learned Gentleman quaintly depicts British soldiers wandering through battlefields with a gun in one hand and "Archbold" criminal pleadings in the other, but it is reasonable to say to him under these circumstances that the Government have an obligation to clarify matters with regard to the soldiers' intent. The one thing that they can be absolutely clear about is when they are or are not laying mines. For that reason, that is all that we expressly cover in the offence. Beyond that, beyond the Bill, beyond our intentions and beyond our public statements, we have ways other than the criminal law of controlling the actions of our troops.
We have the most professional Army in the world. The House can be assured that Her Majesty's armed forces will fully comply with the spirit of the convention, but they should not be subjected to the suspicion that there may be legal nit-picking after the event in addition to the other burdens that we place upon them.
I hope that the hon. and learned Member for North-East Fife will see the merit in what I am saying and the sense of not pressing amendments Nos. 3 and 4. I am sure that it was never his intention that amendment No. 5 should remove an effective part of the implementation of the convention, but the purpose of the words that he seeks to remove is to ensure that if a military operation involving co-signatories to the convention included in its formal plans the use of anti-personnel landmines, the legal defence provided by the Bill would no longer be available to our personnel.
We would not want to condone any breach of the convention, even by allies who are also signatories. That is the purpose of the words that the hon. and learned Gentleman seeks to remove. If I understand him correctly, that would do the opposite of what he intends to do, and I am sure that he would not wish that to be the result, so I beg him not to press amendment No. 5.
The Government have taken a lead in the campaign for a global ban on landmines. We have done so through every instrument at the disposal of the state—through diplomacy, through government, through our contacts in the wider community and through our informal representations. We have also done so through our armed forces, which are an enduring source of national pride to this country.
Our armed forces undertake duties far beyond those required for the defence of the nation. They not only defend our rights: they are an instrument for the discharge of our wider moral responsibilities in the world, and they carry out that role not only in the interests of this country but in the wider interests of humanity. They work alongside parties from all over the planet, some of whom have not signed and will not ratify the Ottawa convention.
As my right hon. Friend the Secretary of State for Defence made it clear on Wednesday, such overseas deployments will be an increasing feature of life for our armed forces. It would be morally wrong for them to be exposed to the risk of prosecution simply for carrying out their duties in trying to meet military objectives, often in the most horrendous conditions, and as a result of anti-personnel mines laid by the forces of a state that is not party to the Ottawa convention.
The people of this country would expect the Government and the House to have a duty of care to our forces and to ensure that they are not exposed to such 1395 risks—just as we have a duty to discharge in terms of wider international obligations, to rid the world of landmines. We take both those duties seriously, and we will discharge both of them.
§ Mr. Menzies Campbell
With the leave of the Committee, Mr. Martin, I shall return briefly to the question and answer that we heard a moment or two ago about the scope of the defence. As the Minister knows, and as I went out of my way to say, I think it desirable that there should be a defence to deal with the heat of the battlefield.
However, as I understand the position, the defence available applies when operations take place wholly or mainly outside the United Kingdom, involve the participation of the armed forces of a state other than the United Kingdom, and may involve some deployment of anti-personnel landmines.
If the defence is available in those defined circumstances, that must mean that it would not be available if those circumstances were not present. That therefore means that we are giving a defence in certain circumstances, which would not be available if the United Kingdom were acting alone—as in the Falklands war, for example—or if the United Kingdom were conducting a defence of the mainland of the United Kingdom against any invader.
We are giving a defence in relation to actions that would otherwise be illegal in either of the alternative scenarios that I have depicted. It is important to test the extent of the defence against those factors.
I hope that the Minister will not regard me as unduly facetious if I say that if his exemplary sapper were ever charged, I would volunteer to defend him myself, for nothing.
§ Mr. Campbell
Indeed it is—but subject to the qualification that the trial would have to be north of the border.
The example of the sapper is not one in which a prosecution would ever arise—or if one did, the defence that my amendments seek to add to the Bill would, in my view, be more than adequate.
The Minister said that when there was even a reason to suspect the use of the bridge, that might constitute a contravention of the criminal law. In my respectful view, a reason to suspect could not in any circumstances constitute the necessary guilty intention in relation to a defence that proceeded on the need to establish that there had been active assistance in activities prohibited under the Ottawa convention.
I do not propose to press my amendments to a Division. Technically, I should have to ask your permission, Mr. Lord, for a separate vote. However, I am not yet satisfied by the Government's responses. If they are worried about a plethora of lawyers in this place, they had better get their tin hats on before they go to the other place, where there are legions of lawyers who are much more experienced than me or the shadow Foreign Secretary, the right hon. and learned Member for Folkestone and Hythe (Mr. Howard). I predict that clause 5 will be as much a focus of attention there as it has been in our proceedings so far.
§ Mr. Howard
I agree with the points made by the hon. and learned Member for North-East Fife (Mr. Campbell). I do not agree with the terms of his amendments—which he invited me to support, before he said that he would not press them to a Division—because I am not persuaded that those amendments provide a satisfactory way of solving the dilemma at the heart of the debate: how to reconcile the terms of the convention with the entirely legitimate and understandable desire, expressed at some length by the Minister of State, to provide proper protection for British troops in the heat of battle.
I am waiting for an explanation of how that dilemma can be resolved, consistent with the terms of the convention. I am not persuaded that the route provided by the Liberal Democrat amendments would work, but we have not yet had an answer to the dilemma from the Government. Disquiet has been expressed about the dilemma in all quarters of the Committee, and it is the function of this place to subject legislation to proper scrutiny. It will not do for Ministers to try to deflect that scrutiny by talking about distinctions and nuances of legal interpretation and to contrast them with real-life situations.
The purpose of our consideration of the Bill is to try to ensure that, in its detailed provisions, it matches real-life circumstances, provides a defence where it should do so and yet matches the obligations to which the Government have signed up by way of treaty and convention. That is the purpose of parliamentary scrutiny, which involves detailed examination of the clauses.
No immunity from that examination is provided by the high moral tone adopted by the Minister of State in the early part of his speech. We have become accustomed to the Government's attempts to wrap themselves in a cloak of moral sententiousness, telling us that they are so pure and impeccable that we do not need to look at the details of what they are doing, and that if we do look at those details we are impugning their high moral tone and standards of virtue. We will not be deflected from our duty of scrutinising the Bill by such considerations.
§ Fiona Mactaggart
There seems to be a contradiction between what the right hon. and learned Gentleman says about scrutinising the Bill and getting the detail right, and the aim of his amendment. He said that the amendment did not seek to correct the detail, but was a general, explosive, amendment. That runs side by side with the hypocrisy that he has shown in the matter.
§ Mr. Howard
As I have made plain on at least three occasions so far, the purpose of the amendment is to provide a peg on which to hang precisely the kind of detailed scrutiny, analysis and consideration that it is the duty of Parliament to undertake.
The Minister said a good deal about the military justification for clause 5. As I have said, I have some sympathy with his comments, but he touched on the heart of the dilemma when he said that the purpose of the clause is to provide a defence for British forces when they might be at risk of committing a criminal offence. British forces would be at risk of committing a criminal offence only if their conduct were in breach of the convention. That is the point at the heart of the dilemma. If British service men were to find themselves at risk of committing a 1397 criminal offence in circumstances when the Secretary of State for Defence thinks they should not be, the fault would lie with the convention. If that is so—that is the dilemma about which we have been seeking enlightenment, but we have yet to find it—proper representations should have been made when the convention was signed.
The Minister of State devoted a good deal of time to clause 5 and to his attempts to justify it. He spent a great deal less time on the provisions of the convention. That is not surprising, and I sympathise with him on that count also. The Foreign Office negotiated the convention, and a Foreign Office Minister should have replied to this group of amendments. However, a simple question must be answered. It relates to article 1.1 of the Ottawa convention, which makes clear that never, under any circumstances, is any assistance to be given to anyone—whether or not they are a party to the convention—who engages in any activity that is prohibited to a state party under the convention.
The thrust of the Minister's contribution is that there may be all sorts of circumstances in which British forces might want to provide some assistance to parties who are not signatories to the convention. British forces might want to engage in activities that are in breach of the convention. That is the dilemma, and that is the problem facing the Committee today. We have not only not received an answer to that question; we have not come within miles of receiving such an answer.
My hon. Friend the Member for Romsey (Mr. Colvin) was absolutely correct to draw attention to article 19 of the convention, which provides that the convention should not be subject to any reservations. The Minister told us—for the first time, as far as I am aware—that the Government intend to make some kind of declaration of interpretation when they ratify the convention. If that is the case, it would assist the Committee greatly if we could see the text of any such declaration so that we can consider it and determine whether it amounts to a reservation from the convention—which, as my hon. Friend pointed out, would be contrary to article 19—or constitutes some ingenious way of resolving this dilemma.
We have not seen the text of any such declaration and, if we do not see it today, I certainly hope that it will be available before the Bill is considered in another place, where those to whom the hon. and learned Member for North-East Fife referred—and I concur in every detail with his description of them—will put it under close scrutiny.
I hope that, before we conclude our consideration of the amendments, we shall have an answer from the Minister to the simple point that I have made. The conduct for which, understandably, he wants to provide a protection for British troops would constitute a criminal offence only if it were contrary to the convention. If the Minister seeks to escape the provisions of the convention through clause 5, will he please show the Committee where in the convention there is any authority for that course?
I put to the Minister article 1.1 of the convention. It is unequivocal, explicit and clear. I put to him also article 19, which says that there should be no reservations. Will 1398 he please identify where in the convention there is any authority for the course of action that the Government are taking, as embodied in clause 5?
§ Dr. Reid
I shall respond, first, to the points raised by the hon. and learned Member for North-East Fife (Mr. Campbell), who asked about international and national operations. Clause 5 applies only to international military operations. I think that we are clear on that. The hon. and learned Gentleman contrasted that with other operations. We do not need a defence when acting alone. We do not need the clause when acting alone because the problem of anti-personnel landmines does not arise when we are acting alone. Therefore, we need a defence only in terms of multinational operations.
The difference between active and passive has been discussed. The hon. and learned Gentleman has given us his interpretation. I am grateful for his offer but I do not think that I would be thanked by the massed ranks of the British armed forces if I were to say, "We decided to ditch clause 5, which relates to your defence, but I know a guy who will do your defence for nothing." However, I am entirely grateful for the hon. and learned Gentleman's offer. Two great moves forward have been taken today in the context of world events. One of them, I hope, is a move forward on landmines; the second is finding a lawyer who is prepared to offer his services for nothing. I thank the hon. and learned Gentleman for that.
I do not know how to respond to the shadow Foreign Secretary without repeating the points that I have already made—because the right hon. and learned Gentleman merely repeated his points. He has been told by my right hon. Friend the Foreign Secretary, by the Ministry of Defence and by the Law Officers today that the Bill is completely consistent with the convention; the right hon. and learned Gentleman's asserting that it is not does not make it otherwise. However, we listen to what he says.
Secondly, clause 5 is not in the Bill as a licence or as a prompt to action but as a shield for our service men and women lest they be at any stage after the event deemed to be subject to criminality—deemed to be or potentially subject to criminality—because of the actions of others. We believe that the clause is completely compatible with the convention and essential if we are to ask our service men and women to engage in multinational operations where there may be alongside them a party or a state that is not a signatory or ratifying state to the convention.
The United Kingdom Government do not believe that the convention was intended to make international co-operation impossible. Article 1 must be read in that context and not in a vacuum. We have been as clear as anyone could possibly wish in clauses 1 and 2, and we are also clear in our intention in the practical application of the Bill and in the signal that we send to service men and women: that in seeking one great goal, as we do—indeed, in leading in the pursuit of one great goal, as the Government have done—we shall not inadvertently fail to discharge our duty to protect our service men and women from the possibility of being accused of criminality because of the acts of others. These are duties that we shall discharge.
§ Mr. Howard
The Minister says that he has explained why clause 5 is not inconsistent with the convention and that I have merely asserted why it is. The precise opposite 1399 is the truth. I have explained at length and in detail precisely why clause 5 is inconsistent with the convention, whereas the Government have simply repeated assertions that that is not the case and offered no explanation to support those assertions. The situation remains as unsatisfactory as it was when we started the debate.
As I have repeatedly said, I tabled the amendments to provide a peg on which the debate could be hung. I made it plain from the outset that I would not press them to a vote. I therefore beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 1 pm
§ Mr. Harry Cohen (Leyton and Wanstead)
I beg to move amendment No. 9, in page 2, line 37, leave out from `for' to end of line 38 and insert 'life'.
The amendment provides for the maximum penalty for the laying of landmines to become life imprisonment. I want the use of anti-personnel mines to be punishable on the same level as war crimes. Negotiations for an international criminal court are currently going on in Rome and have included a discussion on whether the use of indiscriminate weapons such as landmines should be classed as a war crime. I think that it should, and I should like to discover the Government's view on that and on the setting up of an international criminal court.
I listened to the view expressed by the hon. and learned Member for North-East Fife (Mr. Campbell) in a debate earlier today. I have great respect for him. He talks a lot of sense in the House and in the Defence Committee, of which I am also a member, but on this issue I disagree with him. I think that the laying of a landmine should be classed as a war crime. It is an indiscriminate act and, as we have seen, the target is invariably civilians. Indeed, it makes normal civilian life, long after a war is over, near impossible. The former UN Secretary-General, Boutros Boutros Ghali, called landmines weapons of mass destruction in slow motion.
One has only to look at countries such as Bosnia or Cambodia, about which my hon. Friend the Member for Cynon Valley (Ann Clwyd) spoke earlier, to see that landmines are laid by war criminals. That is part and parcel of their genocide.
§ Mr. Menzies Campbell
I should not like the hon. Gentleman to have the impression that I have closed my mind entirely to whether the indiscriminate laying of landmines should become a war crime. However, I have a number of reservations. For example, would one have to lay 5,000 landmines or just one or two before the act qualifies as a war crime? There are problems of definition, and I am anxious to ensure that the importance of the category of war crime is not diminished by the addition of actions that do not appear naturally to fall within the definition. I repeat that my mind is not closed on the topic.
§ Mr. Cohen
I am grateful for the hon. and learned Gentleman's intervention. My view is that laying any landmines should be deemed to be a war crime and should be punishable by life imprisonment.
The laying of these weapons is abhorrent behaviour and by providing life imprisonment—the greatest punishment under British law—as a maximum, this country would 1400 send a clear signal that such behaviour is unacceptable. Life imprisonment is a maximum sentence, at the discretion of a judge. As with punishments for war crimes and other crimes, judges are likely to set a lower sentence, but the amendment is about signalling what is the maximum.
The laying of anti-personnel mines is an intention to murder. A minefield is nothing more or less than a death trap, and it must be clear in the mind of a British subject who uses anti-personnel mines that deaths may well be the result. Can we allow, under British law, a conviction for arson to be punished with a life sentence when the use of anti-personnel mines carries a maximum of only 14 years' imprisonment? Under section 3 of the Explosive Substances Act 1883, which is still in force, the making or keeping of explosives with an intent to endanger life is punishable by a maximum of life imprisonment—and possession of explosives includes possession of landmines. Under the Genocide Act 1969, the maximum sentence is life imprisonment.
My amendment would place the penalties for laying landmines on a par with those for arson, for possession of explosive substances, for genocide and for war crimes. My strong view is that the laying of landmines is a war crime. I hope that the Government will endorse that position in the negotiations to agree the remit of the international criminal court.
§ Mr. Tony Lloyd
My hon. Friend has raised two separable issues and I shall treat them as separate, if he will allow me. The first is the penalty available under the Bill for those who are found guilty. Let us establish at the outset that, whether 14 years in prison or life, the penalty will be severe and exemplary, which is right and proper for the crimes prescribed under the Bill. We must give clear signals: in what I hope would prove to be the unlikely event of people being prosecuted under our national legislation for such crimes, they would be dealt with in the most serious fashion by the courts. There is no dispute among hon. Members about the need for tough and exemplary sentences to be available and put into operation, should that be necessary.
We could argue almost endlessly about what precise level of penalty would be sufficient to act as a deterrent and to show the full gravity with which our society condemns such crimes. Precisely because the Bill does not seek to erode other parts of the criminal law, some activities consequent on the placing of landmines could, of themselves, attract higher penalties. Murder is murder, irrespective of how it is caused, so there can be no suggestion that we are not on all fours with some of the other heinous crimes mentioned by my hon. Friend the Member for Leyton and Wanstead (Mr. Cohen).
Under section 4 of the Explosive Substances Act 1883, the making or possession of explosives in suspicious circumstances carries a maximum penalty of 14 years. That was a reference point for the Bill. The Committee could have an interesting debate about the penalty that should apply to making or possessing explosives, but, after the terrorist outrages in London and Manchester, the location of one of the last IRA bombs, none of us treats those crimes as trivial. We are not being inconsistent by using as a reference point a crime that we judge to be heinous and requiring exemplary sentences.
While we can always argue about what precise measures should apply, I hope that my hon. Friend will accept that in the event of contravention of the Bill 1401 leading to death or serious injury, other criminal offences would apply, along with the relevant penalties. The reference point is consistent with the 1883 Act, so we are not far from making serious and exemplary sentences available to the courts. We are telling the world and our own people that exemplary punishments would be available if the Bill were contravened.
The more important part of my hon. Friend's remarks concerned whether use or possession of landmines should be a war crime. There is a serious debate about the nature of war crimes. As we speak, the conference in Rome on an international criminal court continues. I hope that the Committee supports the Government's wish to see that conference succeed. The hon. and learned Member for North-East Fife graciously said that he supports us; I hope that I can welcome his consistent support with just as much grace.
We are determined to help to bring the Rome conference to a successful conclusion. Agreement must not affect only a narrow group of states. We need an international court that can bear down on the serious and horrendous crimes that have disfigured the planet in recent times. In Europe, we have the example of Yugoslavia, and there is the prospect that the spectre of war crimes will haunt that region again. I have been to Arusha, where the tribunal on Rwanda is taking place, and to Rwanda itself where war crimes certainly happened. We must have an international criminal court that can deal with matters that need international sanctions or where the weight of international opinion is needed to ratify not just justice, but justice as part of reconciliation.
We can achieve wide agreement around the world on the need to criminalise activities such as genocide. It is easy to say, as Britain does strongly, that activities such as forcing children or young people into armed forces should be criminalised internationally. The crime of rape as part of the prosecution of war—I use that phrase although it is a contradiction—should be made a criminal offence under the statutes of the international criminal court.
Those matters are so important that we are insisting on a workable court that can bear down on those who commit such offences and can give a signal to the whole world that the international community is not prepared to allow them to go unpunished. The would-be perpetrators should know that their actions will lead to prosecution. The mechanism of the international criminal court would provide justice.
My hon. Friend wants the use of landmines to be a war crime. My right hon. Friend said that he, as an individual, and, more important, as the Foreign Secretary, would have no difficulty accepting that the use of landmines and the other activities referred to in the Bill should be included in the definition of a war crime. However, I give my hon. Friend an important warning. Significant members of the international community have not signed up to the Ottawa process and are not yet ready to sign up to an alternative agreement, possibly through the conference on disarmament or wherever we pursue the establishment of a universal ban on landmines. In that climate, the setting up of an international criminal court is not more, but less, certain.
1402 I caution my hon. Friend that, although I can offer him genuine sympathy for his ambitions and can reassure him that this matter does not cause the Government any problems, it would create real and practical problems if we were to pursue it at an international level. At least in the short term, it would make our ambition—which I know my hon. Friend shares—to establish the international criminal court less likely. In those circumstances, although I can offer him sympathy, I cannot offer him a way forward.
I hope that I have responded to my hon. Friend's remarks and that he accepts that the intentions that he wants to serve are either not achievable through his amendment or have already been achieved. The need to give the court real power and the ability to pass exemplary sentences has already been accepted, so I hope that he will withdraw his amendment.
§ Mr. Cohen
I accept the points made by the Minister, although I am disappointed at the conclusion he reaches. He said that the Explosive Substances Act 1883 was the benchmark for the 14-year maximum sentence. He referred to the carrying of explosive substances, but other aspects of the 1883 Act carry a life sentence.
My key point is about making the laying of landmines a war crime and for it to be within the international criminal court's remit. I favour the establishment of an international criminal court and I want it to deal with the issues to which the Minister referred. It clearly must cover genocide, rape of women as an act of war and the use of children in war. It must take action against the perpetrators of a holocaust. The use of landmines is a holocaust: it is a holocaust by drip. Individual after individual suffers. As Boutros Boutros Ghali said, landmines are a weapon of mass destruction in slow motion.
I hope that the Government will not lose sight of that point. Although they feel the need to give the international criminal court a more limited remit, I hope that they will, in the future, reconsider this matter and make the laying of landmines a war crime, which is what I favour. On that basis, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 ordered to stand part of the Bill.
§ Clauses 3 to 12 ordered to stand part of the Bill.