---

Cluster Munitions (Prohibitions) Bill [HL]

My Lords, Clause 9 deals with the issues that arise when our Armed Forces co-operate in a joint operation with those of non-convention countries. It is right that we do everything that we can to protect those of our forces who may find themselves acting with those of other countries that still use cluster munitions. We should not be too sanctimonious about this—after all, it is only very recently that the United Kingdom has come to the view that it should accede to this convention. Other countries will take longer, but will hopefully come to the same view. I accept also that defences should be reasonably widely drawn so that officers do not find themselves inadvertently in a position where they are operating with officers from other countries who may be using cluster munitions. I accept that the defences should be widely drawn. Nevertheless, I have some concerns, and perhaps the Minister will address these in her reply. Clause 9 makes it a defence for a person charged with an offence specified in the schedule that the person's conduct took place in the course of a joint military operation. Schedule 2(1) refers to offences under section 2(1)(e) or (g). Schedule 2(2) refers to, ""an offence under subsection (2) of section 2 of assisting, encouraging or inducing another person to engage in any conduct mentioned in paragraphs (a) or (e) to (g) of subsection (1) of that section"." Clause 2(1)(a) makes it an offence to use a prohibited munition. Clause 2(1)(b) makes it an offence to develop or produce a prohibited munition. Clause 2(1)(c) makes it an offence to acquire a prohibited ammunition. Various other dealings with such weapons are listed as offences. Clause 2(2) deals with assisting, encouraging or inducing. It will encompass the offence of assisting, encouraging or inducing the use of a prohibited weapon—a cluster munition. I accept that inadvertently our Armed Forces might find themselves in a position where, looked at with a cold legal eye, they might be said to be assisting, albeit that they are acting properly and appropriately. They might even be described as encouraging. However, Clause 2(2) goes further by mentioning inducement. It might be said that an officer could legally say, in the context of a joint military operation: "We do not have cluster bombs—we are prohibited from using them—but you can use them, and if you do, we could assist you in some other operation." That would be the inducement. That would be wholly contrary to what we would expect our forces to do. It would also be wholly contrary to the spirit of the convention. Furthermore, I doubt whether it would fully implement the convention, notwithstanding the terms of paragraph 3 of Article 21. I am sure that that is not what the Government intend by these provisions. It may be that there can be reassurance on the way in which instructions and orders are given to our forces when they are in a joint military operation with a non-convention country. Echoing the words of the noble Lord, Lord Howell, I believe that we need greater clarification not only in terms of our troops and officers for whom we hold a responsibility but also our wider international obligations.