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Cluster Munitions (Prohibitions) Bill [Lords]

Obviously, I agree with what my hon. Friend has said, but I would simply add a point. He refers to a Committee upstairs, but having sat on the Select Committee on Statutory Instruments, I know exactly what happens; it is really a kind of dose of salts. I do not want to be disrespectful to the Committee, but when I was on it, I was concerned at the fact that a lot of statutory instruments went through rather easily. We are dealing with a statutory instrument that would involve the modification of the Bill. That statutory instrument is subject to the affirmative procedure, but that in itself is no safeguard. My hon. Friend is right in what he said. If the Bill were modified, there would be issues in the light of the complexities that the Minister now accepts are inherent in the Bill, the interaction of alliances, conventions, different jurisdictions, kinds of law and judicial attitudes, and the whole question of responsibility for control and command. There are also questions that go outside the normal courts; for example, we have not mentioned courts martial at all, but that issue could arise in the context of the matters that we are discussing. I wonder whether the Attorney-General might not be in some difficulty in that respect. We are talking about serious questions and offences with substantial penalties. Subsection (1) says:""The Secretary of State may by order…make such modifications"—" this is the crucial set of words—""as the Secretary of State considers necessary or desirable to give effect to any amendment of the Convention made in pursuance of the…Convention."" As for the words "considers necessary or desirable", we have been through that issue before. Anyone who has had experience of this House over a period of time, and any lawyer, knows that the phrase is extremely wide and virtually unchallengeable. The phrase used to be "in the opinion of"; now, it is "considers necessary or desirable", which is very wide. The clause goes on to say:""An order under subsection (1) may also make… modifications of any other enactment (whenever passed or made)"," including retrospectively,""as the Secretary of State considers necessary or desirable"—" there are those words again. That is worse than a Henry VIII provision; it is carte blanche. I would not particularly have wanted such a provision to have applied even in Henry VIII's reign; it might have been applied not merely to his wives, but anyone else in the entourage, because the provision catches everybody. Henry VIII would have had a field day with it. Despite the fact that the statutory instrument is subject to the affirmative procedure—here I look to the hon. Member for Foyle (Mark Durkan), with whom I seem to have been having quite a dialogue over the past few days, both in the Chamber and outside it—"enactment" is specifically defined, and not by reference to the interpretation Act. For the purposes of the provision,""In this section…'enactment' means…(a) an Act of Parliament,""(b) an Act of the Scottish Parliament,""(c) a Measure or Act of the National Assembly for Wales, or""(d) Northern Ireland legislation"." In terms of the powers conferred,""a 'modification' includes an addition, repeal or revocation."" I invite the hon. Gentleman to consider that, because as a distinguished member of the Northern Ireland legislature, he will know—as will others who discussed Northern Irish questions relating to justice, criminal law and policing yesterday—that however familiar people have got with totally undesirable legislation that legislates in order to legislate further, and to undo legislation, both retrospectively and in the future, that that is a very bad way to go about handing out sentences, with or without the consent of the Attorney-General, to our soldiers on the ground. We are talking about a very severe penalty of 14 years. It would be different if we were talking about a minor piece of legislation. I do not know what went on in other parts of the precincts of Parliament and in the other House, but the consideration that we are giving to the Bill today, at rather short notice and on a fairly tight programme, ought to reflect the seriousness of the offence that is being imposed. As the hon. Member for Foyle rightly indicated, those affected could be bodies corporate, businesses or partnerships. I have insisted on the point about the effect on the soldiers fighting in Afghanistan, or on duty in Bosnia, where there are a lot of cluster munitions. There are the problems of the exceptions that arise by virtue of the fact that a fairly substantial number of people have not signed up to the convention. We also have difficulties in relation to our allies, some of whom would not even supply us with ammunition during the Iraq war. I do not regard them as being much use. That is a serious matter. In addition, there are a significant number of people who are supposed to be engaged in Afghanistan with us. We have soldiers dying daily in Sangin and Helmand, and other countries are simply not taking an active part; that is a serious problem. The cluster munitions provisions affect our operations on the ground in Afghanistan. In all fairness, I know that the Minister recognises that. He also knows that there are serious penalties in the Bill. The powers in the clause to modify the Act in such an extremely wide manner, over a very wide and complicated landscape, are completely unwarranted. I am sure that the Whip on duty will listen to this—oh, there is no Whip here. I am not a Whip, or in the slightest degree interested in being a Whip, but I would have thought that we ought to vote against the provision, because it goes too wide on too serious a matter—a matter that has a serious implication for our armed services.