UK-US Co-operation on Using Atomic Energy for Mutual Defence

Lord Verdirame Excerpts

Wednesday 23rd October 2024 Grand Committee

[Lord Verdirame (Non-Afl)]

My Lords, I welcome this debate. I support the ratification of these treaties, which I too consider to be in our national interest, as previous speakers have remarked. I am grateful to the noble and learned Lord, Lord Goldsmith, and the International Agreements Committee for their informative analysis of these treaties in their second and third reports.

As has been pointed out, the main amendment to the UK-US MDA is to Article III bis, a key provision in the treaty which was added in 1959. It regulates the transfer of non-nuclear components and nuclear materials from the US to the UK and from the UK to the US. This provision historically had a sunset clause, which effectively meant that a new agreement had to be concluded before the expiration of the deadline. Article 5 of the amendment agreement will remove the sunset clause.

In the debate on the strategic defence review, the noble Lord, Lord Coaker, said that he would explain the reasons for making this arrangement indefinite. I very much look forward to his explanation, with which I suspect to find myself in agreement because it seems to me that an indefinite agreement is appropriate in this context given the strategic importance of our alliance with the United States and in light of the commitments under the AUKUS agreement on naval nuclear propulsion. Moreover, making the arrangement indefinite is consistent with the nature of the co-operation that the MDA, in particular Article III bis, provided for.

In some ways, the sunset clause seemed rather out of place in this kind of treaty because, in reality, terminating the envisaged nuclear co-operation would always have required an agreement between the parties and a staged process. This is reflected in the terms of Article XII, which deals with duration. It provides that the treaty

“shall remain in force until terminated by agreement of both Parties”.

It does not provide for unilateral termination except in the case of one provision—Article II. I also note that Article 13 of the amendment agreement adds some important changes to Article XII on duration that provide precisely for the kind of staged process that termination would inevitably require. Removal of the sunset clause is the right decision and is also consistent with the legal architecture of this treaty. I commend the Government on securing this change.

That said, as the noble and learned Lord, Lord Goldsmith, so clearly explained, a consequence of this change is that the MDA will not come to Parliament every 10 years or so. In light of that, I strongly support the committee’s critical conclusion that the Government should provide a report to Parliament on the progress and operation of the MDA every 10 years or so. I hope the Minister can reassure us in that regard.

I also endorse the comments of the noble and learned Lord, Lord Goldsmith, and the noble Lords, Lord Hannay and Lord Udny-Lister, on the inadequacy of our ratification process, which these treaties have brought into sharp relief.

The other point that I wish to make that relates to both treaties concerns our obligations under the nuclear non-proliferation treaty. I agree with the Government that neither the MDA nor AUKUS would put us in breach of our obligations under the NPT. This is a very important subject and I am grateful to the Government for the attention they have given to it, including in the evidence that they submitted to the committee.

I was counsel for the UK 10 years ago in the case that the Marshall Islands brought against the UK concerning our obligations to negotiate towards nuclear disarmament. That case was brought before the International Court of Justice against all nuclear weapon states. Most nuclear weapon states had an easy way out of that litigation, but we did not take it, because we accepted the compulsory jurisdiction of the court. We had to defend the UK’s position, which we did successfully.

Since then, it is fair to say that the international landscape of nuclear proliferation has become far more challenging. The risks of nuclear proliferation are greater, as illustrated by North Korea and Iran. Moreover, crucially, the impatience of non-nuclear weapon states towards nuclear weapon states has grown, as reflected in the conclusion of the Treaty on the Prohibition of Nuclear Weapons—the TPNW—which was adopted in 2017 and has already secured 94 signatures and 73 accessions or ratifications. For obvious reasons, the United Kingdom and the United States are not going to become parties to that treaty. The NPT is the only treaty that brings together nuclear weapon states and non-nuclear weapon states, and offers us the best chance of managing the risk of nuclear proliferation. However, the NPT will not survive unless nuclear weapon states continue to engage with it. That is a position that I am sure still enjoys support across the political divide. I note that a former senior adviser in arms control in the Trump Administration, Dr Tom Grant, has recently made the case for the NPT in a book entitled Nuclear Arms Control in Peril: Why the Nuclear Non-Proliferation Treaty Matters and How to Save It.

Whether we are progressive realists or realists, we need the NPT and we need to keep it relevant. For that reason, I welcome the engagement of the Government with the case made in relation to these treaties concerning our obligations under the NPT.

Arbitration Bill [HL]

Lord Verdirame Excerpts

Second reading committee
Tuesday 19th December 2023 Grand Committee

[Lord Verdirame (Non-Afl)]

My Lords, I declare an interest on this matter: I am a practising member of the Bar and my practice includes arbitrations including proceedings under the Arbitration Act. I am also a member of the Commercial Bar Association, but I had no involvement in Combar’s response to the consultation on the Bill.

I, too, welcome the Government’s decision to press ahead with this Bill so soon after the completion of the excellent work by the Law Commission, to which I pay tribute. The number and quality of the responses to the two consultations is also to be commended. It is a testament to the breadth and depth of expertise and experience in the field of arbitration that we are lucky to have in this jurisdiction.

I should like to say a few words in support of the conclusions reached by the Law Commission, as reflected in this Bill, on a couple of points. The first is the scope of the court’s review of an arbitral tribunal’s jurisdiction under Section 67 of the current Arbitration Act. This is addressed in Clauses 10 and 11 of the Bill. In its first consultation paper, the commission suggested that in order to avoid delay and costs for the parties, instead of a full review, there should be an appeal. After two rounds of consultation, the commission concluded that there should not be a radical departure from the current system, proposing instead some limited and pragmatic procedural improvements.

That is the right conclusion. A key question in any system of consent-based jurisdiction is who should police the boundaries of that jurisdiction. An arbitral tribunal can of course rule on its own jurisdiction under the principle of kompetenz-kompetenz, but it does not follow from this principle that that tribunal should be the final arbiter of its jurisdiction. Arbitration is successful because it is widely seen as having legitimacy. That legitimacy depends to a significant degree on the jurisdiction of the arbitral tribunals being subject to effective controls that go well beyond the self-policing by the same tribunal of its own jurisdiction.

In the wider world of international law, where consent-based jurisdiction is also the norm, an exorbitant jurisdictional determination by an international court or tribunal does not always have a clear or easy fix and that can create a legitimacy problem, and it sometimes does so. It was therefore important to preserve the architecture created under Section 67 of the Arbitration Act, as interpreted by our courts. At the same time, I believe that Clause 11 provides some protection to the winning party from the risk of unnecessary time-wasting and delay that follow from having to relitigate jurisdiction. Under Clause11, this objective would be achieved through the use of rules of court, which strikes me as a sensible and pragmatic solution.

The other question on which I wanted to touch was the one on which the noble and learned Lord, Lord Etherton, has spoken: the principle of discrimination and whether there should have been an amendment to ensure that it applied to the appointment of arbitrators. There were a number of problems with that, as the Law Commission rightly identified. One is that under Article V of the 1958 New York convention, it is stated:

“Recognition and enforcement of the award may be refused”


where it is shown that

“The composition of the arbitral authority … was not in accordance with the agreement of the parties”.


Another difficulty discussed in the consultation was that, particularly in international arbitration, it is quite common to require arbitrators to be of a nationality different from that of the parties.

In the course of considering this question, the commission helpfully set out the ways in which discrimination already applies to arbitration. That is so particularly through the duty of impartiality but also, as far as barristers and solicitors are concerned, through our professional codes of conduct. The obligation not to discriminate is, of course, a core professional duty.

It bears noting that in the 2022 review of discrimination in professional codes of conduct by the International Bar Association, England and Wales came out as one of the best jurisdictions. We have codes of conduct that prohibit discriminatory conduct by lawyers in any capacity, and not only in the exercise of professional functions. This matters because it is lawyers who advise clients on the contractual terms on the appointment of arbitrators and, ultimately, on whom to appoint. In doing so, in this jurisdiction, lawyers have to be mindful of their responsibility. The Law Commission was right to conclude on this point, after its thorough consideration of the question, that there should not be

“any further legislation within the Arbitration Act to prohibit discrimination, in particular in the appointment of arbitrators by … parties, because we think that this will not improve diversity of arbitral appointments, but could well lead to unwarranted satellite litigation and challenges to awards”.

My final, brief point is on Clause 1, which settles a complex question—one on which the case law had never been fully and satisfactorily settled. New Section 6A has the clear benefit of clarity and simplicity.

In sum, I too very much welcome this Bill. It is a timely and measured intervention in our law that we should all be grateful to the Law Commission for, and to the Government for pressing ahead.