US-UK Mutual Defence Agreement Renewal 2014: a foregone conclusion?

1958 saw the first protest march to Britain’s nuclear bomb factory at Aldermaston, the start of the deployment of US THOR ballistic missiles with thermonuclear warheads at RAF Feltwell, a series of British thermonuclear tests at Christmas Island and the US and the UK signing the Agreement For Cooperation on the Uses of Atomic Energy for Mutual Defence Purposes – also known as the Mutual Defence Agreement (MDA).

The first three of these significant events have been well-documented. The fourth has not, and its implications remain shrouded in mystery to this day. In June 2004, I coordinated the drafting of the BASIC Report US-UK nuclear weapons collaboration under the Mutual Defence Agreement: Shining a torch on the darker recesses of the ‘special relationship’. Well, we may have shone the torch but very few took the time to see what we exposed (the formalised exchange of classified nuclear information, advanced technology and a range of materials including plutonium, enriched and highly enriched uranium and tritium).

We hoped that our report would engender some parliamentary scrutiny and media investigation into the planned renewal of the MDA before the end of the year. In the event, the Labour Government decided to act more rapidly than expected and made sure that it was extended for a further ten years, without any parliamentary scrutiny, just before the 2004 Summer Recess.

The work is under way
The planned 2014 renewal and further extension of the MDA, which requires some implied Parliamentary ratification of some kind before the end of the year, is unlikely to attract a great deal of attention. After all, it governs a special nuclear weapons relationship that is already well known and widely accepted – that between the United States and Britain. And as both countries are well on the way to open collaboration in a number of areas governing their next generation of nuclear weapon systems – the submarines, the missiles and the warheads – why would anyone pay much attention to the legal mechanism that facilitates this?

In their RUSI paper of June 2013, Hugh Chalmers and Malcolm Chalmers state that “while the UK maintains an independent domestic capability for this work, collaboration between the two countries under the MDA has evolved to the extent that the boundary between the design and construction of UK and US warheads has blurred”.

The problem for both countries is that this legal mechanism codifies activities that stretch, possibly to breaking point, the United Nations Treaty on the Non-Proliferation of Nuclear Weapons (NPT) which sits at the heart of the global non-proliferation architecture. It underlines the continued and apparently indefinite commitment to this nuclear weapons relationship, and in a manner that appears to be shielded from the accountability mechanisms that ought to be at the heart of good governance.

And the way to try and find out what the government is planning is for a member to ask a parliamentary question. A minister must respond, aided by the crafting skills of a career civil servant, but an answer can range from helpful, to evasive or to an outright refusal to say anything, based on the justification of ‘national security’. In this case, Caroline Lucas, Green Party MP for Brighton Pavilion, asked of the Secretary of State for Defence on 20 January: “What the timetable is for his planned renewal in 2014 of the 1958 US-UK Mutual Defence Agreement and what steps have been taken to facilitate renewal of that agreement to date?” The answer was delegated to the junior Defence Minister Philip Dunne, who could manage no more than: “Work is under way in the UK and US to amend the treaty by the end of 2014.”

The Stocktake
On 26 July 2011, Gerald Howarth MP and Minister for International Security Strategy, spoke at a dinner to mark the 35th Stocktake of the MDA – “surely one of the most historic and enduring Treaties between Britain and the US, indeed between any nation”, which “has ensured that our nuclear deterrence programmes remain aligned and mutually supportive. It has allowed us to discuss and plan aspects of our national nuclear deterrence in the finest detail. That’s indicative of the depth of the relationship between the United States and Britain”.

He told those gathered that they were:

Part of a complex and largely invisible web of day-to-day interactions between Britons and Americans deep inside each other’s establishments, laboratories, and headquarters. I’m delighted that Britain with its nuclear technical experts is making such a positive contribution to that relationship. The current level and depth of collaboration is unprecedented. Although they may not know it, when people talk of the ‘Special Relationship’ they’re talking about you.

Philip Dunne’s ministerial responsibilities also include the Atomic Weapons Establishment (AWE) at Aldermaston, so he was well-placed to respond to Caroline Lucas’s second question on 20 January asking for the date and location of the next US-UK MDA Stocktake meeting. Mr Dunne’s answer this time was, at least, more helpful than his previous effort: “A Stocktake meeting took place at the Atomic Weapons Establishment, Aldermaston, on 16 January 2014. The date and venue for the next meeting have not yet been set. Stocktake meetings are nominally annual, hosted equitably by the US and UK.”

The 2004 Renewal
On 21 April 2004, Alan Simpson MP asked the Secretary of State for Foreign and Commonwealth Affairs if he planned to lay before the House any amendments to the renewal of the 1958 Agreement for Co-operation on the Uses of Atomic Energy for Mutual Defence Purposes between Her Majesty’s Government and the United States of America. The Government obliged, but not until 21 June:

The amendment to Article III bis of the 1958 Agreement will extend that provision 31 December 2014. The 1958 Agreement underpins all nuclear defence co-operation between the US and the UK; without it the US Government cannot share nuclear technology or transfer materials to the UK. Cooperation under the MDA has been of considerable mutual benefit and it is in the national interest of both the US and the UK to continue.

On 22 June 2004 Lord Archer of Sandwell asked the government if the negotiations with the United States for the renewal of the MDA had been concluded and whether there would be an opportunity for Parliament to debate its terms. Lord Bach, Parliamentary Under-Secretary of State at the Ministry of Defence, replied that the amendments and an explanatory memorandum to the MDA were signed on 14 June by US and UK representatives and laid before Parliament on 21 June under the Ponsonby Rule (established in 1924, based on practices going back to 1892, enabling the Crown to formally ratify treaties 21 days later). He added that he could not undertake to find Government time for a debate but would give due consideration to any request from the House of Commons Defence Committee and the Liaison Committee for a debate. No such request was forthcoming, despite an earlier indication in a letter to BASIC by the Clerk of the Defence Committee on 21 January 2004 that it was likely to do so.

In response to a follow-up question about why the confidential intelligence contents of the MDA have never been disclosed to Parliament, Lord Bach said that “the practice should continue because of the necessity for great confidentiality and because of the use that such information would be to other would-be nuclear states. In other words, it might well assist proliferation”.

On 24 June Llew Smith MP put down Early Day Motion 1407 stating that “the extension of this bilateral treaty undermines United Kingdom and United States’ commitments under Article 1 of the 1968 Nuclear Non-Proliferation Treaty (NPT)”, raised concerns “that the government does not see a potential conflict of interest between the MDA and the United Kingdom commitment to the NPT as stated by Lord Bach in the House of Lords on 22nd June” and called for a debate in Government time in advance of possible ratification of the treaty, as amended. The motion was supported by 51 MPs, but elicited no response from the Government.

The legal question
In July 2004, Rabinder Singh QC and Professor Christine Chinkin, then working for Matrix Chambers and advising Peacerights, the Acronym Institute and BASIC, found that it was “strongly arguable that the renewal of the Mutual Defence Agreement is in breach of the nuclear Non-Proliferation Treaty” and outlined the justification for such a finding under applicable treaty law and successive treaties. ‘The breach’ referred to is covered by Article I of the NPT which states that each nuclear-weapon State Party to the Treaty [China, France, Russia, the UK and the USA] “undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly”.

Proponents of the Mutual Defence Agreement would say that whatever they do it isn’t quite what they agreed not to do as per the wording of Article I of the NPT. But it is undeniable that what they have actually done is to maintain close scientific and material exchanges between the US and UK which have enriched and enhanced their collaborative ability to keep nuclear weapons production lines open and functioning over 50 years. Thus, in effect, there is an absolute contradiction between what actually occurs under the 1958 bi-national agreement and what both countries signed up to ten years later under an international treaty in “declaring their intention to achieve at the earliest possible date the cessation of the nuclear arms race and to undertake effective measures in the direction of nuclear disarmament”.

The advice from Rabinder Singh and Christine Chinkin addressed the codified ‘right’ (constitutional convention, on the advice of ministers) of the Crown, as exercised by the use of the Royal Prerogative, to make and ratify treaties. It also addressed the application of the Ponsonby Rule. While recognising that this practice is not binding as a matter of law, they indicated that it “is of obvious importance to Parliament itself” as “it provides a sound basis for members of Parliament to call for debate on the renewal of the MDA, especially since, in accordance with our advice, it is strongly arguable that renewal would breach the UK’s obligations under the NPT”.

Hugh Chalmers and Malcolm Chalmers believe that:

There is little to suggest that these objections have had any restraining influence on the UK’s nuclear co-operation in the past. Even so, the UK would consider whether any expansion in its nuclear relationships with the US and France would be compatible with the NPT. While ambiguities exist in legal interpretations of the treaty, the nuclear-weapons states involved in deeper co-operation would need to take account of any possible negative effects that might result from future co-operative measures that appear to reopen the issue of NPT non-compliance.

Lord Bach justified the secrecy surrounding the 2004 MDA renewal, and the questionable use of the Crown Perogative as a substitute for parliamentary democracy, on the basis that “such information might well assist proliferation”. Well, there is no doubt that the provisions of the MDA have assisted the vertical proliferation of nuclear capability in the United States and the United Kingdom for over half a century. Indeed, that is explicitly what it stands for.

The Minister informed Parliament on 20 January that work on amending the MDA was “under way” and that it would be amended “by the end of 2014”. No doubt there will be a Government statement well before the end of the year, once they have everything is in place and are ready to go, that US and UK officials have agreed amendments to the 1958 MDA, that they have been placed before Parliament for 21 days and that ‘the Government would give due consideration to any request from the House of Commons Defence Committee and the Liaison Committee for a debate’.

On past performance, most MPs will need some considerable external encouragement before accepting that the renewal of the MDA is a subject that ought to be debated openly and democratically, both within and without Westminster. At the moment, it rather looks as if the Conservative Government of Prime Minister Cameron is intent on following in the footsteps of the Labour Government of Tony Blair by ensuring that the US-UK Mutual Defence Agreement is in the bag for a further ten years before the Parliamentary Summer Recess, and quite possibly before the Easter Recess.

These are the opinions of the author and do not necessarily reflect those of BASIC.

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