Lords’ Hansard on the Armed Forces Bill
24 July 2006
The noble Lord said: I will also speak to Amendment No. 25, notwithstanding that it is grouped with other later amendments, because it raises the same point.
arose specifically in the case of Mr Kendall-Smith, a flight
lieutenant in the RAF who refused to go to Iraq because of his belief
that the invasion and subsequent activity in Iraq were illegal. I am
not suggesting in these amendments that it is a defence for a person
to prove that he believed that the,
nor when we come to Clause 8 am I suggesting that belief is a sufficient defence. But it should be open to a defendant to argue, as Flight Lieutenant Kendall-Smith did, that he was being asked to make himself a party to the illegal act, as he saw it, of the invasion of Iraq. He may or may not be able to persuade the tribunal that his view is correct, but it should be open to a service man to make that argument as a matter of law.
In the court martial proceedings against him, at a preliminary hearing, he was told that his belief that it was an illegal act was no defence. Subsequently, by the trial date in April this year, the Judge Advocate General said that it was not an admissible defence at all: he could not argue it. If a soldier is charged with disobeying a lawful order, he ought to be able to argue in some wider context that the whole operation he was being asked to take part in was illegal.
This is a probing amendment because I am interested in the Government’s response to the argument that I have put forward. I beg to move.
I oppose this amendment. It is not the duty of junior officers to
determine the legality or even the necessity of any operation. After
all, even the noble and learned Lord the Attorney-General found it
difficult. It is a role for Ministers and Parliament.
Lord Judd: I support the noble Lord, Lord Thomas of Gresford, and hope that the Minister will give very serious attention to his amendment. I, too, will be interested to hear his reply. We will come to relevant matters in the grouping that includes my own Amendment No. 24. However, I am sure that every Member of this House would agree that a service man has a duty to refuse to carry out an order that he or she believes to be unlawful. If that responsibility lies with the service man or woman, I do not understand why they should then be denied the opportunity at a subsequent legal occasion to explain the reasons for their conviction that the particular order that they were asked to obey had no legal basis. I hope that the Minister will look at this anomaly and see how it can be made more consistent.
Campbell of Alloway:
I oppose the amendment. Anyone who has been in a very tight corner
where discipline is totally essential could never accept this
Moreover, so far as committing murder in those circumstances is an offence in international criminal law, the international convention on torture, for example, should also be available as a defence in a court martial.
However, there is another sense in which we can understand the amendment moved by the noble Lord, Lord Thomas of Gresford—the legality of the war itself. Is the war being legally pursued by the Government?
That has become an extraordinarily important question since the International Criminal Court has been established. If the war a country is waging is indeed illegal, any soldier apprehended by a foreign country against which that war is being waged is himself subject to international criminal law. That has serious consequences for the soldier.
we are in great difficulties if, as one of a number of defences a
soldier can raise against an order being issued to him or in the
context of obstruction, we provide that soldier with a straightforward
defence of, “My country is pursuing an illegal war”. Quite apart from
the implications for military discipline, I do not believe that either
an English civil court or a court martial has the jurisdiction to
decide such a question of public international law. It is a matter on
which, among other things, the Attorney-General has to pronounce. Once
he has pronounced, to have any kind of effective fighting force,
everyone involved in the battle has to accept the Attorney-General's
judgment, whatever their private views about it.
Although I entirely understand where the noble Lord, Lord Thomas of Gresford, is coming from, and I greatly sympathise with the sentiment and emotion behind the amendment, in so far as we are dealing with public international law and the question of the legality of the war itself, it is not right to incorporate a defence based on that in the military tribunal system.
Lord Bramall: My Lords, I agree very much with the noble Lord, Lord Kingsland, on this. This amendment is what the military would call “volunteering for the guardroom”. It seems to put an unnecessary complication in the way. The thing about bringing in international law is that, on occasions, it is extremely obscure what international law is. It is open to different interpretation and produces deep issues that the ordinary soldier of fairly low rank would not be in a position to judge. It is a matter for the Attorney-General and Parliament. I should have thought that it was quite sufficient to say that a soldier must not commit an unlawful act.
This goes back a very long way; it goes back to the Nuremberg trials, when a lot of the people whom we were fighting in those days said, “Well, I was all right because I was told to do it”. Of course, it then became very clear that, even if you were told to do something, if that act was unlawful, it did not necessarily mean that you were free from blame. That is how this came about. But if it is made clear that you must not commit an unlawful act, there is no need to bring in the complication of international law, which obscures the issue.
Lord Thomas of Gresford: Perhaps I might clarify my position, as we are in Committee. I remind the Committee that Flight-Lieutenant Kendall-Smith was a medical person and there was no question of his being sent to Iraq to aim a gun at anybody. If he was performing his functions in Iraq, it would have been in tending the sick or wounded. So no question of his committing an unlawful act in itself could arise. His objection was that the whole enterprise was illegal. I very much accept the analysis of the noble Lord, Lord Kingsland, on this—that he was making himself party to something that could turn him, in an international criminal court, into a criminal.
These amendments seek to leave it open to the defendant to argue not that he believed that a war was illegal but that it was, in fact, illegal. I do not accept that that is not judiciable in the courts of this country, as it is perfectly open to our courts to decide whether a war is or is not legal, and I do not think that the Attorney-General or Parliament can oust the courts from taking decisions of that nature. All that I suggest in these amendments is, not that a person’s belief is a defence in Clause 8, for example, for his desertion or refusal to serve, but that he should be able to argue in court in an appropriate case that the whole enterprise was illegal.
I have no
doubt that many of the defendants at Nuremberg had never pulled a
trigger in an unlawful way or committed a murder directly, but some of
them were there because they were engaged as members of
Lord Mayhew of Twysden: This amendment simply makes it a defence to prove that something is an unlawful enterprise. In some ways, it is quite an attractive amendment and, viewed academically, one can see how the already eloquent argument of the noble Lord could be expanded. However, I suggest that it must fail on practical grounds, for the reason given by my noble friend Lord Kingsland. Under our constitutional arrangements, for better or for worse—and I cannot think of one that would be better practically—the Government’s legal adviser is the Attorney-General. Somebody has to hold that position and, for there to be an end to a dispute, there has to be a rule that, when the Attorney-General has given his opinion on the legality or otherwise of something, the Government must accept it. If they have to accept it, I do not see how, practically, it can be sustained that those whom they order to give effect to their policy should be able to challenge that which the Government themselves cannot challenge. In those circumstances, as a matter of practicality, I suggest that this amendment must fail.
I do not think that this is to oust the jurisdiction of the courts on the question whether something is lawful. We are simply considering whether there should be a defence. I do not believe that you can prevent somebody raising it as a matter of consideration for the court. That jurisdiction is not being ousted; we are simply preventing it becoming a defence, for the practical reasons that I and other noble Lords have suggested.
The word that I stumbled over when I read this amendment was “prove”.
The amendment says that the defendant has to prove that whatever he
was doing was “illegal under international law”. That really seems an
impossible operation for a defendant. I am not sure what the
international law would be that he was trying to prove was involved.
So I am afraid that I cannot support the amendment.
I come to some nuts and bolts with regard to the remarks of the noble
Lord, Lord Thomas of Gresford. None of us would want our medical
officers to think that they were going into battle to kill or wound
people or to fight, but with the sort of enemies that we fight these
days—and in the past—if the medical officer is not armed, surely he
has a duty to defend his patients if his surgical station is overrun.
He has a duty to defend himself, too, because we want him to go on
being a jolly good medical officer.
I would have
to be very careful in agreeing with the noble Lord, especially with
regard to the case that he mentioned, on which I have only the
newspapers to go by. I can see this being used as an excuse in an
operation area, when somebody is given an order to go on patrol, or
whatever, and that person says, “No, I don’t agree with the war; I’m
not going”. When we come down to nuts and bolts, we have to be very
careful of that.
Lord Drayson: Amendments Nos. 14 and 25 would make it a defence to any charge of obstructing operations or desertion to show that the operation in question required someone to commit, “unlawful acts or is illegal under international law”.
The words quoted seem to be intended to cover both criminal acts and service which the United Kingdom was carrying out contrary to its international law obligations, as the noble Lord, Lord Kingsland, has said. I emphasise that if a member of the Armed Forces is ever given an order to commit a crime, he should disobey it. That is the right response if he is given such an order. Therefore, the amendment is unnecessary to deal with crimes.
Lordships will no doubt be aware that the report of the Joint
Committee on Human Rights published last Friday asked why Clause 3
does not allow the legality of the deployment of British forces to
Iraq to be argued in relation to an offence under Clause 3. I will
write to the committee to provide a detailed answer to its questions,
but I hope my reply to this amendment has outlined in the time
available our reasons for deciding that such a defence should not be
I am grateful to the Minister for his reply, and to all noble Lords
who have taken part in this very short debate on this matter of
considerable principle. Should a person be allowed to argue, to take
the question of the noble and gallant Lord, Lord Craig, that an
invasion is a war of aggression? Such a war is obviously illegal in
We will consider this matter. I shall consider the Minister’s response tonight and in his promised letter to the Joint Committee to see whether we can take this debate any further. This is a probing amendment, and I hope it has at least raised an interesting issue for your Lordships. I beg leave to withdraw the amendment.
moved Amendment No. 24:
Page 5, line 12, at beginning
The noble Lord said: In moving Amendment No. 24, I will be particularly interested in the debate on Amendment No. 25, in the name of the noble Lord, Lord Thomas of Gresford, which in some ways is related to the same ground. I indicated my concerns about the matters covered in this amendment at Second Reading. The Minister, who has been most responsive and helpful in taking up points made at Second Reading and elsewhere, did not at that stage apparently feel able to comment on this point. It will therefore provide an opportunity for him to say a bit about the matters under consideration.
Having served in the Armed Forces, albeit a long time ago, and been a Defence Minister, I am well aware of the gravity of desertion. It is a very serious offence, which can place lives in jeopardy and undermine an operation. Particularly in these days of highly developed technology, the absence of a key person at a particular time could be of critical significance. I have no argument whatever about spelling out the gravity of the offence of desertion in the Bill. I believe that if one recognises the gravity of desertion, it is therefore important to have severe penalties. We can argue about what those penalties should be when we have an opportunity to look at that a little later in our deliberations, but there should be a severe penalty.
My amendment simply proposes that, if the offence is grave and the punishment severe, it should be clear beyond doubt that whatever the service man or woman is being asked to do is proper and lawful. I suspect that my noble friend will say, “What on earth is the point in putting in the word ‘legal’ because, by definition, anything that a serviceman will be asked to do by our Government would be legal?”. Of course, that argument can be turned on its head: if anything that anyone may be asked to do is obviously legal, it would be quite harmless to put the word “legal” in the text just to underline the point.
We live in an age of volunteer services. People join the services of volition. Once they have done so, they have agreed by definition to do anything required of them by the Government. It is therefore more important than ever to underline the significance which we, in making the law, attribute to this form of service and that we are absolutely determined that no one providing this form of service should be put in any kind of difficulty or legal risk.
earlier of the importance and significance of the Attorney-General. It
has been argued that once the Attorney-General has given his advice to
the Government, we all gather round and endeavour to make a success of
the Government’s decision to undertake an operation, if that is their
decision in the light of what the Attorney-General has said. Of course
there is a difficulty here because the only people who know what the
Attorney-General said are the Government, and they decide whether we
are going to go into action. Members of this House do not know, the
other place does not know, servicemen do not know and the general
public does not know. It is therefore important to underline the
significance of what is being done and to ensure that in the
preparations for action, the seriousness of the
However, times have moved on and no one could argue that anything the Armed Forces are being asked to do now is in any way beyond the law. That is because, for example, the United Nations Security Council has quite specifically endorsed the action being taken at this point. But there were arguments at an earlier stage.
For all those reasons, and because of recent experience, this is a good opportunity to underline for all to see that in preparing for military action, legality is of the utmost importance, and that it is put into the Bill. I was startled when I read Clause 8 because it seems that actions or operations against an enemy are fairly clear cut: operations outside the British Isles for the protection of life and property are utterly commendable; but then, suddenly and baldly, with no qualification and no detailed explanation, are the words, “military occupation of a foreign country or territory”.
If desertion is grave and the penalties are to be severe, we owe it to our service men to underline that, in this context as well as any other, anything they are asked to do will be beyond any doubt lawful and legal. I beg to move.
Viscount Slim: I am sorry that the noble and gallant Lord, Lord Bramall, is not in his place. When I was a very junior officer serving abroad, I was sent to a certain minor unit because there had been some desertions and it was feared that there would be a mutiny. I am not a legal man clever enough to make the law, but what I can say is that you should not pussyfoot about with the two words “mutiny” and “desertion”. You should not funk coming clean in what you write. The noble Lord, Lord Thomas, was absolutely right and put it more diplomatically than I could when he suggested that you had better face up to it and not be frightened of writing it down. Through his amendment the noble Lord is seeking to put this in the Bill.
I would ask
the Minister to take some further advice. These are frightening words
and advisers sometimes funk them. The noble Lord, Lord Judd, was right
to say that these are terrible words. He was once a defence Minister
and he understands how important they are. I do not know whether it is
right to put in the word “legal”, but even if a war is illegal in the
eyes of some, it is still no excuse for a unit to desert or mutiny.
This is an area where I would again urge the Minister to seek advice.
I am not saying that
I am grateful to the noble Lord, Lord Judd, for continuing the debate
that we had on Amendment No. 14, in which I also said something about
Amendment No. 25. My noble friend Lord Garden will speak to Amendment
No. 26. As to Amendment No. 27, we have yet to hear from the noble and
gallant Lord, Lord Craig. I commend him for producing a clearer
definition of “desertion” than appears in the Bill. No doubt we shall
hear how that is put in due course.
earlier debate I was interested, if not startled, to appreciate what
was said by the noble and learned Lord, Lord Mayhew of Twysden, about
the fact that the Attorney-General determines the legality of a war
and cannot be questioned in the courts. The noble Lord, Lord Judd, has
made exactly the point that I would have made: nobody knows what his
advice was. It was hotly debated; it was advice which was required at
the time by the Chief of the Defence Staff, who is in his place. He
was not prepared to order the advance unless he had the assurance that
the invasion was legal. Noble Lords will recall that, in the end, it
was the decision of the Prime Minister. Having taken advice, he
decided that the invasion should commence. It was an exercise of the
Is that the
end of it? That is the issue we are facing. Is no one able to question
the decision of the Prime Minister, advised as he is by unknown advice
from the Attorney-General as to the legality of an invasion or, in the
context of the amendment of the noble Lord, Lord Judd, the legality of
a military occupation of a foreign country or territory? That is the
area I have been seeking to explore with both Amendments Nos. 14 and
25. It must be possible for a person charged with an offence of
desertion to say, “Well, I was being asked to participate in something
that was entirely illegal”. Surely he can argue that. He may not
succeed—he is unlikely to succeed—but surely he can put forward that
already expounded at some length on this topic and I shall not weary
the Committee any further because I want to come back to it on Report.
As I say, I support the noble Lord, Lord Judd, in his amendment.
Lord Garden: My Amendment No. 26 relates to the maximum sentence available for desertion. I agree with what all noble Lords have said about the seriousness of the offence, but the punishment—life imprisonment—is very severe.
At one of
our helpful briefings with the Bill team in June, I was interested to
know how often we charged people for desertion and what penalties were
awarded. Are many people serving life because they have deserted? The
Minister was kind enough to write to me on 13 June with the recent
statistics, which are sparse: not many people are charged with
was right to reassure me that we hardly ever used life imprisonment as
a punishment for desertion. We measure it in days rather than years.
As the possible penalty is so severe, desertion is very rarely used,
perhaps more rarely than it should be. Absence without leave tends to
be used instead, which rather distorts our assessment of all sorts of
things, because desertion can be a measure of morale within the
services. So one offence, absence without leave, has a maximum of two
years, and the other, desertion, has life imprisonment. I am not sure
of the right level, but it should be less than life. For that reason,
I suggest that 10 years would seem to say that this offence is
serious, but we are putting it at a practical step up from absence
without leave. I would happily argue for less than 10 years, but not
support the amendment moved by the noble Lord, Lord Judd. It is
useful. I agree that, technically, one could argue that we would not
send the forces unless it were legal, but recent experience leads one
to be slightly uncomfortable about that. I endorse everything said by
my noble friend Lord Thomas of Gresford on that point.
I have received, as I am sure have other noble Lords, representations that the subsection that deals with military occupation should be dropped. It was slightly startling to read. It is a new concept in military law. When we discussed this at the Ministry of Defence, I accepted the argument that this narrowed the occasions on which one could be charged with desertion, but it is unfortunate that this particular phrase has been included given the sensitivities that still exist over the operation in Iraq.
Lord Craig of Radley: I rise to speak to my Amendment No. 27. I find Clause 8 tortuous, with its reliance on the phrase “relevant service” used repetitiously and with a series of questionable definitions being used for it. The wording of the clause may be clear enough to the legally trained mind, but will not be clear to the average soldier, sailor or airman. The wording of my Amendment No. 27 is lifted almost verbatim from the Armed Forces Act 1971, which itself revised the wordings in the Army and Air Force legislation in 1955 and the Naval Discipline Act 1957. The current definition of desertion would be retained by my amendment.
should explain to the Committee why it was thought necessary in this
new Bill to introduce such a complex reworking of the offence and
definitions of desertion. Some particular points of detail occurred to
me. The 1971 Act refers to being “permanently absent from duty”,
rather than as in
rather than the more obscure phrase “outside the British Islands”. There is no definition in Clause 367 of British Islands, although I understand that there is one elsewhere in statute.
are the somewhat surprising mentions of the protection of life or
property and, “occupation
of a foreign country or territory”.
That starts to beg the question
of whose life and what property. Would we really want to charge a
person with desertion when the value of the overseas property to Her
Majesty's Government may not be that clear to him?
“occupation” cover everything from the result of a large-scale
successful invasion to a few servicemen being attached to a unit of
the country or territory at the relevant authority’s request? I get
the feeling that the draftsmen are trying to provide a wider set of
possible offences of desertion than heretofore. The Committee should
not give any ground to widening the possible misbehaviour for which
someone could be charged with desertion. The Committee should resist
that or at least seek a very convincing explanation from the Minister.
This is meant to be a probing amendment to help the Committee to understand the reasons behind the present tortuous drafting for this very serious offence. The only other point to which I should wish to draw the Committee’s attention is that, in my amendment, I have sought to restrict the possible life sentence to, “service or any particular service when before the enemy”.
Incidentally, the definition of property in Clause 367, at the bottom
of page 185, may again be clear to the legal mind but is not clear to
me. Would it include mobile homes or temporary structures? Are
vehicles included as property? I recall some tortuous restrictions in
the Armed Forces Act 2001 affecting the activities of service police
in relation to property. For example, it restricted them to,
“If a person is in a garden or
yard occupied with and used for the purposes of a dwelling or of any
service living accommodation”— and then there were the restrictions on
what he could do.
legal niceties, what is the practical distinction between heritable
property and real property? The former seems to apply only in
Scotland, which is not—or at least not yet—a foreign country. I doubt
whether the potential deserter would have a clue. It may be claimed
that the manual of service law will deal with such questions, but this
is not a good enough excuse for having any clause in the Bill such as
the present Clause 8, that is so tortuous and opaque beyond reason.
Dean of Thornton-le-Fylde:
I have difficulty with Amendments Nos. 24 and 25, because I have
difficulty following the logic of what is being said. The amendments
seem to have been proposed because of a situation that arose in Iraq.
To listen to some of the contributions, one would have thought that a
decision was taken in isolation and that we had no debates in here or
any debates or votes in the other place, both of which are patently
difficulty with these amendments because by placing in the hands of a
deserter the defence that they believed sincerely that the operation
they were involved in was not legal—and I think we are all agreed just
how dangerous that can be within the services—when that defence is
used at a court martial, we are actually asking the court martial to
decide whether the operation was legal. Frankly, I do not think that
is the authority of a court martial. If our objection is that there
was no formal parliamentary decision to go into Iraq, in this case,
and that is not sufficiently democratic, how can we then give a court
martial tribunal the authority to say, “Your defence is sound. This
was not a legal action”? I have never been a serviceperson myself, but
I have a lot to do with the Armed Forces of all three services, and I
think this is an invitation to break down discipline, not to support
No. 26, I am very unhappy about the retention of life sentences for
desertion. I referred to this at Second Reading, after which the
Minister gave me some statistics. On the one hand they helped, because
I thought, “This is not a dangerous clause because it’s not used, and
if it is used, it’s used responsibly”. On the other hand, however, if
it is used so little, why do we need it?
strongly about this. We are talking about the whole area of
discipline. Clause 11, “Misconduct towards a superior officer”,
including violence towards that officer—an extreme example of
discipline breaking down—provides a maximum sentence of 10 years.
Clause 12, “Disobedience to lawful commands”, also provides a 10-year
maximum sentence. We are talking about proportionality, and it is not
proportionate to issue a life sentence for desertion. I am extremely
pleased that the Bill separates out absence without permission and
straightforward desertion, because people could have been caught if it
had been left as it was, but I would like to hear what the Minister
has to say about the retention of life sentences for desertion. I
support Amendment No. 26 from the noble Lord, Lord Garden.
Before the Minister replies, I would like to make it absolutely clear
that my Amendment No. 25 does not make it a defence
agree with the noble Baroness that a court martial is not necessarily
the best tribunal to decide the legality of a war. However, beyond the
tribunal there is the Courts Martial Appeal Court, and beyond that is
the Appellate Committee of the House of Lords, soon to be the Supreme
Court. Through that route it is possible to obtain the views of the
highest judicial authorities. As it is the decision of the Army, or of
the new prosecuting authority, to deal with a defendant through a
court martial, there is no other way he can challenge the validity of
the operation he was asked to participate in.
I am sure
the noble Baroness will remember that I was not referring simply to
the wholesale invasion of Iraq, but possibly to a person refusing to
take part in an operation within an invasion that might transgress the
laws of war. These are rather wider issues than she was considering
when she gave her views a moment ago.
Baroness Dean of Thornton-le-Fylde: I am not a lawyer but my interpretation is that this matter constitutes a rose by any other name. The example concerned a medical officer who said that he was not going to Iraq, although I do not know how that offends against the Hippocratic Oath. But we are now saying that we would not expect a court martial to decide the matter and that the person has to prove his case. It could go right up to the Supreme Court. Are we now saying that the Supreme Court can decide whether an operation is legal, or Parliament? I know which I prefer: our democratic process.
Earl Attlee: The noble Lord, Lord Judd, was very beguiling with his amendment about the word “legal”, but I repeat that I do not believe that junior members of the Armed Forces are qualified to determine the legality of a military operation. I strongly agree with many of the comments of the noble Baroness, Lady Dean.
Some options are available for members of the Armed Forces who do not agree with an operation. They can apply for premature voluntary release or resign their commission. There is, of course, the snag, with which someone will hit me very shortly—that they might be time barred, so that they cannot apply for PVR or resign their commission. But that would mean that they had been on an expensive and long course and had probably served some time in the Armed Forces and had drawn a salary all that time. Therefore, I resist these amendments.
Lord Thomas of Gresford: I hope that the noble Earl will forgive me if I mention that the person to whom I referred sought to resign but was not permitted to do so. He had also previously served in Iraq and had studied the legal advice to Ministers in so far as it was available to him.
Earl Attlee: I was very tempted to ask about that case and I thought that the noble Lord would intervene in the way that he did. I was not aware of the precise details. That person cannot resign to avoid a particular operation, which I think is absolutely right, but he could resign at some point, or he could have resigned ages ago. He took the risk when he took the Queen’s Shilling. He accepted all the training that he was given, but when asked to serve he decided that he did not want to do so.
It is difficult not to be repetitious in dealing with this group of
amendments, which goes to the question of whether a service man can
question the legality of the war or of an operation in which he is
asked to take part. I probably shall not avoid that difficulty, but I
believe that the noble Lord, Lord Thomas of Gresford, is wrong to
think that it is impossible to determine the advice of the
It is an
important constitutional principle that the advice which the
Attorney-General gives in so many words to the Government is not to be
made public, but of course he is answerable to Parliament. He is
brought before Parliament and he has to explain in what respects he
considers that the action of the Government is lawful. Unless he is
able to do that, the Government will fall. We remember the most recent
instance of this, when the Attorney-General came before Parliament and
explained the basis upon which he considered that the actions of the
Government were lawful. It is not the case that everybody has to
accept the opinion of the Attorney-General and nobody can find out
what it is.
I invite the noble and gallant Lord, Lord Craig, to consider what his amendment means by the words, “thereafter forms the likely intention”
I am not sure what a likely intention is. He might like to reflect on that because it brings into question who has the burden of proof and of what. I should be grateful if that could be explored.
The noble Lord, Lord Judd, moved Amendment No. 24 very eloquently, but
we cannot support it. I very much agree with the views of the noble
Viscount, Lord Slim, the noble Baroness, Lady Dean, and my noble
friend Lord Attlee.
No. 26, we cannot support a substantial reduction in the sentence for
desertion. The sanction of life imprisonment must remain as a last
resort to ensure that soldiers will carry out their duty when on
operations. Amendment No. 27, tabled by the noble and gallant Lord,
Lord Craig, does not seek to weaken the offence; rather it proposes
the criteria for whether the type of desertion falls into the more
serious bracket. The idea of desertion “before the enemy”, as the
noble and gallant Lord said, has the advantage of using the language
of Section 37 of the Army Act 1955 as amended by the 1971 Act. It
seems that the amendment tabled by the noble and gallant Lord achieves
what the Government want. It uses the same language that has been used
since 1971, and it introduces the two-tier offence. I would be
Clause 8 creates the offence of desertion. I think the most helpful
thing I can do is deal with all the amendments together, apart from
Amendment No. 25, which we have debated already this evening.
Bill, the offence of desertion is limited to where a member of the
services goes absent without permission, either intending never to
return or to avoid the especially dangerous and important service
abroad that the Bill refers to as “relevant service”. That term covers
the same broad type of dangerous service abroad which is called
“active service” in the existing legislation. Like active service,
relevant service covers operations against an enemy, operations abroad
for the protection of life or property, and military occupation of a
foreign country. Amendment No. 24 seeks to alter the definition of
“relevant service” in respect of military occupation to “legal”
military occupation of a foreign country or territory.
totally undermine the cohesion of the Armed Forces to provide that, in
respect of certain types of operation abroad, a member of the Armed
Forces could simply go absent without permission because he or she
thought that the operation was contrary to international law. The
amendment would have the even more extraordinary effect that, if the
service man who goes absent is wrong about the international law
position—in other words, the court martial decides that the occupation
was lawful under international law—he is guilty of desertion and
subject to a maximum penalty of life imprisonment. I am grateful to my
noble friend Lady Dean for so clearly underlining the difficulties
will no doubt be aware that the Joint Committee on Human Rights, in
its report published last Friday, has raised the question of why
Clause 8 does not allow the legality of the deployment of British
forces to Iraq to be argued in relation to an offence under Clause 8.
I will of course write to the committee to provide a detailed answer
to its questions, but I hope that my reply to these amendments and
earlier to Amendment No. 25 has outlined our reasons for deciding that
such a defence should not be available.
No. 26 would reduce the maximum imprisonment for this offence from
life to 10 years. In Clause 8, we have sought to modernise and limit
the offence of desertion. One of the changes that we are making is to
remove the current maximum penalty of life imprisonment for all cases
of desertion. This maximum was only applied to all desertion cases by
It is also
the sort of service in which the success of an operation can depend on
every member of the force involved. To drop your mates in it when they
need you most by deserting in the face of dangerous operations is
viewed in the forces as just about the worst thing that you can do. In
such circumstances, a maximum sentence of life imprisonment may be
appropriate in an extreme case and should be available as a maximum
for the court martial. I trust that Members of the Committee see the
requirement for retaining the sentence of life imprisonment in the
limited circumstances in which it will continue to be available, and
why I therefore cannot support these amendments.
No. 27 seeks to replace the existing clause with a definition closely
based on the existing legislation. In some areas the difference is
crucial. The Bill limits desertion to absence without leave with the
intention never to return to service, and absence without leave to
avoid what can broadly be called active service. Amendment No. 27
would mean that it was also desertion to go absent without leave to
avoid any service overseas—for example, training in Canada. If a
soldier were due to go to Germany for a training exercise but went
absent because of some temporary trouble at home, he would be guilty
of desertion rather than merely absence without leave. That would be
too harsh. The Bill represents a carefully thought out modernisation
of the definition of the offence, which reflects what the services
Notwithstanding these difficulties, I accept that the wording of the
clause takes more than one reading to be clear to the layman. We would
never expect service personnel to rely solely on reading the Act. As
now, there will be specially drafted guidance in the manual of service
law so that, in particular, those affected know what the offence is. I
am glad to tell the noble and gallant Lord that the manual will also
be available on the internet, and service personnel will readily have
access to it.
I hope that
the noble Lord accepts my explanation on the requirement to retain the
clause as drafted, and feels able to withdraw his amendment. I hope
too that, in the light of my explanations, Members of the Committee
will not press their amendments.
I am slightly surprised that the Minister has not addressed the
questions about proportionality when looked at across the piece of
other offences that the noble Baroness, Lady Dean, brought up in
support of my amendment. The
I thank those who spoke to my Amendment No. 27. I obviously want to
read closely what the Minister said, but I do not feel that he
answered my point. My point was that we have an extremely obscure
Clause 8 and, regardless of whether it is repeated in simpler language
in a manual of service law, it seems to be our responsibility as a
Committee to try to improve the language if we can.
To bring this matter to the Committee’s attention, I chose to use the wording of the existing law and invited the Minister to explain why that was unsatisfactory. He made one point about overseas service, suggesting that someone who went to train at Suffield could, under the 1971 Act, be accused of desertion. I do not think that anyone has been accused of desertion under the 1971 Act but it does not necessarily follow that that is a good reason for throwing out the wording of that Act.
The clause tries to specify tasks. Once you start writing down tasks, as opposed to concepts, you potentially get into difficulty. The task of protecting property or life worried me, particularly when you consider the confusion about the definition of “property” in the Bill. So I was not happy about the use of the word “property” in Clause 8. I shall not dwell tonight on other points, other than to say that at present I am not at all satisfied. I shall not press my amendment at this stage and will consider carefully what the Minister has said.
Lord Judd: I am grateful to all noble Lords who participated in this interesting debate. Given the observations made, the drafting of Clause 8 leaves something to be desired, and it would be helpful if my noble friend could agree to think about some of the things said and about how the clause could better meet the anxieties expressed.
not put my name to the amendment tabled by the noble Lord, Lord Thomas
of Gresford, and I was not consulted on it, but an interesting point
has been made. If the law states that a service man or woman has a
duty to refuse to carry out an unlawful order—and that is how I
understand the law—something is missing if subsequently that service
man finds himself subject to legal proceedings and cannot even argue
that he believed he was doing what was required of him if the order
had indeed been unlawful. The amendment is not asking the court
martial to rule on the legality of the war; it is asking it to listen
to the service man’s case for what he decided to do.
I have unlimited respect for so much that my noble friend Lady Dean has done in public life, not least the tremendous amount of work that she has done for the armed services, ensuring good conditions and the rest. She has a proud record of service. However, I put it to her that providing a simple reassurance in the Bill for those considering undertaking service that anything that they are required to do is legal will strengthen morale and strengthen discipline, because it will be explicit—not implicit—that what they are required to do is legal. That is important.
The other consideration is that this and an earlier debate revealed a strange dichotomy. We are prepared to consider the position of a service man, in the context of a court martial, who has refused to undertake a specific order because he believes that that order was unlawful.
I turn to action that in itself may not be open to challenge in that way but which occurs in the context of a broader situation in which the whole operation in which the person is taking place is open to question. There is absolutely no opportunity to put that forward as a defence. It seems that there is a problem in this area—our debate has illustrated that there is—and it is terribly important that we all think about how it can be resolved.
The Minister argues well and very convincingly at the Dispatch Box, and I am glad to have him as a noble friend in that regard, but he said one thing that troubled me and which needs more thought. He seemed to imply that although we were committed to the international rule of law, there might be situations in which we knew that the international rule of law could not endorse what we were doing—but that by some subjective interpretation of the law it was okay. This is a very big issue. I do not believe that the rather casual drafting of Clause 8 begins to face up to some of the profound issues that are involved. The issue needs a lot more attention. I have listened to the Minister, who does argue well, and I want to go away and think about this debate. I hope that he will feel able to go away and think about some of the big issues that have been raised here and not just shut the door. If there is a mutual position of reflection, I am happy to withdraw my amendment at this juncture.
I am grateful to my noble friend, who presses me to indicate whether I
am prepared to reflect further. In drafting Clause 8, our intention
has been to modernise and clarify this area of legislation. Some very
important points have been made in this debate and I will certainly go
away, study Hansard
very carefully and reflect further in this area.
Lord Judd: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn. [Amendments Nos. 25 to 27 not moved.] Clause 8 agreed to.
24 July 2006
: Column 1639
moved Amendment No. 28: Page 5, line 22, at end insert-
The noble Lord said: I shall
speak also to Amendments Nos. 29, 30, 50, 51, 54, 55, 56, 57, 69, 87
and 88. These are government amendments to Clauses 9, 24, 31, 33 and
58. I hope that I am able to deal with the amendments to Clauses 9,
24, 31 and 33 pretty briefly; that is, all the amendments I have
referred to except Amendment No. 69, which I will come back to in a
moment. I have recently written to noble Lords to explain these
amendments in more detail, but I can confirm that they are intended
only to simplify the clauses without making any changes to their
substantive effect. In the circumstances I urge noble Lords to
On Amendment No. 69, Clause 58
imposes a six-month time limit in which to prosecute civilians who
cease to be subject to service law. Subsections (5) and (6) of
Clause 58 create an exception to this. Some civilians are subject to
service discipline by virtue of the fact that they reside or work in
a particular geographical area. The exception is necessary to ensure
that the six-month time limit does not begin to run simply because
the civilian temporarily leaves the geographical area in which he or
However, civilians can become
subject to service discipline for reasons other than the fact that
they live or work in a particular geographical area. The amendment
is necessary to ensure that this exception applies to all civilians
who are subject to service discipline but who may temporarily cease
to be so subject. I urge noble Lords to accept the amendment.
Lord Thomas of Gresford:
I have a considerable objection to the groupings. I have no right to
complain, because I was not here to object to them at the proper
time, but these are disparate matters that cover some important
points. Government Amendments Nos. 28, 29 and 30 seem to be simply
drafting amendments to clarify the offence set out in Clause 9, and,
as such, I have no problems with them. However, with Amendment No.
50 we enter a different area altogether, as we do with Amendments
Nos. 54 and 55.
With Amendment No. 50, the
offence set out in Clause 24 is redrafted significantly—it is not
just a case of putting the clause in better language. As originally
drafted, the offence is described as follows: “A person subject to
service law commits an offence if without lawful excuse, he
does an act that causes damage to or the loss of any public or
Similarly, Clause 31 as
originally drafted has that defence of lawful excuse in the Bill.
The offence is hazarding of a ship, and the clause states: “A
person subject to service law commits an offence if ... without
lawful excuse, he does an act that causes the hazarding of any of
Her Majesty’s ships”.
In the amendments tabled by the
Government, the critical words “without lawful excuse” are missing.
I invite the Minister to tell me why, because I cannot see in the
amendment a defence of lawful excuse. Perhaps the Box can help us on
that in a moment.
With Amendment No. 69, we move
to a completely different area. We are dealing with the status of
persons who are civilians subject to service discipline and the time
limits that apply to them. This is an important matter. It certainly
featured in the case of Martin, to which I referred earlier. He was
the son of a serving soldier but, by the time he came to trial by
court martial for murder in Germany at the age of only 17, his
father had ceased to be a serving soldier. However, he was caught by
these provisions in the previous Act, under which he continued to
have responsibility to face a court martial. So very practical
issues are involved here, and I do not think that we can give
Amendment No. 69 the proper scrutiny that it deserves, along with
the other, disparate matters that the Government have included in
Amendments Nos. 87 and 88
appear to apply to Schedule 2 and dangerous flying. We have moved
from the offence of hazarding of ships to dangerous flying. This is
not the way in which to conduct business. I apologise that I did not
have the opportunity to object to these groupings when they came
before us. I urge the Government that in future proceedings a series
of amendments are not put together just because they are government
amendments that go through on the nod without proper consideration
anyway. I respectfully suggest that that is not the proper approach.
Lord Garden: I support my noble friend. While he was not available, I objected to the groupings on Friday because they were so disparate. The only common feature seemed to be that they all had a “g” in front of them, but the groupings made for rather odd debates. As we look forward to continual long nights in this Committee stage, it would help the debate if we could try to keep the subject of groupings reasonably consistent.
Lord Drayson: I am grateful to the noble Lords for making that point, and I shall take it on board in the spirit of the debate that we have enjoyed tonight and for future stages of the Bill.
On Question, amendment agreed
to Lord Drayson moved Amendments Nos. 29 and 30:
On Question, amendments agreed to Clause 9, as amended, agreed to Clause 10 agreed to.
Baroness Crawley: I beg to move that the House do now resume. Moved accordingly, and, on Question, Motion agreed to.