Lords’ Hansard on the Armed Forces Bill

24 July 2006

Lord Thomas of Gresford moved Amendment No. 14:Page 3, line 5, at end insert-

“( ) It shall be a defence for a person charged with an offence under this section to prove that the action or operation referred to in subsections (1) and (2) requires the commission by him of unlawful acts or is illegal under international law.”

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.

The 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,

“action or operation referred to in subsections (1) and (2) requires the commission by him of unlawful acts or is illegal under international law”,

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.

Earl Attlee: 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.

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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.

Lord 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 amendment.

Lord Kingsland: Two different situations are being described here which we must try to distinguish. The first is where, in operations, a soldier or other service man is asked to do something which is unlawful in our criminal law, such as pull the trigger too soon. In those circumstances, he is perfectly entitled in any court, whether civilian or a court martial, to raise the defence of an unlawful order. He cannot be required to commit murder. To that extent, I go along with the noble Lord, Lord Thomas of Gresford.

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.

However, 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.

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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

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the German high command in ordering troop dispositions and movements and so on. That is not necessarily illegal in itself but they were party to an illegal enterprise. That is the whole point. We should leave it open to a serviceman to raise that argument if he is so advised when charged, for example, with an offence under Clause 3 of failing in his duty or, under Clause 8, of desertion or refusal to serve.

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.

7.15 pm

Lord Craig of Radley: 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.
 

Viscount Slim: 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.

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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.

The amendment would also allow a defence that service being undertaken was illegal under international law. That is simply a wider variation of the first amendment, which allows a defence if one type of service—military occupation—is unlawful under international law. This allows the service man or woman to argue that service against an enemy or for the protection of life or property is not being undertaken in accordance with international law.

International law, however, looks at Governments and states in relation to the legality of operations. It does not expect the ordinary service man or woman to assess whether an operation is sanctioned by international law. It would 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 the operation was contrary to international law. Under the amendment, he would not even have to show that he had gone absent for this reason, only that the operation did not meet international law requirements.
 

Your 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 available.
 

Lord Thomas of Gresford: 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

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international law. Is he entitled to say, “I refuse to take part in a war of aggression?”. The proof required, since it is a defence that is being put forward, would be for the court to determine on the balance of probabilities—which does not seem a very good standard of proof for such an important issue—that the war is a war of aggression, or that, perhaps in a particular operation that he refuses to go on, he knows that the means to be employed in that operation would be a breach of the Geneva Convention. One can look at the question in a number of ways, taking the broad picture of the whole war, but one can also look at the specific operation he is being asked to undertake within that war. It may be that the war is not a war of aggression, but the orders he is given or the operation he is asked to participate in is in one way or another, although it may not involve him in murdering people, a breach of the Geneva Convention and therefore illegal.

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.

Lord Judd moved Amendment No. 24: Page 5, line 12, at beginning insert “legal”

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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.

We heard 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

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legal provision is right at the top of the agenda. It would be quite wrong ever again to be placed in a situation—I do not suggest that this is a fair analysis, but it has been much discussed—where a Government undertaking a serious military operation appear to grapple to find a legal justification for doing so because so many questions are being asked about the legality of the plans. That is a most unsatisfactory situation and I believe it put service men at all levels under a good deal of pressure. Many of them were concerned. I do not remember a time when there was so much concern in the services about the doubts, and of course I am referring to the action in Iraq.

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.

9 pm

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

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he has had weak advice, but I get the impression that people who advise get a bit frightened when the words “mutiny” and “desertion” are used. You do not pussyfoot around with mutiny or desertion in the military.
 

Lord Thomas of Gresford: 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.
 

In our 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 Royal Prerogative.
 

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 argument.
 

I have 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 desertion.

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A follow-up letter dealt with two cases in the Navy and two in the Royal Air Force in the past five years. The Army has had rather more—20 in the past five years. The Minister also helpfully told us how the most recent cases have been dealt with. Five Army personnel had been court martialled for desertion and the sentences given were 112 days’ detention and reduced to the ranks, 202 days’ detention, 10 days’ detention and dismissed, six days’ detention and dismissed, and 138 days’ detention and dismissed.
 

The Minister 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 more.
 

I fully 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.

9.15 pm

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.

The Minister 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

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Clause 8 remaining “permanently absent without leave”. The separate offence of absence without leave is covered in Clause 9. Does that not invite some confusion between the two offences of desertion and AWOL to bring absence without leave into Clause 8 rather than absence from duty? The 1971 Act and my amendment sticks to the simpler to understand rationale of, “intent to avoid serving at any place overseas”,

 

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.

 

Then there 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?
 

Does “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”.

I question whether a sentence of life imprisonment would be appropriate if the person was on operations for the protection of property, for example. Surely the key issue is whether the person fails to support or lets down his colleagues when they are on operations against the enemy rather than the role of the particular operation. While seeking to spell out a number of possible operational tasks—for example, the protection of life or property—another task, in which the person’s contribution may be vital to the safety of a colleague, might not be covered.
 

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.

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Apart from 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.
 

Baroness 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 incorrect.
 

I have 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 it.
 

On Amendment 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?
 

I feel 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.
 

Lord Thomas of Gresford: Before the Minister replies, I would like to make it absolutely clear that my Amendment No. 25 does not make it a defence

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that a person believed that the war or invasion was illegal, but merely that he can raise before the tribunal the fact that it actually was illegal. He has to prove that it was an illegal act, not that he believed it to be. A considerable burden is therefore placed on him.
 

I rather 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.

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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.

 

Lord Mayhew of Twysden: 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 Attorney-General.
 

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.

9.30 pm

Lord Astor of Hever: 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.
 

On Amendment 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

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interested to hear from the Minister why this approach was not adopted by the draftsman when reintroducing the two-tier form of desertion.
 

Lord Drayson: 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.
 

Under the 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.

The effect would be that it would no longer be considered desertion to go absent without leave to avoid service in military occupation of a foreign country, unless that occupation was “legal”. The problem with this is that “legal” here refers to an obligation under international law, which applies to whether the action of the United Kingdom as a country is lawful. International law looks here at Governments and states. It does not expect the ordinary service man or woman to assess whether a military occupation is sanctioned by international law.
 

It would 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 here.
 

Noble Lords 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.
 

Amendment 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

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the Armed Forces Act 1971. The Bill restores a distinction between offences of desertion carrying a maximum of life imprisonment and those carrying a maximum of two years. Under the Bill, the maximum of life imprisonment will be limited to desertion that takes place in the context of “relevant service”. That term covers the same broad type of dangerous service abroad which is called active service in the existing legislation. Importantly, it is the sort of service in which all involved need to be able to rely completely on everyone else, a reliance which must be undermined where a member of the service leaves his colleagues without permission.
 

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.
 

Amendment 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 need.
 

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.
 

Lord Garden: 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

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wording may be difficult for the layman to understand in some way, but I got the impression from listening to the debate that there were Members of the Committee who felt that this was a widening rather than a narrowing of the circumstances in which desertion might happen, so legal minds here can interpret it in different ways. Given that and the support that I had for Amendment No. 26, although I shall not press it tonight I shall want to look carefully at the changes made, so that we might look at it again on Report.
 

Lord Craig of Radley: 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.

I have 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.

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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.

9.45 pm

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.

 

Lord Drayson: 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.