Draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2003 and Draft Armed Forces (Review of Search and Seizure) Order 2003

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Mr. Caplin: I wonder whether the hon. Gentleman believes all that he reads in all the newspapers.

Dr. Lewis: If I believed everything that I read in the newspapers, I would not feel it necessary to lay the case before the Minister in order to establish the truth. It is precisely because I have such confidence in his integrity that I can rely on his giving a truthful response following an objective investigation.

The newspaper report continues:

    ''The two men, a private and an engineer from 16 Air Assault Brigade in Colchester, are said to have talked to colleagues about fears that the invasion of Iraq was illegal. After being sent back to Britain they retained Mr. Blades, a member of the National Institute of Military Justice, in case they were court-martialled and interviewed by the police. The pair faced imprisonment if they were convicted of treason or of refusing to obey an order.

    ''Mr. Blades said''—

I will not pursue this too much further—

    '''The Robin Cook resignation was the sort of focal point that really sparked it up and fanned it up. They were getting bombarded with propaganda that this was an illegal war or it would be an illegal war if it went without United Nations support. They were doubtful whether it was a legal war. They were very reluctant to get involved in something that might involve innocent civilians.'''

I must say—in response to the Minister's intervention—that it would be very unlikely for a solicitor who is retained professionally by two individuals to give such a direct quotation to the media without the express permission of the people whom he represented.

Mr. Swire: I do not wish to detain the Committee, but my hon. Friend raises some pertinent points. Is not the case that he cites a perfect example of the attempted civilianisation of the ethos of the armed forces? Surely the question is not whether all signed-up

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members of the armed forces are allowed to make such individual judgments in a time of war, but the additional pressure and danger in which they put their colleagues whom they have deserted. The removal of two people from such tight units might well endanger those left behind who are obeying military law. Surely that is the kernel of the argument.

Dr. Lewis: My hon. Friend is right; that is the kernel of the argument. However, I appreciate that modifications to a regime of strict military discipline will inevitably appear to be necessary over time, and that there will be a recognition that military discipline can sometimes lead to injustice. Governments of both persuasions have done their best to strike the correct balance. By considering this order every year, and the legislation on which the order is based in greater depth every five years, we are—I hope, usefully—assessing whether the balance is right. My hon. Friend is right; we are in danger of getting out of kilter. The case that I cited illustrates that.

Let me give one more quotation from the report, because it brings us back to the contradiction between what the MOD and the solicitor for the men said. The report states:

    ''An MOD spokesman denied that any troops were removed from the Gulf after expressing concerns about the legality of the war and of having to attack civilians. Mr. Blades''—

the solicitor—

    ''suggested that the MOD was playing with words. Other reasons, such as compassionate grounds, may have been specified for the pair's return to Britain, he said.''

When the Minister eventually writes to me on the subject, that explanation alone will not do. It will not be adequate to say that the men were sent back because of some vague catch-all condition, such as compassion for their concern about the legality of the campaign, if they were sent back because they expressed that concern.

Finally, I have a follow-on point, and the Minister will no doubt be pleased to hear that it is the last anecdotal point that I shall put to him. Mr. Moshin Khan, an RAF reservist from Suffolk, went absent without leave. He is bringing a test case against the MOD after he was disciplined for refusing, on religious grounds, to take part in the Iraq war. A report in The Sunday Times on 25 May stated:

    ''Khan, 24, is to appeal on the grounds that his faith forbids him from fighting other Muslims. His lawyers will argue that the European convention on human rights gives everyone the right to freedom of religious belief—including military personnel.''

Unlike in the other case, it seems that the MOD has in no way fallen down on the job, and it has disciplined the young man. It would surely be outrageous for religious belief to be a basis on which people could go absent without leave as opposed to one on which they could raise a conscientious objection, as Mr. Khan should have done. If he had done so, he would almost certainly have been granted exemption on the grounds of a conscientious objection based on his religious relief, such is the strength of humanity and democracy in our system.

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The case of the two men who appear to have been sent back because of their political objections to the war, and the failure to take action against them, in large measure vindicate the concerns expressed by my hon. Friend the Member for Aldershot, who predicted similar situations when the orders were under consideration last year.

The third factor that my hon. Friend brought up related to the International Criminal Court. From the outset, I have probably supported the concept of the ICC more consistently than anyone in my party. There should be a standing court to deal with the worst atrocities and crimes against humanity. However, I am becoming increasingly concerned that such procedures could be abused—as certain Belgian legislation has been abused—to bring vexatious, even frivolous, cases against democratic political leaders, such as our own Prime Minister and the President of the United States, for engaging in conventional military campaigns. It is necessary to put down a marker to make it clear that the ICC itself will be on trial for the first few years of its existence as we seek to determine whether it fulfils its proper aim of preventing or punishing atrocities or becomes a vehicle to criminalise the unavoidable brutality of even the most just war.

It is instructive to note that only yesterday it was reported that Belgian law is to be amended, not because of the abuses that have been occurring, but—apparently—because the Americans have threatened not to build the new NATO headquarters in Brussels unless it is amended. The Belgians were quoted as saying that the way in which the law had been applied had made ''a laughing stock'' of their legislative system. The way in which the problem is being resolved has not done a great deal to improve that system's reputation.

I said that in its first few years, the International Criminal Court will be on trial to establish whether it will be a serious and valuable addition to the international scene, or whether it will become a figure of fun—vexatious fun at that—such as the Belgian courts, although it is unfortunate that, through a derogation, we did not at least protect our armed forces as we could have done from the application of the ICC's power for the first seven years. Is the Minister still absolutely confident that it would not have been better to have let the court bed down first, rather than to risk our forces—carrying out their legitimate, difficult and dangerous duties—being brought before an international court if it were considered that the UK courts had not done enough to resolve matters satisfactorily?

I am well aware that it would be pretty well unprecedented to threaten to do anything other than support the continuation of the service discipline Acts. Last June, when the order was considered in the other place, Lord Chalfont tabled an amendment because he did not wish the orders to be approved until justice had been done to the memory of the two pilots of Chinook ZD576. Many feel, in light of the RAF's regulations at the time, that the pilots were saddled unfairly with the blame for the crash on the Mull of Kintyre. Will the Minister give us an update on that continuing debate? On questions of ethos and spirit in

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the armed forces, it is important that servicemen know that they will not posthumously carry the blame for something for which, if there were any doubt about the circumstances, they should not be blamed. If one thing is certain, it is that there was some doubt about the circumstances of the Mull of Kintyre crash. Significantly, the rules have been changed since the matter came to the fore, so that people can never be blamed posthumously as those young officers were. We have some unfinished business that the Minister would do well to address.

I turn to the Armed Forces (Review of Search and Seizure) Order. Although I acknowledge the concern raised by my hon. Friend the Member for East Devon about the substantive measures in the Armed Forces Act 2001, I recognise that the order relates only to section 8 of that Act: the review by the judicial officer of the actions of the commanding officer when he has acted directly precisely because he has been in an environment where it is not possible to follow the most desirable procedures. In a nutshell, where a commanding officer cannot find a policeman to carry out a raid or an appropriate officer to issue a warrant, he has to act on his own initiative. The trouble is that, under the procedures before us, he will be second-guessed—that is what the order is about.

I do not intend to make heavy weather of the issue, but I shall refer to a couple of the provisions. Sections 7(1)(b) and 5(1)(b) of the 2001 Act give a flavour of why we have misgivings about how the order will work in practice. Section 7 is entitled:

    ''Power of commanding officer to authorise entry and search of certain premises''

and an abbreviated version of subsection (1) would read:

    ''If an officer has reasonable grounds for believing . . . that it is likely that, if no search could be carried out before the earliest time by which it would be practicable . . . for a service policeman to obtain and execute a warrant under section 5 authorising the entry and search of the premises . . . the purpose of the search would be frustrated or seriously prejudiced, the officer may authorise a service policeman or . . . any other member of Her Majesty's forces to enter and search the premises.''

So, if the reviewing officer looks back on the event under section 8 and disagrees with the commanding officer about the availability of a policeman or the reasonableness of the grounds for his belief about the practicability of obtaining a warrant, the commanding officer's decision may be declared null and void. What does the Minister think would happen in such an eventuality? Let us suppose—I ask for the Minister's attention at this point.

 
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Prepared 25 June 2003