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The motion sets out the order of consideration for today’s proceedings in Committee. It follows exactly the same order as was used in the Select Committee on the Bill. It was the Committee’s view that, with a large and complex Bill arranged in a logical sequence, it should be debated in that sequence, with the schedules brought up with their relevant clauses. As Lewis Carroll said:

Question put and agreed to.

Clauses 1 to 7 ordered to stand part of the Bill.

Clause 8


John McDonnell (Hayes and Harlington) (Lab): I beg to move amendment No. 8, in page 5, line 14, leave out from ‘property;' to the end of line 15.

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The First Deputy Chairman: With this it will be convenient to discuss amendment No. 9, in page 5, line 18, leave out from ‘offence' to ‘must' in line 20.

John McDonnell: I absolutely sympathise with my hon. Friend the Member for Leyton and Wanstead (Harry Cohen) about the process by which amendments to the Bill were garnered. It was exceptionally unfair to several hon. Members who were busy on that particular day, despite the earlier timetabling.

3.45 pm

There has been a natural tendency for those with military experience to engage in past debates on military subjects more thoroughly than others. At times, those of us without military experience have felt that our views have somehow not been valued as much as theirs. However, despite the fact that some of us have taken a separate view from that of large sections of the House in previous debates, especially on military action, we all come to such debates with empathy and respect for those who serve in the military.

Let my put on the record my family experience. My father served in the Army in the second world war. One of my uncles served in the RAF and another served in the Navy. On my mother’s side, my grandfather served in the first world war and my great-grandfather served in the first world war and the Boer war. We thus come to the debate with a shared experience over generations and a respect for those who serve in the military for what they do and the essential role that they play in securing the safety of this country. We also come to the debate following discussions with serving personnel and those who are no longer serving. Such people have had experiences in Northern Ireland, the Falklands, the Balkans and, more recently, Iraq.

I tabled amendments Nos. 8 and 9—perhaps a bit more expeditiously than my hon. Friend the Member for Leyton and Wanstead, but with only hours to spare—because I wanted to encourage a debate about desertion. When the Bill was introduced, it was presented as a non-contentious tidying-up exercise that was largely to do with legalised drafting to consolidate existing laws. However, it was also argued that the Bill would give us the opportunity to update laws that applied to those serving in the military and civilians associated with military activity.

Clause 8, however, does not update existing law. It translates almost exactly the existing threat of life imprisonment for those who refuse to fight—those who desert—from past law into new law. It also extends that threat to those who refuse to participate in the occupation of subjugated countries and territories. Clause 40 again translates existing sanctions into new law by threatening those who incite others to desert with life imprisonment.

The threat of life imprisonment in such circumstances is little short of barbaric. My hon. Friend the Member for Thurrock (Andrew Mackinlay) has tabled new clauses 1 and 2, which relate to what happened during the first world war. At that time, we deprived people of their lives for desertion by shooting them at dawn. Through the Bill, we are maintaining the deprivation of life by threatening to imprison people
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for the rest of their lives if they refuse to engage in military activity or the occupation of a foreign country. I thought that we would have moved on from the last century and that we would have the opportunity to abolish that sanction by updating our legislation.

I also thought that we would have learned more about why people desert from our experiences of the two world wars and, more recently, of the Balkans and Iraq. In many instances, people desert because of fear about the threat to their lives and safety and because of trauma. Many such people are in absolute panic. In particular, owing to the debate about the casualties of the first world war through the shot-at-dawn campaign, I thought that we were developing a more sympathetic understanding that we did not need to use such barbaric sanctions.

There are others whose refusal to fight is based upon conscience. We have had that debate in this Chamber on a number of occasions when deciding whether to send our troops to war. We are able to exercise our right of conscience. I remember the debate about Iraq and our heavy discussions about the theory of just war and whether Iraq was a just war. I thought that we had extended that right of conscience to military personnel.

I appreciate that there is a system under which people can claim to be conscientious objectors. From the evidence from the Peace Pledge Union and others that was provided to the Select Committee that considered the Bill, it is clear that that system is not regulated within statute. It is a procedure, but it is not within this legislation, which was meant to update and to consolidate the processes of law controlling issues around desertion. I thought that, eventually, it would control the processes for the exercise of conscience.

While taking evidence, we discovered that military personnel were not adequately informed not only of their right to exercise their right of conscience, but of the processes themselves. The position was outlined in the Select Committee by the Peace Pledge Union. That brought forth a memorandum from the Ministry of Defence, which at least explained the process, even though it had not advertised it in any leaflets or in the practical advice given to serving personnel. The rejection of the process of an armed forces federation to assist those who wish to exercise their right undermines their ability to access the procedures themselves. I hope that later, in a debate on a new clause, we may accede to the request to strengthen the right of representation for serving military personnel.

I do not believe that this part of the Bill is a tidying-up exercise. I believe that the Bill is really about the war in Iraq. We are aware that the number of absconders has trebled since the invasion of Iraq. There has been an increase in the number of soldiers questioning Government policy about that invasion, an increase in the number of soldiers questioning the morality and legality of the occupation and an increase in the number of serving personnel speaking out.

Harry Cohen: I am grateful to my hon. Friend for giving way and for his support for my point of order earlier, which came over somewhat awkwardly—my point of order, that is, not his support for me, which was very eloquent. Clause 8(3)(a) says that “relevant service” means:

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He said that the clause applied to Iraq. My understanding is that we have not declared anyone an enemy. I know that a war on terror has been announced, but can he cast some light on who is an enemy in these circumstances? It is said that there are insurgents and terrorists. We know that British soldiers have died. Why cannot the Committee be told who actually is the enemy? Why cannot it be legislated for in some way?

John McDonnell: That is a valid point. The lack of definition of an enemy has enticed the Government to include in clause 8(3) as a relevant service

Without definition of an enemy, service during an occupation of another country is sufficient for withdrawal from that service and refusal to participate in that action to qualify as desertion. I believe that legislation of that sort will fail. No increase in the severity of punishment will prevent servicemen and women from speaking out.

Many have paid their respects—as I have, too—to serving personnel for the bravery that they show and their professionalism in carrying out their duties, but I also want to salute those who have had the courage and bravery to exercise their moral judgment, and those who have followed their conscience and said no to fighting. They have not supported the occupation and they have refused to serve. I pay tribute to Ben Griffin from the SAS, who said to us last week that he was not willing to support, in his professional life, the invasion of Iraq and the immoral and illegal war in Iraq. I also pay tribute to Flight Lieutenant Malcolm Kendall-Smith, a person of conscience who is in a military prison as a result of refusing to serve in Iraq. Their views should be respected. They, and others who come forward in future, should not be threatened with life imprisonment. History will be their judge, as was the case with the first world war. The people who opposed that barbarism were, in fact, sane and courageous. History will judge individuals who stood up and refused to fight in Iraq, or to support the occupation, to be heroes.

The Minister of State, Ministry of Defence (Mr. Adam Ingram): I am interested in my hon. Friend’s argument. Would he apply the same logic to Kosovo, Sierra Leone and Afghanistan? Does he think that members of the armed forces should exercise their conscience at will, no matter what the country’s determination, no matter that it is under a UN mandate, and no matter that assistance is being delivered for a great humanitarian cause? What is the logic of his position?

John McDonnell: Individual members of a voluntary, professional military service have the right as citizens to exercise their judgment in the same way as we do. They should not face the sanction of life imprisonment—that is what the Bill proposes—for exercising that judgment.

Mr. Watson: May I clarify something for my hon. Friend? Refusal to take part is not desertion, but it may
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give rise to an offence of disobeying a lawful order, which carries a maximum sentence of 10 years.

John McDonnell: Desertion is defined in the Bill as absence without leave. We are threatening someone who refuses to serve or who goes missing, whether as a result of fear, trauma or conscience, with life imprisonment. As I said, people who stand firm on the right of conscience will be judged the real heroes, as they made a judgment about Iraq and, I believe, provide an example to us all in the exercise of conscience, no matter what the cost.

Mr. Julian Brazier (Canterbury) (Con): I did not intend to speak in this debate, so I shall be brief in my support of the Government’s proposals.

Parliament sets a maximum penalty, not a minimum. The hon. Member for Hayes and Harlington (John McDonnell) addressed hard cases—I am not sure whether or not I have his attention—but that is not relevant to the setting of a maximum penalty. If we set a minimum penalty, he could make his case, but the measure is required to cover all eventualities. The historical background that he gave illustrates that point. No one has greater admiration or affection for the hon. Member for Thurrock (Andrew Mackinlay) than I, but the campaign that he has waged on first world war executions overlooks many inconvenient facts. I was privileged to be briefed on the issue by a retired Air Force officer, who spent a year or two going through every one of the 260 folders that survive from the 300 original folders. He examined the background, and he established that there was a total of 3,000 cases: 90 per cent. of executions were refused on appeal. Among the small number of executions, there appear to be a few cases in which there was a genuine injustice. I shall cite an example of a case for which most hon. Members would accept that a sanction of some sort was appropriate. A professional solder who joined the Army five years before the first world war deserted—

Andrew Mackinlay (Thurrock) (Lab): On a point of order, Mrs. Heal. I am showing uncharacteristic restraint, as the hon. Gentleman is talking about something which, I hope, we will discuss later. I would obviously want to respond, but his example is quite irrelevant, I submit, to clause 8.

The First Deputy Chairman: I was about to remind the hon. Member for Canterbury (Mr. Brazier) that the discussion of detail comes later in the day. Perhaps he could relate his comments to the amendment under discussion.

4 pm

Mr. Brazier: Indeed, Mrs Heal. I was giving the example of someone who deserted without seeing action at all, although he had been a professional soldier for five years.

On the argument advanced by the hon. Member for Hayes and Harlington, a maximum penalty must cover all eventualities. The Minister asked him about all the other cases. The hon. Member for Hayes and Harlington replied that the provision dealt with desertion, but we are dealing with cases of desertion
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and of people refusing to participate—two separate circumstances for which different maximum penalties are set out in the Bill. Is the hon. Gentleman seriously suggesting that anybody who has opted to wear the Queen’s uniform should not potentially face very grave charges if they refuse to go into action? In an action that the entire country strongly supports, even perhaps—God preserve us—another world war, is the hon. Gentleman seriously suggesting that someone who chose to put on a uniform, with all that that means, and then refuses to participate, should be able to say, “Christ, I might get shot at. I don’t want to go,” without facing potentially serious charges?

Producing hard cases has no relevance whatever to maximum penalties. The hard cases can be argued one by one in the courts. That is what we have courts martial for. I urge the hon. Gentleman to think again. If we are trying to run armed forces of which we have good reason to be proud, and the hon. Gentleman has good reason to be proud of his forebears who served in them, we must have disciplinary penalties. On this measure, the Government are entirely right.

Mr. Kevan Jones (North Durham) (Lab): Having spent three months on the Bill—

Bob Russell (Colchester) (LD): Four months.

Mr. Jones: Four months, I am reminded, and some of us were more assiduous than others— [Interruption.] My hon. Friend the Member for Hayes and Harlington (John McDonnell) says from a sedentary position that he would have deserted. In the present circumstances, the Government would have welcomed that.

When I saw the amendments and a press release issued by my hon. Friend, I was worried that we had missed something in the Bill. I was concerned that the civil servants had got one over on us— [Interruption.] Someone says, “Surely not”, but those who served on the Committee know that that it was a good process, both the Select Committee and the report. I had to do some research this morning to find out what the current position was, and I think that what is proposed is an improvement on the current position.

As I understand it, the 1955 Act set out a two-tier system—punishment of up to two years for desertion and another sanction, life imprisonment, for more serious cases, defined as desertion from active service. The definition of active service referred to occupation of a foreign country, so the reference in the Bill is nothing new. That Act was superseded by the 1971 Bill, which removed the lower sanction because of the situation in Northern Ireland, since the definition of active service could not be applied to deployment in another part of the United Kingdom.

Under the present system, the maximum sentence for desertion is up to life imprisonment. The Bill in its present form is an improvement because it reverts to the 1955 position, by introducing a two-tier system. There will be the possibility of imprisonment for up to two years, but the other sanction—rightly, in my opinion—is up to life imprisonment for the more serious offences.

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I know that many hon. Members are worried about the reference to

I understand my hon. Friend’s position on Iraq. It is not one that I share, but I credit him with being consistent and forceful in his arguments for it. As I said, the reference to occupation of a foreign country was part of the original definition of active service. Therefore, I do not see any great change there, but I understand why there may be concerns. However, a reintroduction of the two-tier system is better than the previous position.

Harry Cohen: Does my hon. Friend agree that there is a difference between a legal occupation and an illegal occupation?

Mr. Jones: That is an argument that can be had around a specific campaign such as the one in Iraq. I am grateful to my hon. Friend, but he knows that we disagree on that. The important point is that if people have agreed to serve in Her Majesty’s armed forces, there must be some sanction or control over their actions. My hon. Friend the Member for Hayes and Harlington referred to those who were shot at dawn during the first world war. I shall seek to catch your eye later, Mrs. Heal, to speak on that matter, about which I have great sympathies, but there is a great difference between a conscript, who has no choice over going to war, and those who take the conscious decision to join Her Majesty’s armed forces. Without some kind of sanction, how would one operate in any circumstances? We cannot have armed forces who pick and choose when and where they serve.

John McDonnell: My hon. Friend served long and hard on the Committee so he knows the Bill inside out, poor man. The amendment would maintain the two-year sanction, but not that of life imprisonment, which appears inhumane and barbaric.

Mr. Jones: I disagree. The measure does not say the sentence for desertion will automatically be life imprisonment, but up to life imprisonment, so there is flexibility in sentencing. The idea has been sold that somehow if one deserts one will automatically get life imprisonment, and that is not the case.

Mr. Robert Flello (Stoke-on-Trent, South) (Lab): In conflict, if a platoon were reliant on an individual to hold a particular post and that individual decided to desert that post, putting at risk the lives of everyone in the platoon, would it not be important to have a severe consequence?

Mr. Jones: My hon. Friend’s point goes to the kernel of the argument. In the armed forces the ultimate sanction must be there for the sake of military discipline in very difficult situations. As I have said, there is a great difference between conscripted armed forces and those who have volunteered and made a conscious decision to serve in the armed forces.

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