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I also agree with the point made by my hon. Friend the Member for Hayes and Harlington about the way in which our armed forces can make representations. I
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spoke on the armed forces federation when I moved new clause 23 in Committee, and if I have the opportunity I shall speak on that matter again today. An issue has been raised as a result of the situation in Iraq, not so much on this clause but on how our armed forces obtain redress for some of their grievances, not just those that arise from their service abroad, but here.

I shall resist the amendment because the measure is an advance, rather than turning the clock back, as the amendment suggests.

Nick Harvey (North Devon) (LD): I congratulate the hon. Member for Hayes and Harlington (John McDonnell) on the measured way in which he has moved the amendments. I have some sympathy with where he is coming from, but I find myself unable to support them. They do not have quite the effect that the hon. Gentleman maintains, and it is just as well that they do not. I sympathise with him in that I, like him, opposed the Iraq war, and because in almost any circumstances that I can imagine the penalty of life imprisonment would be way over the top. Like him, I take the view that the arrangements for armed servicemen to claim conscientious objection are not working in practice, whatever they may say in theory, and like him I think that other shortcomings of the Bill result in a failure to address some of the grievances and points raised by people to whom both he and I will have spoken.

The hon. Member for Hayes and Harlington is mistaken in two regards. First, as other hon. Members have said, the existing legislation already includes the potential penalty of life imprisonment for anyone who deserts while on active service overseas. Although subsection (3)(c) does not add anything to the body of law, the hon. Gentleman is mistaken in suggesting that it somehow constitutes a toughening of the law, because servicemen who desert while on active service overseas can already go to a general court martial, where they face possible life imprisonment. Secondly, given that clause 163 leaves in place the maximum potential penalty, the amendment will not achieve the objective that the hon. Gentleman explained at the outset.

John McDonnell: The Bill was presented as allowing the updating of service law, which gives us the opportunity to rid ourselves of some of the punitive punishments in existing law, one of which is life imprisonment. I would welcome the hon. Gentleman’s views on clause 40, which also introduces life imprisonment for incitement based on actions undertaken under clause 8.

Nick Harvey: The hon. Gentleman is right on that particular issue. It is just as well that the amendment will not have the intended effects. If British servicemen were to carry out perfectly legal actions overseas, such as actions agreed by United Nations resolution, and were to conduct themselves entirely in accordance with international humanitarian law, it would be a serious matter if someone were to up sticks and leave, because, as the hon. Member for Stoke-on-Trent, South (Mr. Flello) has said, it would endanger others in their units. That should not be viewed as a small offence and I do
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not think that a maximum two-year sentence would be adequate in such circumstances.

Mr. Angus MacNeil (Na h-Eileanan an Iar) (SNP): Does the hon. Gentleman agree that the Bill benchmarks life imprisonment in statute?

Nick Harvey: No; the Bill does not change the position. Existing statute allows a sentence of up to life imprisonment. I understand the point made by the hon. Member for Hayes and Harlington—that the Bill might have been an opportunity to modernise the legislation completely—but I do not accept the argument that the Bill makes the situation worse. Although some have pointed out that including subsection (3)(c), which concerns an invasion of foreign territory, on the face of the Bill is profound, I do not believe that it will change the existing law. Although I sympathise with some of the points made by the hon. Member for Hayes and Harlington, the amendments will not have the effect that he seeks, and I think that it is as well that they do not, because it would not be desirable to reduce that serious offence to an offence that carries a maximum two-year sentence.

Harry Cohen: That was a very interesting contribution by the hon. Member for North Devon (Nick Harvey), and a typically Liberal one—it was a fence-sitting exercise.

Nick Harvey indicated dissent.

Harry Cohen: Well, I will give him an example of where he is fence-sitting. Clause 8 provides for a life sentence for the offence of desertion. Only every now and then does a Bill come before us to amend the Armed Forces Acts. He might say that this is no different from what we had before, or that it is slightly but not substantively different, but either he supports the provision of life imprisonment or he does not. He gave the impression that he does not, but then made it clear, by not supporting the amendment, that he does.

4.15 pm

Nick Harvey: We are being presented with two options—one is a maximum of two years, and the other is a maximum of life imprisonment. I have agreed as a general point of principle that life imprisonment would be over the top in any circumstances that I can envisage, but the only alternative is a maximum of two years. I have clearly expressed the view that that would not be adequate as a penalty for people committing a very serious offence by, having been deployed in perfectly legitimate circumstances, leaving their comrades in an unsustainable position. I did not sit on the fence—I came to a firm view.

Harry Cohen: The clause provides for life, and there is an amendment that would delete that. The hon. Gentleman either supports that or he does not. If not, these are weasel words, quite frankly. I heard what he said in his speech, but it is not the same as his actions.

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My hon. Friend the Member for Hayes and Harlington (John McDonnell) emphasised that under clause 8, life is a possibility, and I support him in wanting to get rid of that.

Mr. MacNeil: Clause 8 does not cover only desertion in the heat of battle, because subsection (2) states:

That could lead to people who might have a real conscientious objection to a particular action, or a war such as Iraq, facing life in prison.

Harry Cohen: That is right. My hon. Friend the Member for Hayes and Harlington is seeking to get rid of that hugely excessive sentence, and that is why his amendment is worthy of support.

I welcome my hon. Friend the Under-Secretary to his post and wish him great success in it. I am sure that I will be more supportive of him on other occasions. However, I was a little alarmed when he intervened on my hon. Friend the Member for Hayes and Harlington to refer to absence without leave, the sentence for which, under clause 9, must not exceed two years. Indeed, he could have referred to disobedience to lawful commands, for which, under clause 12, the sentence is not to exceed 10 years. There is a bit of cherry-picking going on whereby the military authorities, or perhaps the Ministry of Defence, can pick and choose which sentence they want to apply to those who use the illegality of the war in Iraq as their defence. In the end, they could still use clause 8, which provides for a sentence of up to life.

Mr. Watson: I thank my hon. Friend for making my first day at the office so welcoming. I should remind him that this will be decided by a legal process, not by the Ministry of Defence or Ministers. The Bill sets out the parameters. It is not a mandatory life sentence, but a maximum life sentence, and the sentence meted out will be in relation to the crime committed.

Harry Cohen: I acknowledge that this will not be for the Ministry of Defence; I would not expect Ministers to make such decisions. However, it still leaves the military authorities with the power to cherry-pick. If they do not like the person concerned, they can go for clause 8, which provides for up to life.

Mr. Watson: Just for clarification, these decisions will not be made by the military, but by the independent legal authorities.

Harry Cohen: That is amazing because, if they were independent legal authorities, we would not have a court martial system, and civil and criminal law would apply across the board. Military legal authorities can cherry-pick if they wish.

Such Bills come up for review by the House only rarely. We should therefore take the opportunity now to get rid of the excessive sentence that is applied and
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which can be applied to those who have serious conscientious objections, for example, to the war in Iraq.

Mr. Paul Keetch (Hereford) (LD): The hon. Gentleman and I opposed the war. I spoke in almost all the debates about it and was contacted by many members of Her Majesty’s armed forces who had serious concerns about the action that the Government proposed to take. I respected those views, which they did not reach in the height of battle. They volunteered for service under the Crown and, whatever we think about the war, it took place, and the majority of those who had serious concerns made them known before they were deployed in theatre. They did not desert their posts at the height of battle. My advice to people who approached me was that members of the armed forces who opposed the war should make their opposition known before they were deployed and went to the front, that they should certainly not desert their mates while they were there and that, if they did, I believed that serious consequences should follow.

Harry Cohen: I accept that, but many people are effectively “deserting” when they are in this country and do not wish to go on another tour of duty in Iraq because of the unfolding circumstances, in which they have witnessed some of the atrocities, which have certainly been against the law, and seen the Attorney-General’s statements to the Cabinet, which were revealed bit by bit. It is not unreasonable for people, such as Flight Lieutenant Malcolm Kendall-Smith, who went on an earlier tour, to say, “I’ve looked at what happened since and I don’t support it.”

Mr. Kevan Jones: In a nightmare scenario for the MOD, in which my hon. Friend the Member for Leyton and Wanstead is appointed a Minister, what would he do in circumstances whereby Parliament had decided that our troops should serve abroad on a humanitarian mission, or, for example, in Afghanistan, where the occupation is universally sanctioned, and someone said that they were not prepared to fight or go on the mission? Does he suggest that members of the armed forces should pick and choose when they serve?

Harry Cohen: First, I am grateful not to be a Minister in the MOD. I never had any expectation of being one. However, I have always argued from the Back Benches that whatever our forces do should comply with the law of this country and international law, which should not be downgraded.

A sentence of up to life is excessive and should not be on the statute book. The Library has provided a host of alternative sentences, even to detention.They include dismissal, forfeiture of seniority, reduction in rank, a fine, a severe reprimand, stoppages of pay and minor punishments, including community punishments, which would be appropriate for conscientious objectors. We allow community activity and that would be appropriate for someone who was akin to a conscientious objector. The Library paper says of community punishments that

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A serious offence therefore leads to such a punishment. That makes it clear that a sentence of up to life is excessive.

Mr. Mike Hancock (Portsmouth, South) (LD): I have a great deal of sympathy with many of the issues that the hon. Gentleman takes up, but he has lost the plot on this one in relation to the crime that has been committed. Any service person leaving their post in this country in peace time would be dealt with in a particular way, but the example has been given of someone deserting in the heat of battle resulting in the death or endangerment of his comrades. Surely that must warrant the most severe sentence. Will the hon. Gentleman get off the fence and tell us what he thinks the sentence should be for that kind of action?

Harry Cohen: I hear what the hon. Gentleman is saying, and my colleagues have just whispered to me that such action is covered elsewhere in the Bill, under the misconduct clauses. We are talking here about the clause that is most applicable to people who consider that the war in Iraq was wrong and illegal. We are not talking about the circumstances that the hon. Gentleman has described in relation to those people. People leaving in the heat of battle are dealt with elsewhere in the Bill. So why does this provision need to include a life sentence?

Mr. Flello: The recent case of the flight lieutenant has been used as an example of why a life sentence is inappropriate. However, my understanding is that that case was brought not for desertion but for failing to obey a lawful order, so I am surprised that that example is being cited time and again in support of the argument about desertion. I should like to repeat the question that the hon. Member for Portsmouth, South (Mr. Hancock) has just asked; what would my hon. Friend do if the lives of a company of 70 or 80 men were put at risk, or possibly lost, because one person who had a crucial role in the company decided to desert?

Harry Cohen: Those circumstances are dealt with elsewhere in the Bill—[Hon. Members: “No, they are not.”] Yes, they are. They are dealt with under the misconduct provisions. We do not need the provisions in clause 8 to go to this extent.

Mr. Hancock: Will the hon. Gentleman explain to the Committee where in the Bill this issue is dealt with? I have read the Bill, and I cannot find it.

Harry Cohen: My understanding is that it is in clause 12, and presumably clause 13 as well.

Alan Simpson (Nottingham, South) (Lab): And in clause 2(1)(b).

Harry Cohen: Indeed. That clause deals with misconduct on operations. We do not need the provision in clause 8 as well, as it will allow the legal authorities to cherry-pick which sentence to apply. They will choose the harshest sentence if they want to.
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Clause 8(3) deals with the definitions of “relevant service”, and includes

But it is no longer clear-cut who the enemy is, as we no longer officially declare war.

Mr. Kevan Jones: I want to help my hon. Friend in regard to clause 2, which deals with misconduct. He says that subsection (1)(b) is relevant to his argument, but subsection (7) states:

The first punishment listed in the table in clause 163 is “imprisonment”.

Harry Cohen: That deals with a mutiny, where people are getting together. I am talking about people exercising their individual conscience, which is very different.

Clause 8(3) defines “relevant service” as, among other things,

but we no longer define specifically who an enemy is.

Mr. Watson: I thank my hon. Friend for letting me in. We do define what an enemy is. Clause 367 states that anyone

is defined as an enemy.

Harry Cohen: Let me now— [ Interruption.] I have two issues running at the same time here. I apologise to the Minister. I will come back to the point that he has made in a moment. One of my colleagues has just drawn to my attention paragraph 62 of the explanatory notes to the Bill, which states:

However, a stricter distinction is needed in relation to those who, as the hon. Member for Portsmouth, South (Mr. Hancock) said, put lives at risk in the heat of battle. That issue must be distinguished from that of those who say that the Iraq war is illegal under international law and who exercise their conscience and personal responsibility in that regard. The fact that we are having this argument shows the muddled way in which the clauses have been devised and worded and the lack of proper consideration of them; otherwise, we would not be having this dispute about what the provision means. The Government should therefore accept the amendment, so that the life sentence for the second category to which I referred is withdrawn.

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