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Jeremy Corbyn (Islington, North) (Lab): I was interested in my hon. Friend’s point about legality. If, for example, someone had deserted in the run-up to the invasion of Iraq, when, clearly, there was no UN
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approval, no direct threat to this country and, therefore, no legal state of war, would it be correct to discipline that person?

Harry Cohen: In a sense, the point is made. In an earlier intervention, I made the point that international law is as important as law, and that should apply. This Government and Parliament have put a lot of personal responsibility on people to comply with the law. If they do not, the punishments are increased. Therefore, they must examine the law and international law as it applies in military terms. The punishment should therefore reflect that personal responsibility. As has been said, a life sentence is inappropriate.

As to who an enemy is, the Minister’s intervention, in which he said that the situation is as it always has been, just will not do. In the second world war, we had a clearly defined enemy, which was referred to as an enemy. Now, even al-Qaeda is not referred to as an enemy in legislation or in what has been laid out in Parliament. Things have therefore changed considerably. If we are to apply such emphasis and impose such strict sentences on the basis of having an enemy, let us at least declare a war in the traditional way, so that we know who the enemy is, and so that people are clear about that. Otherwise, the enemy can change from day to day. In Iraq, is the enemy al-Qaeda, or is it nationalists? Who exactly is the enemy in Iraq?

Mr. Watson: If my hon. Friend does not want to read clause 367, which contains the tight definition of an enemy, let us make it more simple; it is the people who are shooting at our forces.

Chris Bryant (Rhondda) (Lab): Except when they are the Americans.

Harry Cohen: As my hon. Friend says from a sedentary position, that could easily be the Americans in many cases. I am happy if the Minister wants to include in legislation the definition that anybody who shoots at our forces is the enemy. That is not in the legislation at the moment. If we are going to go to war and put such burdens on people, we should be explicit about who the enemy is in any given circumstances.

Subsection (3)(b) refers to

Does that cover Iraqi lives and property? Are they covered, or are they usefully ignored? Are we talking only about United Kingdom lives and property, or not? I am waiting for the Minister to intervene on that. After all, the Government claim that we are there on a legal basis. They claim that we are there according to the will of the United Nations, protecting Iraqi lives and property, although the property has been ripped off to an enormous degree and more than 100,000 lives have been lost. It is interesting that the Minister remains silent on that. That in itself could cause people to ask, as a defence, what lives or property they were actually defending.

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The third paragraph, which was referred to by my hon. Friend the Member for Hayes and Harlington, is the most objectionable in my view. It refers to

It is important to establish whether that occupation is legal or illegal. If it is legal and properly authorised, I think that courts martial and sentences should follow; if it is illegal, that represents a solid defence, and that people who advance that defence should not be punished in the excessive way proposed by the Bill.

4.30 pm

Mr. Siôn Simon (Birmingham, Erdington) (Lab): Is not the point that my hon. Friend keeps making entirely oxymoronic? Is it not obvious that it will not be in the legislation? Can my hon. Friend not understand that it is not possible for this country’s armed forces to launch or be involved in an illegal war? It has never happened, it will never happen, and it cannot happen. Only in the minds of mad conspiracy theorists does this country launch illegal wars. It is not possible, and that is why it is not accounted for in the Bill.

Harry Cohen: That was a very eloquent rant, but Kofi Annan said that the war was illegal, as have many other international jurists. Even the armed forces had to seek information on whether the war was legal. Even they were not sure. Then we had the weasel words—

The First Deputy Chairman: Order. I think that we are going wide of the amendments.

Harry Cohen: I shall go straight back to the point, Mrs. Heal. I was saying that I agreed with my hon. Friend the Member for Hayes and Harlington. If military occupation of a foreign country or territory in such circumstances is illegal under international law, we are enshrining illegality in our law, and that is something that we should never do.

Let me make one more point, about the Nuremberg trials. When people said as a defence that they had been acting under orders, although their actions had been deemed illegal under international law, we said that that was not a defence. We said that they had to exercise personal responsibility. Now people are exercising personal responsibility. People like Flight Lieutenant Malcolm Kendall-Smith have looked at all the information that has dribbled out. He said that the war was illegal as far as he could see, that Kofi Annan had said it was illegal and that personal responsibility dictated that he should not take part in it.

Mr. Keetch: I think that the hon. Gentleman should make a distinction between the legality or otherwise of the action, conflict or war and the current occupation. There has been discussion about whether the war was legal. I take a view on that; I opposed the war, although the House voted for it. The occupation, however, is sanctioned by the United Nations Security Council, and is at the invitation of the democratically elected Government of the country, whatever we may think about that. Whatever the events of a couple of years ago, surely the hon. Gentleman accepts that the presence of British troops in Iraq now is legal.

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Harry Cohen: There are a number of very serious points—

The First Deputy Chairman: Order. We are now going outside the scope of the amendments. Once again, I ask hon. Members to address their remarks to the amendment under discussion.

Harry Cohen: Let me answer the hon. Gentleman’s point briefly. As has been said, a good many illegal acts are going on—

The First Deputy Chairman: Order. I have already ruled that that is out of order. Will the hon. Gentleman please address his remarks to the amendment under discussion?

Harry Cohen: Subsection 3(c) has the potential to enshrine an illegal occupation. People should exercise, and have the right to exercise, their personal responsibility. The punishments that we include in Acts of Parliament should reflect their right to do so; they should not be excessively harsh. The punishment of imprisonment up to life imprisonment, is exceptionally harsh and should be removed from the Bill. I urge the Liberals and everybody else to come off the fence and oppose it.

Patrick Mercer (Newark) (Con): It is a great pleasure to follow the hon. Member for Leyton and Wanstead (Harry Cohen); we are used to hearing his lengthy speeches. I salute the modesty with which the hon. Member for Hayes and Harlington (John McDonnell) spoke and the due deference that he paid to the members of his family who have served in the armed forces. He approaches the amendment with a great deal of principle and thought. However, I think that I speak as the only person in here who has commanded a battalion, faced the prospect of operations, disciplined soldiers and encouraged them to go on operations and, indeed, to face the enemy.

I do not wish to come the barrack-room lawyer, but there is a degree of confusion about the points that we are addressing. Desertion is an extremely serious charge, and if you do not mind, Mrs. Heal, I shall address most of my comments to my personal experience in the Army, but they are equally applicable to the Navy, the Royal Air Force and the Royal Marines. As a lieutenant-colonel commanding a battalion of infantry, it was my job to deal with soldiers under the Army Act 1955. I had to deal with the charge of desertion, under the auspices of the 1955 Act, once in my two and a half years commanding the largest battalion in the British Army, and twice on operations. I had to deal with absence daily.

Some of the soldiers serving in Tidworth, where I had 950 soldiers mainly drawn—lucky devils—from the counties of Nottinghamshire and Derbyshire, would frequently “go abo”, as the vernacular has it. In other words, they would go absent. They would exercise their personal freedom and choice, and, by golly, they paid for it. They were charged, if necessary, under the 1955 Act, and they were dealt with under various sections, but usually section 69. For periods of absence, they were dealt with by means of anything from a serious
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telling off, to a fine, to a period of imprisonment not exceeding 14 days. Such a period of imprisonment was the only one that I could regularly impose.

From time to time, soldiers would absent themselves—go absent—and go, usually, to the large conurbations. I, as a furious commanding officer with a furious adjutant, would say, “Charge this man with desertion.” The advice that we received was, “Absolutely not. Do you realise what desertion means?” Having had 20-odd years experience as an infantry officer, I knew precisely what it meant. The guideline was that a soldier had to have been absent for more than 112 days and to have destroyed his identity card. That was the rule of thumb that we used before that soldier would appear in front of me to be remanded for trial by court martial. It was not a case in which a humble lieutenant-colonel could have become involved. The charge of desertion was extremely serious, and very serious penalties went with it.

I say to the hon. Member for Hayes and Harlington that unless one has served in a battalion, or on a warship or an air station, one does not understand the problem that officers face in trying to deal with soldiers, airmen or sailors daily. They are a rumbustious and difficult lot. They decide from time to time that they are going to exercise their personal freedom and drink too much, fight, go absent and so on. However, in my experience, things change enormously when that battalion is warned for operations.

4.45 pm

Soldiers will absent themselves before a battalion goes on operations. In my experience, not many absent themselves for reasons of cowardice. Many absent themselves—I continue to use that phrase, rather than “desert”—because they cannot get their heads round the difficulty of being abroad for six months, the potential dangers or domestic problems. Only once on operations did I have a soldier who absented himself in the face of the enemy, and he was not charged with desertion.

Flight Lieutenant Kendall-Smith was not charged with desertion: he was charged, I believe, with being absent, or with a similar charge within those parameters. He did not desert. Trooper Griffin behaved with much courage and probity. He had reached the rank of corporal in his parent regiment and then gone through the selection process for the Special Air Service—

Mr. MacNeil: I just wish to point out that under clause 8(4), anyone who intended to avoid service—when on relevant service or under orders for such service—would be liable to be sentenced to life in prison. That would apply to Mr. Kendall-Smith.

Patrick Mercer: But the point that I have been trying to make concerns the circumstances in which someone should be charged with desertion. In any case, he is not a Mr., but a flight lieutenant.

Trooper Griffin behaved with great courage, despite the fact that he was being paid a great deal more money every day than others of his rank and that he was in arguably the most prestigious armed organisation in the
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world. None the less, he had the courage to approach his commanding officer and say, “Enough is enough.” I had similar instances, and I like to think that I dealt with them with fairness, kindness and compassion. I like to think that those are the watchwords of the commanders of our armed forces and that they deal not just with their own men, but with the Queen’s enemies using the same rule of thumb.

Let us not talk about desertion, but let us say that a trained sustained-fire machine gunner, who carries the maximum firepower of his platoon, decides to absent himself—if he decides that he will not face the enemy, but would rather let down his mates—and that turns into desertion. I fear that we need to have the power to charge that man with desertion. The sentence in clause 8 is not a minimum sentence, but a maximum sentence. It has not been applied readily over the past several years. The plain fact is that if that man—it is, let us face it, likely to be a man—deserts from his unit, the punishment he faces from the men whom he let down will be administered in the back streets of Nottingham or Mansfield and military law probably needs to be in place to protect him from those whom he has let down.

We need to have a penalty for desertion. The Bill would make military law stronger, but the amendments would do nothing to help the soldiers, sailors and airmen, and the officers who have to discipline them. In fact, the amendments would undermine discipline. I understand and respect the political points that have been made by Labour Members, but they are not applicable in this case. We run the risk of confusing an extremely important issue.

Chris Bryant: It is a great honour to follow the hon. Member for Newark (Patrick Mercer). I am sure that all hon. Members agree that he made a particularly fine contribution to the debate. I disagree with him on only one point. I know that he brings a particular expertise to the debate, but one does not have to have been a serving officer to understand how important the concept of desertion is for discipline in the armed forces and for making it clear to every serviceman exactly what they have signed up to.

I also pay tribute to my hon. Friends the Members for Hayes and Harlington (John McDonnell) and for Leyton and Wanstead (Harry Cohen), although I am about to disagree with them. Both put their arguments with eloquence, but my hon. Friend the Member for Leyton and Wanstead did not seem to understand that the concept of “enemy” is quite well defined. Clause 367, on page 185, makes it clear that an enemy is

That is clearer than in previous statutes so my hon. Friend may want to reconsider that part of his argument.

I wholly disagree with amendment No. 8, which was proposed by my hon. Friend the Member for Hayes and Harlington. Deletion of paragraph (c) of subsection (3) would have meant that during the occupation of Germany and Italy at the end of the second world war somebody
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could have deserted with impunity. My hon. Friend may respond that they would be covered by the provision in paragraph (a)

In that case, what about people serving in Bosnia with UNFOR—the UN force? Over the last 10 years, our forces have operated under different operational commands at various times; none the less—certainly in the view of some people—they are in

I believe that they are doing important work, although in the near future we may want to reconsider the number of troops serving in the region, as normalisation steadily takes place in Bosnia and Herzegovina, and, in the fullness of time, in Kosovo.

My hon. Friend’s amendment would wholly undermine many of our existing operations around the world and those in which we might choose to engage in future. If the Committee chose either to pass the amendment, which is unlikely given the contributions that have been made, or if a large number of Members were to support it in a Division, it would send a message to our armed forces not of ethical surety—as I am sure my hon. Friend intends—but of ethical chaos. I hope, therefore, that no Members will support it in the Division Lobby.

Kelvin Hopkins (Luton, North) (Lab): Why has my hon. Friend not mentioned paragraph (b) of subsection (3)—

which seems to cover the point he makes?

Chris Bryant: I do not know whether my hon. Friend has visited our forces in Bosnia, but if he did so, he would see that it would be hard to argue that that was not what they were doing. I do not want the Bill to be so amended that our armed forces are constantly unsure which provisions apply—to be wondering “Does this count? Is this ethically right or wrong?” My experience of the armed forces is limited—it is nowhere near that of the hon. Member for Newark—but through the armed forces parliamentary scheme I have met countless soldiers of varying ranks with extremely well-developed consciences. In fact, they probably need a more keenly developed conscience about military operations than they ever did in the past, but that need not undermine discipline. An essential part of the training of a modern soldier is being able to make ethical decisions.

Jeremy Corbyn: Does my hon. Friend accept that there is a huge debate, especially among military families who have lost loved ones in Iraq, about not just the legality of the invasion of Iraq but the justice of the operation in the first place? The Committee needs to recognise that that debate is new and serious in our armed forces.

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