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Chris Bryant: I am absolutely sure that my hon. Friend is right in that, but the Bill is not the place to have that debate. This clause on desertion is not about the war in Iraq . [ Interruption. ] It is not. I know that my hon. Friend the Member for Hayes and Harlington and his colleagues would like to make it about that, but
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I honestly do not think that it is, for the very important reason that desertion is not just about the individual soldier or officer; it is about the collective; it is about responsibility one to another—again, an essential part of the training of a soldier or an officer—and it is vital that we do not send out a message that completely undermines that concept.

My experience is that members of the armed forces today have an extremely developed sense of conscience and that they are encouraged to develop that sense of conscience, but it does not lead in just one direction. Conscience can lead, and I believe in the vast majority of cases has led, people to join the Army and to say, “Yes, here’s a series of operations that I want to contribute to on behalf of my country, but also for the greater good.” Whether we are talking about Bosnia, Afghanistan or Sierra Leone, there is a whole series of different interventions where people are going not because of some economic conscript situation that might apply in other parts of the world—they are not conscripts in any sense—but because of a sense of conscience and a desire to make their contributions to the world. So it feels as though amendment No. 8 is rather old-fashioned; either it is trying to fight the first world war again and deal with how people were treated when they deserted then, or it is trying to fight a war about a debate that was held in the Chamber some time ago.

The final reason why I wholeheartedly oppose the amendment is quite simply that I believe that it would undermine the House. It effectively says that, in some circumstances, a soldier or an officer or a member of the other armed forces could desert, despite the fact that this country, through the House—its elected representatives—had decided that the war was legitimate and legal, and I do not think that we should go down that route.

Mr. MacNeil: The Bill benchmarks draconian penalties for going absent without leave, which could occur in accordance with conscience, owing to the orders that the soldier was given. We must remember that orders vary according to the actions that Governments might want to take as a result of their international alliances. The proposed penalty is the maximum that has been benchmarked in our society. Indeed, if we went back to the days of world war one, we would have the ultimate penalty. Subsection 2(b) refers to someone who

that is the nub of it—because he or she does not agree with the Government of the day. If we go back perhaps to 1930s Germany, a reasonable law could be passed by a reasonable Government—but, years later, we might not have a reasonable Government, and we would still have on the statute book a law that criminalises an awful lot of people.

It is argued by some soldiers that they are entering into forms of bonded labour for a period of years. They volunteer before action; surely, they have the right to volunteer after action and not in any way to be subject to life in prison. We have the concept of just war, and importantly, we have the Nuremberg principles of the 1950s, which placed a responsibility on each person engaged in a war to assess for themselves exactly the orders that they receive.

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Dr. Julian Lewis (New Forest, East) (Con): This is the second time that the Nuremberg law has come up, and the hon. Gentleman ought to bear in mind the difference between waging an illegal war and doing illegal acts in the course of fighting a war. I do not think that anyone at Nuremberg suggested that any individual German soldier, sailor or airman was guilty of waging an illegal war, although many of them may have been guilty of war crimes in the context of that war, irrespective of whether or not it was legal.

Mr. MacNeil: It is not for me to speak about the legality of Adolf Hitler’s war, but it is certainly for me to stand up for soldiers. I have spoken anecdotally to several forces personnel, and it would seem that few of them know much about the rights of conscientious objection. The Bill will set as a benchmark, for going absent without leave, for viewing war as unjust or even for changing one’s mind, the penalty of life in prison. As the hon. Member for Hayes and Harlington (John McDonnell) pointed out, desertion has trebled since the Iraq war. The USA has about 6,000 people going AWOL.

5 pm

Mr. Kevan Jones: I am rather confused. Does the hon. Gentleman agree that there is a big difference between people who are forced to go to war as part of a conscription army and people who have taken it upon themselves to make a conscious decision to join Her Majesty’s armed forces? Those are two very different situations and it is a mistake to link them.

Mr. MacNeil: We heard earlier the remarkable assertion that it would be impossible for this country ever to engage in an illegal war. It would be possible for this country to engage in an illegal war and, given that that is the case, it is incumbent on individual service personnel to look at exactly what they are involved in. Illegal actions stem from illegal wars.

Mr. Jones: I will put the same question to the hon. Gentleman as I put to my hon. Friend the Member for Leyton and Wanstead (Harry Cohen) earlier. If we were in an unusual situation and the hon. Gentleman became the Defence Minister of either Scotland or the UK, what would he do if this Parliament, or any other Parliament in which he was a representative at that time, decided to take military action? Is he seriously suggesting that individual officers and men would be able to opt out of that democratic decision?

Mr. MacNeil: If I were to become a Defence Minister, it would not be in the UK. My imperialist ambitions are very small—in fact, they are non-existent. Scotland might be a possibility.

Chris Bryant: Stornoway.

Mr. MacNeil: It could be. [ Interruption. ] Or Rockall. Labour gave that away in one of their first actions on the grounds that it had been plundered by Russian trawlers. Will the hon. Member for North Durham (Mr. Jones) repeat the question?

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Mr. Jones: I am sorry. It obviously made a great impression on the hon. Gentleman. I was asking what would happen in the unlikely event of his becoming the Defence Minister for Scotland or anywhere else that would be sad enough to appoint him. If the body that he was party to—whether it was the Scottish Parliament or any other body—took a democratic decision to invade somewhere or wage a legal war, is he seriously suggesting that individual officers and men, who had not been conscripted but had volunteered to join that nation’s armed forces, could have a veto and could pick and choose which military action they joined? Would that not cut across the democratic decision that had been taken?

Mr. MacNeil: I am not saying that there would not be a penalty, but I am saying that there would be no ultimate penalty of life imprisonment. Two years would be quite adequate for somebody who is arguably following their conscience. I pay tribute to Malcolm Kendall-Smith, who is a particular source of admiration to me.

Mr. Flello: As part of the armed forces parliamentary scheme, I recently had the opportunity to take part in a dawn attack exercise on Salisbury plain. We were in the back of a Saxon armoured personnel carrier at four o’clock in the morning—albeit on an exercise—and we were reliant on two guys, one on either side of the vehicle, each with a light anti-tank weapon. In a war environment, I would like to know that those guys were there with their light anti-tank weapons defending the vehicle, rather than thinking that they may decide, according to their consciences, at four o’clock in the morning, that it was all a bad idea. What is the hon. Gentleman’s view on a squaddie—if I may use that word—lying there with a light anti-tank weapon, thinking to himself, “Two years isn’t so bad. Let’s slope off home and not lie here at four o’clock in the morning in the cold”?

Mr. MacNeil: The Bill does not say what people hope it says. It refers to life imprisonment for avoiding a service. It does not refer to being on active service. We are not talking about desertion in the heat of battle, but a conscious thought before battle.

Sarah McCarthy-Fry (Portsmouth, North) (Lab): The hon. Gentleman said that the Bill does not refer to active operations, but subsection (3) states:

Mr. MacNeil: And subsection (2) states:

Perhaps we are dealing with a Bill that is something of a mishmash.

Mr. Jones: Will the hon. Gentleman give way?

Mr. MacNeil: No, I am going to press on.

While we have a system that imposes a maximum penalty of two years for taking action, in the cold light
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of day, that results in the besmirching of Parliament by selling peerages, we should not allow, in any way, shape or form, servicemen to be threatened with life imprisonment if they follow the 1950 Nuremburg principles and their conscience, and question orders. Clause 8(5)(a) would allow a sentence of life on that very point, but such a benchmark should not be put in statute.

Mr. Simon: I welcome the Under-Secretary of State for Defence, my hon. Friend the Member for West Bromwich, East (Mr. Watson), to the Front Bench. He has been an asset to the far end of the Treasury Bench for a long time and is now an adornment on the other end.

I was not in the Committee to hear the speech by my hon. Friend the Member for Hayes and Harlington (John McDonnell). However, given his experience and the tributes of the hon. Member for Newark (Patrick Mercer) and my hon. Friend the Member for Rhondda (Chris Bryant), who is no longer in the Chamber, but whose judgment on such matters is impeccable, I am sure that it was a considered and impressive contribution.

I heard the speech by my hon. Friend the Member for Leyton and Wanstead (Harry Cohen). Impressive though his contribution also was, he used several phrases about the Government and the Bill that seemed to apply more to his speech than to the other side of the argument. He described the measure as muddled and talked a lot about cherry-picking. He repeatedly asked, “Who is the enemy?” It struck me that that was an apposite question.

It is a shame that although the supporters of the amendments had the kernel of a reasonable point, they have failed to make it. It was a fair point that, perhaps, the sentence of life imprisonment is a bit draconian for a new Bill for modern armed services. The Committee could have had a reasonable discussion about that point. However, unfortunately, amendment No. 9 does not say, “Life imprisonment is a bit draconian. Let’s have a reasonable discussion about what would be a more appropriate and modern sentence for desertion”—which, as the hon. Member for Newark eloquently and movingly explained, is a serious offence. The amendment would reduce the sentence to two years, although that is the same sentence that applies for going absent without leave, which is a completely different offence that is treated with a different kind of seriousness. The amendment thus effectively precludes us from having a reasonable debate on whether the sentence of life imprisonment, even though it is only a maximum sentence that is rarely applied, is, perhaps, rather archaic and somewhat draconian.

Amendment No. 8 could have given us the opportunity to have a reasonable discussion about the offence of desertion and its sentence. However, such a debate has been effectively sacrificed. Although I did not hear the speech by my hon. Friend the Member for Hayes and Harlington, the amendment seems to have been used as an opportunistic attempt to drag up again the old debate about the Iraq war, although, as my hon. Friend the Member for Rhondda said, that has nothing to do with the Bill. Frankly, the amendment has been tabled on a fraudulent prospectus. It is not possible for the nation to go to war illegally.

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Jeremy Corbyn: How can my hon. Friend possibly say that a nation cannot go to war illegally? There was no outside attack and there was no UN approval, yet we invaded a country that was not threatening us.

Mr. Simon: This sovereign Parliament having voted to take that action, it becomes, as far as I am concerned, a legal and legitimate undertaking.

Mr. MacNeil: As one of the supporters of the amendment, I was just looking back through the notes for my speech and I do not think that I mentioned Iraq once. The amendment was not about rerunning the issue of the Iraq war; it was about making sure that service personnel are not faced with the draconian penalty of life in prison.

Mr. Simon: I do not think that I mentioned the hon. Member for the Western Isles, if I may call him that, in my remarks about Iraq. I mentioned my hon. Friend the Member for Leyton and Wanstead, who it seemed to me spoke about little else than the Iraq war.

It is not possible for this country to engage in an illegal war. Surely it is not practical, reasonable or intelligent to suggest that armed service personnel, on an individual basis, in theatre, should be not only allowed but encouraged to make decisions about whether they are engaged in a legal or an illegal war. That is absurd. Many of my constituents serve in the armed forces and do not have these dilemmas. They are keen, happy and proud to serve. It is not fair to put them in a position where their comrades are encouraged to speculate constantly on whether they should be there, or perhaps, in better conscience, to consider desertion.

Patrick Mercer: I am listening with great interest to the hon. Gentleman, who is making some profound points. Does he accept that if a soldier, a sailor or an airman is suddenly struck by conscience while on duty, there is a system whereby they can go to their platoon sergeant, platoon commander, company sergeant-major, company commander, regimental sergeant-major or commanding officer to represent their views and to say, “I am reluctant to serve”? They do not need to go absent.

Mr. Simon: Exactly. There is a system, and it is of long standing. The hon. Gentleman speaks of it with knowledge and from experience. He spoke equally eloquently about the extraordinary seriousness of the offence of desertion.

All that remains for me to add is to reiterate that there could have been a serious point. I think that we could have had a reasonable argument about whether a maximum sentence of life imprisonment is necessary in a modern army, albeit that that maximum is not mandatory and is rarely applied. I regret that the supporters of the amendment have failed to take that opportunity and instead have chosen to rerun a debate that I do not think there is any point having anywhere any more. Certainly, this Committee and this Bill is not the place for it.

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Mr. Hancock: May I first, for the benefit of the hon. Member for North Durham (Mr. Jones), clarify the position as I see it on the Liberal Democrat Benches? We will support the Minister on this issue because we believe that it is the only sensible way that any military force which is made up of volunteers can operate. That is not ambiguous. It is not open to contradiction. It is crystal clear where we stand on the issue.

I congratulate the hon. Member for Birmingham, Erdington (Mr. Simon). He made the point that a war, or action by our armed forces, is legal when this place—the House—accepts a proposition that we should send our armed forces into harm’s way to fight on our behalf. They then have a clear, legitimate duty to uphold what they have signed up to do, which is to fight on our behalf, following a request from a democratically elected Government. Others, me included, may feel that the Government misled the nation on the pretext for going to war. However, that does not excuse members of the armed forces from obeying a direct order from Parliament that puts them in harm’s way.

Jeremy Corbyn: The hon. Gentleman is missing the point. The decision to deploy British troops is made under the royal prerogative. Parliament was consulted by the Prime Minister before we went into what I believe to be an illegal war in Iraq. Surely the issue is the legality in international law, which has not been argued for and has not been sustained in the case of Iraq.

5.15 pm

Mr. Hancock: No one in the international community has made the case that the action taken, with which I did not agree, was illegal. Kofi Annan and others have voiced their opinion, but it is simply an opinion. The Chamber voted, against my wishes, to send our armed forces into harm’s way, and they have served with credit to themselves and to the nation. The hon. Members for Rhondda (Chris Bryant) and for Newark (Patrick Mercer) spoke with great eloquence about the issues. It is not a question of whether a life sentence should be imposed for desertion. I should like to know whether the Members who support the amendment know how many members of the armed forces in the past 25 years have stood trial for desertion, how many have been sentenced to life imprisonment and how many have served more than 10 years in prison for the act of desertion. Not a single Member has told us the answer.

Can the Minister tell the House how many of the 250,000 people who have served in our armed forces since we invaded Iraq have cited as their reason for leaving disquiet and discomfort at what they consider to be the illegal actions they were asked to carry out? The House would be interested to know whether there is any evidence to support the claim that a huge phalanx of people have left the Army because they did not like what they were asked to do in Iraq. There are many reasons to be critical of the Government’s actions, but I cannot find any in this case.

Pete Wishart (Perth and North Perthshire) (SNP): I have no reason to doubt what the hon. Gentleman said
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about the many people who have been charged and given life imprisonment, or even spent 10 years in prison. Why, therefore, in his view, do we need this piece of legislation?

Mr. Hancock: If my children’s lives were on the line as the result of an act of cowardice and desertion by one of their colleagues, or if that colleague put their lives at risk with a harmful action, they ought to suffer the full consequences of the law. It is not for me to judge whether they should receive a life sentence or two, five or 10 years’ imprisonment—that is for the system to decide.

The hon. Member for Newark spoke about commanding the largest battalion in the country of more than 900 soldiers for two and a half years on two active service deployments. One soldier could have faced court martial for something that could be construed as desertion. If we were on the receiving end when someone deserted their post, and if their action took our lives or the lives of our comrades, would we honestly not expect something more than a slap on the wrist or a two-year sentence for an individual who chose to disregard their responsibilities to the unit, let alone their responsibilities to the country?

The Bill gets it right. Parliament should not allow any ambiguity in the way in which members of the armed forces can interpret their responsibilities, as that would be manifestly unfair to the men and women who daily put their lives on the line. It would be unfair to suggest that they can pick and choose, as they cannot do so. The hon. Member for Newark explained with a great deal of eloquence how the unit would dispense its own version of fair and just punishment if a colleague acted in such a way—although I do not wish to suggest for a minute that that is correct, as military justice should be seen to be fair and should be administered properly.

Members of the armed forces should not be left in any doubt about the consequences of their actions. A sentence that may be for life is exactly that. Every court in the land has discretion in the determination of most sentences. I was concerned about the sentences meted out today to the three men who killed the young black lad in Birmingham last year. The judge recommended 25 years, but I am sure that if I was the parent of that young boy, 25 years would not be anything like long enough. We must judge these things on what we would expect if our sons and daughters were put in harm’s way. We must ensure justice for them as much as for anyone else.

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