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Harry Cohen: That sounds very good, but the hon. Gentleman is arguing for an excessive sentence—life—for people who are not putting other people’s lives at risk, but in effect declaring the equivalent of a conscientious objection. The core of his opening argument was that if Parliament votes for it, it is all right. He is 150 years out of date. We now have international law and his attitude to that is cavalier, which is surprising, as the Liberals wanted us to be subject to EU law and supported all that EU involvement. Does he not recognise that international law is as important as ordinary law? The Serbian
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Parliament voted for war and said that if they voted for it, it must be all right. It was not all right.

Mr. Hancock: Once again, the hon. Gentleman is trying to confuse the Committee—but it is he who is wholly confused about the issue. There is nothing in international law that has proven that there are currently, or have been in the past 10 years, British armed forces engaged in an illegal action. No international court anywhere has found any member of the British— [Interruption.] The international court of public opinion is a different matter from the court of law about which the hon. Member for Leyton and Wanstead speaks. I am not cavalier about it; I am extremely concerned that the men and women who do their duty on behalf of this country know that they have the backing of the country for their actions, and that they are engaged in lawful business.

We have had soldiers in Sierra Leone, Bosnia and several other parts of the Balkans, Afghanistan and Iraq. I do not believe that a significant number of those wanted to become conscientious objectors. If they had, we would know about it. We have a clear indication from the Library of the number of members of the armed forces who have sought to become conscientious objectors. We would also know because we regularly meet members of the armed forces.

I met somebody who was decorated for bravery during the past five years. He did not agree with what the Government had asked him to do, but went and did his duty, knowing in his heart that he did not believe that it was the right thing to do. He was a member of the armed forces and, in his view, he was not in a position to cherry-pick the missions that he served on. He did his duty. He could, as he said to me, have opted to leave the armed forces, but he chose not to do so. He chose to do his duty.

The hon. Member for Hayes and Harlington (John McDonnell) said, in the one part of his speech with which I did not have some sympathy, that when the history of what has happened is written, the real heroes will be those who refused to fight the war. That does a great disservice to the men and women who are daily putting their lives on the line for this country.

John McDonnell: The hon. Gentleman will recall that throughout my speech I paid tribute to the servicemen who are currently serving, for their courage and dedication. I do not want that comment undermined.

Mr. Hancock: I agree entirely, but the hon. Gentleman also said that the real heroes will be those who chose to exercise their right not to go. I believe that that is a mistaken view that does no justice to the men and women whom he praised and whom all of us, I hope, support.

Alan Simpson: May I try and unravel some of the confusion that has run through the debate? The debate on amendment No. 9 in particular is not about whether there should be an offence of desertion, or whether
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there should be specific, defined parameters for the punishments. It is about the nature of the parameters, rather than about the existence of the offence.

Mr. Simon: That is true of amendment No. 9, but not of amendment No. 8, which specifically concerns the nature of the offence.

Alan Simpson: True, but I want to deal with issues that we need to view as distinct segments. One concerns whether there should be an offence that relates to the disobeying of orders to serve in what is defined in the Bill as

The point was made that it is not possible for such an occupation or war to be illegal if the Government of the day have made the democratic decision that it is a legal and justifiable war, but that is deeply wrong. International law and the United Nations and its conventions define the distinction between the circumstances in which a war is unavoidable and the circumstances in which a country has the right to defend itself. But it is not true that any Parliament in any country can make a war legal, and that includes our own Parliament, just because it decides that it should be legal. In the case of the Serbian Parliament’s decisions in respect of the war on Bosnia, we said consistently that we did not care that the Serbian Parliament had decided that it was a legal war for its own purposes; that was not the view of the international community. It is deeply dangerous for any Parliament to go down a path that says that if it decides that a war is legal, that makes it legal. That is not the framework set by the international community on the legality of international wars after the second world war.

Mr. Richard Benyon (Newbury) (Con): Does the hon. Gentleman not understand that we are going down a long avenue of irrelevance here? This is a question of military discipline; it is not a matter of decision as to the merits or demerits, or the legality or illegality, of a particular war, or his perception of it.

Alan Simpson: I accept that, but I am saying that the argument about a war being legal just because we say it is legal is a dangerous path for this Committee to be led down, and it is not relevant to amendment No. 9. What is relevant is to question the legitimacy of the House setting a parameter of life imprisonment to the penalties for a refusal to obey an order in relation to desertion, when the guidance notes say:

The question is whether it should be appropriate in this day and age, in this Bill, which the House is passing now for the foreseeable future, to retain a life imprisonment parameter for a refusal to go on service.

Bob Russell: Will the hon. Gentleman confirm that his maximum would be two years, and thus with good behaviour it could be as little as one year, on a maximum sentence?

Alan Simpson: My maximum at this point just removes life imprisonment. I have no doubt that if the Committee agrees the amendment, the other place will
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send the legislation back with further amendments defining a more comprehensive and appropriate framework, and I have no objection to that. The point is that the Committee should express a view about whether we are willing just to nod through a presumption that the rationalisation of existing sentencing powers should be the maximum limit of life imprisonment, and it is important that the Committee should say no on that.

Mr. Simon: Whether one takes that point or not surely the problem is that the amendment does not account for the other end of the spectrum; it does not make the distinction between the much less serious offence of going absent without leave and the much more serious offence of desertion. In giving the same penalty for absence without leave and desertion, the amendment completely fails as a piece of law to make a very important distinction. Regardless of what happens at the top, what about what happens at the bottom?

Alan Simpson: My hon. Friend has made the case for a graduated tariff. I am questioning the presumption that the range of the tariff should automatically include as an upper limit life imprisonment for a refusal to obey an order to go on service.

5.30 pm

I want to discuss the case of Flight-Lieutenant Kendall-Smith, which has already been mentioned, and the trial of Major Florian Pfaff in Germany in 2004. The key point is the right of individuals to challenge the legitimacy and the legality of orders given to them. I do not for one moment assume that in an army manned by volunteers any of the young men and women who volunteer do so in a fly-by-night way, which is a deeply disrespectful presumption. When people decide to give themselves an extended weekend, the circumstances are different from when people consciously decide that they are no longer prepared to serve in a particular conflict or occupation. I accept that such people must face the consequences of their actions within a disciplinary court process, but I want this Committee at least to consider the options and their limitations.

Patrick Mercer: At the risk of sounding like a stuck record, I must point out that the hon. Gentleman has neglected to understand that we have regular volunteer forces which are frequently on operations. Almost everyone I know in the forces spends up to six months every year away on operations. Everybody understands that if they have a moral difficulty with the orders that they have been given, they can represent their views to their commanders in a responsible way. Those who choose to let down their comrades by simply going absent and then deserting need to be discouraged, and we need a serious tariff to deter them.

Alan Simpson: I do not have a problem with a serious tariff. My problem is that the Bill states that the maximum sentence for desertion in the context of a refusal to obey an order to go on service may be life imprisonment, which exceeds the bounds of reasonableness. If one were to step outside this House
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and this country, one would find that our European partners do not impose anything like the range of tariff penalties enshrined in the Bill.

Sarah McCarthy-Fry: Notwithstanding my hon. Friend’s argument, with which I disagree, he has admitted that his amendment is flawed, because it does not offer an alternative to a two-year sentence, and he hopes that another amendment will be introduced in another place to resolve that matter. Does he agree that that is a dangerous precedent for the Committee to adopt?

Alan Simpson: Sadly, poorly thought-through legislation is increasingly driven through this House, which leaves another place to tidy up by using its common sense, so this would not be the first occasion on which that had happened.

Mr. Hancock: The hon. Gentleman has mentioned our European partners. Those among our European partners who are transferring from a conscript army to a professional army are rewriting their military law, and the French, the Spanish and the Italians are all introducing legislation similar to the Armed Forces Bill. If he were to check, he would find that the penalty for desertion in the French army is a life sentence.

Alan Simpson: Let me come back to the hon. Gentleman with the current information about penalties and figures. As regards his comments about Labour Members not coming up with figures about the sentencing of those tried and imprisoned for desertion, that is not for lack of trying. Some of us have been trying for several weeks to get that information out of the Ministry of Defence or the Library, but it has not been possible to obtain it. I understand from some of my hon. Friends that members of the Defence Committee also tried to obtain it but were unable to do so. That is not an act of negligence on the part of those who are trying to make a different case.

One of the things that was distinctly different in relation to the trial of Major Florian Pfaff in Germany was that although he and other members of the armed forces had to go through the court martial, at the end of that process they had a right to appeal to a civil court. The civil court overturned the court martial judgment on the major that resulted initially in his demotion. The arguments that he used were entirely about whether some of the orders that he was given were illegal orders relating to the preparation of weapons systems for use in the war on Iraq. Even the German civil courts were unable to question that, but they were able to rule on whether the major clearly, legitimately and conscientiously held those views. On that basis, they ruled in his favour.

Nothing of that type is proposed for inclusion in this framework for our own armed forces. When Flight Lieutenant Malcolm Kendall-Smith attempted to use similar arguments about refusing to serve in Iraq, believing that the orders were illegal, he was told that he was not allowed to have that considered because the Attorney-General had ruled that it was legal. He was not allowed to ask whether the Attorney-General had made that ruling before he knew that there were no
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weapons of mass destruction, that no uranium was coming into Iraq for enrichment, or that there was no prospect of the UK being under threat and targeted within 45 minutes. None of that was challengeable.

We should be using this opportunity to open out the legitimacy of rights to contest decisions and orders. That particularly concerns me in relation to the provisions on refusal to serve in an occupation, which refer not to a legal occupation but merely to an occupation. Members who say that that is not specific to Iraq or to any particular existing conflict are right. We need to be clear about our interpretation of this. Are we saying that irrespective of whether a conflict is legal, a refusal to serve should carry with it the prospect of a sentence of life imprisonment?

Mr. Watson: The definitions are very important. Refusal to go on active service—that is, refusing an order—carries a 10-year sentence. Desertion—that is, abandoning one’s colleagues—can carry a maximum sentence of life imprisonment. Refusing to go to Iraq counts as disobeying orders, and the maximum penalty is only 10 years.

Alan Simpson: I confess that we have had some interesting discussions on the Labour Benches about the interpretation of different clauses. It is clear that even those who support the wording as it stands recognise that there is considerable scope for confusion in interpreting the provisions. The guidance notes do not necessarily support what the Under-Secretary says. The Government have several opportunities in the Bill’s remaining stages to table amendments to clarify the matter. However, it is important that we recognise the rights of serving men and women in the conflicts in which we have placed them. The point at which one crosses from legality to illegality is far from clear.

We currently say that the occupation of Iraq is under a legal mandate of the United Nations. However, what do we do when, following the recent incidents in Basra—the part of Iraq in which the United Kingdom is operational—Mohammad al-Waili, the Governor of Basra, said that British security control prevented the provincial government from purging the security forces of militia members? That was evidenced by the fact that Iraqi security forces had to defend UK troops against attacks by Iraqi civilians. It is understandable that serving personnel in those circumstances start to question the point when we cross from a legal mandate to an illegal occupation.

Our proposal does not give people a get-out-of-jail card. It does not mean that they can take whatever action they like, depending on the state of the weather or whether they have a hangover. We are considering whether there is a tariff system for the available punishments in the armed forces that relates to the current duties of our serving men and women and makes sense to the general public.

Mr. Kevan Jones: I shall shortly lose the will to live. My hon. Friend keeps trying to move the goalposts. On whether occupation is illegal, I accept that there are differing views about Iraq. However, it was said earlier that UK troops are there under a UN mandate. If my hon. Friend wants to provide circumstances whereby
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people can pick and choose their interpretation of that UN mandate, he gives them a get-out-of-jail card and carte blanche to do what they want. That cannot happen in organised armed forces.

Harry Cohen rose—

Alan Simpson: I am tempted to start my reply, but I am conscious that another hon. Friend wants to intervene, so I shall deal with both points at the same time.

Harry Cohen: I want to pick up the points that my hon. Friend the Member for Rhondda (Chris Bryant) and my hon. Friend the Under-Secretary made in the context of legality and illegality and about who constitutes the enemy, which is defined in clause 367. The Under-Secretary said that the enemy was anyone who fires at us and that desertion applies only if someone leaves a conflict. However, many thousands of people, including women and children, are killed in air raids. They would not be classified as enemies under the Bill or the Under-Secretary’s classification of anyone who fires at us. If a soldier discovers illegality—although it may be termed collateral damage—has not he a right to say that he wants to opt out of that, claim a conscientious objection and not be punished with life imprisonment?

Alan Simpson: I do not want to be trapped into trying to define the point at which an action is legal or illegal, or the tariff system that should follow a refusal to serve in specific circumstances.

I believe that we must step back and provide that it is wrong to have a carte blanche presumption that the upper limit of the sentencing range should be life imprisonment. Those who are killed in modern wars are primarily not other soldiers. The second world war was probably the turning point in that regard. In modern wars, there is much more collateral damage—that is the modern phrase; it really means civilian casualties—than killing of combatants. It is therefore perfectly legitimate that our serving personnel should have a right and a duty to exercise their judgment about the point at which the threshold is crossed. That does not meant that they should walk away from their decisions with no consequences, but we need to define different parameters.

5.45 pm

I would like to tell the Committee about the parameters that exist elsewhere. In Austria, the maximum sentence for desertion is one year; in practice, it is usually between two and six months. In France, desertion in peacetime is punishable by up to three years’ imprisonment—

Mr. Kevan Jones: It is two years, is it not?

Alan Simpson: The notes say that it is three years.

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