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In Germany, desertion is punishable by up to five years’ imprisonment, although deserters who return to their unit within a month may be sentenced for up to three years. In the Netherlands, desertion in peacetime can be punished by a maximum of two years’
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imprisonment. In wartime, the punishment is a maximum of seven and a half years’ imprisonment. In Poland, refusal to perform military service or to carry out a task inherent in such service is punishable by a range of sentences, from six months to five years’ imprisonment, or up to three years in wartime. That is the tariff system that is applied by other countries in the EU, and against which we ought to be measuring the revision of our own armed forces legislation.

Mr. Jones: That is exactly what the Bill is doing. At the moment, the maximum penalty for desertion is life imprisonment. Clause 8 will bring that down to a sentence of up to two years for general desertion—that is, desertion in peacetime or from a UK base—and up to life imprisonment for deserting when deployed on operational duties. So we are changing the law, and it will be better than the tariff that my hon. Friend has just cited for France, for example.

Alan Simpson: I would be happy for the Government to come back with a proposal for an improvement on the French system—

Mr. Jones: It is in the Bill.

Alan Simpson: Clause 8 does not represent an improvement on the French system. It will mean that officers serving on the front line who can see at first hand what is happening—unlike us, who simply have to read the reports that are presented to us here—could face substantial charges. It is incumbent on the House to say that such charges are inappropriate to the world in which modern warfare is being conducted, and to the expectations and rights of those young men and women who have volunteered to put their lives on the line in the service of this country.

Let us take a step back from the debate for a moment. Over the past couple of weeks, there has been a huge fuss about the Home Office releasing people who have a track record of murder or rape. People who have committed criminal offences such as those can get early release from prison. To enshrine in the Bill the prospect of life imprisonment for a refusal to kill seems to make a nonsense of the ethical responsibilities that Britain should be carrying in the modern world.

Mr. Gerald Howarth (Aldershot) (Con): We have debated this matter for about an hour and a half, and I am bound to say that Eric Forth would have approved of Parliament holding the Government to account in this way. I therefore make no complaint about the time taken to discuss these matters. Indeed, we have had an extremely good debate.

I should like to pay particular tribute to my hon. Friend the Member for Newark (Patrick Mercer), who undoubtedly brings real experience to the House and is prepared to share it with us. We should not take his advice lightly. I should also like to pay tribute to the hon. Member for Rhondda (Chris Bryant), who is unfortunately not in his place at the moment. This was perhaps the only time that I have entirely agreed with everything that he said. That will probably do him more damage than me, but still—

I also salute the hon. Member for Stoke-on-Trent, South (Mr. Flello) for his interventions. Both he and the hon. Member for Rhondda demonstrated the value
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of the armed forces parliamentary scheme, whose tie I happen to be wearing today, in case the Minister had not noticed. Their contributions, as well as those of others who did not mention that they had taken part in the armed forces parliamentary scheme, illustrate the great benefit that that scheme brings not only to Members of the House but to the armed forces.

I also welcome the Minister to his new position and congratulate him on his post. He has had something of a baptism of fire in having to deal straight away with a 300-clause Bill, which has a huge amount of detail. We wish him well, and I am trying to assist him. Clearly, the fire is coming at him from his Benches rather than from the Liberal Democrat Benches, and it is certainly not coming from the Conservative Benches.

Dr. Julian Lewis: Red on red.

Mr. Howarth: My hon. Friend says from a sedentary position that the nature of the fire is red on red.

Bob Russell: As the hon. Gentleman has welcomed the new Minister, will he join me in paying tribute to the previous Minister, who piloted the Bill for four months? I am led to believe that he was about to make that point, and I am sure that I shall endorse what he was going to say in criticising the Prime Minister for sacking the previous Minister.

Mr. Howarth: I am extremely grateful to the hon. Member for Colchester (Bob Russell), who represents another important garrison town—almost as important as Aldershot—for mentioning that point. Having welcomed the Minister, I was indeed going to pay tribute to his predecessor, the hon. Member for Islwyn (Mr. Touhig), with whom I have had an extremely interesting and constructive debate on the Bill. I thank him for the efforts that he made to ensure that we were as well briefed as we could be on the implications of the Bill, and I salute him for that. As this is a moment of salutations, I also thank the Bill team, whose presence we are not allowed to acknowledge in the Chamber, but no doubt the message will get to them that they have also been extremely helpful in relation to getting this legislation right, which is of great concern to all Members of the House.

On the amendment, I also pay tribute to how well the hon. Member for Hayes and Harlington (John McDonnell) moved it, with great dignity and honour, save for the slight disagreement drawn to our attention by the hon. Member for Portsmouth, South (Mr. Hancock), on which I think that he is right. Nevertheless, the hon. Member for Hayes and Harlington made his case in a coherent and restrained way.

It is claimed that the desertion clause has been rewritten to punish those who refuse to serve in Iraq with life imprisonment. The amendment seeks to remove “occupation of a foreign country” from the categories of desertion, and removes the punishment of life imprisonment for the most serious classifications of desertion. The desertion clause has not been rewritten to cover those who refuse to take part in the occupation of Iraq, as I am sure that the Minister will also tell the
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House. It does not increase the punishment for desertion to life imprisonment; it reduces the maximum penalty for most desertion cases by reintroducing a two-tier classification of desertion that takes us back to the position under the 1955 Act, as the hon. Member for North Durham (Mr. Jones) pointed out. That Act included two tiers of desertion. Less serious forms of desertion, including desertion while in the UK, were punishable with a sentence of up to two years’ imprisonment; the more serious form, desertion while on active service, carried a maximum sentence of life imprisonment. Occupation of a foreign country was included in that more serious form, and the hon. Member for Rhondda pointed out the importance of having that provision in the Bill.

In 1971, new armed forces legislation amended the desertion offence and ended the two-tier punishment for desertion, counting all forms of desertion together, with a maximum sentence of life imprisonment. The reason for that change was the situation in Northern Ireland, which, as Northern Ireland is in the United Kingdom, was not covered by the definition of active service. However, desertion to avoid serving in the Province was considered just as serious as desertion to avoid active service. Little changed in the everyday application of the punishment for desertion, and the punishment continued to reflect the seriousness of the offence.

Therefore, the Bill merely reinstates the two-tier provisions of the earlier Act. It includes a lower tier of less serious forms of desertion, with a maximum sentence of up to two years, and includes the equivalent of desertion while on active service, with a maximum punishment of life imprisonment. The only difference between that and the earlier Act is that the Government have removed the term “active service”. They have included the provisions and definition of active service from the 1955 Act in the Bill. The Government have therefore reduced, not increased, the maximum sentence for the lower forms of desertion. They have taken the armed forces back to the position under the 1955 Act. They have not included foreign occupation because of Iraq; it is nonsense for the awkward squad to make that claim. Desertion while occupying a foreign country has had a punishment of up to life imprisonment for the past 50 years.

Mention has been made of two high-profile recent cases. The first was that of Flight Lieutenant Kendall-Smith. He was jailed for refusing a direct order. He was punished not for his conscientious objection but for his failure to obey an order. He was court-martialled for disobeying a direct order to report for pre-deployment training. His claim that he was acting on principle has no legal basis, and his sentence rightly reflects that.

However, Ben Griffin, the SAS conscientious objector, did not refuse a direct order, and nor did he desert. While he was on leave, he told his commanding officer of his objections to the war and, through the existing procedures, left the Army. That was a perfectly honourable course of action for a volunteer soldier to take. He decided that, in all conscience, he could not obey the order. The hon. Member for North Durham is again right that this country is extremely fortunate that those who make up our armed forces are not automatons but have a highly attuned sense of
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morality and are extremely sensible and decent people. Mr. Griffin took a principled decision. He did not make the fuss that the chap in the Royal Air Force made.

Mr. MacNeil: On a small point, Ben Griffin’s words and reasons were:

Mr. Howarth: Whatever his reasons were, he took an appropriate course of action that was open to him and ceased to be a soldier without all the grandstanding that Flight Lieutenant Kendall-Smith undertook. He proved that somebody who has a conscience and feels that that military service, which he was commanded to undertake, was incorrect, has a means to avoid that without all the histrionics and without breaking the law. That is what Ben Griffin did.

Harry Cohen: Ben Griffin also told The Sunday Telegraph that he had witnessed dozens of illegal acts by US fighters who viewed Iraqis as “sub-human”. He said:

The hon. Gentleman places great emphasis on desertion while on active service, and saying that that warrants the highest sentence is almost like an ultimatum. Ben Griffin talked about the Americans, but if someone witnesses in their troop such illegal acts and civilians being killed—not enemies, but what we call collateral damage—what is the remedy, if they are not to take part in such acts, other than to desert? Surely the hon. Gentleman’s distinction is a false one.

Mr. Howarth: There is a whole system of military law that is designed to ensure that those who break the law in the fashion that the hon. Gentleman sets out are brought to account. Indeed, a number of cases are currently before the authorities for that precise reason. With that intervention, I am afraid that he blows his case straight out of the water.

Serving in Iraq is neither immoral nor illegal. As the hon. Member for Hereford (Mr. Keetch) said, that war and the subsequent deployment there are illegal under neither United Kingdom nor international law. The deployment in Iraq is supported by United Nations resolutions, and the Attorney-General has reported that the United Kingdom’s actions in Iraq are not illegal.

Let me remind the Committee of an interesting moment, when the Chief of the Defence Staff—then Admiral Sir Michael Boyce, now Lord Boyce—specifically asked on behalf of every serviceman and servicewoman under his command—that is, everyone in uniform—whether the war was legal. He obtained that assurance from the Government. He was right to obtain it on behalf of all who served in Her Majesty’s armed forces, and from that time onwards every person in Her Majesty’s armed forces was protected.

6 pm

Perhaps the Minister will be able to confirm that it is unlikely that the maximum sentence would ever be imposed, and that the most serious punishments would relate to desertion from one’s post and putting the lives of one’s comrades in danger in the way described by my hon. Friend the Member for Newark. I am sure we
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all agree that it is absolutely right and proper for us to ensure tonight that in such cases a suitable punishment is available. It would be a dereliction of our duty to protect our armed forces if we removed the possibility of life imprisonment for desertion in the circumstances outlined by my hon. Friend and alluded to by others. I therefore hope that the Committee will reject the amendment and support the Bill as it stands.

Mr. Watson: I thank the hon. Member for Aldershot (Mr. Howarth) for his kind words. I must say that when I walked into the Chamber and saw the massed ranks of the socialist Campaign group of Labour Members ready to do battle, for a split second I felt like deserting my own post—but my commanding officer sitting on my left, my right hon. Friend the Minister of State, stiffened my resolve, as he would then have had to respond to the debate.

The debate has been very informative. The speech that I will pick out is that of the hon. Member for Newark, which was incredibly well informed and orotund; the argument moved on much further following his contribution. It has been a debate about definitions, and I am anxious to clear up the misunderstandings over the changes that we have made to the offence of desertion.

Clause 8 preserves the offence of desertion, but makes two important changes to the existing offence. I shall describe them in a moment. Under the clause, a serviceman deserts by absenting himself with the intention of never returning to duty, or by absenting himself in order to avoid relevant service. “Relevant service” is defined as

The definition essentially reflects the definition of active service in the current service discipline Acts. Those are the most critical and potentially hazardous duties for service personnel, so the offence is all the more serious when the intention or effect of the serviceman’s actions is to avoid that relevant service.

Amendment No. 8 seeks to redefine “relevant service” to exclude operations outside the British Islands for the protection of property or military occupation of a foreign country or territory. Amendment No. 9 seeks to reduce the maximum sentence for desertion to two years’ imprisonment in all cases—equivalent to the maximum sentence for absence without leave, as was pointed out by the hon. Member for Newark.

I listened to the arguments advanced by my hon. Friend the Member for Hayes and Harlington (John McDonnell), and I think that they were put honestly and coherently, but, frankly, I disagree with him. Under existing provisions, the definition of desertion refers to going absent with the intention of never returning to duty, going absent to avoid any service overseas, or going absent to avoid service when before an enemy. All those attract a maximum sentence of life imprisonment.

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That definition includes going absent to avoid a posting to Germany, training in Canada or a detachment to Cyprus, as well as the types of relevant service that I have described, simply because it involves service overseas. Under the existing law, if a soldier avoids a short posting to Germany with his unit because he is having trouble with his girlfriend and wants to sort things out, he is in theory guilty of desertion—carrying a maximum sentence of life imprisonment—even if he intends to return to duty.

Our first change is to restrict the offence to exclude that unfairness. It will not cover any service overseas, only relevant service. Our second change is to reduce the current maximum sentence of life imprisonment to a maximum of two years, except when desertion is to avoid relevant service. Under the current law, the maximum is life imprisonment in all cases.

Members will appreciate that the operations involved in “relevant service” are of the greatest importance. When such operations are involved, every member of the forces must have complete confidence in the other members of his unit, not least because the operations are dangerous and demanding. Those who avoid such service increase the danger to their colleagues, and damage morale. In a disciplined fighting force, that is totally unacceptable.

Even in the days of compulsory military service, the law reflected the particular seriousness of avoiding such service. It is, if anything, even more serious in a professional volunteer armed force for there to be a distinction between types of dangerous service of the kind proposed by my hon. Friend.

I hope that I have explained to my hon. Friend what we are trying to do in clause 8. I hope he will accept that the scope and definition of the offence is new but far less severe than it was before, and that the true position is the reverse of what he has asserted.

John McDonnell: I was expecting a brief debate, as clause 8 is one of nearly 300 clauses, but I am pleased with the level of the debate in which we have engaged. I want to focus on the constructive elements that we can take from it. For the record, I also want to establish clarity.

My hon. Friend the Member for Rhondda (Chris Bryant) said that amendment No. 8 was old-fashioned, relating to the first world war rather than to modern military service. The Bill was intended to be a modernising piece of legislation. What concerned me was that it translated the life sentence threat from existing legislation on sanctions to the new legislation.

I accept the pedantic—no, the constructive—point made by my hon. Friend the Member for North Durham (Mr. Jones) that the reintroduction of the two-year limit gives us some flexibility. As my hon. Friend the Member for Birmingham, Erdington (Mr. Simon) said, it moves us towards a graduated tariff approach. I agree with him that we could have had a better debate about that. The debate on clause 8 did not feature in the pre-legislative scrutiny Committee, and has not arisen in the House until now.

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