Armed Forces Bill |
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The Chairman: I do not think that it is necessary to withdraw the new clause because we are discussing clause stand part. Mr. Howarth: As you say, Mr. Howarth, we are debating clause stand part, but I was speaking to new clause 10. In light of the Minister’s assurances, I am happy not to press the new clause, subject to our being able to revisit the matter. Question put and agreed to. Clause 1 ordered to stand part of the Bill. Clauses 2 and 3 ordered to stand part of the Bill. Clause 4 Looting Mr. Howarth: I beg to move amendment No. 26, in clause 4, page 3, line 29, leave out ‘vehicle, equipment or stores’ and insert ‘supplies’. The amendment is designed simply to widen the scope of subsection (3) from just “vehicle, equipment or stores” to the much broader range of items encompassed by the word “supplies”. That word is used elsewhere in the Bill and therefore it would be appropriate to use it in clause 4. Mr. Touhig: The clause preserves offences of looting. Currently, subsection (3) refers to “vehicle, equipment or stores”. That wording is the same as in the current service discipline Acts. The amendment seeks to substitute that phrase with the word “supplies”, which would mean that UK servicemen
Research with service logistics sources confirmed that the term “stores” was correct and includes all items referred to from time to time as “supplies”. Therefore, the proposed change in terminology is unnecessary. I hope that the hon. Gentleman will withdraw the amendment. Mr. Howarth: In view of the Minister’s observations, I am inclined to withdraw the amendment. I shall make one point, however. Part of the reason for debating the issues is to put on the record the Government’s intentions so that people can be in no doubt about them. I cannot argue with the Minister’s description, and I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 4 ordered to stand part of the Bill. Clauses 5 to 11 ordered to stand part of the Bill. Clause 12 Disobedience to lawful commands Question proposed, That the clause stand part of the Bill. The Chairman: With this it will be convenient to discuss the following:New clause 8—Disobedience of captain’s orders—Her Majesty’s ships—
New clause 11—Disobedience of captain’s orders—Her Majesty’s aircraft—
Column Number: 13
Mr. Howarth: I shall speak to new clauses 8 and 11. Clause 31 relates to the offence of hazarding a ship, and there is a similar offence relating to the hazarding of an aircraft—I cannot quite find it, but I know that it is in the Bill. The new clauses would make it explicit in the Bill that the captain of a ship or aircraft had complete command of it. This might be stating the obvious, but it is important that we clarify beyond doubt that disobeying the order of a captain of a ship or aircraft is a most serious offence. It has always been accepted in the armed forces that the captain of a ship or aircraft is in sole charge of it, whatever the rank of the passengers. The new clauses would place that understanding on a statutory basis and extend its scope to cover citizens who are subject to service discipline. There is a practical reason why the Bill should assert that the person in charge must be the captain. On a naval vessel, that will be a royal naval officer—we have not gone so tri-service as to put a sapper in charge of an aircraft carrier, but who knows what the future holds. However, the issue is important. The other day, members of the Committee visited a Royal Navy ship in the Persian gulf. We saw the Royal Marines embarking on HMS Bulwark, and there were some fairly senior officers there. I also visited HMS Illustrious in November, and several Royal Air Force officers were on board to fly the Harrier aircraft. A tri-service Bill should include an explicit understanding that, when two services are involved, the captain of a ship or aircraft is in charge. There should be no doubt about that, which is why we have tabled the new clauses. I hope that the Minister will find them helpful. Mr. Touhig: I am seeking to be helpful to the hon. Gentleman and to put things on the record, because I know that that is what he and other members of the Committee desire. Service personnel must carry out the lawful commands of those who are superior in command to them. Those commands might involve unpleasant, dangerous or just inconvenient activity. It is self-evident that obeying lawful commands is essential to operational effectiveness. Under clause 12, service personnel who deliberately or recklessly disobey a lawful command will be guilty of an offence. The requirement that the command is lawful offers a serviceman a protection against being ordered to take part in an unlawful activity. New clause 8 would create a separate offence of disobeying the lawful command of a captain of one of Her Majesty’s ships, irrespective of whether the captain is subject to service law, and new clause 11 would do the same for Her Majesty’s aircraft. As far as service personnel are concerned, new clause 8 would add nothing, because clause 12 requires service personnel to obey the lawful commands of naval officers, and only naval officers can be captains of Her Majesty’s ships. Civilians in Her Majesty’s ships will be subject to service discipline and therefore, under clause 13, to the standing orders that provide for the
As I explained on clause 1, it is neither necessary nor appropriate to go further and require civilians to obey specific commands as if they were servicemen and women. New clause 11 is slightly different because the captain of a military aircraft is not always subject to service law. They might be, for instance, a civilian flying instructor. In order to ensure the safety of the aircraft in such cases, it may be necessary that all passengers and crew, whether servicemen or civilians, obey the captain’s commands. We have a solution to that problem in clause 49, which makes it possible for specified offences under the air navigation order to apply to people in military aircraft, including civilians, as a matter of service law. One of the offences under the air navigation order is disobeying the orders of the commander of the aircraft. The Bill already allows us, therefore, to do what is set out in new clause 11. With that “concession”, I hope that the hon. Member for Aldershot will not seek to press the new clause to a vote. Mr. Howarth: That is extremely helpful because the Minister has put it on the record that ultimately the captain of the ship will have complete authority over all the ship’s company, whether uniformed or otherwise. He makes an interesting point about civilians occasionally being in charge of aircraft. Of course, there may well be circumstances in which a civilian flies an air-to-air refuelling tanker, if the proposals for the future strategic tanker aircraft proceed. Under the private finance initiative arrangements, it is quite possible that non-uniformed officers will be in charge. The hon. Member for North Durham (Mr. Jones) seems to be indicating dissent. Mr. Jones: I thought that the proposal was to have sponsored reserves, which are covered by the point I made earlier. Mr. Howarth: It is our duty to foresee potential developments, not just the situation that prevails today. Certainly, sponsored reserves are more in use than they ever have been and as the hon. Gentleman knows from his membership of the Defence Committee, there is an ongoing debate about the extent to which civilians should be involved in going to the front line and whether an air-to-air refuelling tanker operating away from the front line might be considered to be in the front line. We need to bear such issues in mind. Will the Minister explain what would happen if a civilian ship, under a civilian captain, were chartered by the Royal Navy or Ministry of Defence? There was an example of that during the Falklands war, when the SS Canberra was chartered by Her Majesty’s Government to take troops to the Falklands. It would be helpful if he could explain the situation that prevailed at the time; those who have an even more comprehensive knowledge of the matter than the
Mr. Touhig: My view is that the obligation would be to obey the captain of a ship, but in the circumstances he described, a senior officer would be on board. There would be an intermeshed relationship that would secure what we are seeking to do through the Bill. Mr. Howarth: On that basis, I am happy not to press the new clause to a vote. Question put and agreed to. Clause 12 ordered to stand part of the Bill. Clauses 13 to 15 ordered to stand part of the Bill. 3 pmClause 16 Malingering Mr. Howarth: I beg to move amendment No. 27, in clause 16, page 7, line 33, after ‘avoid’, insert
The Chairman: With this it will be convenient to discuss the following amendments: No. 28, in clause 16, page 8, line 6, at end insert—
No. 2, in clause 16, page 8, leave out lines 7 to 9 and insert—
Mr. Howarth: The purpose of the amendments is to ensure that we recognise that malingering can be as seriously damaging as desertion. We ought to consider—I put it no higher than that—whether malingering, which is potentially particularly corrosive to service morale, should be treated more harshly than is proposed in the Bill. The amendments propose that malingering be treated in the same way as desertion, which is dealt with in clause 8. The fact is that the outcome of malingering can be the same as that of desertion or avoidance of service, so the punishment ought to be the same. Under the Bill, desertion can be punished by up to life imprisonment, whereas malingering is punishable only with up to two years in prison. The amendments would increase the punishment available. Column Number: 16 Mr. Touhig: Clause 16 preserves the offence of malingering and maintains the maximum sentence of two years’ imprisonment. In general terms, malingering is considered an avoidance of duty by feigning injury or illness, by becoming injured as a result of a deliberate act of self-harming, or by deliberately prolonging an injury—for example, by deliberately worsening a fracture in an attempt to avoid an operational tour. I am sure that colleagues who were in Iraq last week saw nothing of that kind happening within our forces; indeed, such occurrences are very rare these days. I am also sure that no member of this Committee will be accused of malingering in any way given the amount of work put into the Bill in recent months. I pay credit to everyone involved, and to those who have not had some of the best flights in the world recently, as some colleagues have indicated. The Chairman: Order. The Minister is about to start malingering. Mr. Touhig: I shall take note of what you say, Mr. Howarth. The clause would also apply to service personnel who injure a serviceman or woman at their request, or take steps to prolong an injury sustained by a serviceman or woman. As I say, thankfully, the use of the clause is unlikely to be frequent, but none the less it is important that there be an offence to deal with such behaviour when it occurs. The offence can be dealt with summarily, but it is sufficiently serious to attract a maximum of two years’ imprisonment if tried by a court martial. The amendments would provide that, in certain circumstances of relevant service—for example, in operations against the enemy—the maximum sentence imposed could be life imprisonment. The amendments attempt to draw an analogy with the offence of desertion to avoid relevant service under clause 8, for which the maximum sentence is life imprisonment, but we feel that the amendments go too far. A deserter disappears altogether; a malingerer does not. We are satisfied that two years’ imprisonment is a sufficient maximum. That is the current maximum sentence under the service discipline Acts, and we are not aware of it causing any difficulties to date. If the services had said to us that the prospect of two years’ imprisonment was not an adequate deterrent, we would propose raising the maximum, but they have not done so, and we have no wish to provide for very severe punishments that we do not think are really needed. With that explanation, I hope that the hon. Member for Aldershot will feel able to withdraw his amendment. Mr. Howarth: The Minister made the interesting point that there have been no complaints that the penalties available under service discipline arrangements have not been perfectly adequate. I find that encouraging. There is nevertheless a case for increasing them, which is another matter that we
Amendment, by leave, withdrawn. Clause 16 ordered to stand part of the Bill. Clause 17 Disclosure of information useful to an enemy Mr. Howarth: I beg to move amendment No. 3, in clause 17, page 8, line 12, leave out
and insert
The Chairman: With this it will be convenient to discuss amendment No. 4, in clause 17, page 8, line 15, leave out
and insert
Mr. Howarth: Clause 17 will make it an offence to disclose information useful to an enemy. We touched on the matter earlier, but the amendment’s purpose is to be absolutely explicit in understanding what we mean by “the enemy”. Because of the times that we are in, it is clear that the threat to the country comes not from organised nation states, nor necessarily from organised groups of people, but from ad hoc groups of terrorists. There would be merit in changing the clause to reflect the needs of our time and to ensure that the courts are in no doubt of Parliament’s intention that the disclosure of information useful to an enemy extends to those who would seek to harm us but who might not have been classified as an enemy in the past. The amendments would extend the scope of the clause to include the disclosure of information that would or
Clause 364 defines an enemy in three categories:
I do not know whether terrorists planting a bomb on the London underground would fall into any of those categories. They would clearly not be pirates, nor would they be engaged in armed operations against Her Majesty’s armed forces. They could possibly be described as armed rebels. For the avoidance of doubt, we should use the terminology that I have proposed in the amendments. It is clearly not the Government’s intention that a serviceman who provides information to terrorists should not be subject to prosecution under clause 17; I entirely accept that. The amendment would cover the disclosure of unauthorised information to foreign powers or journalists, and I hope that it would be
The amendment therefore has merit, and I hope that the Minister will agree to it. Mr. Breed: May I express some sympathy with the views expressed by the hon. Gentleman? We are talking about terminology, and the word “might” is pretty subjective. One of my reservations about the amendment is that it would toughen up the test, and it sometimes might be more difficult to prosecute. However, there is merit in asking whether decisions should be made on the basis that the information involved might be useful to an enemy, or on the basis that it is prejudicial to the defence and security of the country. A fundamental difference is involved. My sympathies currently lie with the amendment, unless the Minister can come up with some good reasons for the provision. There are significant differences in how such an offence would be prosecuted. Examples were given of today’s asymmetric enemies—in the sense of those on the streets in the UK and those abroad—and the sort of technology that is now at the heart of much of what can be prejudicial to the defence of our country. Such matters are at least worth probing. I will be interested to hear the Minister’s comments. Mr. Touhig: I fully understand the point that the hon. Member for Aldershot makes. I also understand why the hon. Member for South-East Cornwall (Mr. Breed) has sympathy with the arguments put forward. The amendments are unhelpful because they narrow the circumstances in which disclosure of information will amount to an offence. After all, information that is useful to an enemy might not always be prejudicial to the security or defence of the United Kingdom. What is more, the concept of what is prejudicial to the security or defence of the United Kingdom is too vague and difficult to assess for the purposes of an offence. Even where the information would be, or is likely to be, prejudicial to the security or defence of the UK, that might be difficult to prove. It is far preferable to use the wording in the Bill, which requires only that the information “would” be or “might” be useful to an enemy. That covers much wider circumstances; indeed, the hon. Member for Aldershot gave one or two examples in that regard. The meaning of an enemy is defined in clause 364 and covers conventional enemy forces but also any person engaged in “armed operations” against our forces or our allies. That would include armed groups carrying out terror attacks in Iraq against our soldiers or allied soldiers. We believe that the Bill will cover the circumstances where the disclosure of information will have a detrimental effect only on allies or where it has a local impact on UK forces serving in a theatre overseas. The amendment would not provide for that. It will also be
Mr. Burrowes: While I understand the point about the extension or limitation of the offence of disclosing of information useful to an enemy and the need to keep things as broad as possible, is there not merit in carefully examining the definition of “enemy”? Indeed, we will come to that definition later in clause 364. I invite the Minister to consider whether there is a need, in the modern age, to move on this issue and to extend a definition to cover those wide uses of “enemy” when dealing with terrorist activities. Mr. Touhig: I take on board the hon. Gentleman’s point, but I hope that he will concede that clause 364 covers the issues that concern him. As I have said, although the threshold for proving the offence in the amended clause is higher, it does not mean that the conduct prohibited is graver. Disclosing information that is, or is likely to be, useful to an enemy is equally serious, especially when performed by a person subject to service law. Finally, it should also be noted that the service discipline Acts contain corresponding clauses. Under those Acts, an offence is committed where the evidence disclosed would be, or might be, useful to an enemy. Thus, if the amendment were adopted, it would be more restrictive than what is currently provided. I urge colleagues to bear that in mind, and I hope that the amendment will be withdrawn. 3.15 pmMr. Howarth: I take on board the assurances again given by the Minister. We do not wish to create any circumstances in which the definitions can be narrowed—we were seeking to expand them—but I take on board his point. However, we might revisit this matter later. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 17 ordered to stand part of the Bill. Clause 18 Making false records etc Mr. Howarth: I beg to move amendment No. 5, in clause 18, page 8, line 20, after “law”, insert
The Chairman: With this it will be convenient to discuss amendment No. 6, in clause 18, page 8, line 27, after “law”, insert
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