Armed Forces Bill |
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New Clause 15 Act or omission in execution of law
Brought up, and read the First time. Mr. Burrowes: I beg to move, That the clause be read a Second time. The theme of new clause 15 is similar to that of the previous new clause. We are seeking clarity when dealing with such issues. The new clause would create an absolute defence against conviction for a service offence in two circumstances—actions in the execution of the law, and obedience to a lawful order or an order that reasonably was seen to be lawful. The Minister might recall an interesting and useful debate with my hon. Friend the Member for Salisbury (Robert Key) on new clause 5 which concerned commands and orders for a service offence to be committed. The point that was made well by my hon. Friend was that there is a need to ensure that our servicemen and women trust that the orders that they are given are lawful. I am sure that the Minister remembers assuring us that the new clause was not necessary by making reference to criminal law in which it is an offence to incite a person to commit a criminal offence. There is a requirement that a command is lawful in order to protect the serviceman from being ordered to take part in unlawful activity. The new clause seeks to take it further by protecting our servicemen and women in other situations. Proposed new paragraph (a) covers, for example, a case where a service policeman has broken standing orders in respect of a speed limit in the pursuit of a suspect. Proposed new paragraphs (b)(i) and (ii) protect a serviceman or woman who follows a lawful order or an order that could reasonably be seen to be lawful. Proposed new sub-paragraph (ii) does not seek to protect someone who commits serious offences: it does not create a Nuremberg defence. It does, however, protect the servicemen or women who, in good faith, follow an order that is subsequently found to be unlawful. We would be failing in our duty if we left it up to our servicemen and women to pause for thought to debate the development of domestic or indeed international or European jurisprudence before following an order. Mr. Touhig: I recognise that the proposed new clause reflects a genuine concern that a soldier might somehow be found guilty of a crime where there is no real fault on his part. I suspect that the hon. Gentleman believes that this is the case, particularly where members of the armed forces have to make split-second decisions in the heat of battle. I understand those concerns, but I do not believe that they justify the acceptance of the new clause. Proposed new paragraph (a) provides a defence where a person acts
I confess I am not clear whether it seeks to excuse a person who acts with a lawful excuse or one who acts because he is engaged in some form of law enforcement. I think it must mean the second of these, as, if a person has a lawful excuse for his action, he is not guilty of a crime, so I take it that it refers to conduct carried out during law enforcement. I recognise that law-enforcement tasks are sometimes dangerous and require quick thinking under pressure, but even in those cases a person cannot be above the law. In such circumstances the law decides whether a person’s conduct was lawful on the basis of how that person saw the situation. Even if he misread the situation, the law will not condemn someone who responds reasonably to circumstances as he sees them. I do not really understand the second case. An order will not be lawful if it requires a serviceman to commit a criminal offence. If it does not require him to do anything illegal, but he decides to carry out the lawful order in a way which is unlawful, he should rightly be guilty of an offence. A soldier may be ordered to capture a town: the order is lawful, but that does not mean that he can do anything to help him capture it, such as killing prisoners or civilians. The third case covered by the clause is where a person is ordered to do something that is unlawful, but he does not know it and could not reasonably be expected to know it. It is impossible to think of any serious offence where those facts would not provide a defence. For example, a soldier is ordered to fire on a target which is not a lawful target, but the soldier is not aware that the target is unlawful and there is no reasonable ground for expecting him to know that. I understand that in such a case he would have committed no offence. Our service personnel do not and should not operate within a legal vacuum here or elsewhere in the world. Indeed, it is a hallmark of the respect in which our armed forces are held around the world that they operate within the law. Introducing this new clause could therefore diminish the high regard in which they are held. The hon. Gentleman may consider that a more appropriate method of protecting our personnel is to ensure that they fully understand what they may lawfully do and not do when carrying out their duties. That is why our personnel receive thorough training on how they may carry out their duties and this includes training on the rules of engagement that apply in different theatres, a point that we touched on earlier this morning. I know that we hope soon to watch the video that we have discussed which may give a better understanding of how our people are being trained and give instructions on how they may operate in the circumstances. Mr. Burrowes: I am grateful for the Minister’s response. I tabled the new clause in order to probe and I will not press the matter. I beg to ask leave to withdraw the motion. Motion and clause, by leave, withdrawn. 12 pmNew Clause 23 British Armed Forces Federation
Brought up, and read the First time. Mr. Jones: I beg to move, That the clause be read a Second time. I apologise for my earlier absence. My name was on the Order Paper for Treasury questions. New clause 23 allows for the formation of an armed forces federation, which would be open to all serving and retired members of Her Majesty’s armed forces, both regular and reserve. If the new clause is accepted, we will see large trucks of smelling salts going up Whitehall towards the Ministry. Nevertheless, there is now a groundswell of opinion, among the public as well as the armed forces—there is certainly one among the people whom I have spoken to in the armed forces in North Durham—that there is a need for an independent voice to represent their interests. Operation Telic raised issues about kit on which the Defence Committee took evidence. Issues also arose earlier in the debate about bullying and matters affecting the welfare of armed forces families. There is now also a need for independent legal advice for members of the armed forces. In the previous Parliament, it became clear, when the Defence Committee produced its report on what became the Armed Forces (Pensions and Compensation) Act 2004, that there was a need for armed forces personnel to have a say about their terms and conditions of employment. What I propose is not a trade union, but a federation along similar lines to the Police Federation. The idea has already been raised by several Members in the other place, and is increasingly being mentioned by rank-and-file members of the armed forces. It is not anathema to other armed forces around the world. Both the United States and Australia have such federations. The Australian federation is an independent voice on pay and allowances and represents members of the armed forces on employment issues. It gives legal advice and financial assistance and advice and allows also for discounts and savings schemes nationally for members of the Australian armed forces. The federation is controlled and structured by its members and is supported by the military establishment in Australia. In a foreword to its handbook, Air Chief Marshal Houston says:
He acknowledges the federation’s “ongoing commitment and contribution” to Australia’s armed forces. Some members of the Committee—I cannot imagine who—might think that the idea is advocated by foreigners and dinosaur trade union officials like me, but perhaps I can also quote Tim Collins, a former colonel of the 1st Battalion, the Royal Irish Regiment, who said:
An interesting website that I discovered the other day, which I am sure is closely monitored in the Ministry of Defence, is the Army Rumour Service, which is quite amusing in parts. I shall not bore the Committee with a long list of the various gripes and complaints to be found there, but shall mention two. They come from ex-servicemen or serving servicemen. The first extract reads:
which are now so evident that they need some form of representation. The second extract reads:
There are clearly calls from the rank and file for an independent voice of some kind. I cannot leave the Committee without finally trying to annoy the hon. Member for Aldershot, so I dug out a report on the human rights of members of the armed forces, from the parliamentary assembly of the Council of Europe, which mentions
and states that it
I am not saying that I necessarily agree with everything in the report, but it adds to the debate. I have become a realist on the Bill. I do not expect that the new clause will be warmly welcomed by the Minister, but it is an important issue that we need to debate. Mr. Breed: I rise to support much of what the hon. Gentleman has said and to add a little more. I was on the Committee that discussed the Armed Forces (Pensions and Compensation) Act 2004. We discussed how something like a federation could have contributed. I mentioned that at a Royal British Legion meeting yesterday in the Attlee Suite. It was quite clear that when that Act comes into force tomorrow, the way in which compensation claims may be pursued might have a significant effect on servicemen, particularly in potential costs. That was taken into account by the Royal British Legion. From time to time over the past nine years or so, serving officers have come to see me, as have their partners or spouses. One wife of a serving officer said that her husband had been waiting for surgery for a considerable time. It was affecting the family and his service significantly, yet he forbade her to go anywhere near the service or to make a complaint because he was frightened to death that that would affect his service. She came to me without her husband’s knowledge because she felt that they should at least be able to go independently to someone to pursue the grievance without the need to go through the usual channels. The evidence that we have heard fairly recently following Deepcut showed that although a great deal of work is done by WRVS, the chaplaincy and others, for which they deserve tribute, there is a growing tendency, which will arise from time to time—perhaps it is not an issue for now, but the House and the Select Committee may want to pursue it more formally—to feel that a formal federation should be considered at some stage, rather than reliance on the Royal British Legion, WRVS, Daniel’s Trust and all the bodies that have grown up in response to need or demand. Sarah McCarthy-Fry: I shall not detain the Committee, but I am glad that we have the opportunity to debate the federation. When we were in Cyprus, I spoke to a group of service people who were keen that such a federation should exist. They gave me many reasons and many occasions where they felt that a federation would be useful. To pick up on the point made by the hon. Member for South-East Cornwall (Mr. Breed), there is obviously a need. We heard from Mrs. Farr of Daniel’s Trust about the number of calls it receives. I went to speak to the Soldiers, Sailors, Airmen and Families Association in Portsmouth about the number of calls it receives. The association’s website links to the Confederation of British Service and ex-Service Organisations and the Fleet Air Arm Officers Association. There is also the Naval Families Federation, the Royal Air Force Benevolent Fund, Royal Air Force Community Support, Soldier magazine, the UK forces website and the rumour website. People go to all sorts of disparate places to get independent advice. It would make a great deal of sense to have one body that was formally organised and able to build expertise. Although we are talking about serving and ex-serving military personnel, we have to consider the families who are left behind. I represent a naval constituency with many service families. The lifestyle issues are being picked up in the demands for a federation. They would not necessarily want to go to the chain of command with such issues; they do not think that it is necessary in an operational military context. However, if they could take their views somewhere else, that would be a great advantage. I do not think that we will reach that point today, but it is important that we put the matter on the table and pick up on it in the future. The other issue in Portsmouth is to do with the War Widows Association. Its members are very frustrated; there are three separate classifications of war widow, and some fall in the gaps between them, and they do not know where to go. One federation that picks up such issues would be very beneficial to my constituents, and to all serving and ex-service personnel. Mr. Howarth: First, may I say that I entirely share the concerns expressed in respect of the need to ensure that what might broadly be called the duty of care is provided to our armed forces and to their families? I represent a garrison town, which proudly proclaims itself to be the home of the British Army—that is still the case, notwithstanding some of the cuts made by this Government—and I understand some of the points that have been made. I do not wish my subsequent remarks to be taken as resiling from them in any way. When the Chief of the Defence Staff, General Sir Michael Walker, gave evidence to the Committee earlier in our proceedings, he warned that the creation of any kind of body dedicated to fighting for the rights of service personnel would undermine military effectiveness and weaken the chain of command. He argued that the chain of command would begin to break down if troops were able to refer to an outside body. When the hon. Member for North Durham pressed the general on that, the hon. Gentleman argued that the armed forces could not be treated separately from society at large. He said that they are
I understand his point, but I believe that it reflects a common misunderstanding about the armed forces held by many in civilian life. It is our view that the armed forces not only are different, but that they need to be different. No occupation in civilian life is in any way comparable to being in our armed forces. In how many other occupations can one be locked up simply for not turning up for work in the morning? Sarah McCarthy-Fry: Does the hon. Gentleman accept that, in Australia, there is an armed forces federation that is working well? Does he believe that the chain of command has broken down in Australia? Mr. Howarth: Comparisons are always potentially odious, and that comparison might be. However, I do not know the answer to the hon. Lady’s question, as I do not have sufficient experience of how the Australians organise themselves. What I do know is that there are only two major military countries who are making a serious contribution to the pursuit of liberty and the maintenance of stability around the world. The first is the United States, and the second the United Kingdom. To say that is not in any way to belittle the role of the Australians who, together with others, are making a big contribution. Of course, we can look at how other countries organise and seek to learn lessons where appropriate, but I think the Australians would be the first to accept that they are not involved on the scale that we are, and therefore that different conditions may apply. Mr. Jones: I am sorry but the United States has a very good federation system—I cannot remember what it is called—and, among other things, legal assistance is provided to individuals who have the kind of problems that have been highlighted in respect of Iraq. I also totally disagree with what the hon. Gentleman said about the Australians. They have been shoulder to shoulder with us in Iraq right from the start. Mr. Howarth: I did not say at any point that they were not shoulder to shoulder with us; that is a complete misrepresentation of what I said. I paid tribute to the Australian contribution. The Australians have been magnificent, and not only in Iraq; they have also been involved in East Timor and other places around the world, and I salute them. I am not convinced, however, that Australia provides us with an easy template to adopt. I have said that where others have something to offer us, that is fine. However, I understand that the system operated in the United States is not of the kind that the hon. Gentleman proposes. 12.15 pmI think that Committee members agree that we ask of our armed forces some of the most difficult tasks—we ask them to put their lives on the line more than people in any other occupation. Unlike in any other job, we train them to kill. For soldiers on deployment, it is a gruelling, 24/7 occupation that places physical, mental and emotional strain on those young men and women who are serving our country. The system of military discipline and law, together with the internal military welfare arrangements, through the chain of command, enable them so supremely effectively to meet such challenges. The hon. Member for Portsmouth, North (Sarah McCarthy-Fry) referred to SSAFA and various other organisations, and I am sure the Minister will join me in paying enormous tribute to the immense work that they do. However, the idea that they should, in any sense, be a substitute for the chain of command would fill them with horror, for that is certainly not their role, nor is it regarded as such. Their role is to support the chain of command, not to be opposed to it. I take the hon. Lady’s point about Mrs. Farr, who was a good witness. Indeed, she has suffered a great tragedy and has sought to make a positive contribution to improving the life of our servicemen and women as a result of it. In fact, she paid tribute to the commanding officer at Catterick for his approachability, which suggests that, providing the chain of command meets the challenge it faces, there should be no need for a statutory armed forces federation, of which the hon. Member for North Durham has spoken. I am aware of similar problems in Aldershot to the ones encountered by other Committee members—my hon. Friend the Member for Salisbury is in the same boat—but not one of them has suggested to me that we need an Army federation to try to resolve these matters. Sometimes the Member of Parliament can unravel things that are otherwise blocked. I agree with the remarks on war widows made by the hon. Member for Portsmouth, North. Of course, if she had been a Member of the previous Parliament, she could have supported me in the work that my hon. Friends and I were doing on the plight of the war widows, who have been treated in very different ways, as she rightly said. I am conscious that time is marching on. This is an important issue. It is right that we address it, and I am sure that we will have an opportunity to do so further. Committee members will recall what General Walker said of other nations that have trade unions of the kind that the hon. Member for North Durham is proposing:
That is a powerful point. He continued:
As Lord Boyce has rightly said, we tamper with the chain of command at our peril. Such a body would leave the centuries-old system of military discipline undermined. A commanding officer needs to have complete command over his men, and a federation would undermine that system. I understand, as I said at the outset, that some serving and former servicemen and women might wish to have such a body. Certain issues—including overstretch and poor accommodation, which Nicholas Blake QC mentioned in his report yesterday, as well as shrinking tour gaps, cuts and the possibility that service personnel might find themselves hauled before a civilian court have undermined morale and left members of our armed forces feeling undervalued. I accept all that. However, these are matters that Ministers must and do ultimately accept responsibility for. They are not the responsibility of an armed forces federation. They are problems that are either created by Ministers or ones that they can resolve. It is ultimately for them to do so. I do not think I have ever quoted General Walker so extensively before, but he gave us important evidence:
We must not forget that extremely important point. Her Majesty’s armed forces are not a job creation scheme. They are about delivering military capability and they must be structured in the best way to do so. Mr. Touhig: I understand the concerns of my hon. Friend the Member for North Durham, who moved the new clause. Protecting the interests of members of our armed forces is, of course, a key priority for Defence Ministers and the service chiefs. I think that he and the Committee will have appreciated from the evidence given by the service chiefs how far they are prepared to go to ensure that that happens and how important it is. To that end, to monitor the welfare and well-being of our people, we commission regular surveys across all three services. They are confidential and ask questions on many things, including the state of accommodation, allowances and specific entitlements, and they also ask for views on subjects such as bullying, harassment and discrimination. They produce information about general satisfaction or dissatisfaction with life in the services, and we use the findings to shape and develop our policy. The welfare and well-being of our people, and safeguarding them, are an integral part of the duty of the chain of command—a duty that I believe is taken very seriously. When servicemen and women consider themselves wronged, they have a statutory right to complain, ultimately to the Defence Council. The Committee knows how the Bill will retain and strengthen that complaints procedure. Service personnel may join trade and professional associations, as well as organisations representing their interests, such as the Forces Pensions Society. The forces families’ federations represent the views of the wider service community. Those arrangements have evolved over time to meet the needs of servicemen and women. My hon. Friend the Member for Portsmouth, North mentioned the families’ federations and the widows association. I have close contact with all those organisations and I am hugely impressed by the tremendous work they do. They are a point of contact for information when service families, and servicemen and women, need to get help and advice. In sum, we do not consider there is a distinct role and need for another body in the shape of an armed forces federation. There are sufficient avenues for soldiers, sailors and airmen to express their views on matters that affect their service or welfare. However, we are not complacent, and continual monitoring allows us to improve and shape policy to the best advantage of the services. My hon. Friend the Member for North Durham expressed concern about how members of the armed forces can get help and advice if they need it. They can take independent legal advice; there is nothing to prevent them from doing so. He would confess that there are mixed views in the services about creating a federation, and particularly about a proposal to fund it by deductions from pay. We are not convinced that a federation is the right way to progress. We do not see such a body as one with which we would, or could, negotiate. My hon. Friend mentioned the British Army Rumour Service website—I will not use its colloquial name. We take notice of what is on it, and I am a regular visitor. Anyone who looks at the site will accept that even within the forces there are different views on whether there would be benefits from a federation. I do not wish to detain the Committee further. I understand the point that my hon. Friend makes. I hope that he feels I have given a reasoned response and that I have persuaded him to withdraw the new clause. |
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