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Lord Judd: I wish briefly to intervene to associate myself most strongly with the observations of my noble friend Lord Williams. It seems to me that the issue which we have always to keep in mind when considering this crucially important issue is that the armed services are there to defend what makes Britain a democracy worth living in. Faced with this issue in all its manifestations in our national and civilian life, Parliament has decided that the death penalty is inappropriate and indeed wrong. While of course we must respect those who carry the tremendous responsibility of leadership in the armed services on our behalf, it is unfortunate that on this issue the armed services do not reflect what has become seen as appropriate in civil life, not least in the context of civil terrorism or in the context of what might happen in a disciplined civil service--the police, the fire service or indeed in a civilian airliner or a ship at sea. In those contexts there is food for thought. I hope that the noble Earl will not rush into absolute outright rejection of the points that the noble Lord, Lord Mayhew, has so vigorously and rightly made in his intervention.

While it is of great importance that we should take seriously the responsibility and views of those we place in uniformed leadership of our armed services, it is nevertheless we who have to decide whether or not the death penalty shall apply--we in Parliament. That is not a responsibility we can pass on to others. I therefore associate myself with all that has been said by the noble Lord, Lord Mayhew, and indeed by my noble friend Lord Williams.

Earl Howe: I understand the points that the noble Lord, Lord Judd, has just made, and, as I said, these are matters which give rise to very strong feelings on both sides. I believe that at least some of the concerns that the noble Lord has expressed are reflected in the revised procedures in the Bill relating to review and appeal.

The Bill removes the current provisions which could allow executions to be carried out without review or appeal if the confirming officer under the present system judged that to be essential for the safety of the force. In future, as the Bill proposes, any death sentence would have to be approved by the Defence Council itself, which would review the case automatically, whether or not the accused had put in a petition. There is also a new right to appeal purely against the sentence, and the sentence would be stayed pending any appeal or the expiry of the time limit for making an appeal.

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The Bill contains all sorts of other safeguards. I believe that that is not only a major step forward but that it should also give comfort to those who, like the noble Lord, are fearful that a death sentence might be carried out in times of extreme stress without the individual concerned having any right of review or appeal. That is not the case under the Bill.

Lord Williams of Mostyn: Before the Minister sits down, may I deal with two specific matters? I am most grateful for the clarification that he has given. First, the noble Earl said specifically that an undertaking had been given in another place that no death sentence would be carried out in peacetime. That inevitably means that in peacetime the Army's judicial process will have aspects of complete artificiality--I do not want to use the word "charade" in such a serious context--because according to what the Minister has just told us all those taking part, even if a sentence of death were imposed, would know that there would be an automatic striking down of the sentence.

Secondly, when the noble Earl speaks of "peacetime", does he mean that in the rather technical sense--that is, if there is no formal declaration of war, no sentence of death will be carried out?

Earl Howe: To take the second point first, it is often said that as war is rarely officially declared nowadays, the dividing line between wartime and peacetime is insufficiently distinct for purposes such as this. However, I believe that most of us know the difference between war and peace, and the government of the day would obviously need to apply a practical approach to what circumstances constituted "peace" and what constituted "war". The noble Lord has made a valid point, but it is a slightly academic one in the circumstances.

The noble Lord's first point related to the undertaking given by my right honourable friend Sir Archibald Hamilton five years ago. I do not think that that undertaking gives rise to any artificiality. It is, however, the case that the post-trial review would automatically strike out a sentence of death in time of peace. I do not believe that that devalues the procedure of the court martial in any way--rather the opposite. In fact, the existence of the death sentence will underline the gravity of the offence concerned. It is a matter of the procedure that we have undertaken to adopt. Given that cases of this kind will be extremely rare in any event, I hope that the noble Lord will not consider that the point that he has made will in practice give rise to any unease.

Lord Williams of Mostyn: All procedures depend on specifics. I asked my question expecting the unambiguous answer that peacetime means the absence of the declaration of war. What is to be the position, for instance, of Her Majesty's forces who serve in Bosnia, or soldiers aboard one of Her Majesty's vessels who are in circumstances that people would not describe as "peaceful" but where there has been no declaration of war? If there is to be further consideration of the true ambit and nature of Sir Archibald Hamilton's undertaking, I am content to receive a letter from the

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Minister, if that is of assistance, but I do not believe that something as important as this can just be brushed aside on the basis that we all know what "peacetime" is.

Earl Attlee: How would the Minister describe Operation Granby in the Gulf and Operation Corporate in the Falklands? Were they peace or war?

Earl Howe: It is not only for me to decide such things. It would be for Ministers as a whole and no doubt for the Defence Council as well. I believe that the judgment of the man in the street would be that the Gulf conflict was a war, as indeed was the conflict in the Falklands.

Lord Kennet: I am sorry to prolong this debate. It seems to me that the Minister has just installed the man in the street in a judicial position involving life and death. If the existence or not of war is to be left to the judgment of the man in the street, what else may not be left to the judgment of the man in the street? Should we not abolish the penal code forthwith? I am not being flippant. The Falklands war was never declared; that is why it was called the Falklands conflict throughout. There were situations that could easily have involved mutiny, and perhaps did. I need go no further. All Members of the Committee will remember. If a soldier had disobeyed orders in such a way as to endanger his comrades in that conflict, according to what we have just been told by the Minister, he could not have suffered the death penalty.

Earl Howe: I mentioned the man in the street merely to make a point. To revert to what the noble Lord, Lord Judd, said, the Armed Forces are defending the values of our democracy and the values of ordinary people. It would be extraordinary to the ordinary man if the Defence Council were to find that a conflict such as the Gulf conflict was not a full-scale war. But we are in the realms of hypothesis and I do not accept the noble Lord's contention that ordinary language is somehow invalid.

I shall gladly write to the noble Lord, having reflected on these exchanges, because they are clearly matters of importance. I still believe that the arguments that I advanced for separating civil law from military law in this matter are not only valid but extremely compelling. I shall need quite a lot more persuading by Members of the Committee if I am to be deflected from my proposed course.

The Earl of Clanwillian: Can the Minister say whether the articles of war were read to the Armed Forces at the beginning of the Falklands incident or the Bosnia operation? If articles of war are read, presumably the Armed Forces are in a state of war.

Earl Howe: I cannot answer my noble friend on that point, but I shall certainly look into it because it is a very valid question.

Viscount Slim: I get the slight impression that some noble Lords feel that mutiny is rather like a strike. There is a grave difference between mutiny and going on strike. Mutiny puts lives at risk. It puts a strategy or a

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tactical battle at risk. It puts the lives of many people at risk and it damages a nation, or can do, with the consequence of a loss of a battle or a loss of a particular tactical site or space of a battle. Also, going across to the enemy is not just a matter of changing your political colour or your political allegiance. Giving information to an enemy is treason, whatever you feel about it.

I have great sympathy with the noble who has seen much action and understands these things. I wonder whether we could do more than say that "life" means 15 years but you are out in seven; I wonder if we could do something that is more in line with what the noble Lord said about a sentence of 42 years. I am trying to be helpful here.

Although the noble Lord, Lord Judd, is quite right that Parliament makes the laws and the rules, Parliament also sometimes makes mistakes. I believe that we should listen to the wishes and inclinations of the chiefs of the defence staff on this matter. I see a middle way in all of this, and I urge reflection. At present, I have to side with the Minister because, with great respect to the discussion that we have had so far, not enough thought has been given to the military consequences. I would therefore urge some deep reflection. I believe that there is a way out of this, a middle way, and I hope I hear it later.

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