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The noble Lord said: In moving Amendment No. 24, I will be particularly interested in the debate on Amendment No. 25, in the name of the noble Lord, Lord Thomas of Gresford, which in some ways is related to the same ground. I indicated my concerns about the matters covered in this amendment at Second Reading. The Minister, who has been most responsive and helpful in taking up points made at Second Reading and elsewhere, did not at that stage apparently feel able to comment on this point. It will therefore provide an opportunity for him to say a bit about the matters under consideration.
Having served in the Armed Forces, albeit a long time ago, and been a Defence Minister, I am well aware of the gravity of desertion. It is a very serious offence, which can place lives in jeopardy and undermine an operation. Particularly in these days of highly developed technology, the absence of a key person at a particular time could be of critical significance. I have no argument whatever about spelling out the gravity of the offence of desertion in the Bill. I believe that if one recognises the gravity of desertion, it is therefore important to have severe penalties. We can argue about what those penalties should be when we have an opportunity to look at that a little later in our deliberations, but there should be a severe penalty.
My amendment simply proposes that, if the offence is grave and the punishment severe, it should be clear beyond doubt that whatever the service man or woman is being asked to do is proper and lawful. I suspect that my noble friend will say, “What on earth is the point in putting in the word ‘legal’ because, by definition, anything that a serviceman will be asked to do by our Government would be legal?”. Of course, that argument can be turned on its head: if anything that anyone may be asked to do is obviously legal, it would be quite harmless to put the word “legal” in the text just to underline the point.
We live in an age of volunteer services. People join the services of volition. Once they have done so, they have agreed by definition to do anything required of them by the Government. It is therefore more important than ever to underline the significance which we, in making the law, attribute to this form of service and that we are absolutely determined that no one providing this form of service should be put in any kind of difficulty or legal risk.
We heard earlier of the importance and significance of the Attorney-General. It has been argued that once the Attorney-General has given his advice to the Government, we all gather round and endeavour to make a success of the Government’s decision to undertake an operation, if that is their decision in the light of what the Attorney-General has said. Of course there is a difficulty here because the only people who know what the Attorney-General said are the Government, and they decide whether we are going to go into action. Members of this House do not know, the other place does not know, servicemen do not know and the general public does not know. It is therefore important to underline the significance of what is being done and to ensure that in the preparations for action, the seriousness of the
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However, times have moved on and no one could argue that anything the Armed Forces are being asked to do now is in any way beyond the law. That is because, for example, the United Nations Security Council has quite specifically endorsed the action being taken at this point. But there were arguments at an earlier stage.
For all those reasons, and because of recent experience, this is a good opportunity to underline for all to see that in preparing for military action, legality is of the utmost importance, and that it is put into the Bill. I was startled when I read Clause 8 because it seems that actions or operations against an enemy are fairly clear cut: operations outside the British Isles for the protection of life and property are utterly commendable; but then, suddenly and baldly, with no qualification and no detailed explanation, are the words,
If desertion is grave and the penalties are to be severe, we owe it to our servicemen to underline that, in this context as well as any other, anything they are asked to do will be beyond any doubt lawful and legal. I beg to move.
9 pm
Viscount Slim: I am sorry that the noble and gallant Lord, Lord Bramall, is not in his place. When I was a very junior officer serving abroad, I was sent to a certain minor unit because there had been some desertions and it was feared that there would be a mutiny. I am not a legal man clever enough to make the law, but what I can say is that you should not pussyfoot about with the two words “mutiny” and “desertion”. You should not funk coming clean in what you write. The noble Lord, Lord Thomas, was absolutely right and put it more diplomatically than I could when he suggested that you had better face up to it and not be frightened of writing it down. Through his amendment the noble Lord is seeking to put this in the Bill.
I would ask the Minister to take some further advice. These are frightening words and advisers sometimes funk them. The noble Lord, Lord Judd, was right to say that these are terrible words. He was once a Defence Minister and he understands how important they are. I do not know whether it is right to put in the word “legal”, but even if a war is illegal in the eyes of some, it is still no excuse for a unit to desert or mutiny. This is an area where I would again urge the Minister to seek advice. I am not saying that
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Lord Thomas of Gresford: I am grateful to the noble Lord, Lord Judd, for continuing the debate that we had on Amendment No. 14, in which I also said something about Amendment No. 25. My noble friend Lord Garden will speak to Amendment No. 26. As to Amendment No. 27, we have yet to hear from the noble and gallant Lord, Lord Craig. I commend him for producing a clearer definition of “desertion” than appears in the Bill. No doubt we shall hear how that is put in due course.
In our earlier debate I was interested, if not startled, to appreciate what was said by the noble and learned Lord, Lord Mayhew of Twysden, about the fact that the Attorney-General determines the legality of a war and cannot be questioned in the courts. The noble Lord, Lord Judd, has made exactly the point that I would have made: nobody knows what his advice was. It was hotly debated; it was advice which was required at the time by the Chief of the Defence Staff, who is in his place. He was not prepared to order the advance unless he had the assurance that the invasion was legal. Noble Lords will recall that, in the end, it was the decision of the Prime Minister. Having taken advice, he decided that the invasion should commence. It was an exercise of the Royal Prerogative.
Is that the end of it? That is the issue we are facing. Is no one able to question the decision of the Prime Minister, advised as he is by unknown advice from the Attorney-General as to the legality of an invasion or, in the context of the amendment of the noble Lord, Lord Judd, the legality of a military occupation of a foreign country or territory? That is the area I have been seeking to explore with both Amendments Nos. 14 and 25. It must be possible for a person charged with an offence of desertion to say, “Well, I was being asked to participate in something that was entirely illegal”. Surely he can argue that. He may not succeed—he is unlikely to succeed—but surely he can put forward that argument.
I have already expounded at some length on this topic and I shall not weary the Committee any further because I want to come back to it on Report. As I say, I support the noble Lord, Lord Judd, in his amendment.
Lord Garden: My Amendment No. 26 relates to the maximum sentence available for desertion. I agree with what all noble Lords have said about the seriousness of the offence, but the punishment—life imprisonment—is very severe.
At one of our helpful briefings with the Bill team in June, I was interested to know how often we charged people for desertion and what penalties were awarded. Are many people serving life because they have deserted? The Minister was kind enough to write to me on 13 June with the recent statistics, which are sparse: not many people are charged with desertion.
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The Minister was right to reassure me that we hardly ever used life imprisonment as a punishment for desertion. We measure it in days rather than years. As the possible penalty is so severe, desertion is very rarely used, perhaps more rarely than it should be. Absence without leave tends to be used instead, which rather distorts our assessment of all sorts of things, because desertion can be a measure of morale within the services. So one offence, absence without leave, has a maximum of two years, and the other, desertion, has life imprisonment. I am not sure of the right level, but it should be less than life. For that reason, I suggest that 10 years would seem to say that this offence is serious, but we are putting it at a practical step up from absence without leave. I would happily argue for less than 10 years, but not more.
I fully support the amendment moved by the noble Lord, Lord Judd. It is useful. I agree that, technically, one could argue that we would not send the forces unless it were legal, but recent experience leads one to be slightly uncomfortable about that. I endorse everything said by my noble friend Lord Thomas of Gresford on that point.
I have received, as I am sure have other noble Lords, representations that the subsection that deals with military occupation should be dropped. It was slightly startling to read. It is a new concept in military law. When we discussed this at the Ministry of Defence, I accepted the argument that this narrowed the occasions on which one could be charged with desertion, but it is unfortunate that this particular phrase has been included given the sensitivities that still exist over the operation in Iraq.
9.15 pm
Lord Craig of Radley: I rise to speak to my Amendment No. 27. I find Clause 8 tortuous, with its reliance on the phrase “relevant service” used repetitiously and with a series of questionable definitions being used for it. The wording of the clause may be clear enough to the legally trained mind, but will not be clear to the average soldier, sailor or airman. The wording of my Amendment No. 27 is lifted almost verbatim from the Armed Forces Act 1971, which itself revised the wordings in the Army and Air Force legislation in 1955 and the Naval Discipline Act 1957. The current definition of desertion would be retained by my amendment.
The Minister should explain to the Committee why it was thought necessary in this new Bill to introduce such a complex reworking of the offence and definitions of desertion. Some particular points of detail occurred to me. The 1971 Act refers to being “permanently absent from duty”, rather than as in
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rather than the more obscure phrase “outside the British Islands”. There is no definition in Clause 367 of British Islands, although I understand that there is one elsewhere in statute.
Then there are the somewhat surprising mentions of the protection of life or property and,
That starts to beg the question of whose life and what property. Would we really want to charge a person with desertion when the value of the overseas property to Her Majesty's Government may not be that clear to him?
Does “occupation” cover everything from the result of a large-scale successful invasion to a few servicemen being attached to a unit of the country or territory at the relevant authority’s request? I get the feeling that the draftsmen are trying to provide a wider set of possible offences of desertion than heretofore. The Committee should not give any ground to widening the possible misbehaviour for which someone could be charged with desertion. The Committee should resist that or at least seek a very convincing explanation from the Minister.
This is meant to be a probing amendment to help the Committee to understand the reasons behind the present tortuous drafting for this very serious offence. The only other point to which I should wish to draw the Committee’s attention is that, in my amendment, I have sought to restrict the possible life sentence to,
I question whether a sentence of life imprisonment would be appropriate if the person was on operations for the protection of property, for example. Surely the key issue is whether the person fails to support or lets down his colleagues when they are on operations against the enemy rather than the role of the particular operation. While seeking to spell out a number of possible operational tasks—for example, the protection of life or property—another task, in which the person’s contribution may be vital to the safety of a colleague, might not be covered.
Incidentally, the definition of property in Clause 367, at the bottom of page 185, may again be clear to the legal mind but is not clear to me. Would it include mobile homes or temporary structures? Are vehicles included as property? I recall some tortuous restrictions in the Armed Forces Act 2001 affecting the activities of service police in relation to property. For example, it restricted them to:
“If a person is in a garden or yard occupied with and used for the purposes of a dwelling or of any service living accommodation”,
and then there were the restrictions on what he could do.
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Apart from legal niceties, what is the practical distinction between heritable property and real property? The former seems to apply only in Scotland, which is not—or at least not yet—a foreign country. I doubt whether the potential deserter would have a clue. It may be claimed that the manual of service law will deal with such questions, but this is not a good enough excuse for having any clause in the Bill such as the present Clause 8, that is so tortuous and opaque beyond reason.
Baroness Dean of Thornton-le-Fylde: I have difficulty with Amendments Nos. 24 and 25, because I have difficulty following the logic of what is being said. The amendments seem to have been proposed because of a situation that arose in Iraq. To listen to some of the contributions, one would have thought that a decision was taken in isolation and that we had no debates in here or any debates or votes in the other place, both of which are patently incorrect.
I have difficulty with these amendments because by placing in the hands of a deserter the defence that they believed sincerely that the operation they were involved in was not legal—and I think we are all agreed just how dangerous that can be within the services—when that defence is used at a court martial, we are actually asking the court martial to decide whether the operation was legal. Frankly, I do not think that is the authority of a court martial. If our objection is that there was no formal parliamentary decision to go into Iraq, in this case, and that is not sufficiently democratic, how can we then give a court martial tribunal the authority to say, “Your defence is sound. This was not a legal action”? I have never been a serviceperson myself, but I have a lot to do with the Armed Forces of all three services, and I think this is an invitation to break down discipline, not to support it.
On Amendment No. 26, I am very unhappy about the retention of life sentences for desertion. I referred to this at Second Reading, after which the Minister gave me some statistics. On the one hand they helped, because I thought, “This is not a dangerous clause because it’s not used, and if it is used, it’s used responsibly”. On the other hand, however, if it is used so little, why do we need it?
I feel strongly about this. We are talking about the whole area of discipline. Clause 11, “Misconduct towards a superior officer”, including violence towards that officer—an extreme example of discipline breaking down—provides a maximum sentence of 10 years. Clause 12, “Disobedience to lawful commands”, also provides a 10-year maximum sentence. We are talking about proportionality, and it is not proportionate to issue a life sentence for desertion. I am extremely pleased that the Bill separates out absence without permission and straightforward desertion, because people could have been caught if it had been left as it was, but I would like to hear what the Minister has to say about the retention of life sentences for desertion. I support Amendment No. 26 from the noble Lord, Lord Garden.
Lord Thomas of Gresford: Before the Minister replies, I would like to make it absolutely clear that my Amendment No. 25 does not make it a defence
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I rather agree with the noble Baroness that a court martial is not necessarily the best tribunal to decide the legality of a war. However, beyond the tribunal there is the Courts Martial Appeal Court, and beyond that is the Appellate Committee of the House of Lords, soon to be the Supreme Court. Through that route it is possible to obtain the views of the highest judicial authorities. As it is the decision of the Army, or of the new prosecuting authority, to deal with a defendant through a court martial, there is no other way he can challenge the validity of the operation he was asked to participate in.
I am sure the noble Baroness will remember that I was not referring simply to the wholesale invasion of Iraq, but possibly to a person refusing to take part in an operation within an invasion that might transgress the laws of war. These are rather wider issues than she was considering when she gave her views a moment ago.
Baroness Dean of Thornton-le-Fylde: I am not a lawyer but my interpretation is that this matter constitutes a rose by any other name. The example concerned a medical officer who said that he was not going to Iraq, although I do not know how that offends against the Hippocratic Oath. But we are now saying that we would not expect a court martial to decide the matter and that the person has to prove his case. It could go right up to the Supreme Court. Are we now saying that the Supreme Court can decide whether an operation is legal, or Parliament? I know which I prefer: our democratic process.
Earl Attlee: The noble Lord, Lord Judd, was very beguiling with his amendment about the word “legal”, but I repeat that I do not believe that junior members of the Armed Forces are qualified to determine the legality of a military operation. I strongly agree with many of the comments of the noble Baroness, Lady Dean.
Some options are available for members of the Armed Forces who do not agree with an operation. They can apply for premature voluntary release or resign their commission. There is, of course, the snag, with which someone will hit me very shortly—that they might be time barred, so that they cannot apply for PVR or resign their commission. But that would mean that they had been on an expensive and long course and had probably served some time in the Armed Forces and had drawn a salary all that time. Therefore, I resist these amendments.
Lord Thomas of Gresford: I hope that the noble Earl will forgive me if I mention that the person to whom I referred sought to resign but was not permitted to do so. He had also previously served in Iraq and had studied the legal advice to Ministers in so far as it was available to him.
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Earl Attlee: I was very tempted to ask about that case and I thought that the noble Lord would intervene in the way that he did. I was not aware of the precise details. That person cannot resign to avoid a particular operation, which I think is absolutely right, but he could resign at some point, or he could have resigned ages ago. He took the risk when he took the Queen’s Shilling. He accepted all the training that he was given, but when asked to serve he decided that he did not want to do so.
Lord Mayhew of Twysden: It is difficult not to be repetitious in dealing with this group of amendments, which goes to the question of whether a serviceman can question the legality of the war or of an operation in which he is asked to take part. I probably shall not avoid that difficulty, but I believe that the noble Lord, Lord Thomas of Gresford, is wrong to think that it is impossible to determine the advice of the Attorney-General.
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