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The clause tries to specify tasks. Once you start writing down tasks, as opposed to concepts, you potentially get into difficulty. The task of protecting property or life worried me, particularly when you consider the confusion about the definition of “property” in the Bill. So I was not happy about the use of the word “property” in Clause 8. I shall not dwell tonight on other points, other than to say that at present I am not at all satisfied. I shall not press my amendment at this stage and will consider carefully what the Minister has said.
Lord Judd: I am grateful to all noble Lords who participated in this interesting debate. Given the observations made, the drafting of Clause 8 leaves something to be desired, and it would be helpful if my noble friend could agree to think about some of the things said and about how the clause could better meet the anxieties expressed.
I have not put my name to the amendment tabled by the noble Lord, Lord Thomas of Gresford, and I was not consulted on it, but an interesting point has been made. If the law states that a service man or woman has a duty to refuse to carry out an unlawful order—and that is how I understand the law—something is missing if subsequently that service man finds himself subject to legal proceedings and cannot even argue that he believed he was doing what was required of him if the order had indeed been unlawful. The amendment is not asking the court martial to rule on the legality of the war; it is asking it to listen to the service man’s case for what he decided to do.
24 July 2006 : Column 1638
I have unlimited respect for so much that my noble friend Lady Dean has done in public life, not least the tremendous amount of work that she has done for the armed services, ensuring good conditions and the rest. She has a proud record of service. However, I put it to her that providing a simple reassurance in the Bill for those considering undertaking service that anything that they are required to do is legal will strengthen morale and strengthen discipline, because it will be explicit—not implicit—that what they are required to do is legal. That is important.
The other consideration is that this and an earlier debate revealed a strange dichotomy. We are prepared to consider the position of a service man, in the context of a court martial, who has refused to undertake a specific order because he believes that that order was unlawful.
I turn to action that in itself may not be open to challenge in that way but which occurs in the context of a broader situation in which the whole operation in which the person is taking place is open to question. There is absolutely no opportunity to put that forward as a defence. It seems that there is a problem in this area—our debate has illustrated that there is—and it is terribly important that we all think about how it can be resolved.
9.45 pm
The Minister argues well and very convincingly at the Dispatch Box, and I am glad to have him as a noble friend in that regard, but he said one thing that troubled me and which needs more thought. He seemed to imply that although we were committed to the international rule of law, there might be situations in which we knew that the international rule of law could not endorse what we were doing—but that by some subjective interpretation of the law it was okay. This is a very big issue. I do not believe that the rather casual drafting of Clause 8 begins to face up to some of the profound issues that are involved. The issue needs a lot more attention. I have listened to the Minister, who does argue well, and I want to go away and think about this debate. I hope that he will feel able to go away and think about some of the big issues that have been raised here and not just shut the door. If there is a mutual position of reflection, I am happy to withdraw my amendment at this juncture.
Lord Drayson: I am grateful to my noble friend, who presses me to indicate whether I am prepared to reflect further. In drafting Clause 8, our intention has been to modernise and clarify this area of legislation. Some very important points have been made in this debate and I will certainly go away, study Hansard very carefully and reflect further in this area.
Lord Judd: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 25 to 27 not moved.]
Clause 9 [Absence without leave]:
24 July 2006 : Column 1639
Lord Drayson moved Amendment No. 28:
The noble Lord said: I shall speak also to Amendments Nos. 29, 30, 50, 51, 54, 55, 56, 57, 69, 87 and 88. These are government amendments to Clauses 9, 24, 31, 33 and 58. I hope that I am able to deal with the amendments to Clauses 9, 24, 31 and 33 pretty briefly; that is, all the amendments I have referred to except Amendment No. 69, which I will come back to in a moment. I have recently written to noble Lords to explain these amendments in more detail, but I can confirm that they are intended only to simplify the clauses without making any changes to their substantive effect. In the circumstances I urge noble Lords to accept them.
On Amendment No. 69, Clause 58 imposes a six-month time limit in which to prosecute civilians who cease to be subject to service law. Subsections (5) and (6) of Clause 58 create an exception to this. Some civilians are subject to service discipline by virtue of the fact that they reside or work in a particular geographical area. The exception is necessary to ensure that the six-month time limit does not begin to run simply because the civilian temporarily leaves the geographical area in which he or she resides.
However, civilians can become subject to service discipline for reasons other than the fact that they live or work in a particular geographical area. The amendment is necessary to ensure that this exception applies to all civilians who are subject to service discipline but who may temporarily cease to be so subject. I urge noble Lords to accept the amendment.
Lord Thomas of Gresford: I have a considerable objection to the groupings. I have no right to complain, because I was not here to object to them at the proper time, but these are disparate matters that cover some important points. Government Amendments Nos. 28, 29 and 30 seem to be simply drafting amendments to clarify the offence set out in Clause 9, and, as such, I have no problems with them. However, with Amendment No. 50 we enter a different area altogether, as we do with Amendments Nos. 54 and 55.
With Amendment No. 50, the offence set out in Clause 24 is redrafted significantly—it is not just a case of putting the clause in better language. As originally drafted, the offence is described as follows:
- “A person
subject to service law commits an offence if ... without lawful
excuse, he does an act that causes damage to or the loss of any public
or service
property”.
- “A person
subject to service law commits an offence if ... without lawful
excuse, he does an act that causes the hazarding of any of Her
Majesty’s
ships”.
24 July 2006 : Column 1640
With Amendment No. 69, we move to a completely different area. We are dealing with the status of persons who are civilians subject to service discipline and the time limits that apply to them. This is an important matter. It certainly featured in the case of Martin, to which I referred earlier. He was the son of a serving soldier but, by the time he came to trial by court martial for murder in Germany at the age of only 17, his father had ceased to be a serving soldier. However, he was caught by these provisions in the previous Act, under which he continued to have responsibility to face a court martial. So very practical issues are involved here, and I do not think that we can give Amendment No. 69 the proper scrutiny that it deserves, along with the other, disparate matters that the Government have included in this grouping.
Amendments Nos. 87 and 88 appear to apply to Schedule 2 and dangerous flying. We have moved from the offence of hazarding of ships to dangerous flying. This is not the way in which to conduct business. I apologise that I did not have the opportunity to object to these groupings when they came before us. I urge the Government that in future proceedings a series of amendments are not put together just because they are government amendments that go through on the nod without proper consideration anyway. I respectfully suggest that that is not the proper approach.
Lord Garden: I support my noble friend. While he was not available, I objected to the groupings on Friday because they were so disparate. The only common feature seemed to be that they all had a “g” in front of them, but the groupings made for rather odd debates. As we look forward to continual long nights in this Committee stage, it would help the debate if we could try to keep the subject of groupings reasonably consistent.
Lord Drayson: I am grateful to the noble Lords for making that point, and I shall take it on board in the spirit of the debate that we have enjoyed tonight and for future stages of the Bill.
On Question, amendment agreed to.
Lord Drayson moved Amendments Nos. 29 and 30:
On Question, amendments agreed to.
Clause 9, as amended, agreed to.
Baroness Crawley: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
- House adjourned at
three minutes before ten
o’clock.
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