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Lord Drayson: The noble Lord, Lord Campbell, raises an important point when describing the similarity between orders and the detailed nature of rules of engagement. He has also emphasised the point to which I alluded at the beginning of my response, which is the importance of the intent to do wrong. The noble Lord is right. We have heard on the Floor of this House as we have debated this issue in the past how in combat this may be a split-second decision made in very difficult circumstances. I remember vividly the description that the noble Viscount made to me earlier this year of a soldier going into a dark room, seeing a person and having to make a split-second decision that could cost him his life if he got it wrong. We understand those concerns. None the less, the issue is whether the person acted in combat on his view of the situation as I have described it and what his intent was in that situation. It is important to recognise that if he acts on his view, even if he gets it wrong, he has not committed a crime. Therefore, trying to use the rules of engagement framework, which is designed to enable our commanders to carry out an operation that may be extremely complex, as a document for protection under the rule of law—and so to combine those two things—would act in a way that was prejudicial to operational effectiveness.
It is important for us also to bear in mind the fact that in some cases we need to leave important decisions relating to these matters to the operational commanders in the field. I know that the commanders welcome this responsibility. The concern has been raised about whether our soldiers are clear about the rules of engagement. This is a matter that both personally and as a Minister I have asked soldiers about when visiting them on operations, and I believe that they are clear. One might say, “The soldiers would say that to a Minister”, but when one reads some of the reports of operational commanders coming back from theatre and their responses to whether they are clear about the rules of engagement, I believe that they are clear and I do not believe that we have a fundamental difficulty in this area.
If the rules of engagement were to have the force of law and provide an absolute defence, as is being suggested, they would have to take away what I have described as vital operational discretion. They would have to attempt to set out exactly how each commander and each soldier should respond to every situation. As the noble Earl said, losing that confidentiality would be prejudicial. It is also true to say that we would lose the ability to respond to the situation on the ground. The noble Lord, Lord Ramsbotham, made the point about the fluidity of situations and how they may change. That is absolutely true. We have heard also the noble and gallant Lord, Lord Inge, talk of the frequency with which the Defence Council meets. We must recognise that we need a process that enables the framework of the rules of engagement for a mission to be modified and adapted by commanders as they see fit in the terms as they find them when on operations. If we had to wait for revised rules of engagement so as to make them compliant from a legal point of view, that would of course delay the process.
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We must also recognise that the rules of engagement for a particular operation are supplemented by detailed guidance and are adapted for commanders as well as for soldiers, sailors and airmen according to their missions. We heard the noble Earl, Lord Attlee, describe the cards and we discussed them at the briefing meeting; they used to be yellow, as the noble Earl pointed out. We believe that commanders at every level well understand their responsibilities to ensure that those under their command receive appropriate guidance and training and understand the nature of their task. Commanders also understand when the cards, briefings, training and orders are the best way to achieve that. The cards are issued as guidance. A good example of this was the aide-mémoire issued to personnel deployed to Iraq during the Operation TELIC war fighting phase, which concerned duties towards prisoners of war and civilians under the law of armed conflict. I do not believe that rules of engagement drafted as the amendment proposes would make the individual any safer from prosecution. Rules of engagement can never flout the law. If compliance with them gave an absolute defence, the police, prosecutors and courts would have to analyse and dissect them to establish whether the individual service man or woman was guilty of an offence.
In conclusion, I genuinely believe that this amendment would be disastrous. It would tie the hands of our commanders and all our service people; it would not simplify the law and it would not simplify the sort of decisions that servicemen will always have to take in the difficult circumstances and situations that I have described. It would introduce legal encirclement where it does not exist now.
6.15 pm
Lord Garden: From what he has said, I do not think that the Minister intends to address my Amendment No. 62. However, I would be interested in his views on how this works when another nation is providing the rules of engagement and how we in the United Kingdom keep control over those rules.
Lord Drayson: I will deal with Amendment No. 62 because it is important. The noble Lord is absolutely right: we have situations where rules of engagement are provided for our service personnel operating, using the example that he gave, with the Predator. The amendment seeks to increase scrutiny of the rules of engagement of other countries where our forces act under them. These are unusual circumstances, but they do arise. UK personnel are permitted by the UK Government to participate in operations while embedded in the forces of another state. In that case, they may operate under the rules of engagement of that state’s forces.
Where UK personnel are acting under the rules of engagement of another state, we ensure that the legal basis for those rules and for the proposed targets is consistent with ours. Embedded UK personnel will be provided with UK guidance to ensure that they stay within the relevant UK domestic and international law, but the proposed amendment would require the UK to insist that other states turn their rules of engagement from an operational document into a
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Amendment No. 62A would provide that conduct does not amount to a service offence in three different circumstances: when the person was acting in the execution of the law; when his conduct was obedient to a lawful order; and when his conduct was obedient to an unlawful order that he did not know was unlawful and could not reasonably have been expected to know that. I touched on some of these issues at the beginning of my remarks in order to make the central point. I recognise that the new clause again reflects a genuine concern—in the Ministry of Defence we appreciate absolutely the genuine concerns over this issue; it is one that we think about and take a lot of trouble with—that a soldier might be found guilty of a crime where there was no real fault on his part. Although these concerns are justified, we believe that, in the context of the overriding responsibility that a soldier has to act, where he has acted,
subsection (a) provides a defence. I am not clear whether the clause 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 that it must mean the second of these, because if a person has a lawful excuse for his action, he is not guilty of a crime. Assuming that it refers to conduct carried out during law enforcement, I recognise that such tasks are sometimes dangerous and require quick thinking under pressure, as is the case on force operations. But in such cases, again, a person cannot be above the law. The law decides in such circumstances whether a person’s conduct was lawful on the basis of how that person viewed the situation. So even if a person misread the situation, the law would not condemn someone who had responded reasonably to circumstances as they saw them.
An order will not be lawful if it requires a serviceman to commit an offence, so I do not really understand the second case. If an order does not require him to do anything illegal, but the serviceman decides to carry out the lawful order in an unlawful way, then it is right that he should be guilty of an offence. Thus, where a soldier is given a lawful order to capture a town, for example, it does not mean that he can do anything to capture it, such as killing prisoners or civilians.
The third case covered by the new clause arises where a person is ordered to do something that is in fact unlawful but he does not know it and could not reasonably be expected to know it. I cannot think of any circumstances where a person charged with a serious offence on these facts would not have a defence. Serious crimes, including war crimes, require actual knowledge of the facts that make the act unlawful.
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I believe that this amendment would put our forces in a worse position than the law requires. For a war crime—and the same is true under international law—guilt depends upon actual knowledge. The amendment suggests that a person should be guilty if he might reasonably be expected to know the facts.
Service personnel do not and should not operate within a legal vacuum, here or anywhere else 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. But the law that governs their conduct and the defences that are available to them are, I believe, both clear and reasonable. This amendment would not help them. On that basis, I urge the noble Lord not to press Amendment No. 62A.
Lord Kingsland: I am grateful to the Minister for his reply and to all noble and gallant, noble and learned and noble Lords for their contributions. I am particularly grateful to the noble and gallant Lords, Lord Inge, Lord Vincent and Lord Craig, the noble Lord, Lord Ramsbotham, and the noble Viscount for their support for at least the principle of the amendment, if not necessarily the detailed drafting.
Between them they raised some very important points about contemporary warfare. The noble and gallant Lord, Lord Vincent, reminded us that we are dealing with a very different kind of foe from the one we dealt with in the 20th century. We are dealing with enemy soldiers who do not respect any principles of international law, while we are required to do so. This is a very different world from the one that we had only recently to cope with.
The noble and gallant Lord, Lord Craig, made an extremely penetrating intervention in which he reminded us of the importance of political commitment to our Armed Forces. We have seen some examples recently of politicians trying to distance themselves from some of the things that the Armed Forces have sought to do. It is absolutely critical for the morale of our Armed Forces that politicians are seen to stand four-square behind everything the forces do. In my submission, that would be one of the beneficial effects of these amendments.
Our soldiers are now operating in a world where we have an international criminal court and an international criminal convention, and where some other nations might take the view that we are engaged in unlawful warfare, making each soldier a criminal in everything he does. These are very uncertain times for our Armed Services and they need the confidence that we can give them by including this amendment on the statute book.
The noble Lord, Lord Garden, said one of the difficulties about an amendment like this was the question of proportionality. A lot of people think that proportionality was invented by the human rights convention; but the concept has run through our military law for hundreds of years. The principle is simply that a soldier has to use reasonable force. If, in any circumstances, a soldier uses unreasonable or disproportionate force, he contravenes the criminal law. That applies not only to the black-letter law but also to the rules of engagement. There is no difference.
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Lord Garden: I am grateful to the noble Lord for giving way. My only point is that subsection (7) states:
that the conduct falls within these rules. I wonder how proportionality works under those circumstances.
Lord Kingsland: The “absolute” refers to the defence itself. But, of course, if a soldier who operates within the framework of a rule of engagement acts disproportionately, he will not have that defence. That must follow, not from anything in the Human Rights Act, but from a very long-standing principle of the common law. In any service context the force one uses, whether soldier, airman or sailor, must be reasonable. That principle can never be removed. I suppose it is possible that a Government could remove it by statute, but I cannot think of any Government who would be foolish enough to do so. It underlies everything and would obviously qualify the application of any rule, whether it is the criminal law or a rule of engagement.
I was therefore extremely disappointed at the Minister’s response. We accept that the drafting of these amendments could be improved. Having heard the points made by noble and gallant Lords, I would probably want to come back on Report with something much simpler as far as Amendment No. 60 is concerned. In addition, we very much take the point made by the noble and gallant Lord, Lord Inge, about the defence cuts.
The Minister suggested that the rules of engagement—I am trying to remember exactly what his words were—provided simply an operational framework. That would seem to provide no comfort at all to our Armed Forces, and I am very puzzled by it. Is the Minister saying that, if a soldier operates within the rules of engagement and uses reasonable force in the circumstances, that should not be an absolute defence to his conduct? Would the Minister be prepared to see a newspaper tomorrow morning report him as saying that, despite the fact that a soldier conforms with a rule of engagement and exercises reasonable force in the circumstances, he is capable of being prosecuted for murder? Is that what he is saying?
The Minister has not responded to that so I will leave him to think about it. Meanwhile, I beg leave to withdraw the amendment.
Earl Attlee: Perhaps I may urge the Minister to make available privately a viewing of the rules of engagement. If he did that, the Committee would get a better understanding of what he has been saying.
Lord Drayson: We had a meeting earlier in the year about the whole area of the rules of engagement and a briefing on the subject. If it would be helpful for noble Lords to have a further meeting and discussions, I would be more than happy to have them.
I recognise the complexity of the area but I sincerely believe, having listened to the arguments from across the Committee, and again from the noble Lord, Lord Kingsland, that there is a fundamental
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In response to what the noble Lord, Lord Kingsland, has just said, I reiterate that it is not just a question of whether the individual soldier has operated in compliance with the rules of engagement; it is still up to the individual how he carries out the task. That individual responsibility cannot be overridden by the operational orders and operational framework as described in the rules of engagement. Does the noble Lord accept the point—which I have, perhaps, laboured—that the purpose of the rules of engagement is primarily to enable our commanders to operate effectively in the field? We must make sure that in our wish to provide a framework to strengthen the defence for our Armed Forces personnel we do not prejudice the whole purpose of the operation and of the rules of engagement. I would be interested to know whether the noble Lord accepts that point.
Lord Campbell of Alloway: Will the framework safeguard honest mistake? This is a relevant consideration in liability for murder or anything else.
Lord Drayson: On the point made by the noble Lord, Lord Campbell, the answer is yes.
6.30 pm
Earl Attlee: The Minister cannot be faulted on the briefings he gives us. I suggest that he privately lets us see an out-of-date set of rules of engagement. In that way, noble Lords would have a much better understanding of what the Minister is saying.
Lord Drayson: I am most grateful. That is an excellent idea; let’s do it.
Lord Kingsland: The purpose of the amendment is to assist not the commanders but the soldiers, who, after all, do the actual fighting. I understand entirely the Minister’s concerns about confidentiality; but I am quite sure we can devise an amendment which protects that while providing the protection which I believe the soldiers need.
I do not understand why the Minister will not respond to the question I put to him earlier. I will put it to him again: is he saying that a soldier who conforms to the rules of engagement and exercises only reasonable force in the circumstances in accordance with the common law could nevertheless be prosecuted for murder? Is that what the Minister is saying?
Lord Drayson: I do not believe it is helpful for us to continue the debate in this way this evening. I am prepared to meet the noble Lord to discuss this further and to write to him. It is clear that we need to have further discussion. I will read Hansard and fully reflect on what has been said this evening. I ask noble Lords, if they have the time, to reflect on what I have said this evening and to meet me. The noble Earl’s suggestion that we look at an out-of-date and no
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Lord Garden: The debate has been extraordinarily useful. I remain uncertain about the effect of putting the rules of engagement on a statutory basis, but we should consider their status within the framework of the Bill. I beg leave to withdraw the amendment.
Amendment No. 62, as an amendment to Amendment No. 61, by leave, withdrawn.
Amendment No. 61, by leave, withdrawn.
[Amendment No. 62A not moved.]
Lord Thomas of Gresford had given notice of his intention to move Amendment No. 63:
Where the courts of any part of the United Kingdom have extra-territorial jurisdiction under statute to try, determine or punish any service offence committed abroad, the person accused may elect to be tried in the United Kingdom for the offence.”
The noble Lord said: I had not appreciated that Amendment No. 63 was grouped with the earlier set of amendments and did not address it. I do not propose to take the matter any further this evening because I have had the Minister’s reply on this point. Since I have not had the opportunity of advancing the argument in favour of this amendment, I shall do so at a later stage.
Earl Attlee moved Amendment No. 64:
Every person subject to military law shall readily be able to determine who is his commanding officer.”
The noble Earl said: I should like to speak to Amendments Nos. 65 to 68 as well. The service discipline Acts refer extensively to the term “commanding officer”. Service people will normally know who their commanding officer is, but those reading the Bill and the existing service discipline Acts may not realise that the power of the commanding officer can be delegated, particularly under the summary dealing regulations—often, in the Army, to the officer commanding, who would be a major, or the equivalents in other services. The orderly officer may have some of the powers of a commanding officer, particularly to put service persons in custody temporarily, immediately and maybe in an emergency, when the commanding officer is not available. It would be helpful if the Minister could explain the extent of this ability to delegate the powers of the commanding officer.
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