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By way of introduction, let me say that this is the Bill’s one small pebble, as the noble Baroness, Lady Anelay, aptly described it at Third Reading. The noble Baroness referred then to the work that had valuably been done behind the scenes with the alcohol industry on guidance to cover the intention behind the amendment. She will be aware that that work was received well on both sides in the other place yesterday. I hope that noble Lords will see that this will also pave the way for handling Motion A with similar ease in your Lordships’ House today.

Moved, That the House do not insist on its Amendment No. 27, to which the Commons have disagreed for their reason 27A.—(Lord Bassam of Brighton.)

Baroness Anelay of St Johns: My Lords, bearing in mind the recent question asked by my noble friend Lady O’Cathain of the Chairman of Committees, the House might perhaps just need a slight flavour of the matter that we are debating. When I pressed this to a Division on 17 May, I was concerned about the process that the Government have adopted to designate a locality as an alcohol disorder zone. Amendment No. 27 would have ensured that a local authority could not act in a pre-emptive way when it wished to go through all the bureaucratic hoops that could lead almost inexorably to the imposition of an alcohol disorder zone on an area where licensees trade.

Since the House decided in favour of my amendment way back in May, we have had further opportunities to debate the designation process on Report. In addition, the Minister has made it possible for the Wine and Spirit Trade Association and the British Retail Consortium to meet those involved in preparing the regulations that will deliver so much of

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this part of the Bill. I should like to put on record my gratitude to the Minister for all that he has done to facilitate that. This part of the Bill would have had a much rockier passage had it not been for his activity.

I am also grateful to the Wine and Spirit Trade Association and the BRC for keeping me informed of progress at all stages. They and their vast membership understand that while an alcohol licence brings opportunities, it also carries significant responsibilities. They have made it clear to me that ensuring that these responsibilities are met is a clear priority for members of both organisations and that, through the trade associations and through their own individual company policies, they seek to demonstrate their responsible retailing approach. They have made it clear that tackling under-age sales in particular, which was of concern to noble Lords, is top of their agenda.

In November 2005, they set up the Retail of Alcohol Standards Group to provide the industry with a forum to share best practice and develop new ideas in the fight to reduce under-age sales. It has been recognised that this group has made excellent progress including, first, retraining on how to sell alcohol legally and appropriately; and, secondly, commissioning research to help members to understand why, despite training and significant resources devoted to stopping under-age sales, such sales continue to happen on occasion. This research has been shared with the Home Office and other stakeholders—a favourite government word—and they are taking positive steps to implement the recommendations.

It is vital that the licensing trade and the Government work closely and constructively on the regulations as they are promulgated and on the guidance that will be brought into effect as a result of this Bill. I was therefore grateful to receive last week from Mr McNulty—the Minister in another place—a letter setting out his policy position that the Government are sympathetic to the intention behind my amendment and that they wish to do all that they can to avoid designations being necessary. It is important that ADZs are treated as the very last resort and that they do not treat responsible and irresponsible licensees alike. Mr McNulty maintained in his letter that the intention behind my amendment could be covered by guidance. He sent to me the extract from guidance that the Government have developed with the WSTA. It was in the light of that, plus the Government's further assurances that followed that they would continue to work with the retail trade on the regulations and guidance, that I indicated to the Government that I would not seek to oppose their Motion today, and I do not.

Lord Thomas of Gresford: My Lords, we supported the noble Baroness when she moved her amendment in May. Now that she is no longer pressing it, of course we will follow in her footsteps.

Why do we not get rid of the word “stakeholder” altogether? In our deliberations on this Bill, the noble Lord has expressed his opposition to the term; the noble Baroness has expressed opposition; and I have on numerous occasions expressed opposition. Let us ban it from Civil Service speak from now on.

On Question, Motion agreed to.

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Armed Forces Bill

3.15 pm

Report received.

Clause 1 [Assisting an enemy]:

Earl Attlee moved Amendment No. 1:

The noble Earl said: My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 2, 5, 7 to 10, 20, 24 to 26 and 29. First, I remind the House that I have an interest as a serving officer in the TA—indeed, I shall be on exercise this weekend.

In Committee, I explored the legal defence of lawful excuse and reasonable excuse in respect of military offences under the Bill. On the first day of our deliberations, the Minister said:

He went on to say:

The problem is that when a superior officer gives me a mission, he will give me express tasks and he will give me implied tasks. He will also give me express authority. Perhaps he will give me some troops and equipment, or maybe he will give me wider rules of engagement. But he will also give me implied authority to do anything that is reasonable in order to achieve the mission. To determine whether I have implied authority to take a given course of action, I have to ask myself: would I be acting within my commander’s intent, and perhaps his commander’s intent? To put it another way, if I was in a situation and I was able to ask my commander for his express authority, would he grant it? But the test that my commander would apply would be: is this a reasonable request; does my subordinate want to take a reasonable course of action?

In Committee, I tested Clause 1(1)(d), which makes it an offence to provide the enemy with supplies. In my then Amendment No. 6, I suggested that medical supplies should be exempt from this provision. The Minister responded by saying:

But of course the test will be one of reasonableness, and that is what I am suggesting in my amendment: we should have a test of reasonable excuse, not lawful excuse. If the test is not to be one of reasonableness, what other test could be applied? Clause 4 covers looting. There is also here a defence of “without lawful excuse”, but let us suppose that I am leading a patrol and one of my men damages his watch. The nature of the mission dictates that a watch is essential. We meet friendly forces with prisoners of war and I order that one of the POWs be relieved of his watch. Ideally, I would give the POW a receipt if circumstances permitted. My commander, when giving me the mission,

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would never have anticipated the need for me to relieve a POW of his watch, but I think that my course of action would be okay because I would have the implied authority to do anything reasonable to achieve the mission.

Amendments Nos. 7 and 8 provide for a defence of reasonable excuse rather than lawful excuse, and all the other amendments seek to do exactly the same. I shall not weary your Lordships by describing a possible scenario for each of them, but I will be interested to hear what the Minister has to say. Further, could he describe a possible situation where a court martial might not or could not convict without only the narrower defence being available; that is, can he outline a circumstance where the court martial could convict if it was without lawful excuse, but in the same situation could not convict if it was without reasonable excuse? I beg to move.

Lord Astor of Hever: My Lords, I welcome my noble friend’s amendments. As my noble and learned friend Lord Mayhew said in Committee, one of the principal aims of the Bill is to provide clarity for service people. It would seem right, therefore, that the same term should be used in each case, rather than “lawful” in some instances and “reasonable” in others.

Lord Thomas of Gresford: My Lords, we have some sympathy with these amendments but perhaps the same position might be met in a different way—that it be recognised that there is a duty on the new Director of Service Prosecutions to act reasonably in bringing a prosecution. It is not in every instance necessary to prosecute someone for a breach of one of the provisions of the Bill. If—as perhaps has not always happened—the Director of Service Prosecutions were to act reasonably in making his decision, the fears of the noble Earl would be met.

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Drayson): My Lords, as I explained to the noble Earl in Committee, and as he correctly quoted, we believe that the existing clauses as drafted give the defence of lawful excuse, which is intended to allow a defence that an accused had express or implied authority or that his action was justified by law. Unfortunately, I do not have the military experience of the noble Earl and so, on the Floor of the House, I do not think that it would be appropriate for me to come up with military examples such as he describes. He has given a number of examples as we have discussed this matter, but I do not intend to go through them in detail and detain the House. Suffice it to say that we believe that the term “lawful excuse” is sufficient to cover the circumstances that he has described.

As the noble Earl said, “reasonable excuse” would give a wider defence and allow a court martial to look at all the circumstances and to decide whether it thought that the accused’s conduct was reasonable. The offences of assisting the enemy and obstructing operations are very serious, as they could potentially have a catastrophic effect on operational effectiveness and may, in the worst case, result in loss of life in our

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own forces. Amendments Nos. 1, 2 and 5 may well suggest to a serviceman that it was open to him to consider whether, for example, it was “reasonable” for him to give an enemy information that would be useful to it. I am sure that noble Lords will appreciate that the matters that are prohibited in Clauses 1 and 3 are so central to the operational effectiveness of our services and their operations that there is no room for grey areas. As the clauses are drafted, it is clear to all servicemen that they must not do these things unless a clear legal reason exists.

I share the view of the noble Lord, Lord Astor, about the importance of the Bill in providing clarity to our Armed Forces. We believe that the Bill gives such clarity. These are not matters that can be open to debate or personal discretion. What one man considers to be reasonable may be completely unreasonable when other matters are considered. In the present environment in which our Armed Forces so often operate, it would be unreasonable of us to place the burden on them of having to weigh up such decisions. It is far better that we give clear direction to the services on these matters—and that direction is that the matters listed in Clauses 1 and 3 are prohibited in the absence of a lawful excuse.

I strongly believe that it is appropriate that the narrower defence should apply to both those offences and, for the reasons stated, I cannot support the amendments. I urge the noble Earl to reconsider.

The remaining amendments in the group—Amendments Nos. 7 to 10, 20, 24 to 26 and 29—raise issues similar to the ones to which I have responded in my reply to Amendments Nos. 1, 2 and 5 and I do not propose to go further and detain the House by repeating myself. I reinforce our belief that the narrower offence of lawful excuse should be applied to the offences to which the noble Earl, Lord Attlee, has drawn attention. Offences that would be affected by these amendments are also likely to be the subject of orders, such as standing orders, which do not allow for personal discretion or debate.

Earl Attlee: My Lords, I am grateful to the Minister, but my basic point is that “implied authority” must be the equivalent of taking a reasonable course of action. Let me give a simple example: the Minister touched on giving the enemy information that would be useful to it. That is a common military tactic—it is called deception. Sometimes it fails, especially at a low level, and servicemen could find themselves extremely vulnerable under this charge.

I am afraid that I disagree with the Minister. However, it is far too early to start dividing, and I will not be returning to the issue again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 3 [Obstructing operations]:

[Amendment No. 3 had been retabled as Amendment No. 4A.]

Lord Thomas of Gresford moved Amendment No. 4:

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The noble Lord said: My Lords, I remind your Lordships of the declaration of interest I made at the beginning of Committee: I am an advocate practising from time to time in courts martial.

In Committee I sought to introduce into Clause 3 a statutory defence to the effect that a person would have a defence if he could prove that the action with which he was concerned was illegal. Having listened to your Lordships and to the Minister, I preferred the far simpler, more direct approach of the noble Lord, Lord Judd, in his amendment in Committee to Clause 8. That would make it absolutely clear that the action or operations referred to in Clause 3 must be lawful.

It is no defence for a defendant to suggest that he was only obeying orders. If those orders are illegal and unlawful but he nevertheless carries them out, he is still guilty of an offence which may be as high as an offence against humanity. If that is the clear position in law, the corollary of it is that if a person is given an illegal order and instead of acting upon it and committing an offence, he refuses to obey it, he ought to be able, in the course of any criminal proceedings that are brought against him—whether they are for obstructing operations or, as we shall come to later, for mutiny—to require the prosecution to show that the action or operation that he was ordered to carry out was not lawful. It should be made clear to the prosecution that that is the position. Should the issue ever arise as to the legality of an act or operation the defendant is ordered to carry out, or even his participation in an illegal war, he is entitled to take that defence and argue it before the courts.

In Committee, your Lordships may recall the suggestion, particularly from the noble and learned Lord, Lord Mayhew, that the Attorney-General must be the final arbiter of whether a war, an invasion, an act or operation, is legal or illegal. I do not accept that; I do not think that that is the proper way forward. It may be shown, in subsequent proceedings, that a war is illegal. Is a person therefore not entitled to ask the courts in individual proceedings that are brought against him to determine the matter? The purpose of tabling these amendments is to give the courts the right to determine the legality of the operations or actions that are planned.

I shall be a little more specific about the amendments. In Clause 3(2)(a) an offence is committed if, without lawful excuse, a person subject to service law,

Those vital words, “without lawful excuse”, which we have just debated under the amendment proposed by the noble Earl, Lord Attlee, do not appear in Clause 3(1)(a). I do not understand why that distinction should be drawn. Is that simply an oversight or is there some genuine policy behind removing that defence from Clause 3(1)(a) while it is included in Clause 3(2)(a)?

The other amendments seeking to make it clear that the action or operation is lawful could, I am quite sure, be met by the Minister if he were to give me an assurance that any act or operation must be lawful

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before an offence was committed. If I have that assurance from the Dispatch Box today, it will not be necessary for me to weary your Lordships further. But I would like an explanation of the omission of “without lawful excuse” in Clause 3(1)(a) and an assurance that the operation or action is to be lawful. I beg to move.

3.30 pm

Lord Drayson: My Lords, Amendments Nos. 4, 4A and 6 change the substance of the offence of obstructing operations. Amendment No. 4 seeks to add “without lawful excuse” to Clause 3(1)(a). It would mean that doing an act that was likely to put at risk the success of an action or operation would not be an offence if it was done with a lawful excuse. This cannot be right. The offence provides that such an act requires that the defendant must have intended or been reckless as to whether he prevents the success of the action or operation. But there can never be a lawful or even a reasonable excuse for preventing the success of an action or operation when there is an intention to do so or the person is reckless as to whether success is prevented.

The position on the next subsection is different. Here the Bill includes the defence of “without lawful excuse” in the offence of delaying or discouraging an action or operation. It is right that we have included “without lawful excuse” in relation to this offence because there may be good reason to do so. Indeed, there may be express or implied authority to do so. For example, it may be necessary to delay in order to await more troops. But the same, as I have said, can never apply to preventing the success of an action or operation.

Amendments Nos. 4A and 6 relate to the lawfulness of the action or operation for an offence to have been committed. This is a similar issue to that that arises later with regard to the offence of desertion. I understand the thinking behind these amendments, but they are simply unnecessary. Issues of international law are rarely straightforward, and members of the Armed Forces should not be expected to wrestle with the complexities of this field of law.

I dealt with these arguments in Committee in some detail, and I hope that your Lordships will forgive me for repeating myself. International law looks at Governments and states in relation to the legality of operations; it does not expect the ordinary serviceman or woman to assess whether an operation is sanctioned by international law. It would totally undermine the cohesion of the Armed Forces to provide, in respect of operations, for a member of the Armed Forces to obstruct an action or operation because he or she thought that it was unlawful or contrary to international law.

The law relating to whether a war or an occupation is lawful essentially applies at a national level. It certainly does not create a legal liability on service personnel who participate in it. The law which applies to them is the law in relation to the conduct of that operation.

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