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The decision to go to war is for the Government of the day, and we take our legal obligations, both domestic and international, extremely seriously. Any decision to take military action is carefully considered in all circumstances, and legal advice is obtained at the highest levels. I hope that with this explanation the noble Lord feels able to withdraw the amendment.
Lord Thomas of Gresford: My Lords, I have not heard an explanation that satisfies me about the distinction between Clauses 3(1) and 3(2). I am concerned about the response to the other amendments; that is, my attempt to insert “lawful” in the appropriate places. I have no doubt that before any action is taken by way of warfare, that action is carefully considered, as the Minister said a moment ago. But I am not asking a serviceman to grapple, as he put it, with international law. I am saying that if he is brought before the courts and his defence is that the action was unlawful, it is not enough for the prosecution to say, “It is a matter of national law, the Attorney-General has decided that it is lawful, and the courts cannot interfere”. That excludes the jurisdiction of the courts, which cannot be right. At the end of the day, it must be for the courts to determine whether an operation and the orders that depend upon it are lawful.
As the noble Earl, Lord Attlee, said, it is early in the afternoon, but this is a matter of such important principle that I would like to test the opinion of the House.
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On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 63; Not-Contents, 165.
Addington, L.
Avebury, L.
Beaumont of Whitley, L.
Bradshaw, L.
Bridges, L.
Carlile of Berriew, L.
Chidgey, L.
Cotter, L.
Croham, L.
Dholakia, L.
Dykes, L.
Eames, L.
Ezra, L.
Fearn, L.
Garden, L. [Teller]
Glasgow, E.
Goodhart, L.
Greaves, L.
Harris of Richmond, B.
Joffe, L.
Jones of Cheltenham, L.
Judd, L.
Kirkwood of Kirkhope, L.
Lamont of Lerwick, L.
Lee of Trafford, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar, C.
Mar and Kellie, E. [Teller]
Methuen, L.
Miller of Chilthorne Domer, B.
Molyneaux of Killead, L.
Neuberger, B.
Newby, L.
Oakeshott of Seagrove Bay, L.
Park of Monmouth, B.
Razzall, L.
Redesdale, L.
Rees-Mogg, L.
Rennard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Russell-Johnston, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Taverne, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
31 Oct 2006 : Column 173
Tonge, B.
Tyler, L.
Vallance of Tummel, L.
Wallace of Saltaire, L.
Walmsley, B.
Williams of Crosby, B.
Acton, L.
Adonis, L.
Ahmed, L.
Amos, B. [Lord President.]
Ampthill, L.
Andrews, B.
Attlee, E.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bledisloe, V.
Boothroyd, B.
Borrie, L.
Boston of Faversham, L.
Boyd of Duncansby, L.
Bradley, L.
Bramall, L.
Broers, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Belmont, L.
Burlison, L.
Butler-Sloss, B.
Cameron of Dillington, L.
Campbell of Alloway, L.
Campbell-Savours, L.
Carter of Coles, L.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Craig of Radley, L.
Craigavon, V.
Crawley, B.
Darcy de Knayth, B.
David, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Donoughue, L.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Graham of Edmonton, L.
Gregson, L.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Howe of Idlicote, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Inge, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Laird, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Marsh, L.
Masham of Ilton, B.
Mason of Barnsley, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Montgomery of Alamein, V.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Manchester, L.
Morris of Yardley, B.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Radice, L.
Ramsbotham, L.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Richard, L.
Rogan, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Slim, V.
31 Oct 2006 : Column 174
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Tenby, V.
Thornton, B.
Tomlinson, L.
Trimble, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Wall of New Barnet, B.
Walpole, L.
Walton of Detchant, L.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Williams of Elvel, L.
Williamson of Horton, L.
Wilson of Tillyorn, L.
Winston, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the negative, and amendment disagreed to accordingly.
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[Amendments Nos. 4A to 6 not moved.]
[Amendments Nos. 7 and 8 not moved.]
Clause 5 [Failure to escape etc]:
[Amendments Nos. 9 and 10 not moved.]
Lord Drayson moved Amendment No. 11:
(a) in concert with at least one other person subject to service law, he- (i) acts with the intention of overthrowing or resisting authority; or (ii) disobeys authority in such circumstances as to subvert discipline; (b) he agrees with at least one other person subject to service law to overthrow or resist authority; or (c) he agrees with at least one other person subject to service law to disobey authority, and the agreed disobedience would be such as to subvert discipline.”The noble Lord said: My Lords, I shall also speak to Amendments Nos. 12 and 13. I listened carefully to the concerns of noble Lords in Committee, particularly those of the noble and gallant Lord, Lord Craig, regarding the offence of mutiny and the manner in which the clause was originally drafted. I agreed to consider that, and on reflection I agreed that the clause could be redrafted in an effort to make the provision simpler to understand, not least by including the word “mutiny” in the body of the offence.
There is no substantive change to the effect of the original clause; mutiny remains both an agreement to resist or overthrow authority and the act of doing so. Under Clause 7 as amended, it remains an offence to fail to suppress an act of mutiny but not to fail to suppress the agreement. I trust that addresses the concerns of the noble and gallant Lord, Lord Craig, and I am grateful to him for highlighting the issue. I trust that he regards this as a more satisfactory result. I beg to move.
Lord Craig of Radley: My Lords, I thank the Minister for taking note of the points that I raised in Committee. I am happy with the amendment.
On Question, amendment agreed to.
31 Oct 2006 : Column 175
Lord Drayson moved Amendment No. 12:
On Question, amendment agreed to.
Clause 7 [Failure to suppress mutiny]:
Lord Drayson moved Amendment No. 13:
Page 4, line 39, leave out from “when” to end of line 40 and insert “a person subject to service law, in concert with at least one other person subject to service law-
On Question, amendment agreed to.
The Lord Speaker (Baroness Hayman): My Lords, I must advise the House that if Amendment No. 14 is agreed to, I cannot call Amendments Nos. 15 to 19 by reason of pre-emption.
Lord Craig of Radley moved Amendment No. 14:
(a) leaves or fails to attend at his unit, ship or place of duty with the intention of remaining permanently absent from duty without lawful authority, or having left or failed to attend at his unit, ship or place of duty he forms the like intention, or (b) absents himself without leave with the intention of avoiding serving at any place overseas, or (c) absents himself without leave to avoid service or any particular service when before the enemy, and references in this Act to desertion shall be construed accordingly.(3) Any person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, and any sentence of imprisonment imposed in respect of the offence-
The noble and gallant Lord said: My Lords, in Committee I expressed reservations about the wording of Clause 8. It was convoluted. It identified tasks that, if not fulfilled, would mean that an offence of desertion would have been committed. I tabled a probing amendment to allow the Minister to explain why we should accept Clause 8, whose definitions of desertion differ significantly from those used in the existing single-service Acts. Those identical definitions were introduced by the Armed Forces Act 1971, which amended the Naval Discipline Act 1957 and the Army and Air Force Acts of 1955.
The Minister’s response did not satisfy me. He admitted that,
But servicemen are laymen, not lawyers, apart from a very few people in the legal branches of the services. Is it too much to expect government support for plainer English in the Bill?
31 Oct 2006 : Column 176
The Minister suggested that the wording of the existing Acts meant that:
“If a soldier were due to go to Germany for a training exercise but went absent because of some temporary trouble at home, he would be guilty of desertion, rather than merely absent without leave. That would be too harsh”.—[Official Report, 24/7/06; col. 1636.]
I agree. If temporary trouble at home were the sole reason for his absence, surely he should never have been charged with desertion. But if he was to go to Germany and absented himself and there were indicators that that was, in the words of the amendment,
in Germany or anywhere else overseas, then a charge of desertion would seem appropriate.
The definitions of desertion in subsection (2) of the amendment are taken, word for word, from the existing legislation; the only variation is the splitting of the second definition into two parts. That is to limit a punishment of up to life imprisonment solely to someone found guilty of desertion before the enemy. Compared with the convoluted wording of Clause 8, these definitions are much clearer. Can we not stick to them? Subsection (3) of the amendment follows the wording in Clause 8(4) but is adjusted to restrict the punishment of life imprisonment to someone found guilty of desertion when before the enemy.
My understanding is that the present legislation has not proved defective in achieving convictions for desertion. It is well known throughout the three services; it is a straightforward, much clearer definition than that in Clause 8. In view of the major and complex tasks faced by all three services in transferring from existing legislation to the new Act, it would seem sensible and highly desirable to avoid changes and differences, where possible. If the existing definitions are retained in the new statute, there will be no need to re-write that part of the manual of service law. Each of the existing Acts covering the three services uses the same wording.
I also dislike the reliance on specific tasks as part of the new definition. That does not arise in the three existing Acts or in my amendment. As I pointed out in Committee, the reference to “property” in Clause 8 leaves many questions unanswered, given the definition of that word in Clause 374. Clause 8(3)(c) on,
defines a relevant service. But does a “country” or “territory” include those of the European Union or the Commonwealth? We might be expected to help out if there were a problem in one of those. What about British overseas territories, where a service man or woman might be posted? I expect that there may be answers based on legal expertise to some of these points, but I should like them to be clear to non-legal service personnel as well. I raise them to underline my concern at the way in which the clause is constructed, with its complex definitions of “relevant service”. It may not be as all-embracing as the authors had intended.
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I also asked in Committee whether “occupation” covered every conceivable situation from a large-scale invasion to a few servicemen being attached to a unit of the country or territory at the relevant authority’s request. I have not had a response to that.
My probing amendment in Committee sought to give the Minister the opportunity to explain why it was thought necessary to introduce a totally different construct to describe the offences of desertion. It is totally different from the existing one, which all three services have relied on for more than 35 years, since 1971, and which they will rely on until the new Act is introduced. The Minister was not able to help in Committee but perhaps he can this time, and I shall listen with care to his response. I beg to move.
Lord Judd: My Lords, I shall speak to Amendment No. 18, which is in this group. Ideally, I should have liked to speak to this amendment separately but, in view of our procedural ruling, there may not be an opportunity to speak about the importance of Amendment No. 18 if Amendment No. 14 prevails.
I make plain that I feel as strongly as anyone about the seriousness of desertion; I do not want any misunderstanding on that score. Desertion can be a literally terrible offence. In the modern technological services, the implications of desertion can be even greater than was ever imagined in the past. The desertion of a key person could have huge implications for the whole operation and for the well-being and safety of comrades and colleagues.
In his earlier amendments, concerning the word “lawful”, the noble Lord, Lord Thomas of Gresford, dealt at some length with the arguments. Although his arguments did not prevail—I was sad about that—they were very powerful and I shall not repeat them all now. As the noble Lord kindly remarked, in Committee I tabled an amendment about the word “legal”. I listened very carefully to the Minister's reply and recognised that he and the Government believed that there were complexities relating to the interplay between international and domestic law. In view of the significance of the arguments put forward by my noble friend, I decided that, although I believed the issue remained vital, it was important to address it with slightly different wording.
Perhaps I may anticipate an argument which the Government may deploy against my amendment and which the Minister used in dealing with a previous amendment. It is the suggestion that ordinary serving men and women should not really be worried about the implications of international law, as that is something for Governments. I am not persuaded by that argument. It seems to me that an individual serviceman who does something that is not lawful is, in the end, responsible for his action and can be brought to task for it very properly.
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Another point that worries me is that that is a little patronising as it suggests that we do not have very intelligent service men and women who are capable of working out very important things for themselves, and that that should be left to their superiors and
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I turn to recent history. We all know that at the time of the Iraq war the chiefs of staff went to great lengths to ensure that they were persuaded that what was being undertaken was lawful. I was immensely reassured that they took such an issue so seriously. That is altogether good and healthy in the kind of society in which I want to live. I commend them for that.
It is also interesting to note that this argument should be deployed by my noble friend, because it seems to be contradicted at the beginning of the Bill, on page 1 at line 16. On the responsibilities of someone taken prisoner, it spells out what that person must not do:
“A person subject to service law who has been captured by an enemy commits an offence if, without lawful excuse, he intentionally serves with or assists the enemy—
Let us consider a prisoner who is isolated, under pressure, bewildered and disorientated. At that juncture, he is expected to know whether something that he is being asked to do is in keeping with international law. We write that into the Bill, right at the beginning, so how can the Minister’s argument logically be deployed in later provisions, the argument that, when it comes to the occupation of a foreign country, it is not really up to the ordinary service person to worry about whether something is in keeping with international law? I find that totally inconsistent. Not for a moment am I suggesting that the provision on page 1 should not be there—it should be—but its logic utterly follows through into what I am arguing in Amendment No. 18.
To occupy a foreign country is a very serious matter. I would hate it if at some later stage it were to be argued that Parliament specifically decided that it was not appropriate to say that this must be in keeping with international law. I do not think that would happen under the present Administration or any in the foreseeable future, although one never knows what might happen in Britain. Sometimes we do not take this point seriously enough when we legislate because we look at our present experiences and not at what might happen unpredictably. It could be argued in a hot situation with some force that Parliament considered the issue and decided that it was not appropriate to make this reference to, and to underline, international law.
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