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In these circumstances, I ask the Minister to seriously consider my proposals in Amendment No. 18. I know that he is a serious man who listens to arguments and thinks about these things carefully, and therefore beg him not to say anything today
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Lord Campbell of Alloway: My Lords, I oppose Amendment No. 18. We have heard another passionate and lengthy recital, as happened on Clauses 3 and 8. The noble Lord, Lord Judd, knows perfectly well that he has done little but repeat what was said then. He also knows that the noble and gallant Lord, Lord Bramall, and my noble and learned friend Lord Mayhew have rightly advised the House that the question of lawfulness the noble Lord goes on about is not a matter for the serviceman. It cannot be. In the field, it is wholly impractical to expect it to be. According to the noble and gallant Lord and my noble and learned friend, it is not a matter for the serviceman or the courts of law but for the Attorney-General in the exercise of his supervisory role.
My name is attached to Amendment No. 14. I do not propose to repeat anything that the noble and gallant Lord, Lord Craig of Radley, said. I agree with all of it; it was most neatly and eruditely prepared. I shall, however, make a short point. Listening to the noble and gallant Lord, I thought, as your Lordships may have done, that he made a good case for essentially retaining what we know has worked reasonably well and is satisfactory. I think that the noble and gallant Lord has thus far been unable to discover any breakdown or hint of criticism.
Why, then, resort to primary legislation without a clear, reasoned justification? The noble and gallant Lord got none on the previous occasion. He sowed his seeds of wisdom in Committee, which bore fruit on mutiny but fell on barren ground with desertion. Desertion is essentially a question of intention: you move from being absent without leave to desertion as a matter of intention. There seems little justification for meddling with the extant system, for the reasons that the noble and gallant Lord has given.
Lord Astor of Hever: My Lords, I fully support Amendment No. 14 tabled by the noble and gallant Lord, Lord Craig of Radley, who, as my noble friend Lord Campbell of Alloway said, made a good case.
The amendment would provide a far more satisfactory definition of desertion than Clause 8. As the noble and gallant Lord has said, it would continue to use the current statutory definition, familiar to members of all three services. The language used in the amendment of the noble and gallant Lord has the advantage of both clarity and continuity.
On Amendment No. 18, I echo wholeheartedly what my noble friend Lord Campbell of Alloway said.
Lord Archer of Sandwell: My Lords, I have not previously intervened in your Lordships’ debates on this Bill. My plea in mitigation is that there has been nothing in the Marshalled List in the terms raised by my noble friend Lord Judd’s amendment. I hope that the noble and gallant Lord, Lord Craig, will pardon me if I address that amendment.
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I congratulate my noble friend on posing a question that causes concern to a number of young people in many parts of the world. I accept at once that it does not admit of an easy answer. It is part of a larger question and it may help to consider it in context. It has a long ancestry. It really consists of two questions. If a soldier is commanded to do an act that is a criminal offence, should he be excused from military discipline for refusing to obey? That gives rise to the converse question. If he carries out the command, should he be excused from criminal responsibility on the ground that he is acting in obedience to superior orders, a matter raised earlier in our proceedings today by the noble Lord, Lord Thomas of Gresford?
We are presented with a conflict between two principles. The first is the constitutional principle that the military is subject to the law, as we all are. It is its constitutional duty to recognise that it is subordinate to the civil authorities. A military commander has no power in law to excuse a subordinate from complying with the criminal law. The second principle—of course I accept entirely what was said by the noble Lord, Lord Campbell—is that an army requires discipline if it is to be effective. If every order evokes a debate, an army simply cannot function. Traditionally, that dilemma has been addressed in two ways. First, it has usually been provided that a soldier commits a disciplinary offence only by refusing to carry out a lawful order. That reappears in this Bill in Clause 12—
Lord Campbell of Alloway: My Lords, this is for clarification. That affects the constitutional position, I think. Does the noble and learned Lord draw any distinction between an order given on the field of action in armed combat and an order not given in those circumstances?
Lord Archer of Sandwell: My Lords, if the noble Lord will forgive me, I hope to come to something approaching his question in a few moments. He asks whether I draw a distinction. I am not clear that I can draw a relevant distinction. If there is such a distinction, I have not heard it formulated.
I was going to say that, traditionally, a soldier commits a disciplinary offence only by refusing to carry out a lawful order. It appears in Clause 12. As my noble friend Lord Judd pointed out, it is referred to in Clause 1. Fairly clearly, it underlies a lot of the thinking on military discipline and has been reappearing in military disciplinary provisions for a long time. Secondly, most systems have accepted that a soldier commits an offence against the criminal law in obeying an order only if that order is clearly unlawful. That has become known as the doctrine of manifest illegality. It goes well back in history—it was provided for in the Roman army. A soldier was given a window of escape from his dilemma. It would be possible to avoid both prongs of the fork. It worked reasonably well when a soldier was expected to be a trained automaton. His duty was to obey an order instantly and unreflectively. More recently, as my noble friend has pointed out, and particularly since the Second World War that position has changed.
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Even that dilemma is not new. Martin Luther addressed it when he said that there was no blame attaching to participation in an unjust war, unless it was manifestly unjust. That may not necessarily be persuasive to everyone. Napoleon said that questions of theology were for the next world. But von Moltke said that he opted for what he called,
That has sometimes been misunderstood. What he meant was not that the military should be unrestrained but that it should carry out the instructions of the civil authority without question. There we find ourselves perhaps parting company with some of our friends. Even the instructions of the civil authority are not ethically conclusive. Someone may say, “Even if my Government command me to do something, that does not necessarily silence my conscience”. In the last resort we cannot pass responsibility for our actions on to the shoulders of others.
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There is a precedent within our own history. In 1911 the Government were confronted with something like a mutiny when our forces in Ireland were faced with instructions to suppress Protestant resistance to the partition of Ireland. In fact the matter was resolved not by prosecuting anyone but by all sides using common sense. The dispute was not about what the law provided but about how far an individual conscience should be stretched. Whether we would agree with the senior officers who question the instruction is not relevant. Most of us have a sticking point.
The United States has been confronted with this problem more than once in recent years. Young people were troubled about the legality and the morality of the war in Vietnam, and many were charged with desertion. The position was considered by the Supreme Court in the case of Thier-Vaughn, which was a refusal to participate in the Desert Storm operation. The court ruled on that occasion that it could not question matters of foreign policy. It said that they were not justiciable.
That view is understandable. It has been frequently shared by the courts in this country. They have repeatedly declared their reluctance to review decisions by the Executive in the field of foreign relations, but to an increasing extent international relations are impinging on the concerns of private citizens and subjecting them to decisions about the proper course of action. We are passing into an era where the doctrine of sovereignty is increasingly under examination and the attitude of domestic courts to diplomatic decisions may need to be reviewed in the not too distant future.
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I invite your Lordships’ attention to yet another problem. Must the civil authority always have the last word? What is a soldier to do if faced with conflicting orders? What if there is a military insurrection and a general, intent on overthrowing the civil Government, orders a colonel to occupy the presidential palace? It is not a practice to be encouraged, but sometimes we may even have approved of such an action by the military. General Pinochet declared that any action by the military to check the killing and the disappearances he was ordering was “unprofessional”. We may take leave to disagree with him.
What would we say of action by the military to replace the regime in Zimbabwe? In words that have expressed the heart-searching of a whole generation, “It ain’t easy, kid”. I suspect that we could embark on a long debate about the ethical implications. I appreciate the dilemmas which the amendment raises, but we are considering a young person who, by definition, has wrestled with his or her conscience and decided that whatever the consequences for themselves personally, they cannot transfer their personal responsibility to others. By definition, we are talking about those who are the best, most responsible and most unselfish of a generation. To subject such a person to the full range of military penalties is not something to embark on lightly.
In all my years working with Amnesty, I was repeatedly assured that this country had no prisoners of conscience. What else would such a person be? I confess that I have hesitated about this but, when the chips are down, I support the amendment.
Lord Garden: My Lords, as I said in Committee, Amendment No. 14, tabled by the noble and gallant Lord, Lord Craig, brings clarity to the desertion provision in the Bill. The provision was clear before in previous legislation. I have read in detail the Minister's remarks in response in Committee but I still do not understand the advantages that the new wording would give us.
There is the idea that the new wording will in some way constrain the offence so that it applies specifically to active service. Our Armed Forces today may not always be in the theatre of operation, but they are all participating in contributing to active service. It seems that, in order to make those constraints, the government proposals are trying to define things too neatly and finely. There was clarity before. So I support the amendment of the noble and gallant Lord in all but one respect, which is covered by my amendment, Amendment No. 19—that amendment will of course fall if we agree to Amendment No. 14, but I give notice that I will return to the question of the maximum punishment if Amendment No. 14 is agreed to today.
I will not prolong the debate on Amendment No. 18, to which I have added my name. We have heard cogent arguments from the noble Lord, Lord Judd, and the noble and learned Lord, Lord Archer of Sandwell. There are concerns that need to be addressed when we describe responsibilities under international law. The noble Lord, Lord Judd, made the important point that we are legislating for unknown futures. I
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Lord Thomas of Gresford: My Lords, I follow my noble friend Lord Garden in congratulating the noble Lord, Lord Judd, on his usual passionate espousal of the rule of international law. I also congratulate the noble and learned Lord, Lord Archer of Sandwell, whom we have missed in our deliberations, on a very thoughtful and wide-ranging speech—ranging not only into history but internationally.
Both noble Lords made the point that, in Clause 12, the offence is refusal to obey a lawful command. It is therefore a defence to that charge to say that the command was not lawful. Why, therefore, should it not be a defence to a charge under Clause 8 that the operations referred to were unlawful? I appreciate the position that has been so fervently expressed by the noble Lord, Lord Campbell of Alloway, who takes the view that the Attorney-General is the final arbiter of whether the actions or operations are lawful. I do not accept that. I believe that it should be justiciable. Just as it is possible for a defendant to a charge of refusing to obey a lawful command to argue in a court for a decision that the command was unlawful, it should be possible—
Lord Campbell of Alloway: My Lords, what is really worrying me is that there is a convention on Report that one does not go in for a long histoire of matters that have already been debated. I have tried to be brief. I shall not take any more time, but I do not think that it is right to resuscitate matters that have been debated at great length in Committee.
Lord Thomas of Gresford: My Lords, I beg to disagree. Although it is right that we should confine ourselves so far as we can on Report, the principles behind a particular issue become clearer as the debate goes on. The importance of those issues is also highlighted. So it is here. Where we are dealing in essence with a constitutional matter, it is important that it should be expressed, particularly if we are going to vote on the matter, which we did not do in Committee.
The Crown’s prerogative—used to declare war, to send our troops into operations, and so on—must at the end of the day be subject to scrutiny. If the exercise of that prerogative is illegal, the domestic courts of this country should be able to say so. It is not a question of the particular defendant, when he deserts or refuses to obey a command, getting a book on international law to see what the situation is; it is a question of whether, later in the courtroom, he can argue legality or illegality before the people who are charged with deciding such questions properly, should Her Majesty’s judges decide whether Her Majesty’s Ministers have taken a legal action.
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I fully support Amendment No. 18. Although Amendments Nos. 15 to 17 are listed in a later group, I shall not address your Lordships any further in the subsequent debate.
Lord Drayson: My Lords, we have sought in Clause 8 to modernise and limit the offence of desertion. The first change that we are making is to remove the current maximum penalty of life imprisonment for all cases of desertion. This maximum was applied to all desertion cases by the Armed Forces Act 1971. The second is to remove the test for desertion or absence without leave to avoid any service overseas or when before an enemy, and to replace it with the narrower test of avoiding “relevant service”, which covers the sort of service that is often called “active service”.
The noble and gallant Lord, Lord Craig, and the noble Lord, Lord Campbell, have asked why perfectly good drafting in the current discipline Acts should be changed. The changes to the drafting have two aims. The first is to limit the offence—we do not think that it is right that there should be a specific offence to avoid any service overseas. The second is to limit the circumstances in which a maximum sentence of life imprisonment is available. We therefore could not leave the offence as it is. The current offence is too broad but, because it is broad, it has the attraction of being stated briefly.
We believe that it is right to make the changes that I have mentioned, but I recognise that it has resulted in complexity. The noble and gallant Lord, Lord Craig, has been unflagging in his efforts to persuade me that we could do better. His drive to achieve plainer English for our Armed Forces is to be commended, and I must say that, on further reflection, I think that he has a point. I have therefore decided to have one last look at the drafting of Clause 8 with a view to simplification. I think that we should be able to achieve an improvement and I hope to bring forward a simplified version of the clause at Third Reading.
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However, I do not think that it would be right to accept the substantive changes provided for in Amendment No. 14. The maximum of life imprisonment will be limited to desertion to avoid “relevant service”. It is intended to cover those situations where it is particularly serious for a serviceman to go absent. This is where a serviceman goes absent without leave to avoid the sort of particularly dangerous and demanding service that is often broadly described as “active service” and where everyone’s contribution is especially important. It covers operations against an enemy, overseas operations for the protection of life and property, and military occupation of a foreign country. We retain the maximum of life imprisonment for desertion to avoid service of these types.
Lord Garden: My Lords, I have not yet spoken to my amendment about life imprisonment. It is in a separate group.
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Lord Drayson: My Lords, I thank the noble Lord. The noble and gallant Lord, Lord Craig, asked two questions about the definition of “relevant service”. The first is about the meaning of operations,
The second is about the meaning of “military occupation”. Those expressions have very well established meanings and are used in the current definition of “active service” in each of the current service discipline Acts.
An operation to protect life and property simply refers to where our Armed Forces may take part in operations abroad in response to a threat to people or to physical property of any sort, so long as the threat is great enough to justify the operation. Clear examples of this would be operations to evacuate civilians and safeguard their property in the event of a national disaster or a local conflict, such as occurred respectively in Montserrat or more recently in the Lebanon. The definition of “property” in the Bill, like that in the existing Acts, relates to clauses dealing with property in the UK, and so does not apply to this clause, which specifically relates to operations overseas.
Military occupation involves the idea of control. It is therefore limited to where our forces, perhaps with allies, have established military control of a foreign area or country whether or not there are also civilian authorities. It does not therefore cover a situation in which we are present abroad either fighting to establish control or where we are there at the request of the foreign Government. For example, before reunification our Armed Forces in Berlin were one of the occupying forces. But in West Germany our forces were of course not in occupation of the country. On that basis, I hope that the noble and gallant Lord will withdraw his amendment.
Under Amendment No. 18, it would not be desertion to go absent without leave to avoid service in a military occupation unless that occupation was fully in accordance with international law. We expect all members of the Armed Forces to be aware of their personal responsibilities under international law. They are trained in such important matters as the respect for property and the proper treatment of prisoners, enemy wounded and civilians caught up in the conflict. These personal responsibilities are ones for which a deliberate breach brings criminal liability.
However, the decisions to go to war and to occupy a foreign state are matters for government and Parliament, and are subject to democratic accountability. I would add that even Governments and Parliament find the issues of what international law requires or prohibits extremely difficult. I therefore believe that it would be wrong in principle to remove from members of the Armed Forces their obligations where they consider that an occupation is not in accordance with international law.
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