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There is another reason. Of course it is right that members of the Armed Forces, like all citizens, should consider the rights and wrongs of operations in which they take part. They should exercise their democratic rights on the basis of what governments expect them to do. But it is another thing to provide that a member of the Armed Forces may in such a situation simply desert his colleagues and his duties. That in my

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view is the wrong thing to do. I believe that nearly all members of the Armed Forces would agree. To allow it would be tantamount to telling all other service personnel who stayed to do their duty that they were misguided. I cannot imagine what effect this could have on morale and on operational effectiveness.

My noble friend Lord Judd has asked why Clause 1 refers to international law. He pointed out that the clause makes it an offence for service personnel captured by an enemy to assist the enemy in any way,

He said that this would require the prisoner to consider what international law requires and asked what objection there can therefore be to allowing members of the Armed Forces to decide whether an occupation is in accordance with international law. I have already indicated where I believe the difference lies. The responsibility for undertaking operations is not on the individual; it is a responsibility of states and a matter for democratic control. Captured members of the Armed Forces should not generally assist the enemy, and Clause 1 rightly makes that an offence. But the Geneva Conventions recognise that captors may require prisoners of war to do certain types of work, so it would be quite wrong for a prisoner to be guilty of assisting the enemy where he has simply done what international law allows his captors to require him to do. Our personnel are trained on their rights if captured and they will know when they may be required to work.

My noble and learned friend Lord Archer of Sandwell asked whether a soldier can disobey an order to commit a crime. On this point I can give a reassurance to my noble and learned friend—a serviceman does not have to obey an order to commit a crime. However, Amendment No. 18 is different; it is not about crime. It allows a soldier to desert if he is serving in occupation of a foreign country and that occupation does not have the full backing of international law.

I hope that, with the explanations and reassurances that I have given, the noble and gallant Lord will be persuaded to withdraw his amendment.

Lord Craig of Radley: My Lords, I should like to thank the Minister most sincerely for the way in which he has sought to reconsider Clause 8. I accept that more work needs to be done on it, but in the mean time I should just like to put on the record my warm appreciation of the way in which the Minister has responded to the points that I have made both on this clause and on an earlier one. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

[Amendments Nos. 15 to 18 not moved.]

Lord Garden moved Amendment No. 19:

The noble Lord said: My Lords, I raised my concerns in Committee about what I saw as the draconian maximum sentence for desertion. Given that the Minister has said that he is going to think again about this clause, I am in two minds over

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whether to pursue at this stage the amendment before us. On the other hand, he let slip in his response to me that even when he has considered it, he is going to leave life imprisonment as the maximum sentence. So it is probably worth dealing with the issue while we can on Report.

We are no longer in the day of the press gang or of keeping our people in by fear of retribution; we have an all-volunteer force. Indeed, as I pointed out in Committee, the maximum punishment is so great that commanders fear to press desertion as a charge and put forward absent without official leave instead, however long people spend away. Even on the rare occasions when charges are pressed, the punishment tends to be measured in days of detention rather than years of imprisonment. So we have an offence with such a heavy possible maximum punishment that it is not going to be used. That is a matter of concern.

One new factor is that, since we debated this matter in Committee last July, the Government have brought to the House amendments to rectify the use of another excessive punishment, which at the time included desertion as one of the causes. I am talking about World War I. Then, of course, the maximum punishment was the death penalty; today, the maximum penalty available is life imprisonment. It seems that we need to learn something from this. We had to do some very curious legislative work in order to provide limited pardons for those who were executed during World War I, some for desertion. It seems that we are again just trying to replicate legislation without thinking about the circumstances.

I was pleased that the noble Baroness, Lady Dean of Thornton-le-Fylde, spoke so strongly in support of a maximum of 10 years rather than life imprisonment when we considered this in Committee. She has added her name to my amendment and it is to her regret that she is overseas and unable to speak to it. She said in Committee:

If you look at the other offences where one has life sentences or sentences of 10 years, you see that 10 years fits much better in this case. I have decided to pursue the amendment today. I beg to move.

Lord Astor of Hever: My Lords, we cannot support the amendment. As the noble Lord, Lord Garden, acknowledged in Committee, recently a full life sentence has been used very sparingly in desertion cases. None the less, it remains a crucial sanction to retain. We have heard many times in this House how discipline is central to the success of our Armed Forces. Desertion has been identified as perhaps the biggest threat to discipline and is among the worst offences as viewed by fellow soldiers. Service men and women need to be able to rely on one another absolutely. In some cases, the potential threat of life imprisonment is essential to ensure that soldiers continue to carry out their duty while on dangerous operations. As the noble Lord, Lord Judd, said earlier, a key person deserting could have huge implications for an operation.

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Lord Drayson: My Lords, as I have already said, in Clause 8 we have sought to modernise and limit the offence of desertion. One of the changes that we are making is to remove the maximum penalty of life imprisonment for all cases of desertion. This maximum was only applied to all desertion cases by the Armed Forces Act 1971. We recognise that in some cases it is not appropriate for an offence of desertion to carry the maximum penalty of life imprisonment. However, we are not persuaded that in the most serious cases—that is, when a serviceman is on relevant service—he should not face the possibility of life imprisonment.

“Relevant service” is the kind of service in which all involved need to be able to rely completely on everyone else involved—a reliance and trust that are undermined where a member of the service leaves his colleagues without permission. It is also the kind of service in which the success of an operation can depend on every member of the force involved. As I said on 24 July, leaving your mates in the lurch at the time they need you most by deserting in the face of dangerous operations is viewed in the Armed Forces as just about the worst thing you can do.

I have listened carefully to the arguments that have been made both today and in Committee on this matter, but I do not think that the case has been made for the reduction in the maximum sentence envisaged in the amendment. In such circumstances, a maximum sentence of life imprisonment may be appropriate in an extreme case and should be available as a maximum for a court martial. I trust that the noble Lord will see the requirement for retaining the sentence of life imprisonment in the limited circumstances in which it will continue to be available and understand why I cannot support the amendment.

Lord Garden: My Lords, I thank the Minister for his not unexpected reply. I do not doubt that in the past his predecessors said the same about execution being the best way to encourage the troops to do their job. One has to make a judgment about what is proportional—and life imprisonment is not proportional, in my view, in this case. I would like to test the opinion of the House.

4.44 pm

On Question, Whether the said amendment (No. 19) shall be agreed to?

Their Lordships divided: Contents, 60; Not-Contents, 208.

Division No. 2


Addington, L.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Carlile of Berriew, L.
Chidgey, L.
Clement-Jones, L.
Cotter, L.
Dahrendorf, L.
Dholakia, L.
Dykes, L.
Fearn, L.
Garden, L.
Glasgow, E.
Goodhart, L.
Greaves, L.
Harris of Richmond, B.
Jones of Cheltenham, L.
Kirkhill, L.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.

31 Oct 2006 : Column 189

Lester of Herne Hill, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Mackay of Clashfern, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E. [Teller]
Methuen, L.
Neuberger, B.
Newby, L.
Oakeshott of Seagrove Bay, L.
Park of Monmouth, B.
Razzall, L.
Redesdale, 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. [Teller]
Smith of Clifton, L.
Stoddart of Swindon, L.
Taverne, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thomson of Monifieth, L.
Tonge, B.
Tyler, L.
Vallance of Tummel, L.
Wallace of Saltaire, L.
Walmsley, B.
Williams of Crosby, B.
Williamson of Horton, L.


Acton, L.
Adonis, L.
Ahmed, L.
Alton of Liverpool, L.
Amos, B. [Lord President.]
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Astor of Hever, L.
Attlee, E.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Billingham, B.
Bilston, L.
Blood, B.
Boothroyd, B.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brennan, L.
Bridgeman, V.
Brooke of Alverthorpe, L.
Brookeborough, V.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Byford, B.
Campbell of Alloway, L.
Campbell-Savours, L.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Corbett of Castle Vale, L.
Craig of Radley, L.
Craigavon, V.
Crawley, B.
Cumberlege, B.
Cunningham of Felling, L.
Darcy de Knayth, B.
David, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
De Mauley, L.
Denham, L.
Desai, L.
Donoughue, L.
Drayson, L.
Dubs, L.
Elder, L.
Elliott of Morpeth, 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.
Ferrers, E.
Filkin, L.
Flather, B.
Fookes, B.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fowler, L.
Fyfe of Fairfield, L.
Gale, B.
Garel-Jones, L.
Gavron, L.
Gibson of Market Rasen, B.
Glentoran, L.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Greengross, B.
Greenway, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Harris of Haringey, L.
Harris of Peckham, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hooper, B.
Howe, E.
Howe of Idlicote, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hunt of Wirral, L.
Inge, L.
Inglewood, L.
James of Blackheath, L.
Janner of Braunstone, L.

31 Oct 2006 : Column 190

Jay of Paddington, B.
Jenkin of Roding, L.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
King of Bridgwater, L.
Kingsland, L.
Knight of Collingtree, B.
Lamont of Lerwick, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Lyell, L.
McColl of Dulwich, 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.
Masham of Ilton, B.
Mason of Barnsley, L.
Massey of Darwen, B.
Mawhinney, L.
Maxton, L.
Mayhew of Twysden, L.
Mitchell, L.
Montrose, D.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Bolton, B.
Morris of Yardley, B.
Newton of Braintree, L.
O'Neill of Clackmannan, L.
Onslow, E.
Paisley of St George's, B.
Palmer, L.
Parekh, L.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Perry of Southwark, B.
Pitkeathley, B.
Powell of Bayswater, L.
Prosser, B.
Puttnam, L.
Radice, L.
Ramsbotham, L.
Rees, L.
Rendell of Babergh, B.
Renton of Mount Harry, L.
Richard, L.
Rogan, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
St John of Fawsley, L.
Sanderson of Bowden, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Slim, V.
Snape, L.
Soley, L.
Soulsby of Swaffham Prior, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Tenby, V.
Trefgarne, L.
Triesman, L.
Trimble, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Wakeham, L.
Walker of Worcester, L.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.56 pm

Clause 17 [Disclosure of information useful to an enemy]:

[Amendment No. 20 not moved.]

Clause 20 [Unfitness or misconduct through alcohol or drugs]:

Lord Garden moved Amendment No. 21:

The noble Lord said: My Lords, the Minister wrote to me on 24 October in the light of our discussion in Committee about unfitness or misconduct through the use of drugs. I raised two separate issues in Committee: first, the question of advice from a senior officer or senior member being the reality rather than an order; and, secondly, performance-enhancing drugs.

31 Oct 2006 : Column 191

My Amendments Nos. 21 and 22 deal with advice. The Minister in his letter told me that there is really not a problem. He says:

I hope the Minister will tell us how often, and in what form, these instructions are issued. In my 32 years of military service I cannot recollect having received any instruction of that kind.

The letter goes on to say:

Perhaps the Minister will explain what he meant by that. If a junior soldier is advised by a sergeant and accepts the advice, is he charged? If the advice comes from a warrant officer, is he not charged? That seems a curious practice. We are putting an unfair burden on our troops if we are asking them to make that sort of informed decision.

The letter says that performance-enhancement drugs are,

although I note from col. 269 of Hansard of 11 October that the noble Viscount, Lord Slim, said in Committee that he has on operations carried a pill in his pocket in times of dire trouble.

We have a problem with the definition of performance-enhancing drugs, and I do not believe the Minister has provided the necessary assurances for a Bill that is about how we will deal with them. He says that such drugs are not sanctioned “at present”, which presumably means he is keeping his options open. His letter goes on to say:

Again, I am not sure that that fills me with confidence. The question is: to whom would the risks apply? Presumably, the purpose of taking a performance-enhancing drug is to increase the risks to the enemy. It may have minimal risks to the person who takes it, but what about the risks to the person’s colleagues and allies? In Committee I referred to the effect of performance-enhancing drugs on air crew members involved in friendly fire incidents.

Even following the Minister’s helpful and full explanatory letter, I remain concerned that we do not seem to have made much progress on how we address the issue of performance-enhancing drugs. I beg to move.

5 pm

Lord Astor of Hever: My Lords, I am grateful to the noble Lord, Lord Garden, for again giving the House the opportunity to discuss this important issue. Amendments Nos. 21 and 22 seem to constitute a valuable change, which takes account of the realities of operations. I am also sympathetic to Amendment No. 23.

31 Oct 2006 : Column 192

Viscount Slim: My Lords, I am grateful to the noble Lord, Lord Garden. My previous remarks on performance-enhancing drugs and the very few occasions on which they might be needed are probably covered by Clause 20(2)(a), which stipulates that a drug should be,

one would get medical advice—

I do not have a problem with that provision.

Lord Drayson: My Lords, Amendments Nos. 21 and 22 seek to make it a defence that a drug was taken on the advice of any superior officer. These two amendments are unnecessary as the situation which I believe the noble Lords are concerned about is where a superior officer advises a serviceman that he should take certain drugs to guard against the effect of chemical or other weapons. If a superior officer advised a serviceman to take such drugs, he would do so on fully considered medical advice. For this reason the serviceman would have a defence to a charge of unfitness through drugs by virtue of subsection (2)(a) if,

I am confident, therefore, that the clause contains safeguards that address the concerns that noble Lords have raised. I urge the noble Lord to reconsider the amendment.

In my letter I made the point that it is important that the advice is given through the chain of command. The chain of command would therefore give the advice based on considered medical advice given to it.

Amendment No. 23 provides for an additional requirement when administering drugs for “operational performance enhancement” reasons. I take on board the noble Lord’s point about the potential development of such performance enhancing drugs. I have considered the matter further. It is important to state specifically that the drug must be authorised by the Secretary of State and requires the written consent of the individual.

There is no policy specifically relating to the authorisation of so-called performance-enhancing drugs. Indeed, we have no agreed definition of what constitutes such a drug. This is a developing area of research and at present we do not sanction their use by service personnel. I believe that the concern is that in the future members of the Armed Forces might be required to take them. As the noble Lord says, this Bill looks to the future and therefore we should think about that matter. We have thought about it. The important point here is that, were we to move in this direction, such drugs would be subject to the current arrangements that cover all drugs. Singling out performance-enhancing drugs is neither helpful nor necessary. No matter what its purpose, each drug should be looked at on its own merits through a medical assessment of the risks and benefits. The assessment would then be made of whether it would be beneficial, or indeed lifesaving, to the servicemen.

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