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Armed Forces Bill

Volume 684: debated on Monday 24 July 2006

House again in Committee.

Clause 6 [Mutiny]:

Page 4, line 12, leave out subsections (1) and (2) and insert-

“(1) Mutiny by a person subject to service law is an offence.

(2) A person is guilty of mutiny within the meaning of this Act if-

(a) he agrees with at least one other person subject to service law to overthrow or resist authority; (b) 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; (c) he, in concert with at least one other person subject to service law, acts with the intention of overthrowing or resisting authority; or (d) he, in concert with at least one other person subject to service law, disobeys authority in such circumstances as to subvert discipline.”

The noble and gallant Lord said: I shall speak also to Amendments Nos. 22 and 23. Mutiny is a most serious offence and, happily, of very rare occurrence. Rightly, if someone subject to service law were convicted of mutiny and sentenced to imprisonment, it could be for life. With such a punishment, it seems to me that the wording of Clause 6 should be in language which is crystal clear and which defines mutiny. Tomorrow's serviceman—even one today—can access via the internet the wording of any recent Act or Bill. I have Clause 6 on my PDA, and you can now get a PDA for a relatively modest sum. So it seems to me that this Committee should be most careful about the clarity of the wording and definitions of major offences in the Bill.

My Amendment No. 19 is probing, and possibly prodding. The word “mutiny” does not appear in the text of Clause 6—only in the side heading and the centre heading above it at line 11. According to my staff college training in service writing, which I assume had its basis in legal practice, it was wrong to rely on the words of a side or centre heading, and my directing staff would have red-inked it as a mistake if I had done that. In the whole of Clause 6, the word “mutiny” appears in the side heading only. It appears twice in lines 31 and 34 in the following clause, Clause 7, so it seems reasonable to expect Clause 6 to be very clear in its references to, and definitions of, mutinous behaviour.

I noted a difference of approach in the way that some of the clauses in this part have been drafted. Some start, as does Clause 6, with the generality:

“A person subject to service law commits an offence if”.

Others—for example, Clauses 8 and 9—state explicitly that a person subject to service law commits an offence if he “deserts” or if he is,

“intentionally or negligently absent without leave”.

These offences, particularly desertion, are serious, and it is right to make plain what the defences are and to define them.

My Amendment No. 19 to Clause 6 is an attempt to emulate the approach of Clauses 8 and 9, so it starts with the words:

“Mutiny by a person subject to service law is an offence”.

It is not clear to me whether Clause 6 is drafted to catch a person subject to service law with a charge such as disobeying authority so as to subvert discipline, which does not have the word “mutiny” in the charge. If so, I do not like it. I attempt in my amendment to make it clear that mutiny is an offence for a person subject to service law; the amendment brigades as definition the four types of mutinous behaviour given in the present Clause 6 into one subsection.

The Marshalled List does not repeat exactly the amendment that I tabled, which was reflected in HL Bill 113(n) and in the Keeling version, which the Minister sent to many of us. The word “or” is now missing from the end of both paragraphs (a) and (b). My intention was to make an offence of the behaviour set out in any one of the four paragraphs that define mutinous behaviour. I now understand that it is not necessary to repeat the word “or” to make it clear that the behaviour set out in any one of the four paragraphs would be deemed to be mutinous behaviour, so I am content with the absence of the word “or”.

Amendment No. 22 simply follows my approach of clarity. In Amendment No. 23 I seek an explanation from the Minister as to why the Bill distinguishes between an agreement with at least one other person to mutinous behaviour, as in Clause 6(1), and acting in concert with at least one other person to overthrow or to disobey authority, as in Clause 6(2).

Clause 7(1)(a) refers to mutiny “occurring” or “intended”. I do not follow why the different definitions of mutinous behaviour have to be separated so that only the latter group—that is, in Clause 6(2)—is caught by the definition of mutiny. Anyone failing to take steps to suppress or prevent mutiny ought to be culpable. As I could not understand the distinction drawn by Clause 7(2), I adopted the approach in my Amendment No. 19 of brigading the four mutinous behaviour definitions into one subsection, deleting Clause 7(2) as a consequence. I look forward to the Minister’s elucidation. I beg to move.

I rise to speak to Amendments Nos. 20 and 21 within this grouping. I fully endorse what the noble and gallant Lord, Lord Craig, said about the seriousness of the offence of mutiny, which causes potentially great disaster in terms of military operations. When looking at the background to this, I noted that until 1689 mutiny applied as an offence only during a period of war. I am not proposing that we go back to the pre-1689 situation. However, the House of Commons Select Committee on the Armed Forces Bill report says at paragraph 19:

“The importance of the military context is most apparent when considering the hostile and dangerous situations that Service personnel can encounter on operational deployment. However, Service law must be equally applicable in operational and non-operational environments, and the military context is also important in non-operational environments”.

I agree with that.

When we consider this—the most serious of military offences in some ways—we have to remember that it covers a wide range of circumstances, some of which will be at the operational end, and some at the non-operational end. My amendments address the words “or resist” and “or resisting” authority, compared with “overthrow” authority, which is the other test of mutinous behaviour. Overthrowing authority is self-evident. The serviceman who has the noble and gallant Lord’s personal digital assistant to read this will know what overthrowing authority means.

Resisting authority is a more subjective test. I can think of many circumstances when the noble and gallant Lord was my commanding officer as Chief of the Air Staff, once upon a time, when a group of us might have suggested an alternative course of action. Was that resisting authority? That is the way in which discussions occur in peacetime operations or the way in which in peacetime circumstances we come to the best decisions—a bit like in your Lordships’ House when we come to the best formulation of law. We discuss various things. We are not being mutinous, but are merely trying to distil the available wisdom.

The word “resisting” in modern circumstances covers too broad a definition. Indeed, the Minister will probably say that he wishes to resist my amendment. If several of us resisted, would that be mutinous behaviour? This is a probing amendment. When something is so serious that until relatively recently it carried the death penalty, but now carries the sentence of life imprisonment, we need to be very precise in our meanings. I look forward to hearing what the Minister has to say about how “resist” works in modern society, where the age of deference is almost dead. The military may wish to maintain it but I think not by life imprisonment.

The noble and gallant Lord’s amendments took me back to his clarity of thought and language when we sat round the table at the Ministry of Defence. If in using the right legal terminology we can make the Bill understandable to anybody who reads it, that is to be encouraged. Of course, I would want him to drop the words “resist” and “resisting” from his subsection. With that small change, we could agree on his amendments.

The noble and gallant Lord, Lord Craig, has raised an interesting point on the drafting of Clause 6. As he said, the matter is one of form rather than substance. It is strange that the word “mutiny” does not appear in the opening line of the first subsection, whereas “deserts” appears in the opening line of Clause 8, which deals with desertion. Although I accept that Amendments Nos. 20 and 21 are probing amendments, they raise a different issue and, unlike the other amendments in this group, propose substantive change to the offence of mutiny. By removing references to resisting authority, the amendment would restrict the scope of the offence to actions done with intent to overthrow authority. That would dilute the definition of mutiny, which we believe should be worded as strongly as possible. Resisting authority in a military context can be just as damaging as overthrowing authority. Although I suspect that this offence will be used very infrequently, we submit that this wording should remain in the Bill to serve as an absolute safeguard to military authority.

I follow the noble Lord, Lord Astor of Hever, in expressing some surprise that the word “mutiny” does not appear in the opening lines of Clause 6. Indeed, the word “mutiny” does not appear at all in Clause 6. It appears in Clause 7, but not in Clause 6. Therefore, the approach of the noble and gallant Lord, Lord Craig of Radley—to start by saying that mutiny is an offence and then to define it—seems to be eminently sensible and logical. The Bill follows that approach in immediately subsequent clauses.

As to the amendments proposed by the noble Lords, Lord Garden and Lord Thomas of Gresford, I realise that “overthrow” is a good deal more serious than “resist”, but the examples of resisting given by the noble Lord, Lord Garden, were not terribly impressive. I saw him as a very senior officer discussing drafts or suggestions with the noble and gallant Lord. It can hardly be called resisting authority when one has been called in to discuss things. After the decision has been made, any suggestion of ignoring or disobeying it would be resisting. Although resisting is the lesser of the two possibilities, I see nothing wrong with—and, indeed, I look with approval on—the use of the words “overthrow” or “resist” in this clause.

I do not know whether these provisions have been lifted entirely out of the Army Act 1955 or are a new construct, but it is interesting to look at the way in which Clause 6 is framed. Not only does it not mention mutiny, but the first two offences are that the person,

“agrees with at least one other person subject to service law to overthrow or resist authority”,


“he agrees … to disobey authority”.

Essentially, those are conspiracy charges. They relate to an agreement between two people to commit an offence, and the offence that they are contemplating is straightforwardly mutiny.

When one looks at proposed new subsection (2), one sees that a person subject to service law commits an offence if,

“he, in concert with at least one other person subject to service law, acts with the intention of overthrowing or resisting authority; or … disobeys authority”.

Those are actions. Proposed new paragraphs (a) and (b) are about agreement—that is, a conspiracy to do something in the future—whereas proposed new paragraphs (c) and (d) are about actually doing it. A proper way of approaching this might be to follow the amendment tabled by the noble and gallant Lord, Lord Craig of Radley. We could say what mutiny is—and how a person can be guilty of it—by incorporating paragraphs (c) and (d) of his amendment and then, by adding a subsection (3), we could deal with the question of conspiracy to mutiny. That is not actually required, because conspiracy to do an unlawful act is an offence anyway, but it might make it clear if that were included.

If one looks at Clause 7, one can see how inconsistent it is. It uses the word “mutiny”. It states:

“A person subject to service law commits an offence if … he knows that a mutiny is occurring”—

something that is active—

“or is intended”—

something that goes to the future—

“and … he fails to take such steps as he could reasonably be expected to take to prevent or suppress it”.

Of course, the failure to suppress a mutiny is confined to the acting and not to the conspiracy, whereas one would have thought that it is as important to quash a conspiracy as it is to quash the act of mutiny when it is occurring.

These are very serious offences punishable by life. I suggest to Members of the Committee that those drafting the two clauses should look again at them very carefully, bearing in mind everything that the noble and gallant Lord, Lord Craig of Radley, has said. Central to the drafting of those clauses should be a firm definition of mutiny. There should be no confusion between an agreement to do something in the future and actually doing it. If the Government desire to draw a distinction between the two in suppressing mutiny, they should make that very clear. I do not suppose that that is their intention, which brings me back to where I started—I suspect that this provision may have been lifted wholesale from the current legislation.

I believe that I can be helpful on this amendment. The noble and gallant Lord’s Amendment No. 19 would revise the clause using virtually the same words, but giving it a different structure. In particular, the words,

“in concert with at least one other person subject to service law”,

would appear twice—once in relation to action with the intention of overthrowing or resisting authority, and once in relation to disobeying authority. Subsection (2) currently uses those words once in relation to both.

No drafting style will please everyone. We have tried to ensure consistency in style throughout the Bill. I have some sympathy with the noble and gallant Lord’s point of view. There is a problem with his redraft, however. I am not sure whether this is the noble and gallant Lord’s intention, but his amendment would change the effect of the clause. I will do my best to explain why.

At present, the clause creates two offences. One, in subsection (1), is in essence “agreeing” to act. The other, in subsection (2), is in essence “acting”. We think it more appropriate for there to be two offences, because “agreeing to act” and “acting” are really quite different. That also means that the prosecution must decide at the outset which offence it believes the defendant has committed and charge him with that offence. It must nail its colours to the mast, so to speak. The charge would either be acting,

“with the intention of overthrowing or resisting authority”,

or agreeing,

“with at least one other … to overthrow or resist authority”.

Amendment No. 19 would alter that by making all forms of mutiny a single offence. So the charge could be, “acting with the intention of overthrowing or resisting authority or agreeing with one other person to overthrow or resist authority”. I am sure that noble Lords will see the distinction. If the accused were convicted on a charge that was drawn in that way, no one would know whether the court thought that he had agreed to act mutinously or that he had actually done so.

In such a serious matter, we think it better that the charge should make it absolutely clear what the accused is alleged to have done. Keeping the offences separate, as we have in the Bill, achieves this. I will, however, look in this one instance at whether we can go some way towards meeting the noble and gallant Lord’s point about the drafting. I trust that, in the circumstances, he will feel able to withdraw his amendment.

I thank the Minister for that very helpful explanation and I thank all noble Lords who have spoken in support. The difficulty that I have with the Minister's distinction between acting and what he said is “showing an intention of acting” is that Clause 7(1)(a) talks about intention. Therefore, the provision deals not just with the act of committing a mutiny but with the fact that people have agreed to do so. It seems to me that, if they have agreed, there is an intention of being mutinous. I put these provisions all together because of the wording of Clause 7(1)(a), which mentions a person who,

“knows that a mutiny is occurring or is intended”.

The use of the word “intended” seemed to me to cover the first provision of Clause 6, which talks about agreeing with one or more people. Nevertheless, in view of what the Minister and everyone else have said, I shall be very happy to beg leave to withdraw the amendment.

With the indulgence of the Committee, I should like to speak to Amendments Nos. 20 and 21. Those amendments would limit the offence to agreements or action to overthrow or subvert authority; the offence would no longer cover agreement or action to resist that authority. That would legalise resistance to authority, as long as it stopped short of actually overthrowing or subverting that authority. Such resistance could, without doubt, imperil a mission. Concerted resistance to command authority cannot in my view—or, more important, the view of the services—be consistent with discipline. The amendment should therefore be rejected.

Clause 7 complements Clause 6 by requiring service personnel to do all that they reasonably can to prevent or suppress acts of mutiny that go beyond a simple agreement to mutiny. We do not believe it right that the duty imposed on all service personnel to prevent and suppress mutiny should be limited to acts of mutiny that go beyond an agreement to mutiny. I therefore cannot support Amendment No. 23 and hope that the noble and gallant Lord will consider withdrawing it. Amendment No. 22 to Clause 7 appears to be consequential to Amendment No. 19 to Clause 6.

I am slightly disappointed by the Minister's reply to what was, after all, a probing amendment to try to get some clarity on what he thought “resisting” meant. He has told us that, because at the extreme end “resisting” is tantamount to “overthrowing” authority, all lesser things should be encompassed by it. I was rather hoping that he would find some way to define it more narrowly to make it appropriate to an offence of this magnitude. His answer did not give us that. I was also slightly surprised that, in tackling the issue raised by the amendment of the noble and gallant Lord, Lord Craig of Radley, he did not pick up the helpful suggestion made by my noble friend Lord Thomas of Gresford that he could still have kept the offences—that is, agreeing to do mutinous things and acting mutinously—separate by a fairly simple addition to the noble and gallant Lord’s amendment.

The Minister may prefer to write to me on this query. It seems to me that there is an offence of discussing the possibility of mutiny. I would never be prepared to discuss resisting or overthrowing authority. I would not want to get anywhere close to doing that, but it does not seem to be an offence to discuss the possibility of resisting or overthrowing authority. If the Minister could write to me on that point, I should be grateful.

I would be happy to write to the noble Earl on that point. I am grateful to noble Lords for the careful thought that they have applied to the clause. There are matters that I will read carefully in Hansard to see whether they can be applied to the benefit of the clarity of the clause.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 20 to 22 not moved.]

Clause 6 agreed to.

Clause 7 [Failure to suppress mutiny]:

[Amendment No. 23 not moved.]

Clause 7 agreed to.

Clause 8 [Desertion]:

Page 5, line 12, at beginning insert “legal”

The noble Lord said: In moving Amendment No. 24, I will be particularly interested in the debate on Amendment No. 25, in the name of the noble Lord, Lord Thomas of Gresford, which in some ways is related to the same ground. I indicated my concerns about the matters covered in this amendment at Second Reading. The Minister, who has been most responsive and helpful in taking up points made at Second Reading and elsewhere, did not at that stage apparently feel able to comment on this point. It will therefore provide an opportunity for him to say a bit about the matters under consideration.

Having served in the Armed Forces, albeit a long time ago, and been a Defence Minister, I am well aware of the gravity of desertion. It is a very serious offence, which can place lives in jeopardy and undermine an operation. Particularly in these days of highly developed technology, the absence of a key person at a particular time could be of critical significance. I have no argument whatever about spelling out the gravity of the offence of desertion in the Bill. I believe that if one recognises the gravity of desertion, it is therefore important to have severe penalties. We can argue about what those penalties should be when we have an opportunity to look at that a little later in our deliberations, but there should be a severe penalty.

My amendment simply proposes that, if the offence is grave and the punishment severe, it should be clear beyond doubt that whatever the service man or woman is being asked to do is proper and lawful. I suspect that my noble friend will say, “What on earth is the point in putting in the word ‘legal’ because, by definition, anything that a serviceman will be asked to do by our Government would be legal?”. Of course, that argument can be turned on its head: if anything that anyone may be asked to do is obviously legal, it would be quite harmless to put the word “legal” in the text just to underline the point.

We live in an age of volunteer services. People join the services of volition. Once they have done so, they have agreed by definition to do anything required of them by the Government. It is therefore more important than ever to underline the significance which we, in making the law, attribute to this form of service and that we are absolutely determined that no one providing this form of service should be put in any kind of difficulty or legal risk.

We heard earlier of the importance and significance of the Attorney-General. It has been argued that once the Attorney-General has given his advice to the Government, we all gather round and endeavour to make a success of the Government’s decision to undertake an operation, if that is their decision in the light of what the Attorney-General has said. Of course there is a difficulty here because the only people who know what the Attorney-General said are the Government, and they decide whether we are going to go into action. Members of this House do not know, the other place does not know, servicemen do not know and the general public does not know. It is therefore important to underline the significance of what is being done and to ensure that in the preparations for action, the seriousness of the legal provision is right at the top of the agenda. It would be quite wrong ever again to be placed in a situation—I do not suggest that this is a fair analysis, but it has been much discussed—where a Government undertaking a serious military operation appear to grapple to find a legal justification for doing so because so many questions are being asked about the legality of the plans. That is a most unsatisfactory situation and I believe it put servicemen at all levels under a good deal of pressure. Many of them were concerned. I do not remember a time when there was so much concern in the services about the doubts, and of course I am referring to the action in Iraq.

However, times have moved on and no one could argue that anything the Armed Forces are being asked to do now is in any way beyond the law. That is because, for example, the United Nations Security Council has quite specifically endorsed the action being taken at this point. But there were arguments at an earlier stage.

For all those reasons, and because of recent experience, this is a good opportunity to underline for all to see that in preparing for military action, legality is of the utmost importance, and that it is put into the Bill. I was startled when I read Clause 8 because it seems that actions or operations against an enemy are fairly clear cut: operations outside the British Isles for the protection of life and property are utterly commendable; but then, suddenly and baldly, with no qualification and no detailed explanation, are the words,

“military occupation of a foreign country or territory”.

If desertion is grave and the penalties are to be severe, we owe it to our servicemen to underline that, in this context as well as any other, anything they are asked to do will be beyond any doubt lawful and legal. I beg to move.

I am sorry that the noble and gallant Lord, Lord Bramall, is not in his place. When I was a very junior officer serving abroad, I was sent to a certain minor unit because there had been some desertions and it was feared that there would be a mutiny. I am not a legal man clever enough to make the law, but what I can say is that you should not pussyfoot about with the two words “mutiny” and “desertion”. You should not funk coming clean in what you write. The noble Lord, Lord Thomas, was absolutely right and put it more diplomatically than I could when he suggested that you had better face up to it and not be frightened of writing it down. Through his amendment the noble Lord is seeking to put this in the Bill.

I would ask the Minister to take some further advice. These are frightening words and advisers sometimes funk them. The noble Lord, Lord Judd, was right to say that these are terrible words. He was once a Defence Minister and he understands how important they are. I do not know whether it is right to put in the word “legal”, but even if a war is illegal in the eyes of some, it is still no excuse for a unit to desert or mutiny. This is an area where I would again urge the Minister to seek advice. I am not saying that he has had weak advice, but I get the impression that people who advise get a bit frightened when the words “mutiny” and “desertion” are used. You do not pussyfoot around with mutiny or desertion in the military.

I am grateful to the noble Lord, Lord Judd, for continuing the debate that we had on Amendment No. 14, in which I also said something about Amendment No. 25. My noble friend Lord Garden will speak to Amendment No. 26. As to Amendment No. 27, we have yet to hear from the noble and gallant Lord, Lord Craig. I commend him for producing a clearer definition of “desertion” than appears in the Bill. No doubt we shall hear how that is put in due course.

In our earlier debate I was interested, if not startled, to appreciate what was said by the noble and learned Lord, Lord Mayhew of Twysden, about the fact that the Attorney-General determines the legality of a war and cannot be questioned in the courts. The noble Lord, Lord Judd, has made exactly the point that I would have made: nobody knows what his advice was. It was hotly debated; it was advice which was required at the time by the Chief of the Defence Staff, who is in his place. He was not prepared to order the advance unless he had the assurance that the invasion was legal. Noble Lords will recall that, in the end, it was the decision of the Prime Minister. Having taken advice, he decided that the invasion should commence. It was an exercise of the Royal Prerogative.

Is that the end of it? That is the issue we are facing. Is no one able to question the decision of the Prime Minister, advised as he is by unknown advice from the Attorney-General as to the legality of an invasion or, in the context of the amendment of the noble Lord, Lord Judd, the legality of a military occupation of a foreign country or territory? That is the area I have been seeking to explore with both Amendments Nos. 14 and 25. It must be possible for a person charged with an offence of desertion to say, “Well, I was being asked to participate in something that was entirely illegal”. Surely he can argue that. He may not succeed—he is unlikely to succeed—but surely he can put forward that argument.

I have already expounded at some length on this topic and I shall not weary the Committee any further because I want to come back to it on Report. As I say, I support the noble Lord, Lord Judd, in his amendment.

My Amendment No. 26 relates to the maximum sentence available for desertion. I agree with what all noble Lords have said about the seriousness of the offence, but the punishment—life imprisonment—is very severe.

At one of our helpful briefings with the Bill team in June, I was interested to know how often we charged people for desertion and what penalties were awarded. Are many people serving life because they have deserted? The Minister was kind enough to write to me on 13 June with the recent statistics, which are sparse: not many people are charged with desertion. A follow-up letter dealt with two cases in the Navy and two in the Royal Air Force in the past five years. The Army has had rather more—20 in the past five years. The Minister also helpfully told us how the most recent cases have been dealt with. Five Army personnel had been court martialled for desertion and the sentences given were 112 days’ detention and reduced to the ranks, 202 days’ detention, 10 days’ detention and dismissed, six days’ detention and dismissed, and 138 days’ detention and dismissed.

The Minister was right to reassure me that we hardly ever used life imprisonment as a punishment for desertion. We measure it in days rather than years. As the possible penalty is so severe, desertion is very rarely used, perhaps more rarely than it should be. Absence without leave tends to be used instead, which rather distorts our assessment of all sorts of things, because desertion can be a measure of morale within the services. So one offence, absence without leave, has a maximum of two years, and the other, desertion, has life imprisonment. I am not sure of the right level, but it should be less than life. For that reason, I suggest that 10 years would seem to say that this offence is serious, but we are putting it at a practical step up from absence without leave. I would happily argue for less than 10 years, but not more.

I fully support the amendment moved by the noble Lord, Lord Judd. It is useful. I agree that, technically, one could argue that we would not send the forces unless it were legal, but recent experience leads one to be slightly uncomfortable about that. I endorse everything said by my noble friend Lord Thomas of Gresford on that point.

I have received, as I am sure have other noble Lords, representations that the subsection that deals with military occupation should be dropped. It was slightly startling to read. It is a new concept in military law. When we discussed this at the Ministry of Defence, I accepted the argument that this narrowed the occasions on which one could be charged with desertion, but it is unfortunate that this particular phrase has been included given the sensitivities that still exist over the operation in Iraq.

I rise to speak to my Amendment No. 27. I find Clause 8 tortuous, with its reliance on the phrase “relevant service” used repetitiously and with a series of questionable definitions being used for it. The wording of the clause may be clear enough to the legally trained mind, but will not be clear to the average soldier, sailor or airman. The wording of my Amendment No. 27 is lifted almost verbatim from the Armed Forces Act 1971, which itself revised the wordings in the Army and Air Force legislation in 1955 and the Naval Discipline Act 1957. The current definition of desertion would be retained by my amendment.

The Minister should explain to the Committee why it was thought necessary in this new Bill to introduce such a complex reworking of the offence and definitions of desertion. Some particular points of detail occurred to me. The 1971 Act refers to being “permanently absent from duty”, rather than as in Clause 8 remaining “permanently absent without leave”. The separate offence of absence without leave is covered in Clause 9. Does that not invite some confusion between the two offences of desertion and AWOL to bring absence without leave into Clause 8 rather than absence from duty? The 1971 Act and my amendment sticks to the simpler to understand rationale of,

“intent to avoid serving at any place overseas”,

rather than the more obscure phrase “outside the British Islands”. There is no definition in Clause 367 of British Islands, although I understand that there is one elsewhere in statute.

Then there are the somewhat surprising mentions of the protection of life or property and,

“occupation of a foreign country or territory”.

That starts to beg the question of whose life and what property. Would we really want to charge a person with desertion when the value of the overseas property to Her Majesty's Government may not be that clear to him?

Does “occupation” cover everything from the result of a large-scale successful invasion to a few servicemen being attached to a unit of the country or territory at the relevant authority’s request? I get the feeling that the draftsmen are trying to provide a wider set of possible offences of desertion than heretofore. The Committee should not give any ground to widening the possible misbehaviour for which someone could be charged with desertion. The Committee should resist that or at least seek a very convincing explanation from the Minister.

This is meant to be a probing amendment to help the Committee to understand the reasons behind the present tortuous drafting for this very serious offence. The only other point to which I should wish to draw the Committee’s attention is that, in my amendment, I have sought to restrict the possible life sentence to,

“service or any particular service when before the enemy”.

I question whether a sentence of life imprisonment would be appropriate if the person was on operations for the protection of property, for example. Surely the key issue is whether the person fails to support or lets down his colleagues when they are on operations against the enemy rather than the role of the particular operation. While seeking to spell out a number of possible operational tasks—for example, the protection of life or property—another task, in which the person’s contribution may be vital to the safety of a colleague, might not be covered.

Incidentally, the definition of property in Clause 367, at the bottom of page 185, may again be clear to the legal mind but is not clear to me. Would it include mobile homes or temporary structures? Are vehicles included as property? I recall some tortuous restrictions in the Armed Forces Act 2001 affecting the activities of service police in relation to property. For example, it restricted them to:

“If a person is in a garden or yard occupied with and used for the purposes of a dwelling or of any service living accommodation”,

and then there were the restrictions on what he could do.

Apart from legal niceties, what is the practical distinction between heritable property and real property? The former seems to apply only in Scotland, which is not—or at least not yet—a foreign country. I doubt whether the potential deserter would have a clue. It may be claimed that the manual of service law will deal with such questions, but this is not a good enough excuse for having any clause in the Bill such as the present Clause 8, that is so tortuous and opaque beyond reason.

I have difficulty with Amendments Nos. 24 and 25, because I have difficulty following the logic of what is being said. The amendments seem to have been proposed because of a situation that arose in Iraq. To listen to some of the contributions, one would have thought that a decision was taken in isolation and that we had no debates in here or any debates or votes in the other place, both of which are patently incorrect.

I have difficulty with these amendments because by placing in the hands of a deserter the defence that they believed sincerely that the operation they were involved in was not legal—and I think we are all agreed just how dangerous that can be within the services—when that defence is used at a court martial, we are actually asking the court martial to decide whether the operation was legal. Frankly, I do not think that is the authority of a court martial. If our objection is that there was no formal parliamentary decision to go into Iraq, in this case, and that is not sufficiently democratic, how can we then give a court martial tribunal the authority to say, “Your defence is sound. This was not a legal action”? I have never been a serviceperson myself, but I have a lot to do with the Armed Forces of all three services, and I think this is an invitation to break down discipline, not to support it.

On Amendment No. 26, I am very unhappy about the retention of life sentences for desertion. I referred to this at Second Reading, after which the Minister gave me some statistics. On the one hand they helped, because I thought, “This is not a dangerous clause because it’s not used, and if it is used, it’s used responsibly”. On the other hand, however, if it is used so little, why do we need it?

I feel strongly about this. We are talking about the whole area of discipline. Clause 11, “Misconduct towards a superior officer”, including violence towards that officer—an extreme example of discipline breaking down—provides a maximum sentence of 10 years. Clause 12, “Disobedience to lawful commands”, also provides a 10-year maximum sentence. We are talking about proportionality, and it is not proportionate to issue a life sentence for desertion. I am extremely pleased that the Bill separates out absence without permission and straightforward desertion, because people could have been caught if it had been left as it was, but I would like to hear what the Minister has to say about the retention of life sentences for desertion. I support Amendment No. 26 from the noble Lord, Lord Garden.

Before the Minister replies, I would like to make it absolutely clear that my Amendment No. 25 does not make it a defence that a person believed that the war or invasion was illegal, but merely that he can raise before the tribunal the fact that it actually was illegal. He has to prove that it was an illegal act, not that he believed it to be. A considerable burden is therefore placed on him.

I rather agree with the noble Baroness that a court martial is not necessarily the best tribunal to decide the legality of a war. However, beyond the tribunal there is the Courts Martial Appeal Court, and beyond that is the Appellate Committee of the House of Lords, soon to be the Supreme Court. Through that route it is possible to obtain the views of the highest judicial authorities. As it is the decision of the Army, or of the new prosecuting authority, to deal with a defendant through a court martial, there is no other way he can challenge the validity of the operation he was asked to participate in.

I am sure the noble Baroness will remember that I was not referring simply to the wholesale invasion of Iraq, but possibly to a person refusing to take part in an operation within an invasion that might transgress the laws of war. These are rather wider issues than she was considering when she gave her views a moment ago.

I am not a lawyer but my interpretation is that this matter constitutes a rose by any other name. The example concerned a medical officer who said that he was not going to Iraq, although I do not know how that offends against the Hippocratic Oath. But we are now saying that we would not expect a court martial to decide the matter and that the person has to prove his case. It could go right up to the Supreme Court. Are we now saying that the Supreme Court can decide whether an operation is legal, or Parliament? I know which I prefer: our democratic process.

The noble Lord, Lord Judd, was very beguiling with his amendment about the word “legal”, but I repeat that I do not believe that junior members of the Armed Forces are qualified to determine the legality of a military operation. I strongly agree with many of the comments of the noble Baroness, Lady Dean.

Some options are available for members of the Armed Forces who do not agree with an operation. They can apply for premature voluntary release or resign their commission. There is, of course, the snag, with which someone will hit me very shortly—that they might be time barred, so that they cannot apply for PVR or resign their commission. But that would mean that they had been on an expensive and long course and had probably served some time in the Armed Forces and had drawn a salary all that time. Therefore, I resist these amendments.

I hope that the noble Earl will forgive me if I mention that the person to whom I referred sought to resign but was not permitted to do so. He had also previously served in Iraq and had studied the legal advice to Ministers in so far as it was available to him.

I was very tempted to ask about that case and I thought that the noble Lord would intervene in the way that he did. I was not aware of the precise details. That person cannot resign to avoid a particular operation, which I think is absolutely right, but he could resign at some point, or he could have resigned ages ago. He took the risk when he took the Queen’s Shilling. He accepted all the training that he was given, but when asked to serve he decided that he did not want to do so.

It is difficult not to be repetitious in dealing with this group of amendments, which goes to the question of whether a serviceman can question the legality of the war or of an operation in which he is asked to take part. I probably shall not avoid that difficulty, but I believe that the noble Lord, Lord Thomas of Gresford, is wrong to think that it is impossible to determine the advice of the Attorney-General.

It is an important constitutional principle that the advice which the Attorney-General gives in so many words to the Government is not to be made public, but of course he is answerable to Parliament. He is brought before Parliament and he has to explain in what respects he considers that the action of the Government is lawful. Unless he is able to do that, the Government will fall. We remember the most recent instance of this, when the Attorney-General came before Parliament and explained the basis upon which he considered that the actions of the Government were lawful. It is not the case that everybody has to accept the opinion of the Attorney-General and nobody can find out what it is.

I invite the noble and gallant Lord, Lord Craig, to consider what his amendment means by the words,

“thereafter forms the likely intention”.

I am not sure what a likely intention is. He might like to reflect on that because it brings into question who has the burden of proof and of what. I should be grateful if that could be explored.

The noble Lord, Lord Judd, moved Amendment No. 24 very eloquently, but we cannot support it. I very much agree with the views of the noble Viscount, Lord Slim, the noble Baroness, Lady Dean, and my noble friend Lord Attlee.

On Amendment No. 26, we cannot support a substantial reduction in the sentence for desertion. The sanction of life imprisonment must remain as a last resort to ensure that soldiers will carry out their duty when on operations. Amendment No. 27, tabled by the noble and gallant Lord, Lord Craig, does not seek to weaken the offence; rather it proposes the criteria for whether the type of desertion falls into the more serious bracket. The idea of desertion “before the enemy”, as the noble and gallant Lord said, has the advantage of using the language of Section 37 of the Army Act 1955 as amended by the 1971 Act. It seems that the amendment tabled by the noble and gallant Lord achieves what the Government want. It uses the same language that has been used since 1971, and it introduces the two-tier offence. I would be interested to hear from the Minister why this approach was not adopted by the draftsman when reintroducing the two-tier form of desertion.

Clause 8 creates the offence of desertion. I think the most helpful thing I can do is deal with all the amendments together, apart from Amendment No. 25, which we have debated already this evening.

Under the Bill, the offence of desertion is limited to where a member of the services goes absent without permission, either intending never to return or to avoid the especially dangerous and important service abroad that the Bill refers to as “relevant service”. That term covers the same broad type of dangerous service abroad which is called “active service” in the existing legislation. Like active service, relevant service covers operations against an enemy, operations abroad for the protection of life or property, and military occupation of a foreign country. Amendment No. 24 seeks to alter the definition of “relevant service” in respect of military occupation to “legal” military occupation of a foreign country or territory. The effect would be that it would no longer be considered desertion to go absent without leave to avoid service in military occupation of a foreign country, unless that occupation was “legal”. The problem with this is that “legal” here refers to an obligation under international law, which applies to whether the action of the United Kingdom as a country is lawful. International law looks here at Governments and states. It does not expect the ordinary service man or woman to assess whether a military occupation is sanctioned by international law.

It would totally undermine the cohesion of the Armed Forces to provide that, in respect of certain types of operation abroad, a member of the Armed Forces could simply go absent without permission because he or she thought that the operation was contrary to international law. The amendment would have the even more extraordinary effect that, if the service man who goes absent is wrong about the international law position—in other words, the court martial decides that the occupation was lawful under international law—he is guilty of desertion and subject to a maximum penalty of life imprisonment. I am grateful to my noble friend Lady Dean for so clearly underlining the difficulties here.

Noble Lords will no doubt be aware that the Joint Committee on Human Rights, in its report published last Friday, has raised the question of why Clause 8 does not allow the legality of the deployment of British forces to Iraq to be argued in relation to an offence under Clause 8. I will of course write to the committee to provide a detailed answer to its questions, but I hope that my reply to these amendments and earlier to Amendment No. 25 has outlined our reasons for deciding that such a defence should not be available.

Amendment No. 26 would reduce the maximum imprisonment for this offence from life to 10 years. 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 current 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. The Bill restores a distinction between offences of desertion carrying a maximum of life imprisonment and those carrying a maximum of two years. Under the Bill, the maximum of life imprisonment will be limited to desertion that takes place in the context of “relevant service”. That term covers the same broad type of dangerous service abroad which is called active service in the existing legislation. Importantly, it is the sort of service in which all involved need to be able to rely completely on everyone else, a reliance which must be undermined where a member of the service leaves his colleagues without permission.

It is also the sort of service in which the success of an operation can depend on every member of the force involved. To drop your mates in it when they need you most by deserting in the face of dangerous operations is viewed in the forces as just about the worst thing that you can do. In such circumstances, a maximum sentence of life imprisonment may be appropriate in an extreme case and should be available as a maximum for the court martial. I trust that Members of the Committee see the requirement for retaining the sentence of life imprisonment in the limited circumstances in which it will continue to be available, and why I therefore cannot support these amendments.

Amendment No. 27 seeks to replace the existing clause with a definition closely based on the existing legislation. In some areas the difference is crucial. The Bill limits desertion to absence without leave with the intention never to return to service, and absence without leave to avoid what can broadly be called active service. Amendment No. 27 would mean that it was also desertion to go absent without leave to avoid any service overseas—for example, training in Canada. 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 absence without leave. That would be too harsh. The Bill represents a carefully thought-out modernisation of the definition of the offence, which reflects what the services need.

Notwithstanding these difficulties, I accept that the wording of the clause takes more than one reading to be clear to the layman. We would never expect service personnel to rely solely on reading the Act. As now, there will be specially drafted guidance in the manual of service law so that, in particular, those affected know what the offence is. I am glad to tell the noble and gallant Lord that the manual will also be available on the internet, and service personnel will readily have access to it.

I hope that the noble Lord accepts my explanation on the requirement to retain the clause as drafted, and feels able to withdraw his amendment. I hope too that, in the light of my explanations, Members of the Committee will not press their amendments.

I am slightly surprised that the Minister has not addressed the questions about proportionality when looked at across the piece of other offences that the noble Baroness, Lady Dean, brought up in support of my amendment. The wording may be difficult for the layman to understand in some way, but I got the impression from listening to the debate that there were Members of the Committee who felt that this was a widening rather than a narrowing of the circumstances in which desertion might happen, so legal minds here can interpret it in different ways. Given that and the support that I had for Amendment No. 26, although I shall not press it tonight I shall want to look carefully at the changes made, so that we might look at it again on Report.

I thank those who spoke to my Amendment No. 27. I obviously want to read closely what the Minister said, but I do not feel that he answered my point. My point was that we have an extremely obscure Clause 8 and, regardless of whether it is repeated in simpler language in a manual of service law, it seems to be our responsibility as a Committee to try to improve the language if we can.

To bring this matter to the Committee’s attention, I chose to use the wording of the existing law and invited the Minister to explain why that was unsatisfactory. He made one point about overseas service, suggesting that someone who went to train at Suffield could, under the 1971 Act, be accused of desertion. I do not think that anyone has been accused of desertion under the 1971 Act but it does not necessarily follow that that is a good reason for throwing out the wording of that Act.

The clause tries to specify tasks. Once you start writing down tasks, as opposed to concepts, you potentially get into difficulty. The task of protecting property or life worried me, particularly when you consider the confusion about the definition of “property” in the Bill. So I was not happy about the use of the word “property” in Clause 8. I shall not dwell tonight on other points, other than to say that at present I am not at all satisfied. I shall not press my amendment at this stage and will consider carefully what the Minister has said.

I am grateful to all noble Lords who participated in this interesting debate. Given the observations made, the drafting of Clause 8 leaves something to be desired, and it would be helpful if my noble friend could agree to think about some of the things said and about how the clause could better meet the anxieties expressed.

I have not put my name to the amendment tabled by the noble Lord, Lord Thomas of Gresford, and I was not consulted on it, but an interesting point has been made. If the law states that a serviceman or woman has a duty to refuse to carry out an unlawful order—and that is how I understand the law—something is missing if subsequently that service man finds himself subject to legal proceedings and cannot even argue that he believed he was doing what was required of him if the order had indeed been unlawful. The amendment is not asking the court martial to rule on the legality of the war; it is asking it to listen to the serviceman’s case for what he decided to do.

I have unlimited respect for so much that my noble friend Lady Dean has done in public life, not least the tremendous amount of work that she has done for the armed services, ensuring good conditions and the rest. She has a proud record of service. However, I put it to her that providing a simple reassurance in the Bill for those considering undertaking service that anything that they are required to do is legal will strengthen morale and strengthen discipline, because it will be explicit—not implicit—that what they are required to do is legal. That is important.

The other consideration is that this and an earlier debate revealed a strange dichotomy. We are prepared to consider the position of a serviceman, in the context of a court martial, who has refused to undertake a specific order because he believes that that order was unlawful.

I turn to action that in itself may not be open to challenge in that way but which occurs in the context of a broader situation in which the whole operation in which the person is taking place is open to question. There is absolutely no opportunity to put that forward as a defence. It seems that there is a problem in this area—our debate has illustrated that there is—and it is terribly important that we all think about how it can be resolved.

The Minister argues well and very convincingly at the Dispatch Box, and I am glad to have him as a noble friend in that regard, but he said one thing that troubled me and which needs more thought. He seemed to imply that although we were committed to the international rule of law, there might be situations in which we knew that the international rule of law could not endorse what we were doing—but that by some subjective interpretation of the law it was okay. This is a very big issue. I do not believe that the rather casual drafting of Clause 8 begins to face up to some of the profound issues that are involved. The issue needs a lot more attention. I have listened to the Minister and I want to go away and think about this debate. I hope that he will feel able to go away and think about some of the big issues that have been raised here and not just shut the door. If there is a mutual position of reflection, I am happy to withdraw my amendment at this juncture.

I am grateful to my noble friend, who presses me to indicate whether I am prepared to reflect further. In drafting Clause 8, our intention has been to modernise and clarify this area of legislation. Some very important points have been made in this debate and I will certainly go away, study Hansard very carefully and reflect further in this area.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 25 to 27 not moved.]

Clause 8 agreed to.

Clause 9 [Absence without leave]:

Page 5, line 22, at end insert-

“( ) A person subject to service law commits an offence if subsection (1) or (2) applies to him.”

The noble Lord said: I shall speak also to Amendments Nos. 29, 30, 50, 51, 54, 55, 56, 57, 69, 87 and 88. These are government amendments to Clauses 9, 24, 31, 33 and 58. I hope that I am able to deal with the amendments to Clauses 9, 24, 31 and 33 pretty briefly; that is, all the amendments I have referred to except Amendment No. 69, which I will come back to in a moment. I have recently written to noble Lords to explain these amendments in more detail, but I can confirm that they are intended only to simplify the clauses without making any changes to their substantive effect. In the circumstances I urge noble Lords to accept them.

On Amendment No. 69, Clause 58 imposes a six-month time limit in which to prosecute civilians who cease to be subject to service law. Subsections (5) and (6) of Clause 58 create an exception to this. Some civilians are subject to service discipline by virtue of the fact that they reside or work in a particular geographical area. The exception is necessary to ensure that the six-month time limit does not begin to run simply because the civilian temporarily leaves the geographical area in which he or she resides.

However, civilians can become subject to service discipline for reasons other than the fact that they live or work in a particular geographical area. The amendment is necessary to ensure that this exception applies to all civilians who are subject to service discipline but who may temporarily cease to be so subject. I urge noble Lords to accept the amendment and I beg to move.

I have a considerable objection to the groupings. I have no right to complain, because I was not here to object to them at the proper time, but these are disparate matters that cover some important points. Government Amendments Nos. 28, 29 and 30 seem to be simply drafting amendments to clarify the offence set out in Clause 9, and, as such, I have no problems with them. However, with Amendment No. 50 we enter a different area altogether, as we do with Amendments Nos. 54 and 55.

With Amendment No. 50, the offence set out in Clause 24 is redrafted significantly—it is not just a case of putting the clause in better language. As originally drafted, the offence is described as follows:

“A person subject to service law commits an offence if … without lawful excuse, he does an act that causes damage to or the loss of any public or service property”.

Similarly, Clause 31 as originally drafted has that defence of lawful excuse in the Bill. The offence is hazarding of a ship, and the clause states:

“A person subject to service law commits an offence if … without lawful excuse, he does an act that causes the hazarding of any of Her Majesty’s ships”.

In the amendments tabled by the Government, the critical words “without lawful excuse” are missing. I invite the Minister to tell me why, because I cannot see in the amendment a defence of lawful excuse. Perhaps the Box can help us on that in a moment.

With Amendment No. 69, we move to a completely different area. We are dealing with the status of persons who are civilians subject to service discipline and the time limits that apply to them. This is an important matter. It certainly featured in the case of Martin, to which I referred earlier. He was the son of a serving soldier but, by the time he came to trial by court martial for murder in Germany at the age of only 17, his father had ceased to be a serving soldier. However, he was caught by these provisions in the previous Act, under which he continued to have responsibility to face a court martial. So very practical issues are involved here, and I do not think that we can give Amendment No. 69 the proper scrutiny that it deserves, along with the other, disparate matters that the Government have included in this grouping.

Amendments Nos. 87 and 88 appear to apply to Schedule 2 and dangerous flying. We have moved from the offence of hazarding of ships to dangerous flying. This is not the way in which to conduct business. I apologise that I did not have the opportunity to object to these groupings when they came before us. I urge the Government that in future proceedings a series of amendments are not put together just because they are government amendments that go through on the nod without proper consideration anyway. I respectfully suggest that that is not the proper approach.

I support my noble friend. While he was not available, I objected to the groupings on Friday because they were so disparate. The only common feature seemed to be that they all had a “g” in front of them, but the groupings made for rather odd debates. As we look forward to continual long nights in this Committee, it would help the debate if we could try to keep the subject of groupings reasonably consistent.

I am grateful to the noble Lords for making that point, and I shall take it on board in the spirit of the debate that we have enjoyed tonight and for future stages of the Bill.

On Question, amendment agreed to.

Page 5, line 23, leave out from beginning to “if” and insert “This subsection applies to a person”

Page 5, line 25, leave out from beginning to “if” and insert “This subsection applies to a person”

On Question, amendments agreed to.

Clause 9, as amended, agreed to.

Clause 10 agreed to.

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at three minutes before ten o’clock.