On a point of order, Mr. Speaker. As you may know, all 12 Members of Parliament in Staffordshire—Labour and Conservative—oppose the merger of the Staffordshire ambulance service with the West Midlands ambulance service. Last week, the Secretary of State for Health wrote to all Members of Parliament. In her note, she said that the Staffordshire ambulance service would be reprieved from the merger for up to 24 months. When the Minister of State, Department of Health, the hon. Member for Leigh (Andy Burnham), made his statement in the House he was questioned closely about the matter, but he neither confirmed nor denied that the merger would take place within 24 months. Now we hear that there may have been a drafting error in the written statement, which is causing great confusion among Members and people who work in the ambulance service. There is more of a shambles than at the Home Office, and that is saying something.

Is it possible, Mr. Speaker, for the Minister or the Secretary of State to make a written statement before the recess to clarify once and for all whether the Staffordshire ambulance service is to be merged with the West Midlands service?

The appropriate Minister will have heard what the hon. Gentleman has just said. There is nothing to stop him tabling a parliamentary question to seek clarification of the matter—

As I have done.

Perhaps after the recess week the hon. Gentleman might apply for an Adjournment debate.

On a point of order, Mr. Speaker. Following the many tributes to the late Eric Forth from both sides of the House last week, I seek your advice on a matter relating to the hon. Member for Romsey (Sandra Gidley), who wrote a piece headed "Letter from Westminster", which I assume is a regular column in her local newspaper, the Member for Christchurch (Mr. Chope) and Eric Forth would scupper the Bill. She continued: The Romsey Advertiser, in which she referred to the Climate Change and Sustainable Energy Bill and her fear that the "very obstructive" actions of my hon. Friend

"In the end all was well. I don't know whether this had anything to do with the fact that Eric Forth could not turn up due to being 'under the weather'. Very appropriate excuse for non attendance at a discussion on climate change."

The hon. Lady does mention in the article, which was published on Friday, that Eric Forth had died on Wednesday, but it was mentioned in parenthesis. Many hon. Members would find that very insensitive. I have spoken to the hon. Lady this morning—she is on a Select Committee visit to the United States. Although she had conveyed a message to the newspaper to withdraw the article, or at least to put it in some context, what advice can you give to Members about the importance of ensuring that that which appears above our own names in print is our responsibility? Will you caution us about being insensitive and about the fact that if we fear that something that we have committed to print may be insensitive and offend Members—and, indeed, the wider public—we should ourselves take care to ensure that it does not appear in print?

I can only say that hon. Members know that they have responsibility for their own words—whether oral or in writing—and they must take on that responsibility. It should not be for an editor to look after these matters; they are responsible for them. The matters that the hon. Gentleman mentions clearly took place outside the House and I have no control over them.

I can only end by saying that last Thursday hon. Members on both sides of the House paid great tribute to Eric Forth. Any member of the public is entitled to read in Hansard just how highly the House regarded Eric Forth, and I include myself in that.

On a point of order, Mrs. Heal. We have some very quirky practices in the House, one of which has brought about the collapse of amendments to the Bill in Committee. A number of hon. Members wanted to table amendments, but because the House rose very early at about 1.30 pm on Thursday those amendments were not tabled and could not be selected.

I wanted to table amendments on the Wednesday, but they needed to be tidied up and put in the right place. I had constituency duties on the Thursday morning, and by 2 o'clock, when I said that they were ready to be tabled, the House was not sitting so they could not be tabled. They are therefore not eligible to be considered, despite the fact that they are important amendments. I am particularly aggrieved by that, although I do not blame the Clerks—it is because of the quirky nature of this muddle. My amendments would have been tabled as starred amendments, so they would not have been selected, but they would at least have appeared on the amendment paper. I had five amendments, and I would have very much appreciated their being recorded in the official record. One of them, for example, said:

"Clause 50, page 22, line 7, at the end insert"—

Order. I understand the point that the hon. Gentleman makes, but I must remind him that the Bill was reported from the Select Committee at the end of April. Although the business finished early last Thursday, I would have thought that from the end of April—I am not giving a precise date—until last week provided sufficient time for right hon. and hon. Members to table amendments to the Bill.

Further to that point of order, Mrs. Heal. The Bill was not timetabled. It is an incredibly complex Bill, with 378 detailed clauses and many aspects to it. I had to obtain quite a detailed briefing from the Library on several of those aspects. In those circumstances, it is reasonable to believe that even if such amendments are not taken because they are starred, they should appear somewhere on the official record. I want my amendments to be on the official record in some way because the issues that I attempted to raise are important. I ask you not to give me a negative answer, Mrs. Heal, but to find some arrangement whereby my amendments are on the official record, even if they cannot be taken. I wish to raise them as a point of order and mention them so that they are on the official record. Will you give me the opportunity to do that?

I understand the hon. Gentleman's concern, but I am afraid that I cannot give him that permission. The Public Bill Office tabled all the amendments that were received in time. I understand the circumstances, but I regret to say that there is nothing that I can do at this stage to help him.

You have been given incorrect—

Order.

rose—

Order. May I help the hon. Gentleman?

rose—

Order. If the hon. Gentleman will take his seat, I think that I will be able to help him. If he cares to take his amendments to the Public Bill Office, we will make sure that they are put in the Vote Office for him. That is the best that I can do to help him.

I appreciate that. Thank you, Mrs. Heal

I beg to move,

That the Bill be considered in the following order, namely, Clauses 1 to 53, Schedule 1, Clauses 54 to 113, Schedule 2, Clauses 114 to 163, Schedule 3, Clauses 164 to 168, Schedule 4, Clauses 169 to 180, Schedule 5, Clauses 181, Schedule 6, Clauses 182 to 205, Schedule 7, Clauses 206 to 271, Schedule 8, Clauses 272 to 275, Schedule 9, Clauses 276 and 277, Schedule 10, Clauses 278 to 319, Schedule 11, Clauses 320 to 347, Schedule 12, Clauses 348 and 349, Schedule 13, Clauses 350 to 354, Schedule 14, Clauses 355 to 363, Schedule 15, Clauses 364 to 371, Schedules 16 and 17, Clauses 372 to 378, new Clauses, new Schedules, any remaining proceedings on the Bill.

The motion sets out the order of consideration for today's proceedings in Committee. It follows exactly the same order as was used in the Select Committee on the Bill. It was the Committee's view that, with a large and complex Bill arranged in a logical sequence, it should be debated in that sequence, with the schedules brought up with their relevant clauses. As Lewis Carroll said:

"Begin at the beginning...and go on till you come to the end: then stop."

Question put and agreed to.

Clauses 1 to 7 ordered to stand part of the Bill.

Clause 8 — Desertion

I beg to move amendment No. 8, in page 5, line 14, leave out from 'property;' to the end of line 15.

With this it will be convenient to discuss amendment No. 9, in page 5, line 18, leave out from 'offence' to 'must' in line 20.

I absolutely sympathise with my hon. Friend the Member for Leyton and Wanstead (Harry Cohen) about the process by which amendments to the Bill were garnered. It was exceptionally unfair to several hon. Members who were busy on that particular day, despite the earlier timetabling.

I am grateful to my hon. Friend for giving way and for his support for my point of order earlier, which came over somewhat awkwardly—my point of order, that is, not his support for me, which was very eloquent. Clause 8(3)(a) says that "relevant service" means:

"actions or operations against an enemy".

He said that the clause applied to Iraq. My understanding is that we have not declared anyone an enemy. I know that a war on terror has been announced, but can he cast some light on who is an enemy in these circumstances? It is said that there are insurgents and terrorists. We know that British soldiers have died. Why cannot the Committee be told who actually is the enemy? Why cannot it be legislated for in some way?

That is a valid point. The lack of definition of an enemy has enticed the Government to include in clause 8(3) as a relevant service

"military occupation of a foreign country or territory."

Without definition of an enemy, service during an occupation of another country is sufficient for withdrawal from that service and refusal to participate in that action to qualify as desertion. I believe that legislation of that sort will fail. No increase in the severity of punishment will prevent servicemen and women from speaking out.

Many have paid their respects—as I have, too—to serving personnel for the bravery that they show and their professionalism in carrying out their duties, but I also want to salute those who have had the courage and bravery to exercise their moral judgment, and those who have followed their conscience and said no to fighting. They have not supported the occupation and they have refused to serve. I pay tribute to Ben Griffin from the SAS, who said to us last week that he was not willing to support, in his professional life, the invasion of Iraq and the immoral and illegal war in Iraq. I also pay tribute to Flight Lieutenant Malcolm Kendall-Smith, a person of conscience who is in a military prison as a result of refusing to serve in Iraq. Their views should be respected. They, and others who come forward in future, should not be threatened with life imprisonment. History will be their judge, as was the case with the first world war. The people who opposed that barbarism were, in fact, sane and courageous. History will judge individuals who stood up and refused to fight in Iraq, or to support the occupation, to be heroes.

I am interested in my hon. Friend's argument. Would he apply the same logic to Kosovo, Sierra Leone and Afghanistan? Does he think that members of the armed forces should exercise their conscience at will, no matter what the country's determination, no matter that it is under a UN mandate, and no matter that assistance is being delivered for a great humanitarian cause? What is the logic of his position?

Individual members of a voluntary, professional military service have the right as citizens to exercise their judgment in the same way as we do. They should not face the sanction of life imprisonment—that is what the Bill proposes—for exercising that judgment.

May I clarify something for my hon. Friend? Refusal to take part is not desertion, but it may give rise to an offence of disobeying a lawful order, which carries a maximum sentence of 10 years.

Desertion is defined in the Bill as absence without leave. We are threatening someone who refuses to serve or who goes missing, whether as a result of fear, trauma or conscience, with life imprisonment. As I said, people who stand firm on the right of conscience will be judged the real heroes, as they made a judgment about Iraq and, I believe, provide an example to us all in the exercise of conscience, no matter what the cost.

I did not intend to speak in this debate, so I shall be brief in my support of the Government's proposals.

Parliament sets a maximum penalty, not a minimum. The hon. Member for Hayes and Harlington (John McDonnell) addressed hard cases—I am not sure whether or not I have his attention—but that is not relevant to the setting of a maximum penalty. If we set a minimum penalty, he could make his case, but the measure is required to cover all eventualities. The historical background that he gave illustrates that point. No one has greater admiration or affection for the hon. Member for Thurrock (Andrew Mackinlay) than I, but the campaign that he has waged on first world war executions overlooks many inconvenient facts. I was privileged to be briefed on the issue by a retired Air Force officer, who spent a year or two going through every one of the 260 folders that survive from the 300 original folders. He examined the background, and he established that there was a total of 3,000 cases: 90 per cent. of executions were refused on appeal. Among the small number of executions, there appear to be a few cases in which there was a genuine injustice. I shall cite an example of a case for which most hon. Members would accept that a sanction of some sort was appropriate. A professional solder who joined the Army five years before the first world war deserted—

On a point of order, Mrs. Heal. I am showing uncharacteristic restraint, as the hon. Gentleman is talking about something which, I hope, we will discuss later. I would obviously want to respond, but his example is quite irrelevant, I submit, to clause 8.

I was about to remind the hon. Member for Canterbury (Mr. Brazier) that the discussion of detail comes later in the day. Perhaps he could relate his comments to the amendment under discussion.

Indeed, Mrs Heal. I was giving the example of someone who deserted without seeing action at all, although he had been a professional soldier for five years.

On the argument advanced by the hon. Member for Hayes and Harlington, a maximum penalty must cover all eventualities. The Minister asked him about all the other cases. The hon. Member for Hayes and Harlington replied that the provision dealt with desertion, but we are dealing with cases of desertion and of people refusing to participate—two separate circumstances for which different maximum penalties are set out in the Bill. Is the hon. Gentleman seriously suggesting that anybody who has opted to wear the Queen's uniform should not potentially face very grave charges if they refuse to go into action? In an action that the entire country strongly supports, even perhaps—God preserve us—another world war, is the hon. Gentleman seriously suggesting that someone who chose to put on a uniform, with all that that means, and then refuses to participate, should be able to say, "Christ, I might get shot at. I don't want to go," without facing potentially serious charges?

Producing hard cases has no relevance whatever to maximum penalties. The hard cases can be argued one by one in the courts. That is what we have courts martial for. I urge the hon. Gentleman to think again. If we are trying to run armed forces of which we have good reason to be proud, and the hon. Gentleman has good reason to be proud of his forebears who served in them, we must have disciplinary penalties. On this measure, the Government are entirely right.

Having spent three months on the Bill—

Four months.

Four months, I am reminded, and some of us were more assiduous than others—the Member for Hayes and Harlington (John McDonnell) says from a sedentary position that he would have deserted. In the present circumstances, the Government would have welcomed that. [Interruption.] My hon. Friend

When I saw the amendments and a press release issued by my hon. Friend, I was worried that we had missed something in the Bill. I was concerned that the civil servants had got one over on us— [Interruption.] Someone says, "Surely not", but those who served on the Committee know that that it was a good process, both the Select Committee and the report. I had to do some research this morning to find out what the current position was, and I think that what is proposed is an improvement on the current position.

As I understand it, the 1955 Act set out a two-tier system—punishment of up to two years for desertion and another sanction, life imprisonment, for more serious cases, defined as desertion from active service. The definition of active service referred to occupation of a foreign country, so the reference in the Bill is nothing new. That Act was superseded by the 1971 Bill, which removed the lower sanction because of the situation in Northern Ireland, since the definition of active service could not be applied to deployment in another part of the United Kingdom.

Under the present system, the maximum sentence for desertion is up to life imprisonment. The Bill in its present form is an improvement because it reverts to the 1955 position, by introducing a two-tier system. There will be the possibility of imprisonment for up to two years, but the other sanction—rightly, in my opinion—is up to life imprisonment for the more serious offences.

I know that many hon. Members are worried about the reference to

"occupation of a foreign country".

I understand my hon. Friend's position on Iraq. It is not one that I share, but I credit him with being consistent and forceful in his arguments for it. As I said, the reference to occupation of a foreign country was part of the original definition of active service. Therefore, I do not see any great change there, but I understand why there may be concerns. However, a reintroduction of the two-tier system is better than the previous position.

Does my hon. Friend agree that there is a difference between a legal occupation and an illegal occupation?

That is an argument that can be had around a specific campaign such as the one in Iraq. I am grateful to my hon. Friend, but he knows that we disagree on that. The important point is that if people have agreed to serve in Her Majesty's armed forces, there must be some sanction or control over their actions. My hon. Friend the Member for Hayes and Harlington referred to those who were shot at dawn during the first world war. I shall seek to catch your eye later, Mrs. Heal, to speak on that matter, about which I have great sympathies, but there is a great difference between a conscript, who has no choice over going to war, and those who take the conscious decision to join Her Majesty's armed forces. Without some kind of sanction, how would one operate in any circumstances? We cannot have armed forces who pick and choose when and where they serve.

My hon. Friend served long and hard on the Committee so he knows the Bill inside out, poor man. The amendment would maintain the two-year sanction, but not that of life imprisonment, which appears inhumane and barbaric.

I disagree. The measure does not say the sentence for desertion will automatically be life imprisonment, but up to life imprisonment, so there is flexibility in sentencing. The idea has been sold that somehow if one deserts one will automatically get life imprisonment, and that is not the case.

In conflict, if a platoon were reliant on an individual to hold a particular post and that individual decided to desert that post, putting at risk the lives of everyone in the platoon, would it not be important to have a severe consequence?

My hon. Friend's point goes to the kernel of the argument. In the armed forces the ultimate sanction must be there for the sake of military discipline in very difficult situations. As I have said, there is a great difference between conscripted armed forces and those who have volunteered and made a conscious decision to serve in the armed forces.

I also agree with the point made by my hon. Friend the Member for Hayes and Harlington about the way in which our armed forces can make representations. I spoke on the armed forces federation when I moved new clause 23 in Committee, and if I have the opportunity I shall speak on that matter again today. An issue has been raised as a result of the situation in Iraq, not so much on this clause but on how our armed forces obtain redress for some of their grievances, not just those that arise from their service abroad, but here.

I shall resist the amendment because the measure is an advance, rather than turning the clock back, as the amendment suggests.

I congratulate the hon. Member for Hayes and Harlington (John McDonnell) on the measured way in which he has moved the amendments. I have some sympathy with where he is coming from, but I find myself unable to support them. They do not have quite the effect that the hon. Gentleman maintains, and it is just as well that they do not. I sympathise with him in that I, like him, opposed the Iraq war, and because in almost any circumstances that I can imagine the penalty of life imprisonment would be way over the top. Like him, I take the view that the arrangements for armed servicemen to claim conscientious objection are not working in practice, whatever they may say in theory, and like him I think that other shortcomings of the Bill result in a failure to address some of the grievances and points raised by people to whom both he and I will have spoken.

The hon. Member for Hayes and Harlington is mistaken in two regards. First, as other hon. Members have said, the existing legislation already includes the potential penalty of life imprisonment for anyone who deserts while on active service overseas. Although subsection (3)(c) does not add anything to the body of law, the hon. Gentleman is mistaken in suggesting that it somehow constitutes a toughening of the law, because servicemen who desert while on active service overseas can already go to a general court martial, where they face possible life imprisonment. Secondly, given that clause 163 leaves in place the maximum potential penalty, the amendment will not achieve the objective that the hon. Gentleman explained at the outset.

The Bill was presented as allowing the updating of service law, which gives us the opportunity to rid ourselves of some of the punitive punishments in existing law, one of which is life imprisonment. I would welcome the hon. Gentleman's views on clause 40, which also introduces life imprisonment for incitement based on actions undertaken under clause 8.

The hon. Gentleman is right on that particular issue. It is just as well that the amendment will not have the intended effects. If British servicemen were to carry out perfectly legal actions overseas, such as actions agreed by United Nations resolution, and were to conduct themselves entirely in accordance with international humanitarian law, it would be a serious matter if someone were to up sticks and leave, because, as the hon. Member for Stoke-on-Trent, South (Mr. Flello) has said, it would endanger others in their units. That should not be viewed as a small offence and I do not think that a maximum two-year sentence would be adequate in such circumstances.

Does the hon. Gentleman agree that the Bill benchmarks life imprisonment in statute?

No; the Bill does not change the position. Existing statute allows a sentence of up to life imprisonment. I understand the point made by the hon. Member for Hayes and Harlington—that the Bill might have been an opportunity to modernise the legislation completely—but I do not accept the argument that the Bill makes the situation worse. Although some have pointed out that including subsection (3)(c), which concerns an invasion of foreign territory, on the face of the Bill is profound, I do not believe that it will change the existing law. Although I sympathise with some of the points made by the hon. Member for Hayes and Harlington, the amendments will not have the effect that he seeks, and I think that it is as well that they do not, because it would not be desirable to reduce that serious offence to an offence that carries a maximum two-year sentence.

That was a very interesting contribution by the hon. Member for North Devon (Nick Harvey), and a typically Liberal one—it was a fence-sitting exercise.

indicated dissent.

Well, I will give him an example of where he is fence-sitting. Clause 8 provides for a life sentence for the offence of desertion. Only every now and then does a Bill come before us to amend the Armed Forces Acts. He might say that this is no different from what we had before, or that it is slightly but not substantively different, but either he supports the provision of life imprisonment or he does not. He gave the impression that he does not, but then made it clear, by not supporting the amendment, that he does.

We are being presented with two options—one is a maximum of two years, and the other is a maximum of life imprisonment. I have agreed as a general point of principle that life imprisonment would be over the top in any circumstances that I can envisage, but the only alternative is a maximum of two years. I have clearly expressed the view that that would not be adequate as a penalty for people committing a very serious offence by, having been deployed in perfectly legitimate circumstances, leaving their comrades in an unsustainable position. I did not sit on the fence—I came to a firm view.

The clause provides for life, and there is an amendment that would delete that. The hon. Gentleman either supports that or he does not. If not, these are weasel words, quite frankly. I heard what he said in his speech, but it is not the same as his actions.

My hon. Friend the Member for Hayes and Harlington (John McDonnell) emphasised that under clause 8, life is a possibility, and I support him in wanting to get rid of that.

Clause 8 does not cover only desertion in the heat of battle, because subsection (2) states:

"For the purposes of this Act a person deserts if he is absent without leave and...he intends to avoid any particular service or kind of service".

That could lead to people who might have a real conscientious objection to a particular action, or a war such as Iraq, facing life in prison.

That is right. My hon. Friend the Member for Hayes and Harlington is seeking to get rid of that hugely excessive sentence, and that is why his amendment is worthy of support.

I welcome my hon. Friend the Under-Secretary to his post and wish him great success in it. I am sure that I will be more supportive of him on other occasions. However, I was a little alarmed when he intervened on my hon. Friend the Member for Hayes and Harlington to refer to absence without leave, the sentence for which, under clause 9, must not exceed two years. Indeed, he could have referred to disobedience to lawful commands, for which, under clause 12, the sentence is not to exceed 10 years. There is a bit of cherry-picking going on whereby the military authorities, or perhaps the Ministry of Defence, can pick and choose which sentence they want to apply to those who use the illegality of the war in Iraq as their defence. In the end, they could still use clause 8, which provides for a sentence of up to life.

I thank my hon. Friend for making my first day at the office so welcoming. I should remind him that this will be decided by a legal process, not by the Ministry of Defence or Ministers. The Bill sets out the parameters. It is not a mandatory life sentence, but a maximum life sentence, and the sentence meted out will be in relation to the crime committed.

I acknowledge that this will not be for the Ministry of Defence; I would not expect Ministers to make such decisions. However, it still leaves the military authorities with the power to cherry-pick. If they do not like the person concerned, they can go for clause 8, which provides for up to life.

Just for clarification, these decisions will not be made by the military, but by the independent legal authorities.

That is amazing because, if they were independent legal authorities, we would not have a court martial system, and civil and criminal law would apply across the board. Military legal authorities can cherry-pick if they wish.

Such Bills come up for review by the House only rarely. We should therefore take the opportunity now to get rid of the excessive sentence that is applied and which can be applied to those who have serious conscientious objections, for example, to the war in Iraq.

The hon. Gentleman and I opposed the war. I spoke in almost all the debates about it and was contacted by many members of Her Majesty's armed forces who had serious concerns about the action that the Government proposed to take. I respected those views, which they did not reach in the height of battle. They volunteered for service under the Crown and, whatever we think about the war, it took place, and the majority of those who had serious concerns made them known before they were deployed in theatre. They did not desert their posts at the height of battle. My advice to people who approached me was that members of the armed forces who opposed the war should make their opposition known before they were deployed and went to the front, that they should certainly not desert their mates while they were there and that, if they did, I believed that serious consequences should follow.

I accept that, but many people are effectively "deserting" when they are in this country and do not wish to go on another tour of duty in Iraq because of the unfolding circumstances, in which they have witnessed some of the atrocities, which have certainly been against the law, and seen the Attorney-General's statements to the Cabinet, which were revealed bit by bit. It is not unreasonable for people, such as Flight Lieutenant Malcolm Kendall-Smith, who went on an earlier tour, to say, "I've looked at what happened since and I don't support it."

In a nightmare scenario for the MOD, in which my hon. Friend the Member for Leyton and Wanstead is appointed a Minister, what would he do in circumstances whereby Parliament had decided that our troops should serve abroad on a humanitarian mission, or, for example, in Afghanistan, where the occupation is universally sanctioned, and someone said that they were not prepared to fight or go on the mission? Does he suggest that members of the armed forces should pick and choose when they serve?

First, I am grateful not to be a Minister in the MOD. I never had any expectation of being one. However, I have always argued from the Back Benches that whatever our forces do should comply with the law of this country and international law, which should not be downgraded.

A sentence of up to life is excessive and should not be on the statute book. The Library has provided a host of alternative sentences, even to detention.They include dismissal, forfeiture of seniority, reduction in rank, a fine, a severe reprimand, stoppages of pay and minor punishments, including community punishments, which would be appropriate for conscientious objectors. We allow community activity and that would be appropriate for someone who was akin to a conscientious objector. The Library paper says of community punishments that

"a sentence of this kind may not be passed unless the court considers that the offence is serious enough to warrant it".

A serious offence therefore leads to such a punishment. That makes it clear that a sentence of up to life is excessive.

I have a great deal of sympathy with many of the issues that the hon. Gentleman takes up, but he has lost the plot on this one in relation to the crime that has been committed. Any service person leaving their post in this country in peace time would be dealt with in a particular way, but the example has been given of someone deserting in the heat of battle resulting in the death or endangerment of his comrades. Surely that must warrant the most severe sentence. Will the hon. Gentleman get off the fence and tell us what he thinks the sentence should be for that kind of action?

I hear what the hon. Gentleman is saying, and my colleagues have just whispered to me that such action is covered elsewhere in the Bill, under the misconduct clauses. We are talking here about the clause that is most applicable to people who consider that the war in Iraq was wrong and illegal. We are not talking about the circumstances that the hon. Gentleman has described in relation to those people. People leaving in the heat of battle are dealt with elsewhere in the Bill. So why does this provision need to include a life sentence?

The recent case of the flight lieutenant has been used as an example of why a life sentence is inappropriate. However, my understanding is that that case was brought not for desertion but for failing to obey a lawful order, so I am surprised that that example is being cited time and again in support of the argument about desertion. I should like to repeat the question that the hon. Member for Portsmouth, South (Mr. Hancock) has just asked; what would my hon. Friend do if the lives of a company of 70 or 80 men were put at risk, or possibly lost, because one person who had a crucial role in the company decided to desert?

Those circumstances are dealt with elsewhere in the Bill—[Hon. Members: "No, they are not."] Yes, they are. They are dealt with under the misconduct provisions. We do not need the provisions in clause 8 to go to this extent.

Will the hon. Gentleman explain to the Committee where in the Bill this issue is dealt with? I have read the Bill, and I cannot find it.

My understanding is that it is in clause 12, and presumably clause 13 as well.

And in clause 2(1)(b).

Indeed. That clause deals with misconduct on operations. We do not need the provision in clause 8 as well, as it will allow the legal authorities to cherry-pick which sentence to apply. They will choose the harshest sentence if they want to.

Clause 8(3) deals with the definitions of "relevant service", and includes

"actions or operations against an enemy".

But it is no longer clear-cut who the enemy is, as we no longer officially declare war.

I want to help my hon. Friend in regard to clause 2, which deals with misconduct. He says that subsection (1)(b) is relevant to his argument, but subsection (7) states:

"A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 163, and any sentence of imprisonment imposed in respect of the offence may be for life."

The first punishment listed in the table in clause 163 is "imprisonment".

That deals with a mutiny, where people are getting together. I am talking about people exercising their individual conscience, which is very different.

Clause 8(3) defines "relevant service" as, among other things,

"actions or operations against an enemy",

but we no longer define specifically who an enemy is.

I thank my hon. Friend for letting me in. We do define what an enemy is. Clause 367 states that anyone

"engaged in armed operations against any of Her Majesty's forces"

is defined as an enemy.

Let me now— [ Interruption.] I have two issues running at the same time here. I apologise to the Minister. I will come back to the point that he has made in a moment. One of my colleagues has just drawn to my attention paragraph 62 of the explanatory notes to the Bill, which states:

"The maximum sentence for desertion is generally two years' imprisonment. But the maximum is life imprisonment if the offender deserts when on service, or under orders to go on service, of the types described in the second bullet above, or if his intention is to avoid such service."

However, a stricter distinction is needed in relation to those who, as the hon. Member for Portsmouth, South (Mr. Hancock) said, put lives at risk in the heat of battle. That issue must be distinguished from that of those who say that the Iraq war is illegal under international law and who exercise their conscience and personal responsibility in that regard. The fact that we are having this argument shows the muddled way in which the clauses have been devised and worded and the lack of proper consideration of them; otherwise, we would not be having this dispute about what the provision means. The Government should therefore accept the amendment, so that the life sentence for the second category to which I referred is withdrawn.

I was interested in my hon. Friend's point about legality. If, for example, someone had deserted in the run-up to the invasion of Iraq, when, clearly, there was no UN approval, no direct threat to this country and, therefore, no legal state of war, would it be correct to discipline that person?

In a sense, the point is made. In an earlier intervention, I made the point that international law is as important as law, and that should apply. This Government and Parliament have put a lot of personal responsibility on people to comply with the law. If they do not, the punishments are increased. Therefore, they must examine the law and international law as it applies in military terms. The punishment should therefore reflect that personal responsibility. As has been said, a life sentence is inappropriate.

As to who an enemy is, the Minister's intervention, in which he said that the situation is as it always has been, just will not do. In the second world war, we had a clearly defined enemy, which was referred to as an enemy. Now, even al-Qaeda is not referred to as an enemy in legislation or in what has been laid out in Parliament. Things have therefore changed considerably. If we are to apply such emphasis and impose such strict sentences on the basis of having an enemy, let us at least declare a war in the traditional way, so that we know who the enemy is, and so that people are clear about that. Otherwise, the enemy can change from day to day. In Iraq, is the enemy al-Qaeda, or is it nationalists? Who exactly is the enemy in Iraq?

If my hon. Friend does not want to read clause 367, which contains the tight definition of an enemy, let us make it more simple; it is the people who are shooting at our forces.

Except when they are the Americans.

As my hon. Friend says from a sedentary position, that could easily be the Americans in many cases. I am happy if the Minister wants to include in legislation the definition that anybody who shoots at our forces is the enemy. That is not in the legislation at the moment. If we are going to go to war and put such burdens on people, we should be explicit about who the enemy is in any given circumstances.

Subsection (3)(b) refers to

"operations outside the British Islands for the protection of life or property".

Does that cover Iraqi lives and property? Are they covered, or are they usefully ignored? Are we talking only about United Kingdom lives and property, or not? I am waiting for the Minister to intervene on that. After all, the Government claim that we are there on a legal basis. They claim that we are there according to the will of the United Nations, protecting Iraqi lives and property, although the property has been ripped off to an enormous degree and more than 100,000 lives have been lost. It is interesting that the Minister remains silent on that. That in itself could cause people to ask, as a defence, what lives or property they were actually defending.

The third paragraph, which was referred to by my hon. Friend the Member for Hayes and Harlington, is the most objectionable in my view. It refers to

"military occupation of a foreign country or territory".

It is important to establish whether that occupation is legal or illegal. If it is legal and properly authorised, I think that courts martial and sentences should follow; if it is illegal, that represents a solid defence, and that people who advance that defence should not be punished in the excessive way proposed by the Bill.

Is not the point that my hon. Friend keeps making entirely oxymoronic? Is it not obvious that it will not be in the legislation? Can my hon. Friend not understand that it is not possible for this country's armed forces to launch or be involved in an illegal war? It has never happened, it will never happen, and it cannot happen. Only in the minds of mad conspiracy theorists does this country launch illegal wars. It is not possible, and that is why it is not accounted for in the Bill.

That was a very eloquent rant, but Kofi Annan said that the war was illegal, as have many other international jurists. Even the armed forces had to seek information on whether the war was legal. Even they were not sure. Then we had the weasel words—

Order. I think that we are going wide of the amendments.

I shall go straight back to the point, Mrs. Heal. I was saying that I agreed with my hon. Friend the Member for Hayes and Harlington. If military occupation of a foreign country or territory in such circumstances is illegal under international law, we are enshrining illegality in our law, and that is something that we should never do.

Let me make one more point, about the Nuremberg trials. When people said as a defence that they had been acting under orders, although their actions had been deemed illegal under international law, we said that that was not a defence. We said that they had to exercise personal responsibility. Now people are exercising personal responsibility. People like Flight Lieutenant Malcolm Kendall-Smith have looked at all the information that has dribbled out. He said that the war was illegal as far as he could see, that Kofi Annan had said it was illegal and that personal responsibility dictated that he should not take part in it.

I think that the hon. Gentleman should make a distinction between the legality or otherwise of the action, conflict or war and the current occupation. There has been discussion about whether the war was legal. I take a view on that; I opposed the war, although the House voted for it. The occupation, however, is sanctioned by the United Nations Security Council, and is at the invitation of the democratically elected Government of the country, whatever we may think about that. Whatever the events of a couple of years ago, surely the hon. Gentleman accepts that the presence of British troops in Iraq now is legal.

There are a number of very serious points—

Order. We are now going outside the scope of the amendments. Once again, I ask hon. Members to address their remarks to the amendment under discussion.

Let me answer the hon. Gentleman's point briefly. As has been said, a good many illegal acts are going on—

Order. I have already ruled that that is out of order. Will the hon. Gentleman please address his remarks to the amendment under discussion?

Subsection 3(c) has the potential to enshrine an illegal occupation. People should exercise, and have the right to exercise, their personal responsibility. The punishments that we include in Acts of Parliament should reflect their right to do so; they should not be excessively harsh. The punishment of imprisonment up to life imprisonment, is exceptionally harsh and should be removed from the Bill. I urge the Liberals and everybody else to come off the fence and oppose it.

It is a great pleasure to follow the hon. Member for Leyton and Wanstead (Harry Cohen); we are used to hearing his lengthy speeches. I salute the modesty with which the hon. Member for Hayes and Harlington (John McDonnell) spoke and the due deference that he paid to the members of his family who have served in the armed forces. He approaches the amendment with a great deal of principle and thought. However, I think that I speak as the only person in here who has commanded a battalion, faced the prospect of operations, disciplined soldiers and encouraged them to go on operations and, indeed, to face the enemy.

I do not wish to come the barrack-room lawyer, but there is a degree of confusion about the points that we are addressing. Desertion is an extremely serious charge, and if you do not mind, Mrs. Heal, I shall address most of my comments to my personal experience in the Army, but they are equally applicable to the Navy, the Royal Air Force and the Royal Marines. As a lieutenant-colonel commanding a battalion of infantry, it was my job to deal with soldiers under the Army Act 1955. I had to deal with the charge of desertion, under the auspices of the 1955 Act, once in my two and a half years commanding the largest battalion in the British Army, and twice on operations. I had to deal with absence daily.

Some of the soldiers serving in Tidworth, where I had 950 soldiers mainly drawn—lucky devils—from the counties of Nottinghamshire and Derbyshire, would frequently "go abo", as the vernacular has it. In other words, they would go absent. They would exercise their personal freedom and choice, and, by golly, they paid for it. They were charged, if necessary, under the 1955 Act, and they were dealt with under various sections, but usually section 69. For periods of absence, they were dealt with by means of anything from a serious telling off, to a fine, to a period of imprisonment not exceeding 14 days. Such a period of imprisonment was the only one that I could regularly impose.

From time to time, soldiers would absent themselves—go absent—and go, usually, to the large conurbations. I, as a furious commanding officer with a furious adjutant, would say, "Charge this man with desertion." The advice that we received was, "Absolutely not. Do you realise what desertion means?" Having had 20-odd years experience as an infantry officer, I knew precisely what it meant. The guideline was that a soldier had to have been absent for more than 112 days and to have destroyed his identity card. That was the rule of thumb that we used before that soldier would appear in front of me to be remanded for trial by court martial. It was not a case in which a humble lieutenant-colonel could have become involved. The charge of desertion was extremely serious, and very serious penalties went with it.

I say to the hon. Member for Hayes and Harlington that unless one has served in a battalion, or on a warship or an air station, one does not understand the problem that officers face in trying to deal with soldiers, airmen or sailors daily. They are a rumbustious and difficult lot. They decide from time to time that they are going to exercise their personal freedom and drink too much, fight, go absent and so on. However, in my experience, things change enormously when that battalion is warned for operations.

I just wish to point out that under clause 8(4), anyone who intended to avoid service—when on relevant service or under orders for such service—would be liable to be sentenced to life in prison. That would apply to Mr. Kendall-Smith.

But the point that I have been trying to make concerns the circumstances in which someone should be charged with desertion. In any case, he is not a Mr., but a flight lieutenant.

Trooper Griffin behaved with great courage, despite the fact that he was being paid a great deal more money every day than others of his rank and that he was in arguably the most prestigious armed organisation in the world. None the less, he had the courage to approach his commanding officer and say, "Enough is enough." I had similar instances, and I like to think that I dealt with them with fairness, kindness and compassion. I like to think that those are the watchwords of the commanders of our armed forces and that they deal not just with their own men, but with the Queen's enemies using the same rule of thumb.

Let us not talk about desertion, but let us say that a trained sustained-fire machine gunner, who carries the maximum firepower of his platoon, decides to absent himself—if he decides that he will not face the enemy, but would rather let down his mates—and that turns into desertion. I fear that we need to have the power to charge that man with desertion. The sentence in clause 8 is not a minimum sentence, but a maximum sentence. It has not been applied readily over the past several years. The plain fact is that if that man—it is, let us face it, likely to be a man—deserts from his unit, the punishment he faces from the men whom he let down will be administered in the back streets of Nottingham or Mansfield and military law probably needs to be in place to protect him from those whom he has let down.

We need to have a penalty for desertion. The Bill would make military law stronger, but the amendments would do nothing to help the soldiers, sailors and airmen, and the officers who have to discipline them. In fact, the amendments would undermine discipline. I understand and respect the political points that have been made by Labour Members, but they are not applicable in this case. We run the risk of confusing an extremely important issue.

It is a great honour to follow the hon. Member for Newark (Patrick Mercer). I am sure that all hon. Members agree that he made a particularly fine contribution to the debate. I disagree with him on only one point. I know that he brings a particular expertise to the debate, but one does not have to have been a serving officer to understand how important the concept of desertion is for discipline in the armed forces and for making it clear to every serviceman exactly what they have signed up to.

I also pay tribute to my hon. Friends the Members for Hayes and Harlington (John McDonnell) and for Leyton and Wanstead (Harry Cohen), although I am about to disagree with them. Both put their arguments with eloquence, but my hon. Friend the Member for Leyton and Wanstead did not seem to understand that the concept of "enemy" is quite well defined. Clause 367, on page 185, makes it clear that an enemy is

"all persons engaged in armed operations against any of Her Majesty's forces or against any force co-operating with any of Her Majesty's forces...all pirates; and...all armed mutineers, armed rebels and armed rioters".

That is clearer than in previous statutes so my hon. Friend may want to reconsider that part of his argument.

I wholly disagree with amendment No. 8, which was proposed by my hon. Friend the Member for Hayes and Harlington. Deletion of paragraph (c) of subsection (3) would have meant that during the occupation of Germany and Italy at the end of the second world war somebody could have deserted with impunity. My hon. Friend may respond that they would be covered by the provision in paragraph (a)

"actions or operations against an enemy".

In that case, what about people serving in Bosnia with UNFOR—the UN force? Over the last 10 years, our forces have operated under different operational commands at various times; none the less—certainly in the view of some people—they are in

"military occupation of a foreign country or territory".

I believe that they are doing important work, although in the near future we may want to reconsider the number of troops serving in the region, as normalisation steadily takes place in Bosnia and Herzegovina, and, in the fullness of time, in Kosovo.

My hon. Friend's amendment would wholly undermine many of our existing operations around the world and those in which we might choose to engage in future. If the Committee chose either to pass the amendment, which is unlikely given the contributions that have been made, or if a large number of Members were to support it in a Division, it would send a message to our armed forces not of ethical surety—as I am sure my hon. Friend intends—but of ethical chaos. I hope, therefore, that no Members will support it in the Division Lobby.

Why has my hon. Friend not mentioned paragraph (b) of subsection (3)—

"operations outside the British Islands for the protection of life or property"—

which seems to cover the point he makes?

I do not know whether my hon. Friend has visited our forces in Bosnia, but if he did so, he would see that it would be hard to argue that that was not what they were doing. I do not want the Bill to be so amended that our armed forces are constantly unsure which provisions apply—to be wondering "Does this count? Is this ethically right or wrong?" My experience of the armed forces is limited—it is nowhere near that of the hon. Member for Newark—but through the armed forces parliamentary scheme I have met countless soldiers of varying ranks with extremely well-developed consciences. In fact, they probably need a more keenly developed conscience about military operations than they ever did in the past, but that need not undermine discipline. An essential part of the training of a modern soldier is being able to make ethical decisions.

Does my hon. Friend accept that there is a huge debate, especially among military families who have lost loved ones in Iraq, about not just the legality of the invasion of Iraq but the justice of the operation in the first place? The Committee needs to recognise that that debate is new and serious in our armed forces.

I am absolutely sure that my hon. Friend is right in that, but the Bill is not the place to have that debate. This clause on desertion is not about the war in Iraq . [ Interruption. ] It is not. I know that my hon. Friend the Member for Hayes and Harlington and his colleagues would like to make it about that, but I honestly do not think that it is, for the very important reason that desertion is not just about the individual soldier or officer; it is about the collective; it is about responsibility one to another—again, an essential part of the training of a soldier or an officer—and it is vital that we do not send out a message that completely undermines that concept.

My experience is that members of the armed forces today have an extremely developed sense of conscience and that they are encouraged to develop that sense of conscience, but it does not lead in just one direction. Conscience can lead, and I believe in the vast majority of cases has led, people to join the Army and to say, "Yes, here's a series of operations that I want to contribute to on behalf of my country, but also for the greater good." Whether we are talking about Bosnia, Afghanistan or Sierra Leone, there is a whole series of different interventions where people are going not because of some economic conscript situation that might apply in other parts of the world—they are not conscripts in any sense—but because of a sense of conscience and a desire to make their contributions to the world. So it feels as though amendment No. 8 is rather old-fashioned; either it is trying to fight the first world war again and deal with how people were treated when they deserted then, or it is trying to fight a war about a debate that was held in the Chamber some time ago.

The final reason why I wholeheartedly oppose the amendment is quite simply that I believe that it would undermine the House. It effectively says that, in some circumstances, a soldier or an officer or a member of the other armed forces could desert, despite the fact that this country, through the House—its elected representatives—had decided that the war was legitimate and legal, and I do not think that we should go down that route.

The Bill benchmarks draconian penalties for going absent without leave, which could occur in accordance with conscience, owing to the orders that the soldier was given. We must remember that orders vary according to the actions that Governments might want to take as a result of their international alliances. The proposed penalty is the maximum that has been benchmarked in our society. Indeed, if we went back to the days of world war one, we would have the ultimate penalty. Subsection 2(b) refers to someone who

"intends to avoid any particular service or kind of service"—

that is the nub of it—because he or she does not agree with the Government of the day. If we go back perhaps to 1930s Germany, a reasonable law could be passed by a reasonable Government—but, years later, we might not have a reasonable Government, and we would still have on the statute book a law that criminalises an awful lot of people.

It is argued by some soldiers that they are entering into forms of bonded labour for a period of years. They volunteer before action; surely, they have the right to volunteer after action and not in any way to be subject to life in prison. We have the concept of just war, and importantly, we have the Nuremberg principles of the 1950s, which placed a responsibility on each person engaged in a war to assess for themselves exactly the orders that they receive.

This is the second time that the Nuremberg law has come up, and the hon. Gentleman ought to bear in mind the difference between waging an illegal war and doing illegal acts in the course of fighting a war. I do not think that anyone at Nuremberg suggested that any individual German soldier, sailor or airman was guilty of waging an illegal war, although many of them may have been guilty of war crimes in the context of that war, irrespective of whether or not it was legal.

It is not for me to speak about the legality of Adolf Hitler's war, but it is certainly for me to stand up for soldiers. I have spoken anecdotally to several forces personnel, and it would seem that few of them know much about the rights of conscientious objection. The Bill will set as a benchmark, for going absent without leave, for viewing war as unjust or even for changing one's mind, the penalty of life in prison. As the hon. Member for Hayes and Harlington (John McDonnell) pointed out, desertion has trebled since the Iraq war. The USA has about 6,000 people going AWOL.

I am rather confused. Does the hon. Gentleman agree that there is a big difference between people who are forced to go to war as part of a conscription army and people who have taken it upon themselves to make a conscious decision to join Her Majesty's armed forces? Those are two very different situations and it is a mistake to link them.

We heard earlier the remarkable assertion that it would be impossible for this country ever to engage in an illegal war. It would be possible for this country to engage in an illegal war and, given that that is the case, it is incumbent on individual service personnel to look at exactly what they are involved in. Illegal actions stem from illegal wars.

I will put the same question to the hon. Gentleman as I put to my hon. Friend the Member for Leyton and Wanstead (Harry Cohen) earlier. If we were in an unusual situation and the hon. Gentleman became the Defence Minister of either Scotland or the UK, what would he do if this Parliament, or any other Parliament in which he was a representative at that time, decided to take military action? Is he seriously suggesting that individual officers and men would be able to opt out of that democratic decision?

If I were to become a Defence Minister, it would not be in the UK. My imperialist ambitions are very small—in fact, they are non-existent. Scotland might be a possibility.