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The decision to go to war is for the Government of the day, and we take our legal obligations, both domestic and international, extremely seriously. Any decision to take military action is carefully considered in all circumstances, and legal advice is obtained at the highest levels. I hope that with this explanation the noble Lord feels able to withdraw the amendment.
Lord Thomas of Gresford: My Lords, I have not heard an explanation that satisfies me about the distinction between Clauses 3(1) and 3(2). I am concerned about the response to the other amendments; that is, my attempt to insert lawful in the appropriate places. I have no doubt that before any action is taken by way of warfare, that action is carefully considered, as the Minister said a moment ago. But I am not asking a serviceman to grapple, as he put it, with international law. I am saying that if he is brought before the courts and his defence is that the action was unlawful, it is not enough for the prosecution to say, It is a matter of national law, the Attorney-General has decided that it is lawful, and the courts cannot interfere. That excludes the jurisdiction of the courts, which cannot be right. At the end of the day, it must be for the courts to determine whether an operation and the orders that depend upon it are lawful.
The noble Lord said: My Lords, I shall also speak to Amendments Nos. 12 and 13. I listened carefully to the concerns of noble Lords in Committee, particularly those of the noble and gallant Lord, Lord Craig, regarding the offence of mutiny and the manner in which the clause was originally drafted. I agreed to consider that, and on reflection I agreed that the clause could be redrafted in an effort to make the provision simpler to understand, not least by including the word mutiny in the body of the offence.
There is no substantive change to the effect of the original clause; mutiny remains both an agreement to resist or overthrow authority and the act of doing so. Under Clause 7 as amended, it remains an offence to fail to suppress an act of mutiny but not to fail to suppress the agreement. I trust that addresses the concerns of the noble and gallant Lord, Lord Craig, and I am grateful to him for highlighting the issue. I trust that he regards this as a more satisfactory result. I beg to move.
The noble and gallant Lord said: My Lords, in Committee I expressed reservations about the wording of Clause 8. It was convoluted. It identified tasks that, if not fulfilled, would mean that an offence of desertion would have been committed. I tabled a probing amendment to allow the Minister to explain why we should accept Clause 8, whose definitions of desertion differ significantly from those used in the existing single-service Acts. Those identical definitions were introduced by the Armed Forces Act 1971, which amended the Naval Discipline Act 1957 and the Army and Air Force Acts of 1955.
If a soldier were due to go to Germany for a training exercise but went absent because of some temporary trouble at home, he would be guilty of desertion, rather than merely absent without leave. That would be too harsh.[Official Report, 24/7/06; col. 1636.]
I agree. If temporary trouble at home were the sole reason for his absence, surely he should never have been charged with desertion. But if he was to go to Germany and absented himself and there were indicators that that was, in the words of the amendment,
The definitions of desertion in subsection (2) of the amendment are taken, word for word, from the existing legislation; the only variation is the splitting of the second definition into two parts. That is to limit a punishment of up to life imprisonment solely to someone found guilty of desertion before the enemy. Compared with the convoluted wording of Clause 8, these definitions are much clearer. Can we not stick to them? Subsection (3) of the amendment follows the wording in Clause 8(4) but is adjusted to restrict the punishment of life imprisonment to someone found guilty of desertion when before the enemy.
My understanding is that the present legislation has not proved defective in achieving convictions for desertion. It is well known throughout the three services; it is a straightforward, much clearer definition than that in Clause 8. In view of the major and complex tasks faced by all three services in transferring from existing legislation to the new Act, it would seem sensible and highly desirable to avoid changes and differences, where possible. If the existing definitions are retained in the new statute, there will be no need to re-write that part of the manual of service law. Each of the existing Acts covering the three services uses the same wording.
I also dislike the reliance on specific tasks as part of the new definition. That does not arise in the three existing Acts or in my amendment. As I pointed out in Committee, the reference to property in Clause 8 leaves many questions unanswered, given the definition of that word in Clause 374. Clause 8(3)(c) on,
defines a relevant service. But does a country or territory include those of the European Union or the Commonwealth? We might be expected to help out if there were a problem in one of those. What about British overseas territories, where a service man or woman might be posted? I expect that there may be answers based on legal expertise to some of these points, but I should like them to be clear to non-legal service personnel as well. I raise them to underline my concern at the way in which the clause is constructed, with its complex definitions of relevant service. It may not be as all-embracing as the authors had intended.
I also asked in Committee whether occupation covered every conceivable situation from a large-scale invasion to a few servicemen being attached to a unit of the country or territory at the relevant authoritys request. I have not had a response to that.
My probing amendment in Committee sought to give the Minister the opportunity to explain why it was thought necessary to introduce a totally different construct to describe the offences of desertion. It is totally different from the existing one, which all three services have relied on for more than 35 years, since 1971, and which they will rely on until the new Act is introduced. The Minister was not able to help in Committee but perhaps he can this time, and I shall listen with care to his response. I beg to move.
Lord Judd: My Lords, I shall speak to Amendment No. 18, which is in this group. Ideally, I should have liked to speak to this amendment separately but, in view of our procedural ruling, there may not be an opportunity to speak about the importance of Amendment No. 18 if Amendment No. 14 prevails.
I make plain that I feel as strongly as anyone about the seriousness of desertion; I do not want any misunderstanding on that score. Desertion can be a literally terrible offence. In the modern technological services, the implications of desertion can be even greater than was ever imagined in the past. The desertion of a key person could have huge implications for the whole operation and for the well-being and safety of comrades and colleagues.
In his earlier amendments, concerning the word lawful, the noble Lord, Lord Thomas of Gresford, dealt at some length with the arguments. Although his arguments did not prevailI was sad about thatthey were very powerful and I shall not repeat them all now. As the noble Lord kindly remarked, in Committee I tabled an amendment about the word legal. I listened very carefully to the Minister's reply and recognised that he and the Government believed that there were complexities relating to the interplay between international and domestic law. In view of the significance of the arguments put forward by my noble friend, I decided that, although I believed the issue remained vital, it was important to address it with slightly different wording.
Perhaps I may anticipate an argument which the Government may deploy against my amendment and which the Minister used in dealing with a previous amendment. It is the suggestion that ordinary serving men and women should not really be worried about the implications of international law, as that is something for Governments. I am not persuaded by that argument. It seems to me that an individual serviceman who does something that is not lawful is, in the end, responsible for his action and can be brought to task for it very properly.
Another point that worries me is that that is a little patronising as it suggests that we do not have very intelligent service men and women who are capable of working out very important things for themselves, and that that should be left to their superiors and
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I turn to recent history. We all know that at the time of the Iraq war the chiefs of staff went to great lengths to ensure that they were persuaded that what was being undertaken was lawful. I was immensely reassured that they took such an issue so seriously. That is altogether good and healthy in the kind of society in which I want to live. I commend them for that.
It is also interesting to note that this argument should be deployed by my noble friend, because it seems to be contradicted at the beginning of the Bill, on page 1 at line 16. On the responsibilities of someone taken prisoner, it spells out what that person must not do:
Let us consider a prisoner who is isolated, under pressure, bewildered and disorientated. At that juncture, he is expected to know whether something that he is being asked to do is in keeping with international law. We write that into the Bill, right at the beginning, so how can the Ministers argument logically be deployed in later provisions, the argument that, when it comes to the occupation of a foreign country, it is not really up to the ordinary service person to worry about whether something is in keeping with international law? I find that totally inconsistent. Not for a moment am I suggesting that the provision on page 1 should not be thereit should bebut its logic utterly follows through into what I am arguing in Amendment No. 18.
To occupy a foreign country is a very serious matter. I would hate it if at some later stage it were to be argued that Parliament specifically decided that it was not appropriate to say that this must be in keeping with international law. I do not think that would happen under the present Administration or any in the foreseeable future, although one never knows what might happen in Britain. Sometimes we do not take this point seriously enough when we legislate because we look at our present experiences and not at what might happen unpredictably. It could be argued in a hot situation with some force that Parliament considered the issue and decided that it was not appropriate to make this reference to, and to underline, international law.
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