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I have no idea how the Minister will respond, but when this point was ventilated in Committee, I had a great deal of support from your Lordships, including the noble and gallant Lords, Lord Vincent of Coleshill, Lord Craig of Radley and Lord Inge, the noble Lords, Lord Ramsbotham and Lord Thomas of Gresford, and the noble and learned Lord, Lord Lyell of Markyate. All of them supported the idea that the rules of engagement should be given statutory form. In these amendments, I have tried to meet some of the criticisms of detail that were made and to provide something that protects flexibility and security but also gives the individual soldier the certainty that he requires. I beg to move.

Lord Ramsbotham: My Lords, I am particularly anxious to get at least into the proceedings of the House, if not into the Bill, the last four words—“made in good faith”—in proposed new subsection (2) of Amendment No. 32, in my name and that of the noble Lord, Lord Campbell of Alloway. Noble Lords will realise that it is absolutely essential—this has been said many times, most recently by the noble Lord, Lord Kingsland—for a solder in an operational situation to have confidence in everything around him. He must have confidence in his chain of command, confidence that if he is wounded he will receive immediate and first-rate medical attention, and confidence that, if he is brought into a situation where he is required to take action that may result in killing someone or opening fire on people but where he acts in good faith under the orders that he has been given, he will be dealt with fairly and consistently under the law by that chain of command.

It is very difficult to describe “good faith” absolutely and precisely. In the same way, I am very grateful to the noble Lord, Lord Kingsland, for the way in which he described not the prescriptive nature of rules of engagement but the rules of engagement as a framework, whose statutory force, which again is not prescribed, is essential in order that our Armed Forces can have confidence that, if they act in good faith within that framework, they need not fear anything from the chain of command—or the legal chain of command, as it were—that goes with it. That is why I am pleased that the amendments in the name of the noble Lord, Lord Kingsland, stand with Amendment No. 32.

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Lord Mayhew of Twysden: My Lords, these are ingenious amendments or, more accurately, a new clause and amendments. If they are carried, perhaps with a little alignment or tidying up, they will serve as a very present help in times of trouble. Properly understood, they would do so without impinging on the doctrine that being obedient to an unlawful order is no excuse. Nor would they breach the principle that disobedience to a lawful order should attract punishment. They would also provide a fair criterion for visiting a serviceman’s conduct when engaged in armed combat with criminal liability in a proper case. This is a fair criterion, because it is realistic. If it were not realistic, it would not be fair.

There are circumstances that impose on a serviceman who is required to engage in armed combat a degree of stress that must be unique in any field of employment. Of course, it is possible even when engaged in armed conduct to behave in such a way that by any standard and by any criterion one is guilty of murder. No one suggests that that is not so. Equally, no one suggests that those circumstances are such that they always can properly lead to a conviction for murder. To put it another way, no one has suggested that the circumstances of combat are such that the offences of murder or manslaughter are legally incapable of being committed. They plainly are so capable. The amendments seem to address the availability of liability to conviction.

A point that has been made before more persuasively and vividly than I can make it is whether a soldier has done what he has done in the heat of action and in the fear of action, which is perhaps more important, or whether what he has done was in breach of the common law of manslaughter or murder. That cannot sensibly be determined by a fine examination of the matter months later in a prosecutor’s office. The nearest thing to a bang that would be heard there is when Archbold’s Criminal Practice falls off the desk. Still less can we realistically expect a soldier in action to perform this exercise for himself. Surely what the soldier steers by are his rules of engagement and the orders made pursuant to them, as has been pointed out by my noble friends Lord Kingsland and Lord Campbell of Alloway, which can and frequently are varied—and the latest version is all that the soldier can reasonably be expected to bear in mind.

I suggest that justice requires that the soldier knows when he is sent into action that his conduct will be judged thereafter by a test that is fair and simple, which should be something like this: “You are subject to the rules of engagement and rules made pursuant to them, and if you come through this action you will in any event be safe from prosecution provided that you have not deliberately set out to disobey any of them”. The soldier will understand that: it is simple, clear and fair. That is the just way to order things. It will remove the lurking fear, which soldiers have spoken of so frequently and so recently—we have all read it—of a civilian prosecution process that is unfair because it fails to take cognisance of the exigencies of armed combat.

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Lord Thomas of Gresford: My Lords, we are very sympathetic with the thinking behind these amendments, although we are not very happy with the actual wording. It should be quite simple: if a serviceman acts within the rules of engagement, he will not be prosecuted—never mind convicted. He will not have—as certain servicemen have arising out of the Iraq conflict—years of worry that prosecutions are pending against him. It should be one of the foremost principles on which the Director of Service Prosecutions acts. He should consider, where the rules of engagement were conveyed to the proposed defendant, whether the defendant deliberately breached those rules and, if so, what the consequences of that were.

The noble Lord, Lord Ramsbotham, said that the question is whether the soldier acted in good faith. He pointed out that there are difficulties in defining “in good faith”. The noble Lord, Lord Kingsland, said that a soldier should know where he stands. In the case of the paratroopers tried at Colchester last September—I declare an interest in that I was involved on behalf of one of them—it was apparent that no thought had been given in the prosecution to what the rules of engagement were at the time. The defendants were a platoon of soldiers who had been patrolling in the Maysan province. As far as they were concerned, they had been told by an officer, “Well, it’s back to Northern Ireland rules now. We have just won this war”. In fact, it was not and those were not the rules of engagement. The rules of engagement that were still in force at the time of the incident with which they were concerned were the rules of engagement that were employed on the invasion of Iraq—to seek out and destroy the enemy. That was the broad concept in operation, but the paratroopers thought that they should be acting like policemen in the role that they were familiar with in Northern Ireland. Your Lordships will remember that, for a time, berets were worn in an attempt to win hearts and minds in the southern part of Iraq. The situation was that they did not know what the rules of engagement were because the rules of engagement had not been conveyed to them.

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Therefore, the Director of Service Prosecutions, when he is considering a prosecution, should think, “Did they know what they were supposed to do? Did they act in good faith within those rules or were they deliberately disobeying orders?”. It is far better for the decision on whether to prosecute to be taken at that point than for a defence in the terms of this amendment to be discussed years later on whether the defendant had the intention not to comply with orders and rules of engagement when charged with murder, manslaughter or breach of international convention. We are not happy with the amendment because it looks at matters at too late a stage. The issues that the noble Lords, Lord Campbell and Lord Kingsland, have very properly raised should be considered when the decision to prosecute is made.

Lord Blaker: My Lords, I had not intended to intervene in this debate, but one point is not being sufficiently stressed. I was an infantry officer in a line regiment in 1944. I fought from Normandy to

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Belgium. During the last action in which I took part and was wounded, we were informed that there were no Germans on the start point of the operation. In fact, there were Germans at that start point, greatly to our surprise. If I ask myself whether I would have had time to think about the rules of engagement in that situation, I believe that I would have been shot, and so would some of my men. The decisions have to be made instantly.

Lady Saltoun of Abernethy: My Lords, I, too, support the noble Lord, Lord Campbell of Alloway. I cannot help wondering whether, if our soldiers had had to go into battle fearful of shooting, even in self-defence, pulling their punches all the time lest they be tried for murder, we should have won two world wars. How, in the speed and heat of battle, as the noble Lord, Lord Blaker, has said, can a soldier have time to be certain whether he is being threatened? It is his life or his enemy’s. It seems to me quite wrong to ask him to risk his life for his country with his hands tied behind his back, as it were. Under those circumstances, how can we be surprised if recruitment becomes rather sticky? I could not nowadays encourage my grandchildren to join the Armed Forces knowing what they could face when they come home.

Lord Drayson: My Lords, it would be difficult for me to overstate the importance of this subject, which is why we have had a number of briefings on rules of engagement during the debates on this Bill. I am very grateful to noble Lords who have attended those briefings and discussions that we have had in this House and at the Ministry of Defence. So I will speak at some length on this matter. As we have debated the Bill, there have been clear differences of opinion on a number of issues, but on the matter of rules of engagement there has been a higher level of misunderstanding across the House than on any other issue, which is why we in the Ministry of Defence have taken so much trouble to try to explain to noble Lords the practical purpose of rules of engagement. Perhaps I may expand on that a little.

Rules of engagement are key documents vital to the success of every operation. They are always classified to ensure that information about the way our forces will operate during a mission does not get into the public domain or into the hands of the enemy. Despite that, at a briefing held on 23 October for noble Lords, we took the unusual step of showing copies of actual rules of engagement for an operation. We did that to give noble Lords an opportunity to understand the way in which they are written, their complexity and their purpose. I think that those noble Lords who were able to attend the briefing found them illuminating and perhaps even surprising.

Rules of engagement give our commanders the political and military framework to achieve their mission, including limits on the use of force. They must be consistent with the law, of course, but their purpose and even their language is operational. Rules of engagement are and must be flexible. They must

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not and do not tie commanders’ hands unnecessarily. They leave important decisions to commanders on the ground and those commanders need and value this responsibility. Rules of engagement are more often than not specific to individual missions. No two profiles are the same. Crucially, they can be modified quickly to meet the needs of a changing threat or a changing mission. Rules of engagement must retain these key characteristics. If they do not, it would damage our operational effectiveness. To give rules of engagement statutory force in the way suggested here would be prejudicial to those characteristics on operations.

Servicemen know that the rules of engagement will help them to conduct operations in a way consistent with the law, but each serviceman still has a responsibility to carry out his role lawfully. To that end, personnel rely on a combination of their training and detailed guidance. I shall address the points made just a moment ago by the noble Lady, Lady Saltoun, because she is absolutely right: it is vital for the individual soldier to have confidence in the basis on which he can operate so that, under pressure, he is able to make clear, split-second decisions with confidence and clarity. But giving statutory force to the rules of engagement is not the way to achieve it.

I recognise that Amendment No. 32 in the name of the noble Lord, Lord Campbell of Alloway, seeks to safeguard the position of soldiers in combat. It would mean that a serviceman who opens fire during armed combat or peacekeeping is not guilty of unlawful killing unless he intended not to comply with an order or rule of engagement. This defence is to apply where the serviceman has acted mistakenly but in good faith. I understand the intention, but orders and rules of engagement simply do not cover every situation in which a serviceman might open fire. I have tried to explain why rules of engagement should not be drafted to tell each soldier exactly what the law requires of him in every possible situation. To take a simple example, rules of engagement do not say, “Do not kill a prisoner”; that is a matter for training. So I return to the principle: do noble Lords want rules of engagement to be legal documents or operational documents? They cannot be both.

Amendment No. 33 would give all rules of engagement the force of law. It is a pity that the noble Lord, Lord Kingsland, was not able to attend the briefing on 23 October because we went into some detail on this point. As we looked at the detail of rules of engagement, it was clear how it would be inappropriate to give them statutory force. As I have said, they have an operational purpose and they vary between operations. The amendment would mean that the law would change both between and during operations; that is, changing as swiftly as the operational situation changes. It would create a position of legal encirclement of our Armed Forces in a way which, I am sure, the noble Lord does not intend.

Lord Thomas of Gresford: My Lords, the noble Lord says that rules of engagement change and so they do, but what is the status of the yellow card that

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a soldier carries, telling him what he can and cannot do? Can he shoot to kill, or may he fire only in self-defence? These are important issues of principle. It is no good saying to a soldier, “We are giving you a card, but by the way, operational circumstances may cause these rules to change tomorrow”.

Lord Drayson: My Lords, I am grateful to the noble Lord and I will address his point in a moment. Rules of engagement may form a document many pages long and of some complexity, detailing the nature of the operation. The card sets out guidance to a soldier operating in certain circumstances which I will come to shortly. However, we should not confuse the yellow card, as it was known during operations in Northern Ireland, or card alpha, as it is sometimes referred to, with rules of engagement. One is a sub-set of the other and we should not use the terms interchangeably.

Amendment No. 34 would refine and limit Amendment No. 32. As I understand it, it would limit the defence under Amendment No. 32 to where there were rules of engagement which were relevant to conduct alleged. But the problems I have outlined in relation to Amendment No. 32 also apply here and, as I have explained, these are operational and not legal documents in their drafting.

There are vital points of principle here. How are our operations to be directed if every change in the mission framework has statutory force? What effect is that going to have on the officers drafting these operational mission frameworks? How is our criminal law to work if we purport to change it between and even during operations, and how are our servicemen to be trained in what the law requires? Nevertheless, I recognise the sincere aim of noble Lords in addressing this matter. I recognise that underlying these amendments is a matter which is of the greatest importance to this House, and as we have debated the issue we have heard how in operations, servicemen who are tired, perhaps under fire and therefore under considerable pressure, may have to make split-second decisions about when to open fire. As we have just heard from the noble Lord, Lord Blaker, from his experience, it is vital that our servicemen have complete confidence in their position so that they can make instant decisions in response to a situation, given the difficult circumstances in which they often find themselves. Given that, I welcome the opportunity to give the following assurances. Whether a serviceman who opens fire and kills someone is guilty of murder depends on his view of the situation at the time and what he does on the basis of that view. This applies both in combat and at any other time. For example, if a soldier opens fire because he believes that he is faced with an enemy combatant, he has not committed murder even if he has made a mistake. It is the honestly held view of the service man or woman which counts at all times but in any case, a serviceman can use lethal force against anyone who he thinks is posing an imminent threat to human life. Again, what matters is the honest belief

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that he has in making the assessment. This is the law of self-defence and no rules of engagement can interfere with that inherent right, as is explicitly stated on every rules of engagement profile.

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I believe that their training reassures all service personnel that they may trust to their view of what is happening. I hope that my statement here will strengthen that confidence. We ask a great deal of our Armed Forces. In return we owe them not only our gratitude and support but must give them the confidence to carry out the demanding and dangerous tasks we demand of them.

No court martial has resulted from a combat incident in these last three demanding years of high- intensity operations. At the same time, I am very aware that one case has perhaps done more than anything else to create uncertainty in this House and perhaps elsewhere about the legal position in which servicemen might find themselves—the case of Trooper Williams. I do not wish to go over the details of the case again—noble Lords are already very familiar with it—but we have, as far as possible, ensured in the Bill that such a situation cannot recur. We have also sought to ensure that servicemen do not face investigation without good reason.

The Bill, therefore, makes three important changes. The commanding officer will no longer be able to dismiss a serious case so as to prevent further consideration by the service prosecuting authority. Clauses 125 and 127 provide that if the prosecuting authority decides not to charge, that authority will be able to direct that the accused is to be treated as acquitted. By such a direction, the Director of Service Prosecutions can bar prosecution in civilian as well as service courts. Lastly, commanding officers will have the general duty to ensure that allegations and evidence of offences are investigated appropriately. They will have a duty to make service police aware of allegations or evidence of serious offences, but they will only have to do this if the allegation or evidence is such as would indicate to a reasonable person that such an offence had been committed by someone in the CO’s command.

The main provision is in Clause 113. We believe that this will allow commanding officers to exclude those incidents where there is simply no real evidence of a serious offence. None of us wishes to have a situation where personnel on operations face an investigation following incidents where they have acted entirely properly.

As many noble Lords will be aware, for almost two years now we have had in place in Iraq a post-incident procedure. This ensures that after shooting incidents where persons have or may have been killed or injured, commanding officers gather all available information within their unit and make an informed decision as to whether there is any evidence that an offence has been committed. If they conclude that there is no such evidence, they can recommend that a service police

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investigation does not take place. That recommendation is put to their chain of command for agreement. If the chain of command, which takes service police and service legal advice, agrees, the report is filed. This brings an early resolution to the vast majority of incidents. It also allows us to demonstrate that our commanding officers have made an informed decision and we have an audit trail of all incidents. Even when a commanding officer determines that an offence may have been committed, he is able to delay a service police investigation if the operational circumstances demand it. His recommendation to delay has to be agreed by his chain of command, also acting on service legal and service police advice.

This policy ensures, even in high-tempo security operations conducted in places such as Iraq, that commanding officers retain a proper discretion as to whether there should be an investigation. It also ensures that the very rare case in which there is evidence of an offence is investigated by service police, with the support of service prosecutors, as soon as possible. In this way, the operation of the military justice system determines, for example, whether a serviceman acted in good faith.

I can confirm that the post-incident policy has proved very successful—so much so that, at the request of our operational commanders, it has been adapted for use in Afghanistan. I can also confirm—this is very important—that the provisions in the Bill that I have described about the CO’s role will support such a policy.

I have taken some time to set this out in some detail. These are vital issues of real importance to our Armed Forces. I hope that, as a result, members of the Armed Forces may continue to have confidence that the law takes full account of the extraordinary and dangerous requirements that they are expected to face. I hope that I have explained why—although I recognise their intention—these amendments would not be in the interests of the Armed Forces. On that basis, I cannot support them.

Lord Campbell of Alloway: My Lords, I am very grateful to all noble Lords who have spoken. That is no mere trite acknowledgement; very valuable contributions have been made, including that of the noble Lord, Lord Drayson.

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