Lords Hansard text for 24 Jul 200624 July 2006 (pt 1051)

I thank the Minister for looking into the matter of the letter that was promised to my honourable friend in the other place; I look forward to hearing about that. I also thank him for his explanation in response to Amendments Nos. 34A and 34B. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 7 not moved.]

Clause 1 agreed to.

Clause 2 [Misconduct on operations]:

[Amendment No. 8 not moved.]

Lord Thomas of Gresford moved Amendment No. 9:

The noble Lord said: In moving Amendment No. 9, I shall speak also to Amendment No. 10. I note that Amendment No. 14 has been included in this group. I have been away and have therefore had no opportunity to consider the groupings. I propose to move Amendment No. 14 and at that point to speak to Amendment No. 25 in similar terms; I hope that the Committee will grant me that indulgence.

On Amendment No. 9, the Joint Committee on Human Rights today published its 22nd report of legislative scrutiny specifically relating to this Bill. In paragraph 1.34, it states:

The committee criticises in particular the wording that we seek to exclude by this amendment—that of using “utmost exertions”. Clause 2(3) states:

What are his “utmost exertions”? That is a question that the Bill would require a court martial to determine. Surely it would be much simpler if that subsection as, “A person to whom this subsection applies commits an offence if he fails to carry out the lawful commands of his superior officers”. What is added by the phrase, “use his utmost exertions”? The Minister will know that the Joint Committee has written to him asking what it means.

A similar argument arises with Amendment No. 10, which refers to subsection (5):

That is not the easiest thing for a tribunal of fact to determine. Is something said by a certain person

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likely to cause another person to become despondent or alarmed? Tightening up the wording so that the subsection reads, “likely to cause that person to commit an offence under subsections (1) to (4)”, would give direct guidance and clarity to the tribunal on what it would have to determine. I do not doubt that the words “despondent or alarmed” have appeared in previous legislation and I do not suppose that the phrase has been newly thought of for the purposes of this Bill, but our purpose in trying to improve the wording is to introduce clarity and certainty, and to put before a tribunal that has to decide these things clear guidance on what it has to decide. I beg to move.

6.45 pm

Earl Attlee: My Amendments Nos. 11 and 12 are in this group. The Bill quite properly provides for an offence of obstructing operations, but why should that provision apply only to persons subject to service law? What other criminal sanctions are available if UK civilians obstruct UK military operations by, say, blockading Marchwood military port during a transition to war? The Minister said in response to the previous group of amendments that in his judgment we should not subject civilians to service discipline, and I think that the noble Lord, Lord Thomas of Gresford, would agree with him. But I am sure that the Committee would be interested to hear at some stage the Minister’s reasoning for making that judgment.

I have much sympathy with Amendment No. 10. It seems to make a lot of sense.

Lord Mayhew of Twysden: Perhaps I may feed into this brief discussion in the context of Amendment No. 9 by saying that justice really does require that there should be a subjective element in the conduct complained of. A typical lawful command given by a superior officer might be, “Go and take that hill”. Surely it is a good deal more just if the soldier who has failed to take the hill is able to say, “I used my utmost exertions”, which means only that he left no effort unexerted, than he should be told, “You have failed to take that hill; it was a lawful command and you are guilty”. I hope that that might be considered in the Minister’s reply. Finally, the phrase “despondent or alarmed” has a long and well documented history and I should have thought that there would not be much difficulty in understanding what those words mean.

Lord Kingsland: Often, on operations, an individual will be given an order to accomplish a mission that is phrased in absolute terms. Sometimes that mission will be close to impossible to achieve. But the order is given in the expectation that the soldier will do everything that he can to accomplish it.

If Amendment No. 9 were to be accepted, a soldier would face prosecution every time he failed to accomplish a particular mission. That cannot be right; and I am sure that it is not what the noble Lord, Lord Thomas, seeks to achieve. For the reasons that I have given, we are therefore not able to support the amendment, although I look forward to hearing from

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the Minister an explanation of what the phrase “use his utmost exertions” means in practice.

Amendment No. 10, by removing the words “despondent or alarmed”, would confine the offence of misconduct on operations, under this subsection, to communicating with people to commit an offence under subsections (1) to (4). This would narrow the offence considerably. It is currently worded to catch people who are damaging morale. While the language seems archaic, there needs to be something in the Bill to catch individuals who are damaging morale. The maintenance of morale is one of the key principles of operational effectiveness and it needs to be protected under service law.

Amendments Nos. 11 and 12 extend the offence of obstructing operations to anyone, not only to those subject to service law. I agree with the sentiments expressed by my noble friend Lord Attlee. I will be interested to hear from the Minister what safeguards there are in ordinary civilian law to protect military operations from being jeopardised by civilians, and whether he believes those existing safeguards are sufficient.

I have the greatest difficulty with Amendment No. 14.

Lord Thomas of Gresford: I have not yet spoken to it.

Lord Kingsland: I beg your pardon. Have I been premature in speaking now?

Lord Thomas of Gresford: I indicated that I propose to informally degroup it.

Lord Kingsland: I will reserve my remarks about Amendment No. 14 until it has been spoken to.

Lord Garden: I support my noble friend in Amendment No. 10 and the question of “despondent or alarmed”, which really is a phrase from yesteryear. I tabled the amendment before I received the report from the Joint Committee on Human Rights, which speaks strongly about this issue and the perhaps unintended consequences of what it might sweep in in the future. I agree with the noble Lord, Lord Kingsland, that one needs to have some way of catching those who intend to lower morale. On the other hand, we do not want to end up prohibiting discussion about anything. I look to the Minister, either in his remarks now or when we come back on Report, to capture the intention more precisely in language that is more 21st century.

Lord Kingsland: Perhaps I may now say something about Amendment No. 14.

Lord Thomas of Gresford: I have not as yet made the case for Amendment No. 14, with the greatest respect. Perhaps I should indicate that I was away on Thursday and Friday when the groupings were compiled and I have had no opportunity of formally

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degrouping the amendment. I therefore intend to speak to Amendment No. 14 when it is called in its place.

Lord Kingsland: I now understand the source of my confusion. From the fixture list, if I can refer to it as that, Amendment No. 14 appears to be in this group. I therefore rushed on to my next fence not knowing that the noble Lord, Lord Thomas of Gresford, was riding in a different race. In those circumstances, I shall canter home and start again when the noble Lord has moved his amendment.

Lord Craig of Radley: I support the noble Lord, Lord Thomas of Gresford, in his Amendment No. 10. The wording “despondent or alarmed” does not run very well in a statute. I shall be moving amendments later to try to clarify wording in the Bill. On those grounds, I am pleased to support the amendment.

Lord Drayson: The noble Lord, Lord Thomas of Gresford, and a number other noble Lords have referred to the report on the Armed Forces Bill by the Joint Committee on Human Rights. I am aware of that report and I shall consider it carefully. I will touch on some of its recommendations in speaking to a number of the amendments today. The Government will, of course, respond in the normal way in due course.

In broad terms, subsections (1) to (4) of Clause 2 create offences relating to misconduct on combat operations such as abandoning or surrendering any place or not using utmost efforts to carry out orders. Subsection (5) creates an offence of unreasonably making statements while on combat operations that are likely to cause alarm or despondency among other service personnel or accompanying civilians subject to service discipline. This is based on an offence under the existing service discipline Acts and reflects the importance on combat operations of preventing alarm and despondency, whether among troops or accompanying contractors, from being created unreasonably, for example, by spreading rumours. Irresponsible rumours can have a devastating effect on morale.

Amendment No. 9 would remove the requirement to use utmost exertions to carry out lawful commands when on combat operations. I recognise that the intention behind the amendment may be to make the offence less onerous, but its effect would be to make the offence stricter; it would mean that even if a serviceman did his utmost to carry out his orders but was prevented by the enemy, he would be guilty of an offence under this clause. The burden of proof for the offence is not so much that the person failed to comply but whether he tried his best to carry out the orders. If he simply failed to comply, the offence of disobedience to orders would be more appropriately used.

Amendment No. 10 would remove the protection that this clause provides on combat operations against irresponsible statements likely to cause unnecessary alarm among service personnel and

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accompanying civilians subject to service discipline. It would replace it with an offence preventing statements likely to cause specific conduct by service personnel such as abandoning a post. This is, in our view, insufficient protection against such irresponsible statements, which can undermine the morale of service personnel. Given the importance of this point, I hope that this explanation is sufficient for the noble Lord and that he will withdraw his amendment.

Under Clause 3, it is an offence if a serviceman intentionally or recklessly puts an operation at risk or delays or discourages an operation. Such behaviour not only puts in jeopardy the success of the operation but can of course put lives at risk. The most serious examples of the offence will be those related to operations against an enemy. In such cases, the maximum sentence is life imprisonment; in other cases, it is 10 years’ imprisonment.

Amendments Nos. 11 and 12 would make the service offence of obstructing operations applicable to any civilian, even those who are not subject to service discipline. It is not clear whether the intention is to give the court martial jurisdiction over these civilians or whether it is intended that civilian courts in the UK could deal with them. We do not believe that it would be appropriate to extend this offence to civilians, even those subject to service discipline. It is an offence appropriate to service personnel involved in operations.

In some cases, attempts to put at risk an operation could involve criminal action. In such cases, civilians subject to service discipline can be dealt with for those offences. But where criminal conduct is not involved, such civilians will best be dealt with administratively or under their contracts of employment. No doubt they would be prevented from continuing to accompany the Armed Forces.

Lord Thomas of Gresford: I am grateful to all noble Lords who have taken part in the debate. I am persuaded that a very full answer has been given, not least by the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Kingsland, as well as by the Minister, on the use of the expression “use his utmost exertions”. I now understand that the purpose of that phrase is to be a defence for a person ordered to carry out a perhaps impossible task; that seems to me to be a very fair and reasonable way of putting it. If that is the view behind the Government’s inclusion of the phrase in the Bill, I am happy with it.

So far as becoming despondent or alarmed—that rather ancient language—is concerned, I am grateful for the support of the noble and gallant Lord, Lord Craig, as well as that of my noble friend. Subsection (7) of the clause states:

So life imprisonment can be imposed for an offence described by the vaguest wording—“despondent or alarmed”—and is imposed by a tribunal that has to find not necessarily that despondency and alarm have been caused but merely that “the communication”

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made by the defendant “is likely to cause” alarm and despondency. That is a value judgment if ever there was one and it is placed in the hands of the tribunal. Although I am grateful to the Minister for his response on this matter, which I shall read with considerable care, it is a phrase that I shall return to on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

Clause 2 agreed to.

7 pm

Clause 3 [Obstructing operations]:

[Amendments Nos. 11, 12 and 13 not moved.]

Lord Thomas of Gresford moved Amendment No. 14:

The noble Lord said: I will also speak to Amendment No. 25, notwithstanding that it is grouped with other later amendments, because it raises the same point.

The point arose specifically in the case of Mr Kendall-Smith, a flight lieutenant in the RAF who refused to go to Iraq because of his belief that the invasion and subsequent activity in Iraq were illegal. I am not suggesting in these amendments that it is a defence for a person to prove that he believed that the,

nor when we come to Clause 8 am I suggesting that belief is a sufficient defence. But it should be open to a defendant to argue, as Flight Lieutenant Kendall-Smith did, that he was being asked to make himself a party to the illegal act, as he saw it, of the invasion of Iraq. He may or may not be able to persuade the tribunal that his view is correct, but it should be open to a service man to make that argument as a matter of law.

In the court martial proceedings against him, at a preliminary hearing, he was told that his belief that it was an illegal act was no defence. Subsequently, by the trial date in April this year, the Judge Advocate General said that it was not an admissible defence at all: he could not argue it. If a soldier is charged with disobeying a lawful order, he ought to be able to argue in some wider context that the whole operation he was being asked to take part in was illegal.

This is a probing amendment because I am interested in the Government’s response to the argument that I have put forward. I beg to move.

Earl Attlee: I oppose this amendment. It is not the duty of junior officers to determine the legality or even the necessity of any operation. After all, even the noble and learned Lord the Attorney-General found it difficult. It is a role for Ministers and Parliament.

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Lord Judd: I support the noble Lord, Lord Thomas of Gresford, and hope that the Minister will give very serious attention to his amendment. I, too, will be interested to hear his reply. We will come to relevant matters in the grouping that includes my own Amendment No. 24. However, I am sure that every Member of this House would agree that a service man has a duty to refuse to carry out an order that he or she believes to be unlawful. If that responsibility lies with the service man or woman, I do not understand why they should then be denied the opportunity at a subsequent legal occasion to explain the reasons for their conviction that the particular order that they were asked to obey had no legal basis. I hope that the Minister will look at this anomaly and see how it can be made more consistent.

Lord Campbell of Alloway: I oppose the amendment. Anyone who has been in a very tight corner where discipline is totally essential could never accept this amendment.

Lord Kingsland: Two different situations are being described here which we must try to distinguish. The first is where, in operations, a soldier or other service man is asked to do something which is unlawful in our criminal law, such as pull the trigger too soon. In those circumstances, he is perfectly entitled in any court, whether civilian or a court martial, to raise the defence of an unlawful order. He cannot be required to commit murder. To that extent, I go along with the noble Lord, Lord Thomas of Gresford.

Moreover, so far as committing murder in those circumstances is an offence in international criminal law, the international convention on torture, for example, should also be available as a defence in a court martial.

However, there is another sense in which we can understand the amendment moved by the noble Lord, Lord Thomas of Gresford—the legality of the war itself. Is the war being legally pursued by the Government?

That has become an extraordinarily important question since the International Criminal Court has been established. If the war a country is waging is indeed illegal, any soldier apprehended by a foreign country against which that war is being waged is himself subject to international criminal law. That has serious consequences for the soldier.

However, we are in great difficulties if, as one of a number of defences a soldier can raise against an order being issued to him or in the context of obstruction, we provide that soldier with a straightforward defence of, “My country is pursuing an illegal war”. Quite apart from the implications for military discipline, I do not believe that either an English civil court or a court martial has the jurisdiction to decide such a question of public international law. It is a matter on which, among other things, the Attorney-General has to pronounce. Once he has pronounced, to have any kind of effective fighting force, everyone involved in the battle has to accept the Attorney-General's judgment, whatever their private views about it.

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Although I entirely understand where the noble Lord, Lord Thomas of Gresford, is coming from, and I greatly sympathise with the sentiment and emotion behind the amendment, in so far as we are dealing with public international law and the question of the legality of the war itself, it is not right to incorporate a defence based on that in the military tribunal system.

Lord Bramall: My Lords, I agree very much with the noble Lord, Lord Kingsland, on this. This amendment is what the military would call “volunteering for the guardroom”. It seems to put an unnecessary complication in the way. The thing about bringing in international law is that, on occasions, it is extremely obscure what international law is. It is open to different interpretation and produces deep issues that the ordinary soldier of fairly low rank would not be in a position to judge. It is a matter for the Attorney-General and Parliament. I should have thought that it was quite sufficient to say that a soldier must not commit an unlawful act.

This goes back a very long way; it goes back to the Nuremberg trials, when a lot of the people whom we were fighting in those days said, “Well, I was all right because I was told to do it”. Of course, it then became very clear that, even if you were told to do something, if that act was unlawful, it did not necessarily mean that you were free from blame. That is how this came about. But if it is made clear that you must not commit an unlawful act, there is no need to bring in the complication of international law, which obscures the issue.

Lord Thomas of Gresford: Perhaps I might clarify my position, as we are in Committee. I remind the Committee that Flight-Lieutenant Kendall-Smith was a medical person and there was no question of his being sent to Iraq to aim a gun at anybody. If he was performing his functions in Iraq, it would have been in tending the sick or wounded. So no question of his committing an unlawful act in itself could arise. His objection was that the whole enterprise was illegal. I very much accept the analysis of the noble Lord, Lord Kingsland, on this—that he was making himself party to something that could turn him, in an international criminal court, into a criminal.

These amendments seek to leave it open to the defendant to argue not that he believed that a war was illegal but that it was, in fact, illegal. I do not accept that that is not judiciable in the courts of this country, as it is perfectly open to our courts to decide whether a war is or is not legal, and I do not think that the Attorney-General or Parliament can oust the courts from taking decisions of that nature. All that I suggest in these amendments is, not that a person’s belief is a defence in Clause 8, for example, for his desertion or refusal to serve, but that he should be able to argue in court in an appropriate case that the whole enterprise was illegal.

I have no doubt that many of the defendants at Nuremberg had never pulled a trigger in an unlawful way or committed a murder directly, but some of them were there because they were engaged as members of

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the German high command in ordering troop dispositions and movements and so on. That is not necessarily illegal in itself but they were party to an illegal enterprise. That is the whole point. We should leave it open to a serviceman to raise that argument if he is so advised when charged, for example, with an offence under Clause 3 of failing in his duty or, under Clause 8, of desertion or refusal to serve.

Lord Mayhew of Twysden: This amendment simply makes it a defence to prove that something is an unlawful enterprise. In some ways, it is quite an attractive amendment and, viewed academically, one can see how the already eloquent argument of the noble Lord could be expanded. However, I suggest that it must fail on practical grounds, for the reason given by my noble friend Lord Kingsland. Under our constitutional arrangements, for better or for worse—and I cannot think of one that would be better practically—the Government’s legal adviser is the Attorney-General. Somebody has to hold that position and, for there to be an end to a dispute, there has to be a rule that, when the Attorney-General has given his opinion on the legality or otherwise of something, the Government must accept it. If they have to accept it, I do not see how, practically, it can be sustained that those whom they order to give effect to their policy should be able to challenge that which the Government themselves cannot challenge. In those circumstances, as a matter of practicality, I suggest that this amendment must fail.

I do not think that this is to oust the jurisdiction of the courts on the question whether something is lawful. We are simply considering whether there should be a defence. I do not believe that you can prevent somebody raising it as a matter of consideration for the court. That jurisdiction is not being ousted; we are simply preventing it becoming a defence, for the practical reasons that I and other noble Lords have suggested.

7.15 pm

Lord Craig of Radley: The word that I stumbled over when I read this amendment was “prove”. The amendment says that the defendant has to prove that whatever he was doing was “illegal under international law”. That really seems an impossible operation for a defendant. I am not sure what the international law would be that he was trying to prove was involved. So I am afraid that I cannot support the amendment.

Viscount Slim: I come to some nuts and bolts with regard to the remarks of the noble Lord, Lord Thomas of Gresford. None of us would want our medical officers to think that they were going into battle to kill or wound people or to fight, but with the sort of enemies that we fight these days—and in the past—if the medical officer is not armed, surely he has a duty to defend his patients if his surgical station is overrun. He has a duty to defend himself, too, because we want him to go on being a jolly good medical officer.

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I would have to be very careful in agreeing with the noble Lord, especially with regard to the case that he mentioned, on which I have only the newspapers to go by. I can see this being used as an excuse in an operation area, when somebody is given an order to go on patrol, or whatever, and that person says, “No, I don’t agree with the war; I’m not going”. When we come down to nuts and bolts, we have to be very careful of that.

Lord Drayson: Amendments Nos. 14 and 25 would make it a defence to any charge of obstructing operations or desertion to show that the operation in question required someone to commit,

The words quoted seem to be intended to cover both criminal acts and service which the United Kingdom was carrying out contrary to its international law obligations, as the noble Lord, Lord Kingsland, has said. I emphasise that if a member of the Armed Forces is ever given an order to commit a crime, he should disobey it. That is the right response if he is given such an order. Therefore, the amendment is unnecessary to deal with crimes.

The amendment would also allow a defence that service being undertaken was illegal under international law. That is simply a wider variation of the first amendment, which allows a defence if one type of service—military occupation—is unlawful under international law. This allows the service man or woman to argue that service against an enemy or for the protection of life or property is not being undertaken in accordance with international law.

International law, however, looks at Governments and states in relation to the legality of operations. It does not expect the ordinary service man or woman to assess whether an operation is sanctioned by international law. It would totally undermine the cohesion of the Armed Forces to provide that, in respect of certain types of operation abroad, a member of the Armed Forces could simply go absent without permission because he or she thought the operation was contrary to international law. Under the amendment, he would not even have to show that he had gone absent for this reason, only that the operation did not meet international law requirements.

Your Lordships will no doubt be aware that the report of the Joint Committee on Human Rights published last Friday asked why Clause 3 does not allow the legality of the deployment of British forces to Iraq to be argued in relation to an offence under Clause 3. I will write to the committee to provide a detailed answer to its questions, but I hope my reply to this amendment has outlined in the time available our reasons for deciding that such a defence should not be available.

Lord Thomas of Gresford: I am grateful to the Minister for his reply, and to all noble Lords who have taken part in this very short debate on this matter of considerable principle. Should a person be allowed to argue, to take the question of the noble and gallant Lord, Lord Craig, that an invasion is a war of aggression? Such a war is obviously illegal in

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international law. Is he entitled to say, “I refuse to take part in a war of aggression?”. The proof required, since it is a defence that is being put forward, would be for the court to determine on the balance of probabilities—which does not seem a very good standard of proof for such an important issue—that the war is a war of aggression, or that, perhaps in a particular operation that he refuses to go on, he knows that the means to be employed in that operation would be a breach of the Geneva Convention. One can look at the question in a number of ways, taking the broad picture of the whole war, but one can also look at the specific operation he is being asked to undertake within that war. It may be that the war is not a war of aggression, but the orders he is given or the operation he is asked to participate in is in one way or another, although it may not involve him in murdering people, a breach of the Geneva Convention and therefore illegal.

We will consider this matter. I shall consider the Minister’s response tonight and in his promised letter to the Joint Committee to see whether we can take this debate any further. This is a probing amendment, and I hope it has at least raised an interesting issue for your Lordships. I beg leave to withdraw the amendment.

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