Clause 8 — Desertion
Orders of the Day
3:37 pm

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John McDonnell (Hayes and Harlington, Labour)

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

The First Deputy Chairman:

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.

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John McDonnell (Hayes and Harlington, Labour)

I absolutely sympathise with my hon. Friend 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.

There has been a natural tendency for those with military experience to engage in past debates on military subjects more thoroughly than others. At times, those of us without military experience have felt that our views have somehow not been valued as much as theirs. However, despite the fact that some of us have taken a separate view from that of large sections of the House in previous debates, especially on military action, we all come to such debates with empathy and respect for those who serve in the military.

Let my put on the record my family experience. My father served in the Army in the second world war. One of my uncles served in the RAF and another served in the Navy. On my mother's side, my grandfather served in the first world war and my great-grandfather served in the first world war and the Boer war. We thus come to the debate with a shared experience over generations and a respect for those who serve in the military for what they do and the essential role that they play in securing the safety of this country. We also come to the debate following discussions with serving personnel and those who are no longer serving. Such people have had experiences in Northern Ireland, the Falklands, the Balkans and, more recently, Iraq.

I tabled amendments Nos. 8 and 9—perhaps a bit more expeditiously than my hon. Friend the Member for Leyton and Wanstead, but with only hours to spare—because I wanted to encourage a debate about desertion. When the Bill was introduced, it was presented as a non-contentious tidying-up exercise that was largely to do with legalised drafting to consolidate existing laws. However, it was also argued that the Bill would give us the opportunity to update laws that applied to those serving in the military and civilians associated with military activity.

Clause 8, however, does not update existing law. It translates almost exactly the existing threat of life imprisonment for those who refuse to fight—those who desert—from past law into new law. It also extends that threat to those who refuse to participate in the occupation of subjugated countries and territories. Clause 40 again translates existing sanctions into new law by threatening those who incite others to desert with life imprisonment.

The threat of life imprisonment in such circumstances is little short of barbaric. My hon. Friend Andrew Mackinlay has tabled new clauses 1 and 2, which relate to what happened during the first world war. At that time, we deprived people of their lives for desertion by shooting them at dawn. Through the Bill, we are maintaining the deprivation of life by threatening to imprison people for the rest of their lives if they refuse to engage in military activity or the occupation of a foreign country. I thought that we would have moved on from the last century and that we would have the opportunity to abolish that sanction by updating our legislation.

I also thought that we would have learned more about why people desert from our experiences of the two world wars and, more recently, of the Balkans and Iraq. In many instances, people desert because of fear about the threat to their lives and safety and because of trauma. Many such people are in absolute panic. In particular, owing to the debate about the casualties of the first world war through the shot-at-dawn campaign, I thought that we were developing a more sympathetic understanding that we did not need to use such barbaric sanctions.

There are others whose refusal to fight is based upon conscience. We have had that debate in this Chamber on a number of occasions when deciding whether to send our troops to war. We are able to exercise our right of conscience. I remember the debate about Iraq and our heavy discussions about the theory of just war and whether Iraq was a just war. I thought that we had extended that right of conscience to military personnel.

I appreciate that there is a system under which people can claim to be conscientious objectors. From the evidence from the Peace Pledge Union and others that was provided to the Select Committee that considered the Bill, it is clear that that system is not regulated within statute. It is a procedure, but it is not within this legislation, which was meant to update and to consolidate the processes of law controlling issues around desertion. I thought that, eventually, it would control the processes for the exercise of conscience.

While taking evidence, we discovered that military personnel were not adequately informed not only of their right to exercise their right of conscience, but of the processes themselves. The position was outlined in the Select Committee by the Peace Pledge Union. That brought forth a memorandum from the Ministry of Defence, which at least explained the process, even though it had not advertised it in any leaflets or in the practical advice given to serving personnel. The rejection of the process of an armed forces federation to assist those who wish to exercise their right undermines their ability to access the procedures themselves. I hope that later, in a debate on a new clause, we may accede to the request to strengthen the right of representation for serving military personnel.

I do not believe that this part of the Bill is a tidying-up exercise. I believe that the Bill is really about the war in Iraq. We are aware that the number of absconders has trebled since the invasion of Iraq. There has been an increase in the number of soldiers questioning Government policy about that invasion, an increase in the number of soldiers questioning the morality and legality of the occupation and an increase in the number of serving personnel speaking out.

3:45 pm
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Harry Cohen (Leyton and Wanstead, Labour)

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?

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John McDonnell (Hayes and Harlington, Labour)

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.

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Adam Ingram (Minister of State (Armed Forces), Ministry of Defence; East Kilbride, Strathaven and Lesmahagow, Labour)

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?

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John McDonnell (Hayes and Harlington, Labour)

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.

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Tom Watson (Parliamentary Under-Secretary, Ministry of Defence; West Bromwich East, Labour)

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.

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John McDonnell (Hayes and Harlington, Labour)

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.

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Julian Brazier (Shadow Minister, Transport; Canterbury, Conservative)

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. 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 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—

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Andrew MacKinlay (Thurrock, Labour)

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.

The First Deputy Chairman:

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

4:00 pm
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Julian Brazier (Shadow Minister, Transport; Canterbury, Conservative)

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.

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Kevan Jones (North Durham, Labour)

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

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.

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Harry Cohen (Leyton and Wanstead, Labour)

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

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Kevan Jones (North Durham, Labour)

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.

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John McDonnell (Hayes and Harlington, Labour)

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.

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Kevan Jones (North Durham, Labour)

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.

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Robert Flello (Stoke-on-Trent South, Labour)

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?

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Kevan Jones (North Durham, Labour)

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.

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Nick Harvey (Shadow Secretary of State for Defence, Defence; North Devon, Liberal Democrat)

I congratulate 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.

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John McDonnell (Hayes and Harlington, Labour)

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.

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Nick Harvey (Shadow Secretary of State for Defence, Defence; North Devon, Liberal Democrat)

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 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.

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Angus MacNeil (Spokesperson (Environment, Food & Rural Affairs; Transport); Na h-Eileanan an Iar, Scottish National Party)

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

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Nick Harvey (Shadow Secretary of State for Defence, Defence; North Devon, Liberal Democrat)

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.

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Harry Cohen (Leyton and Wanstead, Labour)

That was a very interesting contribution by Nick Harvey, and a typically Liberal one—it was a fence-sitting exercise.

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Nick Harvey (Shadow Secretary of State for Defence, Defence; North Devon, Liberal Democrat)

indicated dissent.

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Harry Cohen (Leyton and Wanstead, Labour)

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.

4:15 pm
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Nick Harvey (Shadow Secretary of State for Defence, Defence; North Devon, Liberal Democrat)

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.

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Harry Cohen (Leyton and Wanstead, Labour)

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 John McDonnell emphasised that under clause 8, life is a possibility, and I support him in wanting to get rid of that.

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Angus MacNeil (Spokesperson (Environment, Food & Rural Affairs; Transport); Na h-Eileanan an Iar, Scottish National Party)

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.

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Harry Cohen (Leyton and Wanstead, Labour)

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.

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Tom Watson (Parliamentary Under-Secretary, Ministry of Defence; West Bromwich East, Labour)

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.

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Harry Cohen (Leyton and Wanstead, Labour)

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.

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Tom Watson (Parliamentary Under-Secretary, Ministry of Defence; West Bromwich East, Labour)

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

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Harry Cohen (Leyton and Wanstead, Labour)

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.

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Paul Keetch (Hereford, Liberal Democrat)

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.

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Harry Cohen (Leyton and Wanstead, Labour)

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."

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Kevan Jones (North Durham, Labour)

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?

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Harry Cohen (Leyton and Wanstead, Labour)

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.

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Mike Hancock (Portsmouth South, Liberal Democrat)

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?

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Harry Cohen (Leyton and Wanstead, Labour)

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?

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Robert Flello (Stoke-on-Trent South, Labour)

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 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?

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Harry Cohen (Leyton and Wanstead, Labour)

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.

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Mike Hancock (Portsmouth South, Liberal Democrat)

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.

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Harry Cohen (Leyton and Wanstead, Labour)

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

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Harry Cohen (Leyton and Wanstead, Labour)

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.

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Kevan Jones (North Durham, Labour)

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".

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Harry Cohen (Leyton and Wanstead, Labour)

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.

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Tom Watson (Parliamentary Under-Secretary, Ministry of Defence; West Bromwich East, Labour)

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.

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Harry Cohen (Leyton and Wanstead, Labour)

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 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.

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Jeremy Corbyn (Islington North, Labour)

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?

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Harry Cohen (Leyton and Wanstead, Labour)

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?

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Tom Watson (Parliamentary Under-Secretary, Ministry of Defence; West Bromwich East, Labour)

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.

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Chris Bryant (PPS (Rt Hon Lord Falconer of Thoroton, Secretary of State), Department for Constitutional Affairs; Rhondda, Labour)

Except when they are the Americans.

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Harry Cohen (Leyton and Wanstead, Labour)

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.

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Sin Simon (Birmingham, Erdington, Labour)

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.

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Harry Cohen (Leyton and Wanstead, Labour)

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—

The First Deputy Chairman:

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

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Harry Cohen (Leyton and Wanstead, Labour)

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.

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Paul Keetch (Hereford, Liberal Democrat)

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.

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Harry Cohen (Leyton and Wanstead, Labour)

There are a number of very serious points—

The First Deputy Chairman:

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.

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Harry Cohen (Leyton and Wanstead, Labour)

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

The First Deputy Chairman:

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

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Harry Cohen (Leyton and Wanstead, Labour)

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.

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Patrick Mercer (Shadow Minister (Homeland Security), Home Affairs; Newark, Conservative)

It is a great pleasure to follow Harry Cohen; we are used to hearing his lengthy speeches. I salute the modesty with which 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.

Soldiers will absent themselves before a battalion goes on operations. In my experience, not many absent themselves for reasons of cowardice. Many absent themselves—I continue to use that phrase, rather than "desert"—because they cannot get their heads round the difficulty of being abroad for six months, the potential dangers or domestic problems. Only once on operations did I have a soldier who absented himself in the face of the enemy, and he was not charged with desertion.

Flight Lieutenant Kendall-Smith was not charged with desertion: he was charged, I believe, with being absent, or with a similar charge within those parameters. He did not desert. Trooper Griffin behaved with much courage and probity. He had reached the rank of corporal in his parent regiment and then gone through the selection process for the Special Air Service

4:45 pm
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Angus MacNeil (Spokesperson (Environment, Food & Rural Affairs; Transport); Na h-Eileanan an Iar, Scottish National Party)

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.

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Patrick Mercer (Shadow Minister (Homeland Security), Home Affairs; Newark, Conservative)

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.

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Chris Bryant (PPS (Rt Hon Lord Falconer of Thoroton, Secretary of State), Department for Constitutional Affairs; Rhondda, Labour)

It is a great honour to follow 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.

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Kelvin Hopkins (Luton North, Labour)

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?

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Chris Bryant (PPS (Rt Hon Lord Falconer of Thoroton, Secretary of State), Department for Constitutional Affairs; Rhondda, Labour)

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.

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Jeremy Corbyn (Islington North, Labour)

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.

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Chris Bryant (PPS (Rt Hon Lord Falconer of Thoroton, Secretary of State), Department for Constitutional Affairs; Rhondda, Labour)

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.

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Angus MacNeil (Spokesperson (Environment, Food & Rural Affairs; Transport); Na h-Eileanan an Iar, Scottish National Party)

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.

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Julian Lewis (Shadow Minister, Defence; New Forest East, Conservative)

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.

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Angus MacNeil (Spokesperson (Environment, Food & Rural Affairs; Transport); Na h-Eileanan an Iar, Scottish National Party)

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 John McDonnell pointed out, desertion has trebled since the Iraq war. The USA has about 6,000 people going AWOL.

5:00 pm
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Kevan Jones (North Durham, Labour)

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.

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Angus MacNeil (Spokesperson (Environment, Food & Rural Affairs; Transport); Na h-Eileanan an Iar, Scottish National Party)

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.

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Kevan Jones (North Durham, Labour)

I will put the same question to the hon. Gentleman as I put to my hon. Friend 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?

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Angus MacNeil (Spokesperson (Environment, Food & Rural Affairs; Transport); Na h-Eileanan an Iar, Scottish National Party)

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.

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Chris Bryant (PPS (Rt Hon Lord Falconer of Thoroton, Secretary of State), Department for Constitutional Affairs; Rhondda, Labour)

Stornoway.

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Angus MacNeil (Spokesperson (Environment, Food & Rural Affairs; Transport); Na h-Eileanan an Iar, Scottish National Party)

It could be. [ Interruption. ] Or Rockall. Labour gave that away in one of their first actions on the grounds that it had been plundered by Russian trawlers. Will Mr. Jones repeat the question?

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Kevan Jones (North Durham, Labour)

I am sorry. It obviously made a great impression on the hon. Gentleman. I was asking what would happen in the unlikely event of his becoming the Defence Minister for Scotland or anywhere else that would be sad enough to appoint him. If the body that he was party to—whether it was the Scottish Parliament or any other body—took a democratic decision to invade somewhere or wage a legal war, is he seriously suggesting that individual officers and men, who had not been conscripted but had volunteered to join that nation's armed forces, could have a veto and could pick and choose which military action they joined? Would that not cut across the democratic decision that had been taken?

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Angus MacNeil (Spokesperson (Environment, Food & Rural Affairs; Transport); Na h-Eileanan an Iar, Scottish National Party)

I am not saying that there would not be a penalty, but I am saying that there would be no ultimate penalty of life imprisonment. Two years would be quite adequate for somebody who is arguably following their conscience. I pay tribute to Malcolm Kendall-Smith, who is a particular source of admiration to me.

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Robert Flello (Stoke-on-Trent South, Labour)

As part of the armed forces parliamentary scheme, I recently had the opportunity to take part in a dawn attack exercise on Salisbury plain. We were in the back of a Saxon armoured personnel carrier at four o'clock in the morning—albeit on an exercise—and we were reliant on two guys, one on either side of the vehicle, each with a light anti-tank weapon. In a war environment, I would like to know that those guys were there with their light anti-tank weapons defending the vehicle, rather than thinking that they may decide, according to their consciences, at four o'clock in the morning, that it was all a bad idea. What is the hon. Gentleman's view on a squaddie—if I may use that word—lying there with a light anti-tank weapon, thinking to himself, "Two years isn't so bad. Let's slope off home and not lie here at four o'clock in the morning in the cold"?

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Angus MacNeil (Spokesperson (Environment, Food & Rural Affairs; Transport); Na h-Eileanan an Iar, Scottish National Party)

The Bill does not say what people hope it says. It refers to life imprisonment for avoiding a service. It does not refer to being on active service. We are not talking about desertion in the heat of battle, but a conscious thought before battle.

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Sarah McCarthy-Fry (Portsmouth North, Labour)

The hon. Gentleman said that the Bill does not refer to active operations, but subsection (3) states:

"In this section 'relevant service' means—

(a) actions or operations against an enemy".

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Angus MacNeil (Spokesperson (Environment, Food & Rural Affairs; Transport); Na h-Eileanan an Iar, Scottish National Party)

And subsection (2) states:

"a person deserts if ... he intends to avoid any particular service or kind of service".

Perhaps we are dealing with a Bill that is something of a mishmash.

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Angus MacNeil (Spokesperson (Environment, Food & Rural Affairs; Transport); Na h-Eileanan an Iar, Scottish National Party)

No, I am going to press on.

While we have a system that imposes a maximum penalty of two years for taking action, in the cold light of day, that results in the besmirching of Parliament by selling peerages, we should not allow, in any way, shape or form, servicemen to be threatened with life imprisonment if they follow the 1950 Nuremburg principles and their conscience, and question orders. Clause 8(5)(a) would allow a sentence of life on that very point, but such a benchmark should not be put in statute.

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Sin Simon (Birmingham, Erdington, Labour)

I welcome the Under-Secretary of State for Defence, my hon. Friend Mr. Watson, to the Front Bench. He has been an asset to the far end of the Treasury Bench for a long time and is now an adornment on the other end.

I was not in the Committee to hear the speech by my hon. Friend John McDonnell. However, given his experience and the tributes of Patrick Mercer and my hon. Friend Chris Bryant, who is no longer in the Chamber, but whose judgment on such matters is impeccable, I am sure that it was a considered and impressive contribution.

I heard the speech by my hon. Friend Harry Cohen. Impressive though his contribution also was, he used several phrases about the Government and the Bill that seemed to apply more to his speech than to the other side of the argument. He described the measure as muddled and talked a lot about cherry-picking. He repeatedly asked, "Who is the enemy?" It struck me that that was an apposite question.

It is a shame that although the supporters of the amendments had the kernel of a reasonable point, they have failed to make it. It was a fair point that, perhaps, the sentence of life imprisonment is a bit draconian for a new Bill for modern armed services. The Committee could have had a reasonable discussion about that point. However, unfortunately, amendment No. 9 does not say, "Life imprisonment is a bit draconian. Let's have a reasonable discussion about what would be a more appropriate and modern sentence for desertion"—which, as the hon. Member for Newark eloquently and movingly explained, is a serious offence. The amendment would reduce the sentence to two years, although that is the same sentence that applies for going absent without leave, which is a completely different offence that is treated with a different kind of seriousness. The amendment thus effectively precludes us from having a reasonable debate on whether the sentence of life imprisonment, even though it is only a maximum sentence that is rarely applied, is, perhaps, rather archaic and somewhat draconian.

Amendment No. 8 could have given us the opportunity to have a reasonable discussion about the offence of desertion and its sentence. However, such a debate has been effectively sacrificed. Although I did not hear the speech by my hon. Friend the Member for Hayes and Harlington, the amendment seems to have been used as an opportunistic attempt to drag up again the old debate about the Iraq war, although, as my hon. Friend the Member for Rhondda said, that has nothing to do with the Bill. Frankly, the amendment has been tabled on a fraudulent prospectus. It is not possible for the nation to go to war illegally.

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Jeremy Corbyn (Islington North, Labour)

How can my hon. Friend possibly say that a nation cannot go to war illegally? There was no outside attack and there was no UN approval, yet we invaded a country that was not threatening us.

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Sin Simon (Birmingham, Erdington, Labour)

This sovereign Parliament having voted to take that action, it becomes, as far as I am concerned, a legal and legitimate undertaking.

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Angus MacNeil (Spokesperson (Environment, Food & Rural Affairs; Transport); Na h-Eileanan an Iar, Scottish National Party)

As one of the supporters of the amendment, I was just looking back through the notes for my speech and I do not think that I mentioned Iraq once. The amendment was not about rerunning the issue of the Iraq war; it was about making sure that service personnel are not faced with the draconian penalty of life in prison.

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Sin Simon (Birmingham, Erdington, Labour)

I do not think that I mentioned the hon. Member for the Western Isles, if I may call him that, in my remarks about Iraq. I mentioned my hon. Friend the Member for Leyton and Wanstead, who it seemed to me spoke about little else than the Iraq war.

It is not possible for this country to engage in an illegal war. Surely it is not practical, reasonable or intelligent to suggest that armed service personnel, on an individual basis, in theatre, should be not only allowed but encouraged to make decisions about whether they are engaged in a legal or an illegal war. That is absurd. Many of my constituents serve in the armed forces and do not have these dilemmas. They are keen, happy and proud to serve. It is not fair to put them in a position where their comrades are encouraged to speculate constantly on whether they should be there, or perhaps, in better conscience, to consider desertion.

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Patrick Mercer (Shadow Minister (Homeland Security), Home Affairs; Newark, Conservative)

I am listening with great interest to the hon. Gentleman, who is making some profound points. Does he accept that if a soldier, a sailor or an airman is suddenly struck by conscience while on duty, there is a system whereby they can go to their platoon sergeant, platoon commander, company sergeant-major, company commander, regimental sergeant-major or commanding officer to represent their views and to say, "I am reluctant to serve"? They do not need to go absent.

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Sin Simon (Birmingham, Erdington, Labour)

Exactly. There is a system, and it is of long standing. The hon. Gentleman speaks of it with knowledge and from experience. He spoke equally eloquently about the extraordinary seriousness of the offence of desertion.

All that remains for me to add is to reiterate that there could have been a serious point. I think that we could have had a reasonable argument about whether a maximum sentence of life imprisonment is necessary in a modern army, albeit that that maximum is not mandatory and is rarely applied. I regret that the supporters of the amendment have failed to take that opportunity and instead have chosen to rerun a debate that I do not think there is any point having anywhere any more. Certainly, this Committee and this Bill is not the place for it.

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Mike Hancock (Portsmouth South, Liberal Democrat)

May I first, for the benefit of Mr. Jones, clarify the position as I see it on the Liberal Democrat Benches? We will support the Minister on this issue because we believe that it is the only sensible way that any military force which is made up of volunteers can operate. That is not ambiguous. It is not open to contradiction. It is crystal clear where we stand on the issue.

I congratulate Mr. Simon. He made the point that a war, or action by our armed forces, is legal when this place—the House—accepts a proposition that we should send our armed forces into harm's way to fight on our behalf. They then have a clear, legitimate duty to uphold what they have signed up to do, which is to fight on our behalf, following a request from a democratically elected Government. Others, me included, may feel that the Government misled the nation on the pretext for going to war. However, that does not excuse members of the armed forces from obeying a direct order from Parliament that puts them in harm's way.

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Jeremy Corbyn (Islington North, Labour)

The hon. Gentleman is missing the point. The decision to deploy British troops is made under the royal prerogative. Parliament was consulted by the Prime Minister before we went into what I believe to be an illegal war in Iraq. Surely the issue is the legality in international law, which has not been argued for and has not been sustained in the case of Iraq.

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Mike Hancock (Portsmouth South, Liberal Democrat)

No one in the international community has made the case that the action taken, with which I did not agree, was illegal. Kofi Annan and others have voiced their opinion, but it is simply an opinion. The Chamber voted, against my wishes, to send our armed forces into harm's way, and they have served with credit to themselves and to the nation. The hon. Members for Rhondda (Chris Bryant) and for Newark (Patrick Mercer) spoke with great eloquence about the issues. It is not a question of whether a life sentence should be imposed for desertion. I should like to know whether the Members who support the amendment know how many members of the armed forces in the past 25 years have stood trial for desertion, how many have been sentenced to life imprisonment and how many have served more than 10 years in prison for the act of desertion. Not a single Member has told us the answer.

Can the Minister tell the House how many of the 250,000 people who have served in our armed forces since we invaded Iraq have cited as their reason for leaving disquiet and discomfort at what they consider to be the illegal actions they were asked to carry out? The House would be interested to know whether there is any evidence to support the claim that a huge phalanx of people have left the Army because they did not like what they were asked to do in Iraq. There are many reasons to be critical of the Government's actions, but I cannot find any in this case.

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Pete Wishart (Chief Whip; Perth and North Perthshire, Scottish National Party)

I have no reason to doubt what the hon. Gentleman said about the many people who have been charged and given life imprisonment, or even spent 10 years in prison. Why, therefore, in his view, do we need this piece of legislation?

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Mike Hancock (Portsmouth South, Liberal Democrat)

If my children's lives were on the line as the result of an act of cowardice and desertion by one of their colleagues, or if that colleague put their lives at risk with a harmful action, they ought to suffer the full consequences of the law. It is not for me to judge whether they should receive a life sentence or two, five or 10 years' imprisonment—that is for the system to decide.

The hon. Member for Newark spoke about commanding the largest battalion in the country of more than 900 soldiers for two and a half years on two active service deployments. One soldier could have faced court martial for something that could be construed as desertion. If we were on the receiving end when someone deserted their post, and if their action took our lives or the lives of our comrades, would we honestly not expect something more than a slap on the wrist or a two-year sentence for an individual who chose to disregard their responsibilities to the unit, let alone their responsibilities to the country?

The Bill gets it right. Parliament should not allow any ambiguity in the way in which members of the armed forces can interpret their responsibilities, as that would be manifestly unfair to the men and women who daily put their lives on the line. It would be unfair to suggest that they can pick and choose, as they cannot do so. The hon. Member for Newark explained with a great deal of eloquence how the unit would dispense its own version of fair and just punishment if a colleague acted in such a way—although I do not wish to suggest for a minute that that is correct, as military justice should be seen to be fair and should be administered properly.

Members of the armed forces should not be left in any doubt about the consequences of their actions. A sentence that may be for life is exactly that. Every court in the land has discretion in the determination of most sentences. I was concerned about the sentences meted out today to the three men who killed the young black lad in Birmingham last year. The judge recommended 25 years, but I am sure that if I was the parent of that young boy, 25 years would not be anything like long enough. We must judge these things on what we would expect if our sons and daughters were put in harm's way. We must ensure justice for them as much as for anyone else.

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Harry Cohen (Leyton and Wanstead, Labour)

That sounds very good, but the hon. Gentleman is arguing for an excessive sentence—life—for people who are not putting other people's lives at risk, but in effect declaring the equivalent of a conscientious objection. The core of his opening argument was that if Parliament votes for it, it is all right. He is 150 years out of date. We now have international law and his attitude to that is cavalier, which is surprising, as the Liberals wanted us to be subject to EU law and supported all that EU involvement. Does he not recognise that international law is as important as ordinary law? The Serbian Parliament voted for war and said that if they voted for it, it must be all right. It was not all right.

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Mike Hancock (Portsmouth South, Liberal Democrat)

Once again, the hon. Gentleman is trying to confuse the Committee—but it is he who is wholly confused about the issue. There is nothing in international law that has proven that there are currently, or have been in the past 10 years, British armed forces engaged in an illegal action. No international court anywhere has found any member of the British— [Interruption.] The international court of public opinion is a different matter from the court of law about which the hon. Member for Leyton and Wanstead speaks. I am not cavalier about it; I am extremely concerned that the men and women who do their duty on behalf of this country know that they have the backing of the country for their actions, and that they are engaged in lawful business.

We have had soldiers in Sierra Leone, Bosnia and several other parts of the Balkans, Afghanistan and Iraq. I do not believe that a significant number of those wanted to become conscientious objectors. If they had, we would know about it. We have a clear indication from the Library of the number of members of the armed forces who have sought to become conscientious objectors. We would also know because we regularly meet members of the armed forces.

I met somebody who was decorated for bravery during the past five years. He did not agree with what the Government had asked him to do, but went and did his duty, knowing in his heart that he did not believe that it was the right thing to do. He was a member of the armed forces and, in his view, he was not in a position to cherry-pick the missions that he served on. He did his duty. He could, as he said to me, have opted to leave the armed forces, but he chose not to do so. He chose to do his duty.

John McDonnell said, in the one part of his speech with which I did not have some sympathy, that when the history of what has happened is written, the real heroes will be those who refused to fight the war. That does a great disservice to the men and women who are daily putting their lives on the line for this country.

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John McDonnell (Hayes and Harlington, Labour)

The hon. Gentleman will recall that throughout my speech I paid tribute to the servicemen who are currently serving, for their courage and dedication. I do not want that comment undermined.

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Mike Hancock (Portsmouth South, Liberal Democrat)

I agree entirely, but the hon. Gentleman also said that the real heroes will be those who chose to exercise their right not to go. I believe that that is a mistaken view that does no justice to the men and women whom he praised and whom all of us, I hope, support.

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Alan Simpson (Nottingham South, Labour)

May I try and unravel some of the confusion that has run through the debate? The debate on amendment No. 9 in particular is not about whether there should be an offence of desertion, or whether there should be specific, defined parameters for the punishments. It is about the nature of the parameters, rather than about the existence of the offence.

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Sin Simon (Birmingham, Erdington, Labour)

That is true of amendment No. 9, but not of amendment No. 8, which specifically concerns the nature of the offence.

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Alan Simpson (Nottingham South, Labour)

True, but I want to deal with issues that we need to view as distinct segments. One concerns whether there should be an offence that relates to the disobeying of orders to serve in what is defined in the Bill as

"the occupation of a foreign country or territory."

The point was made that it is not possible for such an occupation or war to be illegal if the Government of the day have made the democratic decision that it is a legal and justifiable war, but that is deeply wrong. International law and the United Nations and its conventions define the distinction between the circumstances in which a war is unavoidable and the circumstances in which a country has the right to defend itself. But it is not true that any Parliament in any country can make a war legal, and that includes our own Parliament, just because it decides that it should be legal. In the case of the Serbian Parliament's decisions in respect of the war on Bosnia, we said consistently that we did not care that the Serbian Parliament had decided that it was a legal war for its own purposes; that was not the view of the international community. It is deeply dangerous for any Parliament to go down a path that says that if it decides that a war is legal, that makes it legal. That is not the framework set by the international community on the legality of international wars after the second world war.

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Richard Benyon (Newbury, Conservative)

Does the hon. Gentleman not understand that we are going down a long avenue of irrelevance here? This is a question of military discipline; it is not a matter of decision as to the merits or demerits, or the legality or illegality, of a particular war, or his perception of it.

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Alan Simpson (Nottingham South, Labour)

I accept that, but I am saying that the argument about a war being legal just because we say it is legal is a dangerous path for this Committee to be led down, and it is not relevant to amendment No. 9. What is relevant is to question the legitimacy of the House setting a parameter of life imprisonment to the penalties for a refusal to obey an order in relation to desertion, when the guidance notes say:

"the maximum is life imprisonment if the offender deserts when on service, or under orders to go on service".

The question is whether it should be appropriate in this day and age, in this Bill, which the House is passing now for the foreseeable future, to retain a life imprisonment parameter for a refusal to go on service.

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Bob Russell (Shadow Minister, Defence; Colchester, Liberal Democrat)

Will the hon. Gentleman confirm that his maximum would be two years, and thus with good behaviour it could be as little as one year, on a maximum sentence?

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Alan Simpson (Nottingham South, Labour)

My maximum at this point just removes life imprisonment. I have no doubt that if the Committee agrees the amendment, the other place will send the legislation back with further amendments defining a more comprehensive and appropriate framework, and I have no objection to that. The point is that the Committee should express a view about whether we are willing just to nod through a presumption that the rationalisation of existing sentencing powers should be the maximum limit of life imprisonment, and it is important that the Committee should say no on that.

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Sin Simon (Birmingham, Erdington, Labour)

Whether one takes that point or not surely the problem is that the amendment does not account for the other end of the spectrum; it does not make the distinction between the much less serious offence of going absent without leave and the much more serious offence of desertion. In giving the same penalty for absence without leave and desertion, the amendment completely fails as a piece of law to make a very important distinction. Regardless of what happens at the top, what about what happens at the bottom?

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Alan Simpson (Nottingham South, Labour)

My hon. Friend has made the case for a graduated tariff. I am questioning the presumption that the range of the tariff should automatically include as an upper limit life imprisonment for a refusal to obey an order to go on service.

I want to discuss the case of Flight-Lieutenant Kendall-Smith, which has already been mentioned, and the trial of Major Florian Pfaff in Germany in 2004. The key point is the right of individuals to challenge the legitimacy and the legality of orders given to them. I do not for one moment assume that in an army manned by volunteers any of the young men and women who volunteer do so in a fly-by-night way, which is a deeply disrespectful presumption. When people decide to give themselves an extended weekend, the circumstances are different from when people consciously decide that they are no longer prepared to serve in a particular conflict or occupation. I accept that such people must face the consequences of their actions within a disciplinary court process, but I want this Committee at least to consider the options and their limitations.

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Patrick Mercer (Shadow Minister (Homeland Security), Home Affairs; Newark, Conservative)

At the risk of sounding like a stuck record, I must point out that the hon. Gentleman has neglected to understand that we have regular volunteer forces which are frequently on operations. Almost everyone I know in the forces spends up to six months every year away on operations. Everybody understands that if they have a moral difficulty with the orders that they have been given, they can represent their views to their commanders in a responsible way. Those who choose to let down their comrades by simply going absent and then deserting need to be discouraged, and we need a serious tariff to deter them.

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Alan Simpson (Nottingham South, Labour)

I do not have a problem with a serious tariff. My problem is that the Bill states that the maximum sentence for desertion in the context of a refusal to obey an order to go on service may be life imprisonment, which exceeds the bounds of reasonableness. If one were to step outside this House and this country, one would find that our European partners do not impose anything like the range of tariff penalties enshrined in the Bill.

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Sarah McCarthy-Fry (Portsmouth North, Labour)

Notwithstanding my hon. Friend's argument, with which I disagree, he has admitted that his amendment is flawed, because it does not offer an alternative to a two-year sentence, and he hopes that another amendment will be introduced in another place to resolve that matter. Does he agree that that is a dangerous precedent for the Committee to adopt?

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Alan Simpson (Nottingham South, Labour)

Sadly, poorly thought-through legislation is increasingly driven through this House, which leaves another place to tidy up by using its common sense, so this would not be the first occasion on which that had happened.

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Mike Hancock (Portsmouth South, Liberal Democrat)

The hon. Gentleman has mentioned our European partners. Those among our European partners who are transferring from a conscript army to a professional army are rewriting their military law, and the French, the Spanish and the Italians are all introducing legislation similar to the Armed Forces Bill. If he were to check, he would find that the penalty for desertion in the French army is a life sentence.

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Alan Simpson (Nottingham South, Labour)

Let me come back to the hon. Gentleman with the current information about penalties and figures. As regards his comments about Labour Members not coming up with figures about the sentencing of those tried and imprisoned for desertion, that is not for lack of trying. Some of us have been trying for several weeks to get that information out of the Ministry of Defence or the Library, but it has not been possible to obtain it. I understand from some of my hon. Friends that members of the Defence Committee also tried to obtain it but were unable to do so. That is not an act of negligence on the part of those who are trying to make a different case.

One of the things that was distinctly different in relation to the trial of Major Florian Pfaff in Germany was that although he and other members of the armed forces had to go through the court martial, at the end of that process they had a right to appeal to a civil court. The civil court overturned the court martial judgment on the major that resulted initially in his demotion. The arguments that he used were entirely about whether some of the orders that he was given were illegal orders relating to the preparation of weapons systems for use in the war on Iraq. Even the German civil courts were unable to question that, but they were able to rule on whether the major clearly, legitimately and conscientiously held those views. On that basis, they ruled in his favour.

Nothing of that type is proposed for inclusion in this framework for our own armed forces. When Flight Lieutenant Malcolm Kendall-Smith attempted to use similar arguments about refusing to serve in Iraq, believing that the orders were illegal, he was told that he was not allowed to have that considered because the Attorney-General had ruled that it was legal. He was not allowed to ask whether the Attorney-General had made that ruling before he knew that there were no weapons of mass destruction, that no uranium was coming into Iraq for enrichment, or that there was no prospect of the UK being under threat and targeted within 45 minutes. None of that was challengeable.

We should be using this opportunity to open out the legitimacy of rights to contest decisions and orders. That particularly concerns me in relation to the provisions on refusal to serve in an occupation, which refer not to a legal occupation but merely to an occupation. Members who say that that is not specific to Iraq or to any particular existing conflict are right. We need to be clear about our interpretation of this. Are we saying that irrespective of whether a conflict is legal, a refusal to serve should carry with it the prospect of a sentence of life imprisonment?

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Tom Watson (Parliamentary Under-Secretary, Ministry of Defence; West Bromwich East, Labour)

The definitions are very important. Refusal to go on active service—that is, refusing an order—carries a 10-year sentence. Desertion—that is, abandoning one's colleagues—can carry a maximum sentence of life imprisonment. Refusing to go to Iraq counts as disobeying orders, and the maximum penalty is only 10 years.

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Alan Simpson (Nottingham South, Labour)

I confess that we have had some interesting discussions on the Labour Benches about the interpretation of different clauses. It is clear that even those who support the wording as it stands recognise that there is considerable scope for confusion in interpreting the provisions. The guidance notes do not necessarily support what the Under-Secretary says. The Government have several opportunities in the Bill's remaining stages to table amendments to clarify the matter. However, it is important that we recognise the rights of serving men and women in the conflicts in which we have placed them. The point at which one crosses from legality to illegality is far from clear.

We currently say that the occupation of Iraq is under a legal mandate of the United Nations. However, what do we do when, following the recent incidents in Basra—the part of Iraq in which the United Kingdom is operational—Mohammad al-Waili, the Governor of Basra, said that British security control prevented the provincial government from purging the security forces of militia members? That was evidenced by the fact that Iraqi security forces had to defend UK troops against attacks by Iraqi civilians. It is understandable that serving personnel in those circumstances start to question the point when we cross from a legal mandate to an illegal occupation.

Our proposal does not give people a get-out-of-jail card. It does not mean that they can take whatever action they like, depending on the state of the weather or whether they have a hangover. We are considering whether there is a tariff system for the available punishments in the armed forces that relates to the current duties of our serving men and women and makes sense to the general public.

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Kevan Jones (North Durham, Labour)

I shall shortly lose the will to live. My hon. Friend keeps trying to move the goalposts. On whether occupation is illegal, I accept that there are differing views about Iraq. However, it was said earlier that UK troops are there under a UN mandate. If my hon. Friend wants to provide circumstances whereby people can pick and choose their interpretation of that UN mandate, he gives them a get-out-of-jail card and carte blanche to do what they want. That cannot happen in organised armed forces.

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Alan Simpson (Nottingham South, Labour)

I am tempted to start my reply, but I am conscious that another hon. Friend wants to intervene, so I shall deal with both points at the same time.

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Harry Cohen (Leyton and Wanstead, Labour)

I want to pick up the points that my hon. Friend Chris Bryant and my hon. Friend the Under-Secretary made in the context of legality and illegality and about who constitutes the enemy, which is defined in clause 367. The Under-Secretary said that the enemy was anyone who fires at us and that desertion applies only if someone leaves a conflict. However, many thousands of people, including women and children, are killed in air raids. They would not be classified as enemies under the Bill or the Under-Secretary's classification of anyone who fires at us. If a soldier discovers illegality—although it may be termed collateral damage—has not he a right to say that he wants to opt out of that, claim a conscientious objection and not be punished with life imprisonment?

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Alan Simpson (Nottingham South, Labour)

I do not want to be trapped into trying to define the point at which an action is legal or illegal, or the tariff system that should follow a refusal to serve in specific circumstances.

I believe that we must step back and provide that it is wrong to have a carte blanche presumption that the upper limit of the sentencing range should be life imprisonment. Those who are killed in modern wars are primarily not other soldiers. The second world war was probably the turning point in that regard. In modern wars, there is much more collateral damage—that is the modern phrase; it really means civilian casualties—than killing of combatants. It is therefore perfectly legitimate that our serving personnel should have a right and a duty to exercise their judgment about the point at which the threshold is crossed. That does not meant that they should walk away from their decisions with no consequences, but we need to define different parameters.

I would like to tell the Committee about the parameters that exist elsewhere. In Austria, the maximum sentence for desertion is one year; in practice, it is usually between two and six months. In France, desertion in peacetime is punishable by up to three years' imprisonment—

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Alan Simpson (Nottingham South, Labour)

The notes say that it is three years.

In Germany, desertion is punishable by up to five years' imprisonment, although deserters who return to their unit within a month may be sentenced for up to three years. In the Netherlands, desertion in peacetime can be punished by a maximum of two years' imprisonment. In wartime, the punishment is a maximum of seven and a half years' imprisonment. In Poland, refusal to perform military service or to carry out a task inherent in such service is punishable by a range of sentences, from six months to five years' imprisonment, or up to three years in wartime. That is the tariff system that is applied by other countries in the EU, and against which we ought to be measuring the revision of our own armed forces legislation.

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Kevan Jones (North Durham, Labour)

That is exactly what the Bill is doing. At the moment, the maximum penalty for desertion is life imprisonment. Clause 8 will bring that down to a sentence of up to two years for general desertion—that is, desertion in peacetime or from a UK base—and up to life imprisonment for deserting when deployed on operational duties. So we are changing the law, and it will be better than the tariff that my hon. Friend has just cited for France, for example.

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Alan Simpson (Nottingham South, Labour)

I would be happy for the Government to come back with a proposal for an improvement on the French system—

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Alan Simpson (Nottingham South, Labour)

Clause 8 does not represent an improvement on the French system. It will mean that officers serving on the front line who can see at first hand what is happening—unlike us, who simply have to read the reports that are presented to us here—could face substantial charges. It is incumbent on the House to say that such charges are inappropriate to the world in which modern warfare is being conducted, and to the expectations and rights of those young men and women who have volunteered to put their lives on the line in the service of this country.

Let us take a step back from the debate for a moment. Over the past couple of weeks, there has been a huge fuss about the Home Office releasing people who have a track record of murder or rape. People who have committed criminal offences such as those can get early release from prison. To enshrine in the Bill the prospect of life imprisonment for a refusal to kill seems to make a nonsense of the ethical responsibilities that Britain should be carrying in the modern world.

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Gerald Howarth (Shadow Minister, Defence; Aldershot, Conservative)

We have debated this matter for about an hour and a half, and I am bound to say that Eric Forth would have approved of Parliament holding the Government to account in this way. I therefore make no complaint about the time taken to discuss these matters. Indeed, we have had an extremely good debate.

I should like to pay particular tribute to my hon. Friend Patrick Mercer, who undoubtedly brings real experience to the House and is prepared to share it with us. We should not take his advice lightly. I should also like to pay tribute to Chris Bryant, who is unfortunately not in his place at the moment. This was perhaps the only time that I have entirely agreed with everything that he said. That will probably do him more damage than me, but still—

I also salute Mr. Flello for his interventions. Both he and the hon. Member for Rhondda demonstrated the value of the armed forces parliamentary scheme, whose tie I happen to be wearing today, in case the Minister had not noticed. Their contributions, as well as those of others who did not mention that they had taken part in the armed forces parliamentary scheme, illustrate the great benefit that that scheme brings not only to Members of the House but to the armed forces.

I also welcome the Minister to his new position and congratulate him on his post. He has had something of a baptism of fire in having to deal straight away with a 300-clause Bill, which has a huge amount of detail. We wish him well, and I am trying to assist him. Clearly, the fire is coming at him from his Benches rather than from the Liberal Democrat Benches, and it is certainly not coming from the Conservative Benches.

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Gerald Howarth (Shadow Minister, Defence; Aldershot, Conservative)

My hon. Friend says from a sedentary position that the nature of the fire is red on red.

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Bob Russell (Shadow Minister, Defence; Colchester, Liberal Democrat)

As the hon. Gentleman has welcomed the new Minister, will he join me in paying tribute to the previous Minister, who piloted the Bill for four months? I am led to believe that he was about to make that point, and I am sure that I shall endorse what he was going to say in criticising the Prime Minister for sacking the previous Minister.

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Gerald Howarth (Shadow Minister, Defence; Aldershot, Conservative)

I am extremely grateful to Bob Russell, who represents another important garrison town—almost as important as Aldershot—for mentioning that point. Having welcomed the Minister, I was indeed going to pay tribute to his predecessor, Mr. Touhig, with whom I have had an extremely interesting and constructive debate on the Bill. I thank him for the efforts that he made to ensure that we were as well briefed as we could be on the implications of the Bill, and I salute him for that. As this is a moment of salutations, I also thank the Bill team, whose presence we are not allowed to acknowledge in the Chamber, but no doubt the message will get to them that they have also been extremely helpful in relation to getting this legislation right, which is of great concern to all Members of the House.

On the amendment, I also pay tribute to how well John McDonnell moved it, with great dignity and honour, save for the slight disagreement drawn to our attention by Mr. Hancock, on which I think that he is right. Nevertheless, the hon. Member for Hayes and Harlington made his case in a coherent and restrained way.

It is claimed that the desertion clause has been rewritten to punish those who refuse to serve in Iraq with life imprisonment. The amendment seeks to remove "occupation of a foreign country" from the categories of desertion, and removes the punishment of life imprisonment for the most serious classifications of desertion. The desertion clause has not been rewritten to cover those who refuse to take part in the occupation of Iraq, as I am sure that the Minister will also tell the House. It does not increase the punishment for desertion to life imprisonment; it reduces the maximum penalty for most desertion cases by reintroducing a two-tier classification of desertion that takes us back to the position under the 1955 Act, as Mr. Jones pointed out. That Act included two tiers of desertion. Less serious forms of desertion, including desertion while in the UK, were punishable with a sentence of up to two years' imprisonment; the more serious form, desertion while on active service, carried a maximum sentence of life imprisonment. Occupation of a foreign country was included in that more serious form, and the hon. Member for Rhondda pointed out the importance of having that provision in the Bill.

In 1971, new armed forces legislation amended the desertion offence and ended the two-tier punishment for desertion, counting all forms of desertion together, with a maximum sentence of life imprisonment. The reason for that change was the situation in Northern Ireland, which, as Northern Ireland is in the United Kingdom, was not covered by the definition of active service. However, desertion to avoid serving in the Province was considered just as serious as desertion to avoid active service. Little changed in the everyday application of the punishment for desertion, and the punishment continued to reflect the seriousness of the offence.

Therefore, the Bill merely reinstates the two-tier provisions of the earlier Act. It includes a lower tier of less serious forms of desertion, with a maximum sentence of up to two years, and includes the equivalent of desertion while on active service, with a maximum punishment of life imprisonment. The only difference between that and the earlier Act is that the Government have removed the term "active service". They have included the provisions and definition of active service from the 1955 Act in the Bill. The Government have therefore reduced, not increased, the maximum sentence for the lower forms of desertion. They have taken the armed forces back to the position under the 1955 Act. They have not included foreign occupation because of Iraq; it is nonsense for the awkward squad to make that claim. Desertion while occupying a foreign country has had a punishment of up to life imprisonment for the past 50 years.

Mention has been made of two high-profile recent cases. The first was that of Flight Lieutenant Kendall-Smith. He was jailed for refusing a direct order. He was punished not for his conscientious objection but for his failure to obey an order. He was court-martialled for disobeying a direct order to report for pre-deployment training. His claim that he was acting on principle has no legal basis, and his sentence rightly reflects that.

However, Ben Griffin, the SAS conscientious objector, did not refuse a direct order, and nor did he desert. While he was on leave, he told his commanding officer of his objections to the war and, through the existing procedures, left the Army. That was a perfectly honourable course of action for a volunteer soldier to take. He decided that, in all conscience, he could not obey the order. The hon. Member for North Durham is again right that this country is extremely fortunate that those who make up our armed forces are not automatons but have a highly attuned sense of morality and are extremely sensible and decent people. Mr. Griffin took a principled decision. He did not make the fuss that the chap in the Royal Air Force made.

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Angus MacNeil (Spokesperson (Environment, Food & Rural Affairs; Transport); Na h-Eileanan an Iar, Scottish National Party)

On a small point, Ben Griffin's words and reasons were:

"I didn't join the British Army to conduct American foreign policy".

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Gerald Howarth (Shadow Minister, Defence; Aldershot, Conservative)

Whatever his reasons were, he took an appropriate course of action that was open to him and ceased to be a soldier without all the grandstanding that Flight Lieutenant Kendall-Smith undertook. He proved that somebody who has a conscience and feels that that military service, which he was commanded to undertake, was incorrect, has a means to avoid that without all the histrionics and without breaking the law. That is what Ben Griffin did.

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Harry Cohen (Leyton and Wanstead, Labour)

Ben Griffin also told The Sunday Telegraph that he had witnessed dozens of illegal acts by US fighters who viewed Iraqis as "sub-human". He said:

"I saw a lot of things in Baghdad that were illegal or just wrong."

The hon. Gentleman places great emphasis on desertion while on active service, and saying that that warrants the highest sentence is almost like an ultimatum. Ben Griffin talked about the Americans, but if someone witnesses in their troop such illegal acts and civilians being killed—not enemies, but what we call collateral damage—what is the remedy, if they are not to take part in such acts, other than to desert? Surely the hon. Gentleman's distinction is a false one.

Photo of Gerald Howarth

Gerald Howarth (Shadow Minister, Defence; Aldershot, Conservative)

There is a whole system of military law that is designed to ensure that those who break the law in the fashion that the hon. Gentleman sets out are brought to account. Indeed, a number of cases are currently before the authorities for that precise reason. With that intervention, I am afraid that he blows his case straight out of the water.

Serving in Iraq is neither immoral nor illegal. As Mr. Keetch said, that war and the subsequent deployment there are illegal under neither United Kingdom nor international law. The deployment in Iraq is supported by United Nations resolutions, and the Attorney-General has reported that the United Kingdom's actions in Iraq are not illegal.

Let me remind the Committee of an interesting moment, when the Chief of the Defence Staff—then Admiral Sir Michael Boyce, now Lord Boyce—specifically asked on behalf of every serviceman and servicewoman under his command—that is, everyone in uniform—whether the war was legal. He obtained that assurance from the Government. He was right to obtain it on behalf of all who served in Her Majesty's armed forces, and from that time onwards every person in Her Majesty's armed forces was protected.

Perhaps the Minister will be able to confirm that it is unlikely that the maximum sentence would ever be imposed, and that the most serious punishments would relate to desertion from one's post and putting the lives of one's comrades in danger in the way described by my hon. Friend the Member for Newark. I am sure we all agree that it is absolutely right and proper for us to ensure tonight that in such cases a suitable punishment is available. It would be a dereliction of our duty to protect our armed forces if we removed the possibility of life imprisonment for desertion in the circumstances outlined by my hon. Friend and alluded to by others. I therefore hope that the Committee will reject the amendment and support the Bill as it stands.

6:00 pm
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Tom Watson (Parliamentary Under-Secretary, Ministry of Defence; West Bromwich East, Labour)

I thank Mr. Howarth for his kind words. I must say that when I walked into the Chamber and saw the massed ranks of the socialist Campaign group of Labour Members ready to do battle, for a split second I felt like deserting my own post—but my commanding officer sitting on my left, my right hon. Friend the Minister of State, stiffened my resolve, as he would then have had to respond to the debate.

The debate has been very informative. The speech that I will pick out is that of the hon. Member for Newark, which was incredibly well informed and orotund; the argument moved on much further following his contribution. It has been a debate about definitions, and I am anxious to clear up the misunderstandings over the changes that we have made to the offence of desertion.

Clause 8 preserves the offence of desertion, but makes two important changes to the existing offence. I shall describe them in a moment. Under the clause, a serviceman deserts by absenting himself with the intention of never returning to duty, or by absenting himself in order to avoid relevant service. "Relevant service" is defined as

"actions or operations against an enemy...operations outside the British Islands for the protection of life or property; or...military occupations of a foreign country or territory".

The definition essentially reflects the definition of active service in the current service discipline Acts. Those are the most critical and potentially hazardous duties for service personnel, so the offence is all the more serious when the intention or effect of the serviceman's actions is to avoid that relevant service.

Amendment No. 8 seeks to redefine "relevant service" to exclude operations outside the British Islands for the protection of property or military occupation of a foreign country or territory. Amendment No. 9 seeks to reduce the maximum sentence for desertion to two years' imprisonment in all cases—equivalent to the maximum sentence for absence without leave, as was pointed out by the hon. Member for Newark.

I listened to the arguments advanced by my hon. Friend John McDonnell, and I think that they were put honestly and coherently, but, frankly, I disagree with him. Under existing provisions, the definition of desertion refers to going absent with the intention of never returning to duty, going absent to avoid any service overseas, or going absent to avoid service when before an enemy. All those attract a maximum sentence of life imprisonment.

That definition includes going absent to avoid a posting to Germany, training in Canada or a detachment to Cyprus, as well as the types of relevant service that I have described, simply because it involves service overseas. Under the existing law, if a soldier avoids a short posting to Germany with his unit because he is having trouble with his girlfriend and wants to sort things out, he is in theory guilty of desertion—carrying a maximum sentence of life imprisonment—even if he intends to return to duty.

Our first change is to restrict the offence to exclude that unfairness. It will not cover any service overseas, only relevant service. Our second change is to reduce the current maximum sentence of life imprisonment to a maximum of two years, except when desertion is to avoid relevant service. Under the current law, the maximum is life imprisonment in all cases.

Members will appreciate that the operations involved in "relevant service" are of the greatest importance. When such operations are involved, every member of the forces must have complete confidence in the other members of his unit, not least because the operations are dangerous and demanding. Those who avoid such service increase the danger to their colleagues, and damage morale. In a disciplined fighting force, that is totally unacceptable.

Even in the days of compulsory military service, the law reflected the particular seriousness of avoiding such service. It is, if anything, even more serious in a professional volunteer armed force for there to be a distinction between types of dangerous service of the kind proposed by my hon. Friend.

I hope that I have explained to my hon. Friend what we are trying to do in clause 8. I hope he will accept that the scope and definition of the offence is new but far less severe than it was before, and that the true position is the reverse of what he has asserted.

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John McDonnell (Hayes and Harlington, Labour)

I was expecting a brief debate, as clause 8 is one of nearly 300 clauses, but I am pleased with the level of the debate in which we have engaged. I want to focus on the constructive elements that we can take from it. For the record, I also want to establish clarity.

My hon. Friend Chris Bryant said that amendment No. 8 was old-fashioned, relating to the first world war rather than to modern military service. The Bill was intended to be a modernising piece of legislation. What concerned me was that it translated the life sentence threat from existing legislation on sanctions to the new legislation.

I accept the pedantic—no, the constructive—point made by my hon. Friend Mr. Jones that the reintroduction of the two-year limit gives us some flexibility. As my hon. Friend Mr. Simon said, it moves us towards a graduated tariff approach. I agree with him that we could have had a better debate about that. The debate on clause 8 did not feature in the pre-legislative scrutiny Committee, and has not arisen in the House until now.

My first objection to the clause is that it is not modernising legislation; it simply translates the life sentence from earlier legislation. As for my second objection, I respect the views that have been expressed—along with many others today, I pay tribute to Patrick Mercer for bringing to the Chamber his professional experiences on the ground—but we should look again at the process for dealing with conscientious objection. The process that the hon. Gentleman described, as he has seen it, is not the process described in the evidence submitted to the Committee by the successor to the original consultative body, the Peace Pledge Union, which is meant to advise the Government on these matters. Its view is that the conscientious objection process as it stands is not accessible, does not give adequate information to individuals who wish to gain access to it, and therefore undermines the process overall.

The third issue, on which there is some agreement across the Committee, is the issue of severity. I think there is a general view that life imprisonment is currently the exception. I thought that we heard earlier from the Liberal Democrats that they did not support the inclusion in this clause of the sanction of life imprisonment. I should be grateful for clarification.

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Nick Harvey (Shadow Secretary of State for Defence, Defence; North Devon, Liberal Democrat)

I said at the start of the debate that in almost no circumstances could I envisage life imprisonment being a suitable penalty. I agreed with Mr. Simon, who said earlier that we should have debated a provision that brought the life sentence punishment down to an intermediate level. Had there been such a provision, I could have supported it, but as we have heard, the amendment tabled by the hon. Member for Hayes and Harlington would shift us toward a two-year sentence.

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John McDonnell (Hayes and Harlington, Labour)

Best to end when one is winning. The message for the Government is that a significant body of Members in Committee, regardless of party, believe that life imprisonment is a disproportionate sanction in such cases. [Interruption.] I said that a significant body agree; there will of course be others who disagree. I am not asking for consensus—yet.

The discussion has centred on the argument that this is a modern, volunteer and professional Army. My hon. Friend the Member for North Durham said that if it was a conscript Army, that would be a different matter altogether and life imprisonment most probably would not be appropriate. There is no difference between us, and if we ever move toward a conscript Army, we will need to debate the matter, because I agree that such a sentence would not be appropriate. However, a modern, volunteer, professional Army should not be motivated by fear of the sanction of life imprisonment, either.

This legislation fails to show a modern understanding of why people desert. They desert because of fear or trauma, or out of conscience, and we should accept that. We should not penalise them with life imprisonment; we should accept that it is a disproportionate sanction, not the appropriate one.

It has been argued that we cannot allow individual soldiers to exercise a right of veto over action, but the reverse is the case.

Photo of Angus MacNeil

Angus MacNeil (Spokesperson (Environment, Food & Rural Affairs; Transport); Na h-Eileanan an Iar, Scottish National Party)

rose—

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John McDonnell (Hayes and Harlington, Labour)

Let me finish this point. In human rights legislation, we require individual soldiers to exercise their own judgment as a duty. Mention has been made of Nuremberg, but this was an issue before then, and it goes well beyond Nuremberg. There is a duty placed on each of us, as individuals in a democratic society—but in particular on soldiers and members of the military—to exercise judgment about whether what we do is right and lawful. I reiterate the point that, whatever debates take place in this or any other Parliament, they do not override that individual duty.

Amendment No. 8 clarifies the situation concerning military occupation. More importantly, amendment No. 9 emphasises the fact that life imprisonment is a disproportionate sentence that does not relate to the reality of a modern Army—an Army that is based upon volunteers and professionals, and which, as we all agree, is in most instances motivated by moral courage. Such an Army should not be motivated by, or threatened by, fear of such a sanction. On that basis, I shall press amendment No. 9 to a Division. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 9, in page 5, line 18, leave out from 'offence' to 'must' in line 20. —[John McDonnell.]

Question put, That the amendment be made:—

The Committee divided: Ayes 19, Noes 442.

Division number 245

See full list of votes (From The Public Whip)

Question accordingly negatived.

Clause 8 ordered to stand part of the Bill.

Clauses 9 to 34 ordered to stand part of the Bill.