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On enforcement measures, it is already possible for driving disqualifications to take place and for custodial sentences to be given. We are looking at extending that to passport withdrawal, tagging and the publication of successful prosecutions. I would say to the noble Lord that failing to provide financial support for your children is a very serious matter. We know that the effect on the life outcomes of those children in poverty can be considerable and devastating. It is very important that the message goes out that we are getting serious about the matter. For too long the CSA has been seen as a soft-touch agency that you can run rings around. We have to move away from that. The answer to those who evade and seek to evade responsibility for their children must be that there will be consequences if they do not support their children.
Armed Forces Bill
6.19 pm
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Drayson): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
Clause 1 [Assisting an enemy]:
Lord Astor of Hever moved Amendment No. 1:
The noble Lord said: I shall speak also to Amendments Nos. 33A, 34A and 34B.
The purpose of Amendments Nos. 1 and 33A is to extend the reference of offences to include civilians who are subject to service discipline. Increasingly, we find that civilians are routinely employed in
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Amendments Nos. 34A and 34B are intended to seek clarity of the definition of what we mean by the enemy. Today, the threat to the country comes not necessarily from organised nation states but from ad hoc groups of terrorists. There would be merit in changing the clause to reflect the needs of our time and to ensure that the courts are in no doubt of Parliament's intention that the disclosure of information useful to an enemy extends to those who seek to harm us, but who may not have been classified as an enemy in the past.
It is clearly not the Government's intention that a service man or woman who provides information to terrorists should not be subject to prosecution under Clause 17. I entirely accept that. The amendment would cover the disclosure of unauthorised information to foreign powers or journalists and I hope that it would be easier to prosecute under the amended clause than under the Official Secrets Act 1989. The information in question would not need to be government information. It would cover, for example, an employee of one of our defence companies leaking information about our equipment programme, the passing of which might be prejudicial to the security and defence of the United Kingdom.
The drafting of the amendment accommodates the Government's concerns, ensuring that the offence is not too narrow, retaining the words, “would be, or might be”. I beg to move.
Earl Attlee: Before speaking to the amendments, I remind the Committee that I have an interest as a serving officer in the TA and I am subject to service law as we speak.
I confess to having tabled numerous, detailed amendments, but the good news is that I do not intend to take very long speaking to them and I hope that the Minister can give a succinct response. Amendments Nos. 2, 7, 8, 13 and 34 cover the use of the terms “lawful excuse” and “reasonable excuse”. Offences in the first few clauses are very serious. Why do some clauses provide for “without lawful excuse”, while others contain the provision “without reasonable excuse”? What is the legal difference? Have I wrecked the Bill by swapping them around, or does that not make much difference? If it makes no real difference, why should we have the two terms?
Amendments Nos. 3 and 32 build on the amendments to which I have just spoken, but also provide an opportunity to consider the term “officer”. Most Members of the Committee will have received a very helpful
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The Bill should be a working document. No doubt it will be included in the manual of service law, when it is published. It would be better if the Bill was clearer about whether we are talking about commissioned or non-commissioned officers.
Turning to Amendments Nos. 4 and 5, Clause 1 creates wide and very serious offences. For instance, subsection (1)(c) makes it an offence not to pass on any information received from the enemy. If a serviceman captures an enemy soldier who makes it clear that he is very hungry, a clever serviceman may know—I repeat, know—that that is significant because it indicates that the enemy's logistic system may be breaking down. On the other hand, it could be insignificant, because all soldiers complain that they are hungry.
Amendment No. 6 is very similar. The Bill makes it an offence to give supplies to the enemy. How far does that go? For instance, what about medical supplies? Is it illegal to give medical supplies to the enemy if that will not compromise your tactical position?
Finally, the Committee will agree that desertion is a very serious offence. There are, rightly, severe penalties for desertion in connection with operations, but rather light penalties otherwise. The Bill seems to have maximum prison sentences of either two or 10 years. There is no provision in the Bill for, say, five years. Although I am content with the concept of “relevant operations” attracting heavier penalties, it may not always be possible to make that charge stick. If the charge is for only ordinary desertion, as it were, the maximum penalty is only two years. My amendment suggests 10 years, but I have gone to 10 years only to be consistent with the rest of the Bill’s drafting.
Lord Garden: The Liberal Democrats have no amendments in this group, but I am sympathetic to the first eight amendments, which seem to provide some sensible clarification. On Amendment No. 34, I am less certain about the concept of what would become in the Bill “reasonable authority”. I wait to hear what the Minister has to say on that.
I am slightly worried about the new amendments, Amendments Nos. 34A and 34B, which replace the previous Amendment No. 35 tabled by the noble Lord, Lord Astor of Hever. They seem to me to miss out groups of possible enemies. For example, there is the requirement to provide security and defence for dependent territories, which does not seem to be encapsulated in the new amendments. I wonder whether “enemy” is a well enough understood term to leave it as the Bill suggests.
On Amendment No. 36, tabled by the noble Earl, Lord Attlee, which would increase the punishment from two years to 10 years, as the Committee will discover when we consider how the Bill as a whole is drafted, I am more concerned to try to bring it into
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Lord Lyell: I support my noble friend Lord Astor. He made a very competent and clear point on persons who should be tied in to, have a good understanding of and be subject to service discipline. Much of that was covered earlier in consideration of the Bill, so I apologise to the Committee that, for very good reasons, I was not available to give my opinion on Second Reading. Indeed, if I may say so, I am immensely grateful to the Minister and other noble Lords who have kept me up to date with the proceedings, arguments and much of the correspondence on the Bill. I hope that, in his usual sympathetic vein, and in that of the kindness that he has shown to me, the Minister will spread a little of that towards the amendments proposed by my noble friend Lord Astor, with the support of the noble Lord, Lord Garden.
6.30 pm
Lord Mayhew of Twysden: Perhaps I may take a second of the Committee’s time to say what a pleasure it is for all of us to see my noble friend Lord Lyell back in his place. I support each of the amendments moved so succinctly by my noble friend Lord Attlee. In particular, I await with great interest the explanation for the distinction made in one instance for “lawful excuse” and in several others for “reasonable excuse”. Since part of the object of this largely admirable Bill is to provide clarity for service people, it would be easier to understand that they will have protection if there is a “reasonable excuse” than if they are told that there is a “lawful excuse”, which would draw them into matters of law which may leave them feeling less than certain. These amendments are of particular importance and I look forward to hearing the noble Lord’s explanation.
Lord Drayson: I, too, am pleased to see the noble Lord, Lord Lyell, in his place. I am sure that the whole House will join me in wishing him a continued speedy recovery. The noble Lord, Lord Astor, asked a specific point on a letter. I will look carefully at what the noble Lord has said. It is my understanding that the point has been covered in a letter to the spokesman in another place or in a supplementary memorandum, which were both published in a Select Committee report in another place. I will check that point and get back to the noble Lord as soon as I can.
Amendment No. 1 seeks to broaden the offence of assisting the enemy to include civilians subject to service discipline. Civilians subject to service discipline are subject to a specified range of offences; that is, those of criminal conduct and some disciplinary offences—for example, looting and contravention of Standing Orders. A decision was taken not to apply all the service disciplinary offences to civilians as we do not think that it is appropriate to create or expect the same disciplinary relationship between the services and the civilians who support them. Some cases of assisting an enemy will amount to a criminal offence. In such cases, the service courts
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I will now speak to the remaining amendments tabled to this clause and also deal with similar Amendments Nos. 2, 8, 13, 34 and 36 on the burden of “lawful” and “reasonable”. Existing Clause 1 gives a defence of “lawful excuse”, which would allow a defence that an accused had express or implied authority or whose action is justified by law. “Reasonable excuse” gives a wider defence, which would allow a court martial to look at all the circumstances and decide whether the conduct of the accused was reasonable. It is appropriate that the narrower defence should apply to an offence of intentionally assisting an enemy. Conversely, in Clause 2, for the offence of misconduct on operations it is felt that the wider defence of “reasonable” is more appropriate, as is also the case in Clause 17 where a similar point has been made. It is the same for Amendment No. 13 where again a similar point has been made.
With regard to Amendments Nos. 4 and 5, which are proposed to Clause 1, we believe that “significant” is already implicit in the clause. “Knowingly” is already covered in the clause by the word “intentionally”. On Amendment No. 6, the noble Lord proposes that the giving of medical supplies to an enemy is excepted from the offence. Where it is proper to give an enemy medical treatment, that is already covered by “lawful excuse”, but there should not be a general permission to give the enemy medical supplies.
Amendment No. 8, tabled by the noble Earl, Lord Attlee, would add an additional defence of acting on the authority of a superior officer. The amendment is unnecessary because the defence of “lawful excuse” would include acting under the orders or authority of a superior officer. Amendment No. 32 is unnecessary because the definition of “superior officer” in Clause 367 already includes warrant officers and non-commissioned officers. Amendment No. 33A to Clause 17 seeks to broaden the offence of disclosing information useful to an enemy to include civilians subject to service discipline. For the same reasons as I described when dealing with Clause 1, we do not think that it is appropriate to extend this offence to civilians. With regard to Amendments Nos. 34A and 34B, Clause 17 uses the wording,
to which the amendments propose to add the words,
- “or prejudicial to the security or defence of the United Kingdom or Her Majesty’s forces and their allies”.
I suspect that the intention behind the amendments is to widen the offence. In doing so, it goes into an area which is already covered by the Official Secrets Acts. The offence of disclosing information useful to an enemy is needed to deal precisely with information which is useful in any way to an enemy. While these amendments would broaden the existing offence, there is other legislation which deals with threats to national and military security.
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Amendment No. 36 would raise the maximum term of imprisonment for the offence from two years to 10 years. Similar offences are contained in the service discipline Acts and carry a sentence of a maximum of two years. We see no need to change that. The proposed maximum is too high, given that more serious offences, such as assisting the enemy, can, if appropriate, be charged, which carry a greater potential punishment.
Lord Mayhew of Twysden: I am very grateful to the noble Lord for dealing with the points which I raised about the words “lawful” and “reasonable”, but will he look at that again before Report? “Lawful” is not defined in the sense that he described. Without a specific definition, in a very narrow sense, of “lawful excuse” along the lines that the Minister has outlined, many people would suppose that if there were a “reasonable excuse”, it would also be a “lawful excuse”.
For my part, I hope that any court martial dealing with any charge under Clause 1 would always feel it necessary to look at all the circumstances and that that would be so whether the charge was “reasonable excuse” or merely “lawful excuse”. I hope that this might be looked at again because it is a little more difficult than it seems.
Lord Thomas of Gresford: I support the Minister in his argument about not extending the offences in Clauses 1 and 2 to,
Such persons are defined in Schedule 15 to the Bill, which covers a very wide number of people. In particular, it covers persons residing or,
which includes families of servicemen who are posted abroad, and so on. I declare an interest as having represented Mr Martin, a 17 year-old, in the proceedings that were brought against him for murder by way of court martial. It is inappropriate, and I shall move amendments in respect of civilians being dealt with by way of a court martial. Certainly, when we are dealing with offences that are specific to those who are members of the Armed Forces, it is inappropriate that civilians should be caught by those offences. It may be that they may commit other offences in different ways and be subject to the jurisdiction of the civilian court or whatever, but they should not be brought before a court martial for disciplinary and service offences.
Lord Astor of Hever: I am grateful to all those who have spoken to this group of amendments. I, too, should like to say how delighted I am to see my noble friend Lord Lyell back in his place. I thank the noble Lord, Lord Garden, for his sympathy for Amendment No. 1, and I take his point about leaving out groups of enemies. We will look at that closely. I was delighted that my noble friend Lord Attlee said that his
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I thank the Minister for looking into the matter of the letter that was promised to my honourable friend in the other place; I look forward to hearing about that. I also thank him for his explanation in response to Amendments Nos. 34A and 34B. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 to 7 not moved.]
Clause 2 [Misconduct on operations]:
Lord Thomas of Gresford moved Amendment No. 9:
The noble Lord said: In moving Amendment No. 9, I shall speak also to Amendment No. 10. I note that Amendment No. 14 has been included in this group. I have been away and have therefore had no opportunity to consider the groupings. I propose to move Amendment No. 14 and at that point to speak to Amendment No. 25 in similar terms; I hope that the Committee will grant me that indulgence.
On Amendment No. 9, the Joint Committee on Human Rights today published its 22nd report of legislative scrutiny specifically relating to this Bill. In paragraph 1.34, it states:
“Part 1 of the Bill sets out a series of offences which are the subject of military law. Article 7 of the European Convention on Human Rights requires that a law imposing a criminal offence must be sufficiently clearly drafted or defined that a person is able to reasonably foresee that his actions may amount to an offence”.
The committee criticises in particular the wording that we seek to exclude by this amendment—that of using “utmost exertions”. Clause 2(3) states:
“A person to whom this subsection applies commits an offence if he fails to use his utmost exertions to carry out the lawful commands of his superior officers”.
What are his “utmost exertions”? That is a question that the Bill would require a court martial to determine. Surely it would be much simpler if that subsection as, “A person to whom this subsection applies commits an offence if he fails to carry out the lawful commands of his superior officers”. What is added by the phrase, “use his utmost exertions”? The Minister will know that the Joint Committee has written to him asking what it means.
A similar argument arises with Amendment No. 10, which refers to subsection (5):
“A person to whom this subsection applies commits an offence if, without reasonable excuse, he intentionally communicates with a person who is—
That is not the easiest thing for a tribunal of fact to determine. Is something said by a certain person
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