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[The Sitting was suspended from 8.10 to 8.30 pm.]
Armed Forces Bill
Lord Craig of Radley moved Amendment No. 19:
(a) he agrees with at least one other person subject to service law to overthrow or resist authority; (b) he agrees with at least one other person subject to service law to disobey authority, and the agreed disobedience would be such as to subvert discipline; (c) he, in concert with at least one other person subject to service law, acts with the intention of overthrowing or resisting authority; or (d) he, in concert with at least one other person subject to service law, disobeys authority in such circumstances as to subvert discipline.”The noble and gallant Lord said: I shall speak also to Amendments Nos. 22 and 23. Mutiny is a most serious offence and, happily, of very rare occurrence. Rightly, if someone subject to service law were convicted of mutiny and sentenced to imprisonment, it could be for life. With such a punishment, it seems to me that the wording of Clause 6 should be in language which is crystal clear and which defines mutiny. Tomorrow's serviceman—even one today—can access via the internet the wording of any recent Act or Bill. I have Clause 6 on my PDA, and you can now get a PDA for a relatively modest sum. So it seems to me that this Committee should be most careful about the clarity of the wording and definitions of major offences in the Bill.
My Amendment No. 19 is probing, and possibly prodding. The word “mutiny” does not appear in the text of Clause 6—only in the side heading and the centre heading above it at line 11. According to my staff college training in service writing, which I assume had its basis in legal practice, it was wrong to rely on the words of a side or centre heading, and my directing staff would have red-inked it as a mistake if I had done that. In the whole of Clause 6, the word “mutiny” appears in the side heading only. It appears twice in lines 31 and 34 in the following clause, Clause 7, so it seems reasonable to expect Clause 6 to be very clear in its references to, and definitions of, mutinous behaviour.
I noted a difference of approach in the way that some of the clauses in this part have been drafted. Some start, as does Clause 6, with the generality:
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Others—for example, Clauses 8 and 9—state explicitly that a person subject to service law commits an offence if he “deserts” or if he is,
These offences, particularly desertion, are serious, and it is right to make plain what the defences are and to define them.
My Amendment No. 19 to Clause 6 is an attempt to emulate the approach of Clauses 8 and 9, so it starts with the words:
It is not clear to me whether Clause 6 is drafted to catch a person subject to service law with a charge such as disobeying authority so as to subvert discipline, which does not have the word “mutiny” in the charge. If so, I do not like it. I attempt in my amendment to make it clear that mutiny is an offence for a person subject to service law; the amendment brigades as definition the four types of mutinous behaviour given in the present Clause 6 into one subsection.
The Marshalled List does not repeat exactly the amendment that I tabled, which was reflected in HL Bill 113(n) and in the Keeling version, which the Minister sent to many of us. The word “or” is now missing from the end of both paragraphs (a) and (b). My intention was to make an offence of the behaviour set out in any one of the four paragraphs that define mutinous behaviour. I now understand that it is not necessary to repeat the word “or” to make it clear that the behaviour set out in any one of the four paragraphs would be deemed to be mutinous behaviour, so I am content with the absence of the word “or”.
Amendment No. 22 simply follows my approach of clarity. In Amendment No. 23 I seek an explanation from the Minister as to why the Bill distinguishes between an agreement with at least one other person to mutinous behaviour, as in Clause 6(1), and acting in concert with at least one other person to overthrow or to disobey authority, as in Clause 6(2).
Clause 7(1)(a) refers to mutiny “occurring” or “intended”. I do not follow why the different definitions of mutinous behaviour have to be separated so that only the latter group—that is, in Clause 6(2)—is caught by the definition of mutiny. Anyone failing to take steps to suppress or prevent mutiny ought to be culpable. As I could not understand the distinction drawn by Clause 7(2), I adopted the approach in my Amendment No. 19 of brigading the four mutinous behaviour definitions into one subsection, deleting Clause 7(2) as a consequence. I look forward to the Minister’s elucidation. I beg to move.
Lord Garden: I rise to speak to Amendments Nos. 20 and 21 within this grouping. I fully endorse what the noble and gallant Lord, Lord Craig, said about the seriousness of the offence of mutiny, which causes potentially great disaster in terms of military operations. When looking at the background to this, I noted that until 1689 mutiny applied as an offence only during a period of war. I am not proposing that
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“The importance of the military context is most apparent when considering the hostile and dangerous situations that Service personnel can encounter on operational deployment. However, Service law must be equally applicable in operational and non-operational environments, and the military context is also important in non-operational environments”.
When we consider this—the most serious of military offences in some ways—we have to remember that it covers a wide range of circumstances, some of which will be at the operational end, and some at the non-operational end. My amendments address the words “or resist” and “or resisting” authority, compared with “overthrow” authority, which is the other test of mutinous behaviour. Overthrowing authority is self-evident. The serviceman who has the noble and gallant Lord’s personal digital assistant to read this will know what overthrowing authority means.
Resisting authority is a more subjective test. I can think of many circumstances when the noble and gallant Lord was my commanding officer as Chief of the Air Staff, once upon a time, when a group of us might have suggested an alternative course of action. Was that resisting authority? That is the way in which discussions occur in peacetime operations or the way in which in peacetime circumstances we come to the best decisions—a bit like in your Lordships’ House when we come to the best formulation of law. We discuss various things. We are not being mutinous, but are merely trying to distil the available wisdom.
The word “resisting” in modern circumstances covers too broad a definition. Indeed, the Minister will probably say that he wishes to resist my amendment. If several of us resisted, would that be mutinous behaviour? This is a probing amendment. When something is so serious that until relatively recently it carried the death penalty, but now carries the sentence of life imprisonment, we need to be very precise in our meanings. I look forward to hearing what the Minister has to say about how “resist” works in modern society, where the age of deference is almost dead. The military may wish to maintain it but I think not by life imprisonment.
The noble and gallant Lord’s amendments took me back to his clarity of thought and language when we sat round the table at the Ministry of Defence. If in using the right legal terminology we can make the Bill understandable to anybody who reads it, that is to be encouraged. Of course, I would want him to drop the words “resist” and “resisting” from his subsection. With that small change, we could agree on his amendments.
Lord Astor of Hever: The noble and gallant Lord, Lord Craig, has raised an interesting point on the drafting of Clause 6. As he said, the matter is one of form rather than substance. It is strange that the word “mutiny” does not appear in the opening line of the first subsection, whereas “deserts” appears in the opening line of Clause 8, which deals with desertion. Although I accept that Amendments Nos. 20 and 21 are probing amendments, they raise a different issue
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Lord Borrie: I follow the noble Lord, Lord Astor of Hever, in expressing some surprise that the word “mutiny” does not appear in the opening lines of Clause 6. Indeed, the word “mutiny” does not appear at all in Clause 6. It appears in Clause 7, but not in Clause 6. Therefore, the approach of the noble and gallant Lord, Lord Craig of Radley—to start by saying that mutiny is an offence and then to define it—seems to be eminently sensible and logical. The Bill follows that approach in immediately subsequent clauses.
As to the amendments proposed by the noble Lords, Lord Garden and Lord Thomas of Gresford, I realise that “overthrow” is a good deal more serious than “resist”, but the examples of resisting given by the noble Lord, Lord Garden, were not terribly impressive. I saw him as a very senior officer discussing drafts or suggestions with the noble and gallant Lord. It can hardly be called resisting authority when one has been called in to discuss things. After the decision has been made, any suggestion of ignoring or disobeying it would be resisting. Although resisting is the lesser of the two possibilities, I see nothing wrong with—and, indeed, I look with approval on—the use of the words “overthrow” or “resist” in this clause.
Lord Thomas of Gresford: I do not know whether these provisions have been lifted entirely out of the Army Act 1955 or are a new construct, but it is interesting to look at the way in which Clause 6 is framed. Not only does it not mention mutiny, but the first two offences are that the person,
Essentially, those are conspiracy charges. They relate to an agreement between two people to commit an offence, and the offence that they are contemplating is straightforwardly mutiny.
When one looks at proposed new subsection (2), one sees that a person subject to service law commits an offence if,
- “he, in concert with at least one other person subject to service law, acts with the intention of overthrowing or resisting authority; or ... disobeys authority”.
Those are actions. Proposed new paragraphs (a) and (b) are about agreement—that is, a conspiracy to do something in the future—whereas proposed new
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If one looks at Clause 7, one can see how inconsistent it is. It uses the word “mutiny”. It states:
something that goes to the future—
- “and ... he fails to take such steps as he could reasonably be expected to take to prevent or suppress it”.
Of course, the failure to suppress a mutiny is confined to the acting and not to the conspiracy, whereas one would have thought that it is as important to quash a conspiracy as it is to quash the act of mutiny when it is occurring.
These are very serious offences punishable by life. I suggest to Members of the Committee that those drafting the two clauses should look again at them very carefully, bearing in mind everything that the noble and gallant Lord, Lord Craig of Radley, has said. Central to the drafting of those clauses should be a firm definition of mutiny. There should be no confusion between an agreement to do something in the future and actually doing it. If the Government desire to draw a distinction between the two in suppressing mutiny, they should make that very clear. I do not suppose that that is their intention, which brings me back to where I started—I suspect that this provision may have been lifted wholesale from the current legislation.
8.45 pm
Lord Drayson: I believe that I can be helpful on this amendment. The noble and gallant Lord’s Amendment No. 19 would revise the clause using virtually the same words, but giving it a different structure. In particular, the words,
would appear twice—once in relation to action with the intention of overthrowing or resisting authority, and once in relation to disobeying authority. Subsection (2) currently uses those words once in relation to both.
No drafting style will please everyone. We have tried to ensure consistency in style throughout the Bill. I have some sympathy with the noble and gallant Lord’s point of view. There is a problem with his redraft, however. I am not sure whether this is the noble and gallant Lord’s intention, but his amendment would change the effect of the clause. I will do my best to explain why.
At present, the clause creates two offences. One, in subsection (1), is in essence “agreeing” to act. The other, in subsection (2), is in essence “acting”. We
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Amendment No. 19 would alter that by making all forms of mutiny a single offence. So the charge could be, “acting with the intention of overthrowing or resisting authority or agreeing with one other person to overthrow or resist authority”. I am sure that noble Lords will see the distinction. If the accused were convicted on a charge that was drawn in that way, no one would know whether the court thought that he had agreed to act mutinously or that he had actually done so.
In such a serious matter, we think it better that the charge should make it absolutely clear what the accused is alleged to have done. Keeping the offences separate, as we have in the Bill, achieves this. I will, however, look in this one instance at whether we can go some way towards meeting the noble and gallant Lord’s point about the drafting. I trust that, in the circumstances, he will feel able to withdraw his amendment.
Lord Craig of Radley: I thank the Minister for that very helpful explanation and I thank all noble Lords who have spoken in support. The difficulty that I have with the Minister's distinction between acting and what he said is “showing an intention of acting” is that Clause 7(1)(a) talks about intention. Therefore, the provision deals not just with the act of committing a mutiny but with the fact that people have agreed to do so. It seems to me that, if they have agreed, there is an intention of being mutinous. I put these provisions all together because of the wording of Clause 7(1)(a), which mentions a person who,
The use of the word “intended” seemed to me to cover the first provision of Clause 6, which talks about agreeing with one or more people. Nevertheless, in view of what the Minister and everyone else have said, I shall be very happy to beg leave to withdraw the amendment.
Lord Drayson: With the indulgence of the Committee, I should like to speak to Amendments Nos. 20 and 21. Those amendments would limit the offence to agreements or action to overthrow or subvert authority; the offence would no longer cover agreement or action to resist that authority. That would legalise resistance to authority, as long as it stopped short of actually overthrowing or subverting that authority. Such resistance could, without doubt, imperil a mission. Concerted resistance to command authority cannot in my view—or, more important, the view of the services—be consistent with discipline. The amendment should therefore be rejected.
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Clause 7 complements Clause 6 by requiring service personnel to do all that they reasonably can to prevent or suppress acts of mutiny that go beyond a simple agreement to mutiny. We do not believe it right that the duty imposed on all service personnel to prevent and suppress mutiny should be limited to acts of mutiny that go beyond an agreement to mutiny. I therefore cannot support Amendment No. 23 and hope that the noble and gallant Lord will consider withdrawing it. Amendment No. 22 to Clause 7 appears to be consequential to Amendment No. 19 to Clause 6.
Lord Garden: I am slightly disappointed by the Minister's reply to what was, after all, a probing amendment to try to get some clarity on what he thought “resisting” meant. He has told us that, because at the extreme end “resisting” is tantamount to “overthrowing” authority, all lesser things should be encompassed by it. I was rather hoping that he would find some way to define it more narrowly to make it appropriate to an offence of this magnitude. His answer did not give us that. I was also slightly surprised that, in tackling the issue raised by the amendment of the noble and gallant Lord, Lord Craig of Radley, he did not pick up the helpful suggestion made by my noble friend Lord Thomas of Gresford that he could still have kept the offences—that is, agreeing to do mutinous things and acting mutinously—separate by a fairly simple addition to the noble and gallant Lord’s amendment.
Earl Attlee: The Minister may prefer to write to me on this query. It seems to me that there is an offence of discussing the possibility of mutiny. I would never be prepared to discuss resisting or overthrowing authority. I would not want to get anywhere close to doing that, but it does not seem to be an offence to discuss the possibility of resisting or overthrowing authority. If the Minister could write to me on that point, I should be grateful.
Lord Drayson: I would be happy to write to the noble Earl on that point. I am grateful to noble Lords for the careful thought that they have applied to the clause. There are matters that I will read carefully in Hansard to see whether they can be applied to the benefit of the clarity of the clause.
Lord Craig of Radley: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 20 to 22 not moved.]
Clause 7 [Failure to suppress mutiny]:
Lord Judd moved Amendment No. 24:
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