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Armed Forces: Chain of Command

My Lords, my contribution to this important debate—every speaker has so far described it as an important debate, and so it is—lies perhaps on the fringes, although it was briefly touched on by the noble Lord, Lord Moonie, in his excellent maiden speech. The point arises from my involvement in another case which has some similarities with the case of Trooper Williams. It is the case of Clegg, which is reported in Appeal Cases 1995 at page 482. The facts of that case will be familiar to many, and I know that they will be familiar to the noble and gallant Lord, Lord Bramall. It concerns a soldier in Northern Ireland who fired a shot into the back of a car, which had been driven at speed through a check point. The shot which he fired killed one of the passengers in the car. The soldier was charged with murder, as was inevitable as the law then stood, and as the law still stands, because he clearly intended to cause either death or serious bodily harm. His only defence therefore could have been that of self-defence, but that defence was a difficult one to run, since he fired the fatal shot after the car had passed through the check point. I shall return later to the importance of that case in relation to this debate. Perhaps I may first say very briefly something about the position of the Armed Forces in relation to the law. We had much discussion last year about constitutional questions; in particular, the rule of law. For me, the rule of law means simply that everyone, including the Government, is subject to the law. More important for the purposes of the present debate, it means also that everyone is subject to the same law. In a free country there is not and cannot be one law for soldiers and another for citizens. I believe that all noble and gallant Lords who have made such powerful speeches today would accept that basic point. Indeed, we frequently boast of the fact that our soldiers are citizens in uniform. It is true, as has been emphasised today and is often emphasised, that soldiers have to make split-second decisions involving life and death. Clegg had to make such a decision. Trooper Williams had to make such a decision. But so do the police, more and more of whom are now armed. They too have to make split-second decisions, but no one suggests that the police should be for any reason above the law or subject to some different law. I remember a tragic case in Sussex not long ago, where two police officers shot an unarmed man in bed in the belief that he had a gun under the blankets. He did not. In that case the law had to take its ordinary course. That is what I mean when I say that both the police and our Armed Forces have to be subject to the ordinary law. That has always been a point of great constitutional importance. Perhaps I may quote some little authority in support. Lord Mansfield as long ago as 1812 corrected, as he said, the,"““strange mistaken notion which has got abroad, that because men are soldiers they cease to be citizens””." Blackstone, in volume one of his Commentaries, wrote,"““In a land of liberty it is extremely dangerous to make a distinct order of the profession of arms  . . . [A soldier] puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier””." Finally, I quote Halsbury’s Laws of England:"““It is one of the cardinal features of the law of England that a person does not, by enlisting in  . . . the armed forces, thereby cease to be a citizen, so as to deprive him of his rights or exempt him from his liabilities under the ordinary law of the land””." Having said all that, it does not follow that I am satisfied with the law as it currently stands. That brings me back to the case of Clegg. I am not satisfied with the law. It should have been possible to charge Clegg with manslaughter, and not with murder, as had to be the case then and would still have to be the case now. If he could have been charged with manslaughter and if he had been found guilty he would have been subject to a modest term of imprisonment depending on all the circumstances of the case and not, as had to be the case, sentenced to life imprisonment. That point has been made over and over again. We made it at great length in our judgment in the Clegg case. It is made by the Criminal Law Revision Committee, by the Law Commission and by the House of Lords Select Committee on the law of murder. The law of homicide is currently being considered by a Home Office committee. I have said before that I wish that committee had been more widely based. I hope that it will take into account the powerful things that have been said today and recommend a change in the law accordingly.