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Armed Forces Bill

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 will have jurisdiction. But in lower level cases involving a lack of discipline rather than criminality, other mechanisms such as removal from theatre and seeking action under the contract of employment will be sufficient. I hope that the noble Lord feels able to withdraw his amendment. 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, "““would or might be useful to the enemy””," 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. 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.