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Armed Forces Bill

moved Amendment No. 14: Page 3, line 5, at end insert- ““( ) It shall be a defence for a person charged with an offence under this section to prove that the action or operation referred to in subsections (1) and (2) requires the commission by him of unlawful acts or is illegal under international law.”” The noble Lord said: I will also speak to Amendment No. 25, notwithstanding that it is grouped with other later amendments, because it raises the same point. The point arose specifically in the case of Mr Kendall-Smith, a flight lieutenant in the RAF who refused to go to Iraq because of his belief that the invasion and subsequent activity in Iraq were illegal. I am not suggesting in these amendments that it is a defence for a person to prove that he believed that the, "““action or operation referred to in subsections (1) and (2) requires the commission by him of unlawful acts or is illegal under international law””," nor when we come to Clause 8 am I suggesting that belief is a sufficient defence. But it should be open to a defendant to argue, as Flight Lieutenant Kendall-Smith did, that he was being asked to make himself a party to the illegal act, as he saw it, of the invasion of Iraq. He may or may not be able to persuade the tribunal that his view is correct, but it should be open to a service man to make that argument as a matter of law. In the court martial proceedings against him, at a preliminary hearing, he was told that his belief that it was an illegal act was no defence. Subsequently, by the trial date in April this year, the Judge Advocate General said that it was not an admissible defence at all: he could not argue it. If a soldier is charged with disobeying a lawful order, he ought to be able to argue in some wider context that the whole operation he was being asked to take part in was illegal. This is a probing amendment because I am interested in the Government’s response to the argument that I have put forward. I beg to move.