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Armed Forces Bill

Clause 8 creates the offence of desertion. I think the most helpful thing I can do is deal with all the amendments together, apart from Amendment No. 25, which we have debated already this evening. Under the Bill, the offence of desertion is limited to where a member of the services goes absent without permission, either intending never to return or to avoid the especially dangerous and important service abroad that the Bill refers to as ““relevant service””. That term covers the same broad type of dangerous service abroad which is called ““active service”” in the existing legislation. Like active service, relevant service covers operations against an enemy, operations abroad for the protection of life or property, and military occupation of a foreign country. Amendment No. 24 seeks to alter the definition of ““relevant service”” in respect of military occupation to ““legal”” military occupation of a foreign country or territory. The effect would be that it would no longer be considered desertion to go absent without leave to avoid service in military occupation of a foreign country, unless that occupation was ““legal””. The problem with this is that ““legal”” here refers to an obligation under international law, which applies to whether the action of the United Kingdom as a country is lawful. International law looks here at Governments and states. It does not expect the ordinary service man or woman to assess whether a military occupation is sanctioned by international law. It would totally undermine the cohesion of the Armed Forces to provide that, in respect of certain types of operation abroad, a member of the Armed Forces could simply go absent without permission because he or she thought that the operation was contrary to international law. The amendment would have the even more extraordinary effect that, if the service man who goes absent is wrong about the international law position—in other words, the court martial decides that the occupation was lawful under international law—he is guilty of desertion and subject to a maximum penalty of life imprisonment. I am grateful to my noble friend Lady Dean for so clearly underlining the difficulties here. Noble Lords will no doubt be aware that the Joint Committee on Human Rights, in its report published last Friday, has raised the question of why Clause 8 does not allow the legality of the deployment of British forces to Iraq to be argued in relation to an offence under Clause 8. I will of course write to the committee to provide a detailed answer to its questions, but I hope that my reply to these amendments and earlier to Amendment No. 25 has outlined our reasons for deciding that such a defence should not be available. Amendment No. 26 would reduce the maximum imprisonment for this offence from life to 10 years. In Clause 8, we have sought to modernise and limit the offence of desertion. One of the changes that we are making is to remove the current maximum penalty of life imprisonment for all cases of desertion. This maximum was only applied to all desertion cases by the Armed Forces Act 1971. The Bill restores a distinction between offences of desertion carrying a maximum of life imprisonment and those carrying a maximum of two years. Under the Bill, the maximum of life imprisonment will be limited to desertion that takes place in the context of ““relevant service””. That term covers the same broad type of dangerous service abroad which is called active service in the existing legislation. Importantly, it is the sort of service in which all involved need to be able to rely completely on everyone else, a reliance which must be undermined where a member of the service leaves his colleagues without permission. It is also the sort of service in which the success of an operation can depend on every member of the force involved. To drop your mates in it when they need you most by deserting in the face of dangerous operations is viewed in the forces as just about the worst thing that you can do. In such circumstances, a maximum sentence of life imprisonment may be appropriate in an extreme case and should be available as a maximum for the court martial. I trust that Members of the Committee see the requirement for retaining the sentence of life imprisonment in the limited circumstances in which it will continue to be available, and why I therefore cannot support these amendments. Amendment No. 27 seeks to replace the existing clause with a definition closely based on the existing legislation. In some areas the difference is crucial. The Bill limits desertion to absence without leave with the intention never to return to service, and absence without leave to avoid what can broadly be called active service. Amendment No. 27 would mean that it was also desertion to go absent without leave to avoid any service overseas—for example, training in Canada. If a soldier were due to go to Germany for a training exercise but went absent because of some temporary trouble at home, he would be guilty of desertion rather than merely absence without leave. That would be too harsh. The Bill represents a carefully thought out modernisation of the definition of the offence, which reflects what the services need. Notwithstanding these difficulties, I accept that the wording of the clause takes more than one reading to be clear to the layman. We would never expect service personnel to rely solely on reading the Act. As now, there will be specially drafted guidance in the manual of service law so that, in particular, those affected know what the offence is. I am glad to tell the noble and gallant Lord that the manual will also be available on the internet, and service personnel will readily have access to it. I hope that the noble Lord accepts my explanation on the requirement to retain the clause as drafted, and feels able to withdraw his amendment. I hope too that, in the light of my explanations, Members of the Committee will not press their amendments.