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Armed Forces Bill

I am grateful to all noble Lords who participated in this interesting debate. Given the observations made, the drafting of Clause 8 leaves something to be desired, and it would be helpful if my noble friend could agree to think about some of the things said and about how the clause could better meet the anxieties expressed. I have not put my name to the amendment tabled by the noble Lord, Lord Thomas of Gresford, and I was not consulted on it, but an interesting point has been made. If the law states that a service man or woman has a duty to refuse to carry out an unlawful order—and that is how I understand the law—something is missing if subsequently that service man finds himself subject to legal proceedings and cannot even argue that he believed he was doing what was required of him if the order had indeed been unlawful. The amendment is not asking the court martial to rule on the legality of the war; it is asking it to listen to the service man’s case for what he decided to do. I have unlimited respect for so much that my noble friend Lady Dean has done in public life, not least the tremendous amount of work that she has done for the armed services, ensuring good conditions and the rest. She has a proud record of service. However, I put it to her that providing a simple reassurance in the Bill for those considering undertaking service that anything that they are required to do is legal will strengthen morale and strengthen discipline, because it will be explicit—not implicit—that what they are required to do is legal. That is important. The other consideration is that this and an earlier debate revealed a strange dichotomy. We are prepared to consider the position of a service man, in the context of a court martial, who has refused to undertake a specific order because he believes that that order was unlawful. I turn to action that in itself may not be open to challenge in that way but which occurs in the context of a broader situation in which the whole operation in which the person is taking place is open to question. There is absolutely no opportunity to put that forward as a defence. It seems that there is a problem in this area—our debate has illustrated that there is—and it is terribly important that we all think about how it can be resolved. The Minister argues well and very convincingly at the Dispatch Box, and I am glad to have him as a noble friend in that regard, but he said one thing that troubled me and which needs more thought. He seemed to imply that although we were committed to the international rule of law, there might be situations in which we knew that the international rule of law could not endorse what we were doing—but that by some subjective interpretation of the law it was okay. This is a very big issue. I do not believe that the rather casual drafting of Clause 8 begins to face up to some of the profound issues that are involved. The issue needs a lot more attention. I have listened to the Minister, who does argue well, and I want to go away and think about this debate. I hope that he will feel able to go away and think about some of the big issues that have been raised here and not just shut the door. If there is a mutual position of reflection, I am happy to withdraw my amendment at this juncture.