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Armed Forces Bill

My name is on Amendment No. 61, and I am grateful to my noble friend Lord Kingsland for his exposition of the importance of the principle at stake. I support the spirit of all these amendments. Why? Amendment No. 61— exclusively relating to written rules of engagement, albeit established by a somewhat Byzantine, insufficiently flexible process—could have served as a defence for Clegg, Scots Guardsmen Fisher and Wright and other cases. It must therefore be dealt with, and related and extended to AmendmentNo. 62A to include compliance with orders. It is not readily possible to distinguish between orders and rules of engagement, especially if they are given verbally in the field. Reverting to the principle expounded so well by my noble friend Lord Kingsland, a serviceman must know where he stands. The toil of drafting such an amendment could well be in vain, however. Such an amendment should never pre-empt what has been referred to as the new services law, separate and distinct from the civil system. That law on armed combat and peacekeeping recognises realities and, as the noble and gallant Lord, Lord Inge, put it, can be trusted by the servicemen. It would serve as a substantive defence on the basis on which the Army Board rejected the application of DALS for the discharge of the Scots Guardsmen. Here I have to declare an interest because I represented them before the Army Board on two occasions and prepared their defence, and called their evidence and that of their commanding officer, who is now General Sir John Kiszely. On the second occasion, General Sir Mike Jackson sat on the board and questioned in depth the three men who gave evidence: the two Scots Guardsmen and the general. The board came to the conclusion that the two guardsmen could not be discharged from the Army because the morning orders of the day for the guardsmen were to stop and search, their rules of engagement were, ““Halt or I’ll fire”” and they were ignored twice. They only had before them a defence of self-defence, which was rejected by the judge, but there was no rejection of what was accepted by the Army Board and General Sir Mike Jackson, which was that they complied with their orders and rules of engagement. The transcript of those proceedings is lying around in the MoD somewhere and forms strong confirmation for the type of amendment on the broader scale that would subsume the amendment that could be produced out of Amendments Nos. 61, 62 and 62A. As the noble Lord, Lord Drayson, said, the concept of a military law separate and distinct from the civilian system was spoken to on Second Reading by the noble and gallant Lords, Lord Bramall, Lord Guthrie, Lord Vincent of Coleshill, Lord Inge, Lord Boyce, the noble Lord, Lord Ramsbotham, my noble and learned friend Lord Mayhew of Twysden and other noble Lords. It was heralded by the Judge Advocate General Judge Blackett—I am glad that my noble friend Lord Thomas of Gresford referred to him—in the evidence that he gave to the Select Committee in the other place. It was quoted by the noble Lord, Lord Ramsbotham, on Second Reading and was expressly accepted by the noble and gallant Lord, Lord Boyce. The noble Lord, Lord Truscott, who is an eminent historian, not a lawyer or a soldier, said: "““If mistakes are made in the name of self-defence or in the heat of battle, the law and the courts should show understanding””.—[Official Report, 16/2/06; col. 1276.]" The noble and gallant Lord, Lord Bramall, said: "““Justice cannot be dispensed in a vacuum; it must depend on the circumstances prevailing at the time at the scene of operations and on the rules of engagement, if established””.—[Official Report, 14/06/06; col. 242.]" That remark was expressly approved by my noble and learned friend Lord Mayhew of Twysden, who is in his place. There is a matrix for an amendment which I hope may be tabled on Report that would subsume the three amendments to which we have been speaking.