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Armed Forces Bill

I will deal with Amendment No. 62 because it is important. The noble Lord is absolutely right: we have situations where rules of engagement are provided for our service personnel operating, using the example that he gave, with the Predator. The amendment seeks to increase scrutiny of the rules of engagement of other countries where our forces act under them. These are unusual circumstances, but they do arise. UK personnel are permitted by the UK Government to participate in operations while embedded in the forces of another state. In that case, they may operate under the rules of engagement of that state’s forces. Where UK personnel are acting under the rules of engagement of another state, we ensure that the legal basis for those rules and for the proposed targets is consistent with ours. Embedded UK personnel will be provided with UK guidance to ensure that they stay within the relevant UK domestic and international law, but the proposed amendment would require the UK to insist that other states turn their rules of engagement from an operational document into a comprehensive legal document—a point that I discussed when speaking to the previous amendment. As I have explained, the other state would no doubt object to that process for the reasons that I have already given. We know of no state in which the rules of engagement have the force of law as described, so providing an absolute defence against any charge. In short, for the reasons that I have outlined, I ask noble Lords not to press Amendments Nos. 61 and 62. Amendment No. 62A would provide that conduct does not amount to a service offence in three different circumstances: when the person was acting in the execution of the law; when his conduct was obedient to a lawful order; and when his conduct was obedient to an unlawful order that he did not know was unlawful and could not reasonably have been expected to know that. I touched on some of these issues at the beginning of my remarks in order to make the central point. I recognise that the new clause again reflects a genuine concern—in the Ministry of Defence we appreciate absolutely the genuine concerns over this issue; it is one that we think about and take a lot of trouble with—that a soldier might be found guilty of a crime where there was no real fault on his part. Although these concerns are justified, we believe that, in the context of the overriding responsibility that a soldier has to act, where he has acted, "““in execution of the law””," subsection (a) provides a defence. I am not clear whether the clause seeks to excuse a person who acts with a lawful excuse or one who acts because he is engaged in some form of law enforcement. I think that it must mean the second of these, because if a person has a lawful excuse for his action, he is not guilty of a crime. Assuming that it refers to conduct carried out during law enforcement, I recognise that such tasks are sometimes dangerous and require quick thinking under pressure, as is the case on force operations. But in such cases, again, a person cannot be above the law. The law decides in such circumstances whether a person’s conduct was lawful on the basis of how that person viewed the situation. So even if a person misread the situation, the law would not condemn someone who had responded reasonably to circumstances as they saw them. An order will not be lawful if it requires a serviceman to commit an offence, so I do not really understand the second case. If an order does not require him to do anything illegal, but the serviceman decides to carry out the lawful order in an unlawful way, then it is right that he should be guilty of an offence. Thus, where a soldier is given a lawful order to capture a town, for example, it does not mean that he can do anything to capture it, such as killing prisoners or civilians. The third case covered by the new clause arises where a person is ordered to do something that is in fact unlawful but he does not know it and could not reasonably be expected to know it. I cannot think of any circumstances where a person charged with a serious offence on these facts would not have a defence. Serious crimes, including war crimes, require actual knowledge of the facts that make the act unlawful. I believe that this amendment would put our forces in a worse position than the law requires. For a war crime—and the same is true under international law—guilt depends upon actual knowledge. The amendment suggests that a person should be guilty if he might reasonably be expected to know the facts. Service personnel do not and should not operate within a legal vacuum, here or anywhere else in the world. Indeed, it is a hallmark of the respect in which our Armed Forces are held around the world that they operate within the law. But the law that governs their conduct and the defences that are available to them are, I believe, both clear and reasonable. This amendment would not help them. On that basis, I urge the noble Lord not to press Amendment No. 62A.