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Armed Forces Bill

moved Amendment No. 1: Page 1, line 7, leave out ““lawful”” and insert ““reasonable”” The noble Earl said: My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 2, 5, 7 to 10, 20, 24 to 26 and 29. First, I remind the House that I have an interest as a serving officer in the TA—indeed, I shall be on exercise this weekend. In Committee, I explored the legal defence of lawful excuse and reasonable excuse in respectof military offences under the Bill. On the first day of our deliberations, the Minister said: "““Existing Clause 1 gives a defence of ‘lawful excuse’, which would allow a defence that an accused had express or implied authority or whose action is justified by law””." He went on to say: "““‘Reasonable excuse’ gives a wider defence which would allow a court martial to look at all the circumstances and decide whether the conduct of the accused was reasonable””.—[Official Report, 24/7/06; col. 1596.]" The problem is that when a superior officer gives me a mission, he will give me express tasks and he will give me implied tasks. He will also give me express authority. Perhaps he will give me some troops and equipment, or maybe he will give me wider rules of engagement. But he will also give me implied authority to do anything that is reasonable in order to achieve the mission. To determine whether I have implied authority to take a given course of action, I have to ask myself: would I be acting within my commander’s intent, and perhaps his commander’s intent? To put it another way, if I was in a situation and I was able to ask my commander for his express authority, would he grant it? But the test that my commander would apply would be: is this a reasonable request; does my subordinate want to take a reasonable course of action? In Committee, I tested Clause 1(1)(d), which makes it an offence to provide the enemy with supplies. In my then Amendment No. 6, I suggested that medical supplies should be exempt from this provision. The Minister responded by saying: "““Where it is proper to give an enemy medical treatment, that is already covered by ‘lawful excuse’””.—[Official Report, 24/7/06; col. 1596.]" But of course the test will be one of reasonableness, and that is what I am suggesting in my amendment: we should have a test of reasonable excuse, not lawful excuse. If the test is not to be one of reasonableness, what other test could be applied? Clause 4 covers looting. There is also here a defence of ““without lawful excuse””, but let us suppose that I am leading a patrol and one of my men damages his watch. The nature of the mission dictates that a watch is essential. We meet friendly forces with prisoners of war and I order that one of the POWs be relieved of his watch. Ideally, I would give the POW a receipt if circumstances permitted. My commander, when giving me the mission, would never have anticipated the need for me to relieve a POW of his watch, but I think that my course of action would be okay because I would have the implied authority to do anything reasonable to achieve the mission. Amendments Nos. 7 and 8 provide for a defence of reasonable excuse rather than lawful excuse, and all the other amendments seek to do exactly the same. I shall not weary your Lordships by describing a possible scenario for each of them, but I will be interested to hear what the Minister has to say. Further, could he describe a possible situation where a court martial might not or could not convict without only the narrower defence being available; that is, can he outline a circumstance where the court martial could convict if it was without lawful excuse, but in the same situation could not convict if it was without reasonable excuse? I beg to move.