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Armed Forces Bill

My Lords, as I explained to the noble Earl in Committee, and as he correctly quoted, we believe that the existing clauses as drafted give the defence of lawful excuse, which is intended to allow a defence that an accused had express or implied authority or that his action was justified by law. Unfortunately, I do not have the military experience of the noble Earl and so, on the Floor of the House, I do not think that it would be appropriate for me to come up with military examples such as he describes. He has given a number of examples as we have discussed this matter, but I do not intend to go through them in detail and detain the House. Suffice it to say that we believe that the term ““lawful excuse”” is sufficient to cover the circumstances that he has described. As the noble Earl said, ““reasonable excuse”” would give a wider defence and allow a court martial to look at all the circumstances and to decide whether it thought that the accused’s conduct was reasonable. The offences of assisting the enemy and obstructing operations are very serious, as they could potentially have a catastrophic effect on operational effectiveness and may, in the worst case, result in loss of life in our own forces. Amendments Nos. 1, 2 and 5 may well suggest to a serviceman that it was open to him to consider whether, for example, it was ““reasonable”” for him to give an enemy information that would be useful to it. I am sure that noble Lords will appreciate that the matters that are prohibited in Clauses 1 and 3 are so central to the operational effectiveness of our services and their operations that there is no room for grey areas. As the clauses are drafted, it is clear to all servicemen that they must not do these things unless a clear legal reason exists. I share the view of the noble Lord, Lord Astor, about the importance of the Bill in providing clarity to our Armed Forces. We believe that the Bill gives such clarity. These are not matters that can be open to debate or personal discretion. What one man considers to be reasonable may be completely unreasonable when other matters are considered. In the present environment in which our Armed Forces so often operate, it would be unreasonable of us to place the burden on them of having to weigh up such decisions. It is far better that we give clear direction to the services on these matters—and that direction is that the matters listed in Clauses 1 and 3 are prohibited in the absence of a lawful excuse. I strongly believe that it is appropriate that the narrower defence should apply to both those offences and, for the reasons stated, I cannot support the amendments. I urge the noble Earl to reconsider. The remaining amendments in the group—Amendments Nos. 7 to 10, 20, 24 to 26 and 29—raise issues similar to the ones to which I have responded in my reply to Amendments Nos. 1, 2 and 5 and I do not propose to go further and detain the House by repeating myself. I reinforce our belief that the narrower offence of lawful excuse should be applied to the offences to which the noble Earl Attlee has drawn attention. Offences that would be affected by these amendments are also likely to be the subject of orders, such as standing orders, which do not allow for personal discretion or debate.