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Armed Forces Bill

moved AmendmentNo. 4: Page 2, line 42, at beginning insert ““without lawful excuse,”” The noble Lord said: My Lords, I remind your Lordships of the declaration of interest I made at the beginning of Committee: I am an advocate practising from time to time in courts martial. In Committee I sought to introduce into Clause 3 a statutory defence to the effect that a person would have a defence if he could prove that the action with which he was concerned was illegal. Having listened to your Lordships and to the Minister, I preferred the far simpler, more direct approach of the noble Lord, Lord Judd, in his amendment in Committee to Clause 8. That would make it absolutely clear that the action or operations referred to in Clause 3 must be lawful. It is no defence for a defendant to suggest that he was only obeying orders. If those orders are illegal and unlawful but he nevertheless carries them out, he is still guilty of an offence which may be as high as an offence against humanity. If that is the clear position in law, the corollary of it is that if a person is given an illegal order and instead of acting upon it and committing an offence, he refuses to obey it, he ought to be able, in the course of any criminal proceedings that are brought against him—whether they are for obstructing operations or, as we shall come to later, for mutiny—to require the prosecution to show that the action or operation that he was ordered to carry out was not lawful. It should be made clear to the prosecution that that is the position. Should the issue ever arise as to the legality of an act or operation the defendant is ordered to carry out, or even his participation in an illegal war, he is entitled to take that defence and argue it before the courts. In Committee, your Lordships may recall the suggestion, particularly from the noble and learned Lord, Lord Mayhew, that the Attorney-General must be the final arbiter of whether a war, an invasion, an act or operation, is legal or illegal. I do not accept that; I do not think that that is the proper way forward. It may be shown, in subsequent proceedings, that a war is illegal. Is a person therefore not entitled to ask the courts in individual proceedings that are brought against him to determine the matter? The purpose of tabling these amendments is to give the courts the right to determine the legality of the operations or actions that are planned. I shall be a little more specific about the amendments. In Clause 3(2)(a) an offence is committed if, without lawful excuse, a person subject to service law, "““does an act that delays or discourages an action or operation””." Those vital words, ““without lawful excuse””, which we have just debated under the amendment proposedby the noble Earl, Lord Attlee, do not appear in Clause 3(1)(a). I do not understand why that distinction should be drawn. Is that simply an oversight or is there some genuine policy behind removing that defence from Clause 3(1)(a) while it is included in Clause 3(2)(a)? The other amendments seeking to make it clear that the action or operation is lawful could, I am quite sure, be met by the Minister if he were to give me an assurance that any act or operation must be lawful before an offence was committed. If I have that assurance from the Dispatch Box today, it will not be necessary for me to weary your Lordships further. But I would like an explanation of the omission of ““without lawful excuse”” in Clause 3(1)(a) and an assurance that the operation or action is to be lawful. I beg to move.