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Armed Forces Bill

My Lords, I have not previously intervened in your Lordships’ debates on this Bill. My plea in mitigation is that there has been nothing in the Marshalled List in the terms raised by my noble friend Lord Judd’s amendment. I hope that the noble and gallant Lord, Lord Craig, will pardon me if I address that amendment. I congratulate my noble friend on posing a question that causes concern to a number of young people in many parts of the world. I accept at once that it does not admit of an easy answer. It is part of a larger question and it may help to consider it in context. It has a long ancestry. It really consists of two questions. If a soldier is commanded to do an act that is a criminal offence, should he be excused from military discipline for refusing to obey? That gives rise to the converse question. If he carries out the command, should he be excused from criminal responsibility on the ground that he is acting in obedience to superior orders, a matter raised earlier in our proceedings today by the noble Lord, Lord Thomas of Gresford? We are presented with a conflict between two principles. The first is the constitutional principle that the military is subject to the law, as we all are. It is their constitutional duty to recognise that they are subordinate to the civil authorities. A military commander has no power in law to excuse a subordinate from complying with the criminal law. The second principle—of course I accept entirely what was said by the noble Lord, Lord Campbell—is that an army requires discipline if it is to be effective. If every order evokes a debate, an army simply cannot function. Traditionally, that dilemma has been addressed in two ways. First, it has usually been provided that a soldier commits a disciplinary offence only by refusing to carry out a lawful order. That reappears in this Bill in Clause 12—