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Armed Forces Bill

My Lords, if the noble Lord will forgive me, I hope to come to something approaching his question in a few moments. He asks whether I draw a distinction. I am not clear that I can draw a relevant distinction. If there is such a distinction, I have not heard it formulated. I was going to say that, traditionally, a soldier commits a disciplinary offence only by refusing to carry out a lawful order. It appears in Clause 12. As my noble friend Lord Judd pointed out, it is referred to in Clause 1. Fairly clearly, it underlies a lot of the thinking on military discipline and has been reappearing in military disciplinary provisions for a long time. Secondly, most systems have accepted that a soldier commits an offence against the criminal law in obeying an order only if that order is clearly unlawful. That has become known as the doctrine of manifest illegality. It goes well back in history—it was provided for in the Roman army. A soldier was given a window of escape from his dilemma. It would be possible to avoid both prongs of the fork. It worked reasonably well when a soldier was expected to be a trained automaton. His duty was to obey an order instantly and unreflectively. More recently, as my noble friend has pointed out, and particularly since the Second World War that position has changed. First, before enrolment, soldiers are expected to attain impressive standards of education. They are encouraged to show initiative and to reflect on what they are doing. A soldier is no longer an automaton. Secondly, questions arise in a wider context—and we come to the question posed to me by the noble Lord, Lord Campbell. We are all being subjected not only to our domestic legal systems, but also to a developing international legal order, and people with no pretension of being international lawyers debate whether a particular war is a lawful war. Even that dilemma is not new. Martin Luther addressed it when he said that there was no blame attaching to participation in an unjust war, unless it was manifestly unjust. That may not necessarily be persuasive to everyone. Napoleon said that questions of theology were for the next world. But von Moltke said that he opted for what he called, "““an army which does not deliberate””." That has sometimes been misunderstood. What he meant was not that the military should be unrestrained but that it should carry out the instructions of the civil authority without question. There we find ourselves perhaps parting company with some of our friends. Even the instructions of the civil authority are not ethically conclusive. Someone may say, ““Even if my government command me to do something, that does not necessarily silence my conscience””. In the last resort we cannot pass responsibility for our actions on to the shoulders of others. There is a precedent within our own history. In 1911 the Government were confronted with something like a mutiny when our forces in Ireland were faced with instructions to suppress Protestant resistance to the partition of Ireland. In fact the matter was resolved not by prosecuting anyone but by all sides using common sense. The dispute was not about what the law provided but about how far an individual conscience should be stretched. Whether we would agree with the senior officers who question the instruction is not relevant. Most of us have a sticking point. The United States has been confronted with this problem more than once in recent years. Young people were troubled about the legality and the morality of the war in Vietnam, and many were charged with desertion. The position was considered by the Supreme Court in the case of Thier-Vaughn, which was a refusal to participate in the Desert Storm operation. The court ruled on that occasion that it could not question matters of foreign policy. It said that they were not justiceable. That view is understandable. It has been frequently shared by the courts in this country. They have repeatedly declared their reluctance to review decisions by the Executive in the field of foreign relations, but to an increasing extent international relations are impinging on the concerns of private citizens and subjecting them to decisions about the proper course of action. We are passing into an era where the doctrine of sovereignty is increasingly under examination and the attitude of domestic courts to diplomatic decisions may need to be reviewed in the not too distant future. I invite your Lordships’ attention to yet another problem. Must the civil authority always have the last word? What is a soldier to do if faced with conflicting orders? What if there is a military insurrection and a general, intent on overthrowing the civil government, orders a colonel to occupy the presidential palace? It is not a practice to be encouraged, but sometimes we may even have approved of such an action by the military. General Pinochet declared that any action by the military to check the killing and the disappearances he was ordering was ““unprofessional””. We may take leave to disagree with him. What would we say of action by the military to replace the regime in Zimbabwe? In words that have expressed the heart-searching of a whole generation, ““It ain’t easy, kid””. I suspect that we could embark on a long debate about the ethical implications. I appreciate the dilemmas which the amendment raises, but we are considering a young person who, by definition, has wrestled with his or her conscience and decided that whatever the consequences for themselves personally, they cannot transfer their personal responsibility to others. By definition, we are talking about those who are the best, most responsible and most unselfish of a generation. To subject such a person to the full range of military penalties is not something to embark on lightly. In all my years working with Amnesty, I was repeatedly assured that this country had no prisoners of conscience. What else would such a person be? I confess that I have hesitated about this but, when the chips are down, I support the amendment.