HL Deb 19 January 1994 vol 551 cc601-3

Lord Campbell of Alloway asked Her Majesty's Government:

In the light of the debate on the Falklands Islands investigation held in this House on 15th December 1993 (H.L. Deb., col. 1361), whether the investigations set up in August 1992 by the Secretary of State for Defence and the Attorney-General have provided acceptable evidence of an act of murder away from the battlefield; and, if not, whether they intend to make a statement on the matter and whether the files may now be closed.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, the position in this respect has not changed since the debate on 15th December. Police inquiries are continuing and they expect to submit a report to the Director of Public Prosecutions quite shortly. No decision can be taken prior to consideration of that report. Nor would it be proper at this stage to comment on the evidence.

Lord Campbell of Alloway

My Lords, I thank my noble and learned friend the Lord Chancellor for his response. In that context may I ask him whether consideration has been given to the incidence of the rules of war where a key position has to be taken and held at all costs; where, after an arduous all-night campaign, that position is taken against superior numbers of well-trained and well-armed troops; and where, after it is taken it is subjected to continuous artillery bombardment giving rise to the expectation of a counter-attack? Perhaps I may respectfully ask my noble and learned friend to confirm, first, that in such a situation there is no obligation to accept an offer of surrender and accord prisoner-of-war status under Articles 4 and 5 of the Geneva Convention. Secondly, and finally, I wish to ask whether, in view of his assurances given on 15th December, as the battlefield is still open, no prosecution for murder could ensue?

The Lord Chancellor

My Lords, I think that it would be somewhat unwise for me to venture an opinion on a hypothetical case, although I understand that the assumption of the question put to me may be that those were the facts on the occasion in question.

I believe that the correct time to consider all aspects of this matter is when the police report is completed and the Director of Public Prosecutions has an opportunity of considering it.

Lord Strabolgi

My Lords, why was this matter taken out of the hands of the services, which know something about the problems involved?

The Lord Chancellor

My Lords, I explained in the debate on 15th December that my right honourable friend the Secretary of State for Defence took the advice of the Attorney-General and then submitted the matter to the Director of Public Prosecutions. The result has been the police inquiry.

Lord Hailsham of Saint Marylebone

My Lords, will my noble and learned friend put me right if am wrong? I had always understood that as regards prosecution, ever since the Campbell case of 1923 and a subsequent but rather later statement by Sir Hartley Shawcross (as he then was), the question of prosecution or no prosecution was a quasi-judicial one in which political statements in either direction were not particularly welcome.

The Lord Chancellor

My Lords, I am sure that my noble and learned friend is absolutely correct. In the course of the debate on 15th December I narrated a statement in connection with an earlier case that was given by the Prime Minister, Harold Macmillan (as he then was). I believe that what my noble and learned friend says is entirely in accordance with the practice as it has been understood.

Lord Dean of Beswick

My Lords, can the noble and learned Lord tell the House whether there has been any occasion in the past where the public prosecution services have been brought in on a military case? If not, why is this case being treated and allowed as a precedent? Is there not the implication that if this is accepted, and at some time in the future the military forces of the country—the Army, the air force or the navy—were called into action and a loss of life occurred during a war, someone may decide, as time passes by, to rehash the situation and make accusations of murder? Are we not creating a dangerous precedent if we go along that track?

The Lord Chancellor

My Lords, I have already explained the circumstances in which the inquiry was instituted. I have no doubt that all the relevant circumstances, as they appeared, were taken into account in deciding that that was the proper course for the inquiry. In preparation for the debate on 15th December, I inquired of the Judge Advocate General whether he would expect to have been consulted prior to that. My understanding of his position was that he would not have thought it appropriate for him to be consulted at that stage.

Baroness Strange

My Lords, is my noble and learned friend the Lord Chancellor aware that the longer the inquiry continues, the more agony and grief will be caused to the innocent widows, bereaved parents and orphans of those who served in the campaign?

The Lord Chancellor

My Lords, it is undoubtedly true that inquiries of this character, and inquiries which may occur in other circumstances in which the Director of Public Prosecutions is involved, should be taken to a conclusion as rapidly as possible in the interests of all concerned.

On the other hand, in most cases it is necessary for some time to be taken in order that the inquiry can be properly pursued. My understanding of the matter is that the police have pursued the inquiries as quickly as circumstances permitted and in the light of the circumstances as they emerged during the inquiry.

Viscount Slim

My Lords, perhaps I may ask the noble and learned Lord a question which was not answered in the debate, according to my reading of Hansard. Was it the account of the Battle of Mount Longdon and the story—one might almost say hearsay story—of an incident in that account that triggered the investigation? Following the comments of another noble Lord, why were the proper military channels not followed to the end? The noble and learned Lord is well aware of the tried and proven system within Her Majesty's forces of courts of inquiry and courts martial which can be carried out in the field. The whole system can be dealt with by the military. Was the Chief of Staff of the Army, having taken advice from the Judge Advocate General or any other senior military Army officer, consulted by the noble and learned Lord's right honourable friend the Secretary of State? Or was it an arbitrary decision by the Secretary of State to go alone to the Attorney General?

The Lord Chancellor

My Lords, so far as I know the position, my right honourable friend the Secretary of State for Defence considered the matter carefully, as I explained in the debate, from the point of view of his own department and responsibilities. He then made a decision—and I should not wish to describe it as arbitrary—to seek the advice of the Attorney General. As I understand it, he then acted upon the advice of my right honourable and learned friend the Attorney General.

Lord Renton

My Lords, is my noble and learned friend aware that when the matter was raised at Question Time on 6th December, I asked whether the Judge Advocate General would be consulted, as it was a military matter. My noble and learned friend said that all responsible authorities would be consulted. Can my noble and learned friend say whether the Judge Advocate General has at last been consulted?

The Lord Chancellor

My Lords, I think I have just indicated that when I last inquired of him he had not been consulted and that he did not expect to be consulted at the stage which the matter had reached.

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