HC Deb 18 March 1991 vol 188 cc23-115

Order for Second Reading read.

Mr. Speaker

I have not selected the amendment in the name of the hon. Member for Orpington (Mr. Stanbrook) and his hon. Friends. However, the arguments that they have advanced in the amendment may be raised in the course of the debate.

I intend today to give some precedence to the hon. Members who were not called on 19 March last year—not total precedence, but some precedence. In view of the many right hon. and hon. Members who wish to participate in the debate, I propose a limit of 10 minutes on speeches between 6 pm and 8 pm.

3.36 pm
The Secretary of State for the Home Department (Mr. Kenneth Baker)

I beg to move, That the Bill be now read a Second time.

The Bill needs little introduction to this House. It is the same Bill which was considered and emphatically endorsed by this House last Session, and hon. Members will be familiar with the circumstances which led to its subsequent defeat. I should like to remind the House of the background to the measure and why the Government have decided to bring it back for further parliamentary consideration.

In February 1988 the then Home Secretary decided to establish an inquiry to consider the allegations that were then circulating to the effect that some perpetrators of war crimes committed during the period of the second world war had taken refuge in this country. The inquiry's task was to consider what substance there might be to those allegations, to assess the strength of the evidence that might be brought before a court of trial, and to recommend whether the law should be changed to establish jurisdiction over those cases.

Dr. Norman A. Godman (Greenock and Port Glasgow)

I am grateful to the Secretary of State for his characteristic courtesy in giving way. Can he estimate the average age of those who may be proceeded against if the Bill is successful? Also, has he been given an account of the number of such persons resident in Scotland?

Mr. Baker

The inquiry covered those points. In the second part of the inquiry, which has not been published for the obvious reason that it would not be right to publish it because it contained allegations against certain people, there was reference to the numbers involved. The inquiry looked into just over 300 cases. Of those, it recommended that 75 should be accorded further investigation. The inquiry then came to the conclusion that there were three individuals against whom evidence to mount a prosecution existed and another three cases were considered to merit further detailed investigation.

The House will recall that the inquiry reported in June 1989. Its findings may have surprised some people, for it concluded that among the very many innocent and decent people who had taken refuge in this country at the end of the war there might have been some who had committed the most terrible crimes. In respect of a few of the cases that the inquiry was able to consider in detail, it considered that there was already sufficient evidence available to mount a criminal prosecution. The inquiry satisfied itself that the actions in question were in clear breach of international law as it stood at the time when they were committed. That was important if any new jurisdiction were not to be retrospective. But with that important point having been established, the inquiry concluded that the courts in this country should be given jurisdiction in respect of the offences in question even though the offences took place almost 50 years ago, and in other countries.

The Government decided that Parliament should be given an opportunity to express a view on the inquiry's report. Debates were accordingly held in the two Houses of Parliament in the autumn of 1989, with this House indicating on a free vote its decisive support for the principle of legislation by 348 votes to 123. To implement that decision, the Bill was introduced on 8 March 1990, when the Bill was passed by 273 votes to 60 on a free vote.

Mr. Tony Marlow (Northampton, North)

Will my right hon. Friend give way?

Mr. Baker

In a moment. Perhaps my hon. Friend will forgive me for not giving way now.

Though a short Bill, it was extensively considered in Committee and on the Floor of the House, and was sent unamended to another place. There the Bill was refused Second Reading on 4 June, by 207 votes to 74.

The Government obviously needed to reflect upon the arguments which had been advanced and the votes which had been cast—not only in the other place, but also in this House. Clearly this issue is a matter principally for individual conscience.

Two considerations weighed heavily with the Government, and I should now like to outline them to the House.

Mr. Marlow

Will my right hon. Friend give way?

Mr. Baker

I shall give way to my hon. Friend in a moment.

One was the decisiveness of the Commons vote. I do not believe that it would be right to ignore the clearly expressed view of the elected Chamber. There must be an opportunity for these issues to be considered again, to see how far views have modified or changed over the months since the Bill was last considered, and whether any accommodation between the two Houses may now be possible. That was the first consideration. Views may well have changed. Tonight's vote will show whether that is the case.

The second consideration was the Bill's particular subject matter, and the nature of the evidence disclosed by the inquiry. The inquiry's published report tells a chilling story of cold-blooded murder on a horrendous scale—killings not committed in the heat of battle, but of civilian populations in circumstances that had no possible connection with military objectives. The inquiry also showed that there is evidence of some of the perpetrators of these crimes actually living in this country. The inquiry argued that our courts should have jurisdiction over such offences, in circumstances where extradition to the scene of the crime is impossible for whatever reasons, and the Government agree with that conclusion. What we are doing is to allow the courts to consider the available evidence, and to decide for themselves on the question of guilt or innocence. That is a jurisdiction which the Government believe should exist in this country.

Mr. Marlow


Mr. John Gorst (Hendon, North)

Will my right hon. Friend give way?

Mr. Bruce Grocott (The Wrekin)

Will the right hon. Gentleman give way?

Mr. Baker

I shall give way first to my hon. Friend the Member for Northampton, North (Mr. Marlow).

Mr. Marlow

I am grateful to my right hon. Friend. He says that inquiries have come to the conclusion that we ought to look at these issues—and they are very important issues and terrible things have been done; there is no doubt about that. But why does the Bill restrict itself to 1939–45? Why does it restrict itself to parts of the world that were part of Germany or under German occupation? Why can it not be extended, for example, to Japan or land under Japanese occupation? Why can it not be extended on a more general basis, for example, to Palestine after the war? Why is it restricted? One has the feeling at the back of one's mind that we have been heavily mugged in this House by some strong lobby. Can my right hon. Friend assure the House that that is not the case?

Mr. Baker

I can assure my hon. Friend that that is not the case. There are several reasons why the Bill does not cover, for example, Japanese war crimes. First, they were outside the inquiry's terms of reference and, as my hon. Friend has said, would similarly fall outside the terms of the Bill because there is no evidence to suggest that any Japanese war criminals have entered the United Kingdom. Many hundreds of allegations were sent to the war crimes inquiry, but none claimed that a Japanese war criminal was now living in this country.

Mr. Grocott

The Home Secretary said that one consideration would be whether tonight's vote showed that opinion had changed since the Bill was last debated in the House. Can he give us an absolute assurance that there will be no tortuous analysis of tonight's vote if the majority is different? Does he agree that the only thing that matters is whether the House reaffirms its previous decision and that, if it does so, it will be absolutely clear that the will of the House is that the Bill should become law?

Mr. Baker

On issues such as this I trust to the judgment of the House of Commons. There are certain big issues. This is a big issue; I do not underestimate its importance. At the end of the day, each Member of the House of Commons, irrespective of party, must make up his or her mind about the Bill. I am absolutely clear about one thing. People hold strong views on both sides of the argument. Those who believe that these matters should be pursued believe that it is essential that possible criminals are brought to justice. Others feel that the events happened a long time ago, that they concern another jurisdiction and that we should let bygones be bygones, for a variety of reasons. I know how strongly those views are held. But I place my confidence in the judgment of the House of Commons tonight. There will not be a great analysis of the Division list or anything of that sort. I hope that the House will come to a clear decision tonight.

Mr. Gorst

Before my right hon. Friend leaves his second point, may I ask him whether he agrees that allied to it is the consideration that if we do not pass the Bill there will be a danger of trial by media? Although no member of the all-party war crimes committee is aware of the names of the three main suspects, those names are known and, under parliamentary privilege, they could be made known. In that case, the most almighty trial by media could take place. That is so odious to consider that it is undesirable that it should take place.

Mr. Baker

If any hon. Members know the names of any of those who are alleged to have committed war crimes, I hope that they will not mention those names in the House today. That would be very unfair indeed. A trial of that sort would be the worst condemnation because it would be done under privilege and those accused would not have the right to reply. I agree with my hon. Friend that the way in which these matters can be cleared up is by extending the jurisdiction and holding trials.

For the two reasons that I gave, the Government concluded that these issues should be brought back before Parliament, and they made that clear in the Queen's Speech. Since that decision was announced, we have made clear our hope that Parliament would reach an agreed position on the Bill. Our hope is that on further consideration the Bill will be found acceptable in another place, and that it will be allowed to pass into law. Nevertheless, we recognise that some have expressed anxiety about the way in which the legislation will work in practice, and how far it will be possible to guarantee the fairness of any trials which ensue.

The arrangements in the Bill as drafted ensure fairness through measures such as the removal of the committal proceedings, the right of the accused to appeal to a court to have the trial set aside, and the power of the Attorney-General to agree before a prosecution is brought. But the other place may wish to make amendments. It may wish to strengthen the Bill further in that regard. If the Bill is amended in another place, the House will, of course, have the opportunity to consider the impact of any changes or amendments made and how far they are acceptable within the overall scheme of the legislation.

The Government hope that the Bill will be allowed to pass with the agreement of both Houses, whether in the form before the House today or amended in a mutually acceptable way in another place. But the difference of view between the Houses may remain irreconcilable. I read the debate in the House of Lords. It was a distinguished debate. In a way it crystallised the strong feelings that divide people. Some Members of the other place who are Jews and had family connected with the matter urged the House not to pass the Bill. Other Members who are Jews urged the House to pass the Bill. Opinion is deeply divided.

The House will be aware that the provisions of the Parliament Acts exist to ensure that the views of the elected Chamber ultimately prevail over the other House, in cases where no accommodation can be found. I very much hope that resort to those powers will not be necessary. To preserve the possibility of using those powers, it is necessary to send the Bill back to another place in the form that it was in on the previous occasion. That is why the Bill before the House is unamended from last time, and why it cannot be subject to any amendments during its reconsideration by this House.

Mr. Tony Banks (Newham, North-West)

This has nothing to do with being Jewish or with any other race or religion. It is to do with Nazis who may still reside in this country and who should never be given the time to take another breath of our good air. How many people are we talking about? I understand that 301 cases were investigated. So that we may have an idea of the scale of what we are contemplating, will the Home Secretary tell us how many cases will be under serious consideration?

Mr. Baker

I told the hon. Member for Greenock and Port Glasgow (Dr. Godman) that 301 cases were considered. It was thought that 75 merited further consideration, that three cases were virtually prepared and that a further three merited much more extensive investigation. That is the scale of the matter.

Ms. Clare Short (Birmingham, Ladywood)

I am troubled by the fact that only four cases were scrutinised in detail. We heard about the 70 cases. Only four were investigated in detail—there seemed to be a case in three, and the person in the fourth died. Are we making a decision on the basis of only two cases that have been considered in detail?

Mr. Baker

Other cases are brought to the Government's attention from time to time. This is a difficult matter. Those of us who have seen the evidence have found it chilling. In some cases, there is detailed evidence implicating people in certain ghastly and horrible events.

Mr. Tam Dalyell (Linlithgow)


Mr. Baker

If the hon. Gentleman will allow me, I have given way a great deal, and I should proceed because many hon. Members wish to speak in the debate, which touches on important issues which are significant in a much wider sense.

The House will be familiar with the heart of the Bill, in clause 1(1), which establishes jurisdiction in respect of offences of murder, manslaughter or culpable homicide. It is important that those offences are covered in the Bill. This is not a Bill concerning crimes against humanity. Those who have studied and debated the matter previously will know that there is a big distinction between the position post-1957 and the position pre-1957 in these matters. The Bill is limited to the crimes of murder, manslaughter and culpable homicide committed in violation of the laws and customs of war in German-held territory during the second world war.

The Bill is concerned with the specific wrongdoing uncovered by the Hetherington inquiry and is intended precisely to deal with that. The Bill refers to "war crimes" for the very reason to which I alluded—to keep the Bill within the terms of international law as it stood at the relevant time and not to bring in any other form of atrocity of which international law had not then taken cognisance.

Clause 2 addresses the investigative process that will be necessary if the Bill is passed. The Government recognise the demands that that will place on the police, particularly the Metropolitan police, and have accordingly decided that the cost should be met from central Government.

I draw attention to the schedule, which provides for a procedure in lieu of committal for war crime trials. Hon. Members will recall that that is not a new idea. Such a procedure is already available in serious fraud trials, and the House has recently agreed to a similar procedure for child abuse cases in the Criminal Justice Bill, now in another place. The justification for the provision is the same in each case and is intended to help the defendant in that the complexity and sensitivity of the matters in question are such that presenting the evidence twice over, at committal and at substantive trial, would be an inappropriate burden on all concerned.

I am, of course, aware that the subject matter of the Bill is sensitive and difficult and one on which there are strongly held views cutting across party lines. The Government respect those differences of opinion. To decide to bring the Bill back before Parliament is in no way to doubt the integrity of those whose views differ from our own. I am sure that hon. Members will feel that strongly as the debate proceeds. No one would suggest that those opposed to the Bill would in any way condone the terrible crimes with which it deals. Members in all parts of this House and all shades of opinion in another place are at one in our utter abhorrence of the deeds that occurred and of the perverted philosophy that gave rise to them.

I well recognise the strength of the arguments—that the events that the Bill addresses took place half a lifetime ago; that suspects are inevitably of advancing years, as are many of the witnesses; and that the mounting of trials will not be easy. Few of us would have wished to confront those issues again now, or to be reminded of the horrors that occurred. The fact is that those allegations are before us—allegations so serious that the passage of time, however long, cannot blot them out.

I respect those who want only to forget, but I respect also those who, without any sense of vindictiveness or with any desire for revenge or vengeance, call for justice to be done in the memory of all those who suffered so appallingly. I believe that the criminal justice system of this country is capable of ensuring that justice is done in respect both of the victims and of those accused of those crimes.

Mr. Patrick Cormack (Staffordshire, South)

I ask my right hon. Friend to bear in mind that those who have misgivings about the Bill do not have them simply because they want to forget. The memories are burned as fiercely into their minds as into the minds of those who support the Bill. When he speaks of justice, will my right hon. Friend bear in mind that the fear that it might not be possible to ensure a fair trial also gives rise to misgivings about the Bill?

Mr. Baker

I hope that the protection built into the Bill and into its procedures will make it possible to have fair trials. I have already indicated certain protections in the committal process, and the need for the Attorney-General to be satisfied. There is also the protection for the accused of going to the High Court to have the matter set aside. If the House agrees to the establishment of this jurisdiction, there will be a fair hearing, in courts both north and south of the border.

Sir John Stokes (Halesowen and Stourbridge)

My right hon. Friend the Home Secretary passed rather quickly the question of the Bill calling in aid the Parliament Act 1911 of the Liberal Government and the Parliament Act 1949 of the Labour Government. Putting aside for a moment the curiousness of a Tory Government making this attack on another place, is it appropriate for an extraordinarily difficult Bill of this kind concerning a moral issue, and for which there has been no support either from the nation or in the Conservative party manifesto, to be forced through the constitution and signed by the Queen purely on the vote of this House?

Mr. Baker

I answered that point at the beginning of my speech. I agree with my hon. Friend that it is an issue of great import and significance, because we are asking this House, and Parliament, to agree to a very unusual procedure. We are justified in asking the House to agree to do so only because of the unusual nature and enormity of the crimes that were committed. My hon. Friend has expressed his views in the past, and, although I appreciate his concern about retrospection and other matters, many are concerned that persons who are alleged to have perpetrated such crimes could have taken refuge in our country and be living here now, and feel strongly and passionately that they should be called to account.

As to the differences between the two Houses, as this House has expressed its view so clearly on a free vote, it is right to allow the matter to come back again and for it to go to another place. One cannot say what is likely to happen in another place, and I should not want to anticipate whether the Bill will be given a Second Reading, and, if it is, in what way it might be changed. If it is changed, it will return to this House.

Sir Geoffrey Howe (Surrey, East)

I appreciate as well as anyone the extremely difficult issues with which the Government have had to grapple in considering the Bill. My right hon. Friend is right to draw attention to the enormity of the crimes disclosed in the evidence to which he referred. It was for that reason, among others, that the Government thought it right to present the Bill in the first place. Does my right hon. Friend agree that, when the House reflects on the matter for a second time, it should pay some attention to the views so strongly expressed in another place? Should we not ask ourselves, as we reflect upon that—because that is the purpose of this second opportunity—whether it would be right to invite a jury to proceed to convict in cases of this kind when we have been unable to persuade the Upper House to agree on the legitimacy of the premise and the proceedings?

The view that I took was that, with a Bill of this kind, we should seek to persuade both Houses of the legitimacy of our case. In the absence of that, in cases as exceptional as these, the House should think carefully before relying on the matters that the Home Secretary has advanced as justification for letting the Bill go forward for a second time.

Mr. Baker

I thought that I had heard the answer to that question from my right hon. and learned Friend's own lips on other occasions. One cannot possibly prejudge how a jury will respond to these matters until it hears the evidence. Juries will have to assess the evidence in a case and consider it carefully. The fact that there are divided opinions between the House and the other place reflects the divided opinions in this House. There are divided opinions in the country on the Bill. We feel—I know that my right hon. and learned Friend felt it strongly—that the possibility of this jurisdiction should be extended, and that is what the Bill seeks to do.

To sum up, may I say that I believe—especially in answer to the last question—that the criminal justice system of our country is capable of ensuring that justice is done in respect of both the victims and those accused of these crimes. There can be no guarantee that if prosecutions are mounted there will be convictions, which is the point of what my right hon. and learned Friend said, as that is not Parliament's task. It is our job to provide courts with the jurisdiction that they need to hear the charges that have been made and to come to a conclusion on the facts, according to the normal principles of British justice. I commend the Bill to the House.

4.1 pm

Mr. Roy Hattersley (Birmingham, Sparkbrook)

On the Opposition Benches and, as I understand it, on the Conservative Benches, there will be a free vote at 10 o'clock. Usually on such occasions, whoever speaks from the Front Bench gives advice to his right hon. and hon. Friends on whether they ought to support the legislation under discussion. I do not presume to do so today. My own doubts about my decision to support the Bill are so great—though support the Bill I shall—and my decision to support it was arrived at after such doubts and consideration that it would be simply impertinent for me to make any recommendations to my right hon. and hon. Friends about how they should proceed. All that I can do is to describe why, after much consideration and a good deal of anguish, I have decided to vote in the Bill's favour.

When the Bill was debated in the House last year, I began my speech by describing the difficulties that I then faced—difficulties which I have again experienced, for the passage of the past 11 months has done nothing to reduce my dilemma. Last year, I voted for the Bill with reluctance and with reservations. I have decided to do the same today, but my reservations have multiplied and my reluctance has increased.

I know that there are those who say that politicians should never express any doubts and should always advocate a case with complete confidence and without reservation. I feel that I am unable to do that today, for reasons that I shall set out to the best of my ability.

My doubts have certainly been increased by some of the opinions expressed in the House of Lords. Lord Shawcross overstated the case when he said that the Bill was a violation of the basic principles of British justice. However, no one could read what distinguished lawyers of every persuasion said without having doubts about the procedures involved in this Bill—which were expressed during the previous Second Reading debate—reinforced.

My decision and my doubts have not been influenced by the eventual rejection of the Bill by the House of Lords. The House of Lords possesses the right under the constitution to reject legislation, and we possess the right to overrule that rejection. The House of Lords, this House and the Government, if I may say so, have acted with absolute constitutional propriety by bringing the matter forward again. Anyone who is dissatisfied with the powers presently exercised by the House of Lords should decide to change them rather than to complain about them. If I have been influenced by the Lords at all, it is not by their decision but by the speeches made during the debate. They were made by lawyers who happened to be peers, and they added to the enormous weight of legal opinion ranged against the Bill. I shall turn to the legal technicalities shortly, but first let me explain why, despite all my doubts, I shall vote for the Bill.

I do not want it to be possible for anyone—no matter how ignorant, prejudiced or malicious—to have the slightest opportunity of arguing that the House has either forgotten the holocaust or forgiven. This is not the time to appear in the slightest degree tender-hearted about those who commit war crimes or are complacent about anti-Semitism. I shall vote for the Bill for what I can only describe as essentially declaratory reasons.

I know that some hon. Members on both sides of the House will feel that no such declaration is necessary from this Parliament, and in a sense that is wholly true, but I recall the way in which votes in the House of Lords were interpreted—or, I fear, misinterpreted—even by some of the peers who took part in the debate. That misinterpretation resulted from the way in which the entire debate about the principles underlying our action has been tilted in the wrong direction by one of the sentences in the Hetherington-Chalmers report—or, rather, a misinterpretation of it.

The most quoted sentence in that report described the crimes to which the Bill relates as so monstrous that they cannot be condoned". That judgment is so obvious, so self-evident and so transparently true that to include it as a crucial part of the report implies that someone disagrees with it. Following the Lords debate, the unattractive suggestion was made that voting against the Bill implied that crimes to which it referred could be condoned. Although I shall vote for the Bill, I have no doubt that those who vote against it support the Hetherington judgment about crimes so monstrous that they cannot be condoned with as much passion as those who vote for it.

I confess that my instinct now, as a year ago, is best expressed by the much-quoted statement that Sir Winston Churchill made to the House on 28 October 1948. I, too, feel instinctively that the time has come to draw the sponge across the crimes and horrors of the past—hard as that may be—and look, for the sake of all our salvation, towards the future."—[Official Report, 28 October 1948; Vol. 457, c. 256.] The context in which Sir Winston made that statement is a subject of great dispute. I say no more than that it represents my instinctive view, not simply because of compassion for the feeble and senile who will be prosecuted under this Bill if any prosecutions come about—although compassion for the feeble and senile is not an unworthy emotion. I wonder whether it is right for society as a whole to relive the horrors of the holocaust and some of the more despicable and unforgivable crimes that were committed during that period, particularly given the way in which some British newspapers will deal with any prosecutions.

Mr. David Winnick (Walsall, North)

Is my right hon. Friend aware that, after the end of the war, many of us—regardless of our age at the time—believed that the allies had given a clear pledge that, once the war was over and Nazism defeated, all those responsible for monstrous crimes against humanity should be brought to justice? We were pleased about what happened in Nuremberg—a different Nuremberg from that associated with the Nazi reign of terror. What concerns us, and will always concern us, is precisely what was implied by Sir Winston Churchill's words; that, rather than continuing to bring the people responsible to justice, we have allowed many to escape justice, and, indeed, to lead prosperous lives in Germany or Latin America. If the policy contained in the allies' promise had continued we might not be dealing with the matter now.

Much the same applies to the atrocities committed in Kuwait. I believe that, no matter how long it takes—

Mr. Speaker

Order. That was more of a speech than an intervention.

Mr. Winnick

May I end, Mr. Speaker, by saying that, no matter how long it takes, I believe that those responsible for the crimes committed during Iraq's occupation of Kuwait should be brought to justice.

Mr. Hattersley

I understand my hon. Friend's point, but I am sure that he will understand mine when I say to him that we have to discuss the situation as we find it now, not the situation as it was, when it was thought to be right to make promises immediately after the second world war. All of us would feel a good deal more comfortable if action had been taken then, which would have obviated the necessity to take action 50 years later. I have come to the same conclusion as my hon. Friend, as he knows, about the need to go on. However, I should be doing my cause, and my attempt to describe my position, less than justice were I not to deal with some of the very grave doubts that I feel.

Mr. Cormack

Only last week it was brought home to us in a horrific way that the wrong people had been convicted of a horrific crime. We all know that the crime committed was horrific, but the wrong people were convicted. Can we be so sure that the right people will be convicted here?

Mr. Hattersley

I intend to deal with that point. We shall have to consider the techniques by which the operation of the Bill, if it becomes an Act, will be appropriate within our system of justice. I had intended to repeat that it was simply my instinct that prompted me to feel support for Sir Winston's statement, with all its limitations and generalities. I intended then to say, as I say now, that as the House examines legislation, it has to be guided by more than instinct. Therefore, it is to the practicalities of the Bill that I now turn.

Part of my concern about the Bill is that, although it is entitled "War Crimes", it is concerned not with war crimes in general but with war criminals in particular. To put it crudely, we know at least some of the individuals whom the new law is intended to encompass. The Home Secretary said disingenuously that it would be wrong of us to mention their names in the House. The same stern injunction was not applied five years ago to Scottish Television, which broadcast programmes that purported to describe individuals who would be subject to such prosecutions were the law to be amended.

The Hetherington-Chalmers report refers to 10 named war criminals whose names were supplied by the Wiesenthal Centre. Scottish Television broadcast a programme that named men whom it claimed were responsible for war crimes that it specified. Newspaper articles have been written about these names and a libel case is pending. So well are they known—to answer the question of my hon. Friend the Member for Walsall, North (Mr. Winnick) that the Home Secretary did not deal with—that in the final paragraph of the Hetherington-Chalmers report reference is made to the age of known suspects. Like it or not, we are considering legislation which may be used to prosecute suspects who are already publicly identified.

That leads me to my first question to the Home Secretary, which I ask him in the spirit of the debate—not in the usual style of trying to score rhetorical points but with the unusual House of Commons intention of eliciting information that might help our debate. It would, I think, be of great help to the House as a whole if, in that spirit, the Home Secretary could answer my question straight away. Does he really believe that prosecutions are possible under the Bill, and is that the advice that he has received from the Law Officers? I do not refer to lawyers more distinguished than the Attorney-General, but the Home Secretary will not argue with me if I say that lawyers as distinguished as the Attorney-General insist that prosecutions under the Bill will simply not be possible and that no Home Secretary would give his fiat for prosecutions to proceed.

I am not asking the Home Secretary whether he thinks that prosecutions will succeed or whether there will be convictions, though I realise that the Law Officers' advice is bound to be conditioned by their judgment of the likelihood of success, but, with so much prejudicial material already published, is the beginning of a prosecution even possible?

I understand also that there may be questions concerning the general legal propriety of proceeding after such a passage of time. I shall turn in a moment to the technical difficulties of prosecutions for offences committed half a century ago, but I am advised that a 50-year delay between the commission of the crime and the prosecution of the subject may in itself be regarded as what lawyers call, in their jargon, "abuse of the process". I am told that that does not imply criticism of a lawyer who may proceed with such a decision, but it is suggested that that would be ruled out simply because of the 50-year delay between the commission of the crime and prosecution.

Mr. Jeff Rooker (Birmingham, Perry Barr)

I am not a lawyer, but even if the Home Secretary says that there will be no prosecutions and that the system will not allow it, surely Parliament must give the legal authorities the power to take such decisions. We could then hold our heads up with other countries and say that we have done everything possible. That is a question for the British legal system, and the Attorney-General cannot be asked to make that decision until the House has passed the legislation.

Mr. Hattersley

If my hon. Friend is correct—I mean that in no ironic sense; I am grateful to him, but I should be more grateful for an answer from the Home Secretary—he and I can vote for the Bill simply as a declaratory measure. My hon. Friend spoke of our holding our heads up high. That is not language which I would use, but I think that he supports my view that the Bill is a declaration of principle. The House must know how it is behaving—whether it is being asked to pass a Bill whose intentions are purely declaratory or whether the Government genuinely believe that we are passing a Bill which may result in prosecutions if it is passed, for instance, during the term of office of the present Attorney-General.

Mr. Kenneth Baker

The right hon. Gentleman asked me to advise him. It is not usual to disclose the advice that Law Officers give Ministers, and I must stick to that constitutional convention. I draw the right hon. Gentleman's attention to clause 1(3), which says: No proceedings shall by virtue of this section be brought in England and Wales or in Northern Ireland except by or with the consent of the Attorney General or, as the case may be, the Attorney-General of Northern Ireland We shall have to consider carefully, first, the position of the Attorney-General. Paragraph 6 of schedule 1 gives the judge the power to dismiss a charge (and accordingly quash a count relating to it in any indictment preferred against the applicant) if it appears to him that the evidence against the applicant would not be sufficient for a jury properly to convict him. Given those safeguards, we believe that it would be possible to bring proceedings.

I am listening to the right hon. Gentleman's speech very carefully. So far, his reservations are so great that I should be surprised if he voted for the Bill. Perhaps he will be able to establish the bridge of conviction that we are waiting for.

Mr. Hattersley

I am glad that the Home Secretary is listening to my speech with such care—that is a new development. His answer on the abuse of process was not a model of precision. If my right hon. and learned Friend the Member for Aberavon (Mr. Morris) catches your eye, Mr. Speaker, he will no doubt develop the question in more detail. I understand that, according to convention, the Home Secretary cannot reveal the Attorney-General's advice. I can only thank the right hon. Gentleman for helping me to vote for the Bill for the reason that I keep repeating as my one reason for doing so—the belief that it is declaratory and little else.

Ms. Short

I am terribly troubled by my right hon. Friend's reason for voting for the Bill. If he is declaring his opposition to the holocaust, we all share that view unanimously and deeply, but we do not have to vote for a bad Bill which might lead to injustice because we oppose the holocaust. If that is his reason, I invite him to change his mind and vote against the Bill.

Mr. Hattersley

Fortunately, there will be a free vote and, putting it at its lowest, I am no more bound by the rules of collective responsibility than is my hon. Friend. She will know how loose those ties are.

Sir Bernard Braine (Castle Point)

Will the right hon. Gentleman give way?

Mr. Ivor Stanbrook (Orpington)


Mr. Hattersley

I have already been speaking for rather longer than the Home Secretary and I want to ask the right hon. Gentleman a second question, which I hope he will answer a little more precisely than he did the first.

Sir Bernard Braine

Will the right hon. Gentleman give way?

Mr. Hattersley

Very well.

Sir Bernard Braine

Let me say straight away that I respect the right hon. Gentleman's reservations. That is the approach that I would expect of him. But he should bear it in mind that the Bill is primarily concerned with something that he has not mentioned—the acquisition of British citizenship by people who may have committed the most atrocious crimes. Does the right hon. Gentleman have doubts about the retention of British citizenship by such people, bearing in mind the fact that both the Canadian and the Australian Parliaments have already legislated on the matter?

Mr. Hattersley

That intervention shows the folly of giving way—even to the Father of the House—as I shall shortly deal with the aquisition of British citizenship.

Mr. Stanbrook

Will the right hon. Gentleman give way?

Mr. Hattersley

No, I shall proceed because so many hon. Members want to speak. I know that the hon. Gentleman is anxious to help me, but I am anxious to ask the Home Secretary a second question, which I ask in exactly the same spirit as the first. Is the Bill that he has placed before the House the Bill that he wants to pass into law? His speech contained a Delphic reference to the possibility of mutually agreed amendments. I realise perfectly well that, under the Parliament Acts, the right hon. Gentleman must send the Bill unamended to the Upper House. If a measure is to be submitted to the Lords twice, the same Bill must be submitted on each occasion. I think that it would not be an overstatement of the position to say that it would be intolerable if the Government already knew that they would amend or attempt to amend in the Upper House the Bill for which they are asking the House to vote tonight. Let me ask the right hon. Gentleman again whether he has it in mind to propose amendments in the other place if that is possible, because, if he has, he has a duty to tell us now.

Mr. Kenneth Baker

If the other place rejects the Bill on Second Reading, it will come back to this House and proceed to the statute book under the Parliament Acts. I am sure that, if that happens, it will operate satisfactorily as it is drafted. If the other place gives the Bill its Second Reading, it may wish to amend it, but let me make it clear that the Government will not be tabling amendments at that stage. It will be for the other place to decide, and I know that there are strong views among those on the Back Benches there. If the other place amends the Bill, this House will have to consider the amendments when the Bill comes back. We shall be able to accept or reject them or amend the Bill ourselves.

Mr. Hattersley

So there will be no Government amendments or Government-inspired amendments?

Mr. Baker


Mr. Hattersley


As I intend to vote for the Bill, I have to ask myself a further question. My first question was: is it right, under any circumstances, to proceed against those responsible for crimes that were committed half a century ago and, in consequence, prosecute the old and feeble? I have concluded that it is. The crimes concerned were so enormous that they defy our comprehension. I know that there are those who argue—they have argued since our previous debate—that more recent acts of genocide have been even more horrific than those committed immediately before or during the second world war, but I have no scale of values within which I can compare atrocities. Whether they were the worst of all time, or almost the worst, or so bad as to be beyond comprehension, there can be no statute of limitations on the crimes to which the Hetherington-Chalmers report refers. I am not attracted to the simple principle that things have gone on for too long.

I should have preferred the Government to introduce general legislation along the lines of the 1949 Geneva convention, which made it clear that any war criminal from any war in any sector or any continent who might at any time come to Britain would be the subject of prosecution. That course would have had an advantage: we should have avoided the concept of preparing to prosecute known individuals. I have no doubt, however, that what the Government are doing today is legitimised by the Geneva Conventions Act 1957, and I can support that principle.

My second question concerns the propriety of legislating for the punishment of crimes committed before an Act was passed. The Bill that we are debating is not quite retrospective legislation. It comes near to it, but, in my view, does not qualify for that description. We are making retrospective changes in jurisdiction.

British citizens who had committed the crimes that we are discussing now would already be liable to prosecution. Had the alleged criminals remained in their countries of birth or not changed their nationality after the crime had been committed, they would certainly either have been prosecuted in their native countries or been liable to deportation to them.

I do not believe that the acquisition of British citizenship should be a means by which the prosecutions for such hideous crimes is avoided. I am aware of the alternative route of extradition or deportation. However, I cannot support that. I do not think that the system of criminal justice in the countries to which they might be deported, although improved over the past two or three years, is one to which I should want to see them go. In any case, I would not agree to deportation to a country that retained capital punishment for such crimes. That must mean that, if they are to be prosecuted at all, they must be prosecuted in this country.

Having convinced myself that neither the passage of time nor the extension of jurisdiction is sufficient argument to vote against the Bill, I considered the five main purposes of our judicial system: the deterrence of other potential criminals; the reformation of those guilty of the crime; the protection of society against a repetition of the offence; retribution and the demonstration of revulsion which society feels towards the crime and those who committed it.

The Minister of State, Home Office (Mr. John Patten)

I am sure that it was simply an oversight by the right hon. Gentleman, but does he not agree that, on the face of the Bill, it is not just British citizens who are specified, but those who are either British citizens or resident ordinarily in Great Britain?

Mr. Hattersley

The Minister of State is quite right; that was an oversight. I am grateful to him for pointing it out. The record of our proceedings will now be correct.

I had just offered to the House the five classic reasons why criminals are pursued, prosecuted and brought to justice. I do not believe for a moment that the first four considerations can be remotely applied in this case. The idea that passing the Bill will deter further atrocities is regrettably wholly unconvincing. In any event, were that the Government's intention, more general legislation would have been introduced. The Bill is intended to meet specific circumstances, as the Home Secretary said, by referring to men living here, as distinct from alleged Japanese war criminals who are not. It cannot, therefore, be regarded as a general deterrent. Nor can it possibly be argued that conviction and imprisonment might rehabilitate the offenders and, having reformed them, allow them to be sent back into the community as useful citizens. Nor are we locking them away to ensure that they do not commit such an offence a second time. That leaves the final purpose of the law: retribution and the demonstration of society's revulsion.

Retribution is far too close to vengeance for my taste. In one of his short stories, Isaac Bashevis Singer reminded his readers about the real meaning of the Old Testament assertion Vengeance is mine … saith the Lord". Singer said that the meaning is perfectly clear. It does not mean that vengeance is generally sanctified; it meant that vengeance should be left to the only authority entitled to dispense it. Singer also said that that was not only the last word on the subject, it was the first. I am, therefore, left with the final justification for the legislation, which is the demonstration of collective revulsion against the crime and the criminal and in this case that is a justification in itself.

However, I want finally to consider what have become related matters—the proposals for legislative changes that were once outlined in the original White Paper and then spatchcocked on to a Law Reform (Miscellaneous Provisions) (Scotland) Bill which was in turn emasculated in the House of Lords.

Mr. Gorst

Will the right hon. Gentleman reconsider his dilemma with regard to the people who were named by Scottish Television? As I understand it, the worst cases do not necessarily involve those who had been named. Therefore, much of the right hon. Gentleman's argument could be based on a misconception. I know that my right hon. Friend the Home Secretary cannot confirm or deny this, but the right hon. Gentleman's presumption is not universally accepted as correct.

Mr. Hattersley

I think that there is a problem, and I put it no higher than that. If we are planning to extend jurisdiction to men and women who have lived here for some time and who have been named publicly—and heaven knows I am not a lawyer and I do not understand these matters—I have no doubt what a lawyer representing those people would say if a case were to come to court. On the other hand, if these cases do not come to court, will any other cases come to court? As well as not being a lawyer, I am not a gambling man. Were I a gambling man, I should be inclined to put my money on the presumption that once this Bill has been passed into law we shall hear very little more of it.

Finally, I want to refer to the procedures that will be necessary if convictions are to be obtained. When this subject was debated a year ago, the House generally seemed to be of the view that it was very important that the normal laws of evidence and the normal principles of the judicial system should prevail. My understanding is that the changes that were once proposed for the purpose of obtaining convictions were lost with the Scottish legislation in the House of Lords. I hope that the Home Secretary does not listen to me only on those occasions on which he refers specifically to his attentive nature.

I have another question, which no doubt the Minister of State will answer in his winding-up speech. Can we be assured that neither through this legislation nor through related legislation are the Government contemplating special rules of evidence with a view to obtaining convictions? When the Home Secretary says that television links would be for the convenience of the defendant, that does very little to give me confidence in these matters. The intention of television links was to prevent witnesses from giving evidence which, because of intimidation, was inaccurate. In this case, the object of television links was to obtain convictions. I hope that we shall be told specifically and explicitly that the normal rules of evidence applying to courts in England or in Scotland will, for better or for worse, apply under this legislation. If conviction cannot be obtained under those rules, so be it.

My final word—and I fear that it is a word of reservation—concerns the technicalities of time. In the House of Lords, Lord Hutchinson said that, putting aside the principle of time, the fact of time would make prosecution impossible as so much would depend on identification evidence. He asked who could expect identifications to be accurate after 50 years. Some chilling words were quoted in the House of Lords in support of that contention. They were described as chilling, and chilling they certainly are. The Hetherington-Chalmers report says: Because of the sickening efficiency of the mass killings, we found few Jewish eye-witnesses of the actual crimes. Those who had witnessed the atrocities were usually themselves killed. Many, however, were able to help with circumstantial and hearsay evidence, and some were able to identify suspects from photographs. I do not know whether that would be even remotely acceptable in a court of law. However, we do not want to see any adjustments made to the law in order to compensate for such a thing. I understand that the original intention of the Government was to make those adjustments. They were prevented from doing so only by the collapse of the Scottish legislation in another place.

Having said all that, I repeat what I have said five times already—I shall support the Bill this evening. But I shall do so in exactly the terms that I have described—as a declaration of our intention and of our principles. I shall not support the Bill in the hope that it will result in prosecutions, or because of belief in prosecutions. Rational assessment of what it provides suggests that neither of those things applies.

4.33 pm
Mr. Edward Heath (Old Bexley and Sidcup)

In his opening remarks, my right hon. Friend the Home Secretary said that he recognised that this matter divides the House deeply, as it divided another place deeply, and that the opposing views were held with great depth and the utmost passion. In saying so, of course, he was absolutely right. It is obvious from the voting lists that the matter has also divided the Cabinet. We now have a Prime Minister who voted against this proposal right at the beginning of the procedures. The Home Secretary said that it would be possible to see how views had changed in the intervening period. Everything that I have heard and read and thought since we last debated the matter here has convinced me even more that the reintroduction of this legislation is wrong. I deeply regret that the Government have reintroduced it in view of the divisions that I have described. [Laughter.] I do not know why it is a laughing matter. The hon. Member for Walsall, North (Mr. Winnick) laughs the whole time. This is a serious business.

Whatever decision is taken, we are within a few months of a general election. I do not believe that it is in the interests of the country—it is certainly not in the interests of our party—to have this matter brought forward at this stage when our country is confronted by so many other difficulties. It is said that it must be done because it was in the Queen's Speech. I am afraid that in my political life many matters were in the Queen's Speech but they were not proceeded with, for a variety of reasons, some good and some bad. I cannot accept that as a reason for reintroducing this legislation.

The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) emphasised that, in the intervening period, his doubts about this legislation had increased. I appreciate that, and I understand what he said about how that has occurred. I agree with him. Therefore, it is even more difficult to understand why he will vote for the Bill tonight than it was last time. I found it puzzling, but he knows best—he is his own judge. I understand that the right hon. Gentleman will vote in favour of the Bill because we must show that we have not forgotten the holocaust. That is what his speech amounted to. I must reassure him on that point. We shall never forget the holocaust. The world will never be allowed to forget the holocaust, and quite rightly. The state of Israel will never allow the world to forget the holocaust, and all its supporters will maintain that position. It is a very weak argument to say that all his absolutely rational doubts are overcome by the fact that he wants the holocaust to be remembered.

I refer now to the contents of the Bill and to the other various reasons for it that have been put forward. My right hon. Friend the Secretary of State said that the crimes, when committed, were against international law. Why has not action been taken under international law? No explanation for that is given. Of course there is now no means of undertaking it under international law. If one gets to the practicalities, these events happened in wartime and when countries had been overrun by other countries, by armies that had been given instructions.

How many people in this House know the contents of international law today? How many of our troops in the Gulf knew whether the orders that they were being given were always in accordance with international law? They accepted that they were—we all did—but did they have any knowledge—

Mr. Tony Banks

Will the right hon. Gentleman give way?

Mr. Heath

I should like to finish the sentence and then I shall give way to the hon. Gentleman.

In the forces we accept that we are given orders, and we carry them out. To say that, because there was international law at the time, it meant that people recognised what the law was and that they were guilty is not a justification for what my right hon. Friend the Home Secretary has said.

Mr. Banks

One does not need a doctorate in international law to know that it is absolutely wrong to massacre people in cold blood in a concentration camp. One does not need the niceties of the law to know that that is absolutely wrong. I am surprised that the right hon. Gentleman does not realise that.

Mr. Heath

That is one of the points about international law. I return to my point. Why was not action taken under international law 45 years ago? There is no answer to that—none at all. A former Home Secretary, the right hon. Member for Morley and Leeds, South (Mr. Rees), who has been a party to the proceedings, nods his head in agreement with me.

Mr. John Patten


Mr. Merlyn Rees (Morley and Leeds, South)


Mr. Jacques Arnold (Gravesham)


Mr. Michael Latham (Rutland and Melton)


Mr. Heath

I am asked to give way to four people at once.

Mr. John Patten


Mr. Speaker

Order. Is the right hon. Gentleman giving way to the Minister?

Mr. Heath

Yes, Mr. Speaker.

Mr. Patten

I am extremely grateful to my right hon. Friend for giving way. I can answer his question directly. In the period 1939–45, or in the years immediately after the war, there was no suggestion that any alleged war criminals were resident in this country.

Mr. Heath

Many of those brought to this country were believed to have been brought by British organisations to give us the information that we required. That was part of the understanding at the time. Will that be a justifiable plea if the Bill is enacted? We do not know.

Mr. Alex Carlile (Montgomery)

Does the right hon. Gentleman accept that those of us who are the children and relatives of the victims, who were not born at the end of the last war, wish to know why action was not taken under international law against those people? Does he also accept that, although a distinguished but minute minority of lawyers expressed strong views against the Bill in another place, the great majority of lawyers, including younger lawyers, support the Bill and believe that its proposals are entirely practicable and just?

Mr. Heath

The hon. and learned Gentleman's last point is debatable. I have not seen any opinion poll on it or found out the consensus among younger lawyers. It may be characteristic that those people who took no part in the war and knew nothing at first hand about the terrible things that happened now say, 45 years later, that we should take action. The weight of opinion in the House of Lords and among the Law Lords is undeniably against the Bill. No one can argue that, least of all the hon. and learned Gentleman.

No action was taken after those crimes were discovered because the Prime Minister and the Leader of the Opposition of the day felt that we had come to the end of the process, and that was acceptable by Parliament.

Dame Elaine Kellett-Bowman (Lancaster)

Will my right hon. Friend give way?

Mr. Heath

No, I am sorry; I shall not give way.

It is suggested that we should overthrow the decision that was made with the support of both Houses of Parliament and embark on such a process 45 years later.

Miss Emma Nicholson (Torridge and Devon, West)

Does my right hon. Friend agree that at the heart of the Bill lies the collective guilt of Christian communities throughout the world for the enormity of crimes that have been committed against the Jews over 1,500 or 2,000 years and that culminated in the concentration camps? Therefore, is there not a genuine reason for the Bill coming before the House now?

Mr. Heath

No one questions the enormity of the crimes that were committed against the Jews. I did not intend to repeat that argument. I said in an earlier speech that the other regiment in our brigade was entrusted with going to the concentration camps and, obviously, we heard about everything that was seen there. When my regiment went into Antwerp it passed a concentration camp, so I know all about the enormity of the crimes. Throughout history there have been enormous crimes, but they should be dealt with at the time. We should be far more in tune with the times if we were to deal with war crimes that took place in the Gulf rather than trying to deal with so-called war crimes that took place 45 years ago. However, I accept the view of my hon. Friend the Member for Torridge and Devon, West (Miss Nicholson) that the enormity of the crime demands action. No one disputes that.

Dame Elaine Kellett-Bowman

Does my right hon. Friend accept that, when the wartime Prime Minister sought to draw a line under those events, he had not the slightest idea—nor had anyone else—that the criminals would receive the protection of British citizenship? As British citizens would have been liable, why should they get off scot-free by having become British citizens later?

Mr. Heath

I tried to serve Mr. Churchill as best I could during his period in government when I was a Member of the House, and I never found him ignorant of anything. Like other members of the Government, he was informed about why many of those people were being brought to this country and was told that they would settle here. That is a well-known fact, so I do not accept my hon. Friend's argument in this case, as in so many other cases.

I do not believe that we are embarking on a course that will be practically satisfying to the law or to the great majority of British citizens. As has been said, there will be show trials, and we know what the press can do with them. We have seen what they did with incidents in the Gulf war, when those who appeared on television were said to have been mutilated by their captors, but when they returned home they said that they had been injured in an air crash and had been treated well. The people of this country will be sickened, as they were in 1948, by the television and radio coverage, day and night, and by the coverage in the gutter press. It is not in the interests of Parliament to allow that.

The Attorney-General (Sir Patrick Mayhew)

Will my right hon. Friend enlighten the House and explain what he means by a show trial in the case of an offence for which prosecution must have the assent of the Attorney-General?

Mr. Heath

Does anyone imagine that the press and television companies will not make the most of any trial that takes place? My right hon. and learned Friend may say that television cameras will not be allowed in the court room, but the television companies will still make the most of the event through dramatic descriptions every night. I am surprised that my right hon. and learned Friend frowns at that. Has he not seen the extent of recent television and radio coverage of the Birmingham Six trial? To suggest that the press will not make the most of any such trial is nonsense. It will be a repeat of the situation that arose in 1948; people will be sickened by it and, if it continues and enough people can be found to be charged, public opinion will rise in an outcry against it.

I return to the fundamental question of retroactive legislation. The right hon. Member for Sparkbrook tried to find a way around it by saying that it was retroactive jurisprudence—

Mr. Hattersley


Mr. Heath

I cannot accept that calling it retroactive jurisprudence is a valid distinction. We are changing the law, because 45 years ago the law did not apply. One can analyse the reasons and say that the law should have applied.

Mr. Hattersley

The law did apply.

Mr. Heath

If so, why did we not apply it? It was not applicable in this country, and it is this country's law with which we are now dealing. I strongly object to retroactive legislation—[HON. MEMBERS: "Why?"] I bitterly object because the Conservative party, in particular, has always objected to backdating legislation.

Mr. Ivan Lawrence (Burton)

We oppose retrospective legislation because it makes criminal today something that was not criminal when it was perpetrated Nobody in his wildest extravagance could imagine a time when to mass-murder people, as war criminals did, was not against the law of the world.

Mr. Heath

I know of my hon. and learned Friend's passion and motivation on the issue, but it is splendid of him to say that it was the law of the world.

Dame Elaine Kellett-Bowman

It was the law of the British citizen.

Mr. Heath

Will my hon. Friend remain quiet, just for a few seconds?

If my hon. and learned Friend the Member for Burton (Mr. Lawrence) went before the court as a barrister tomorrow saying that he was acting on the law of the world, what response would he expect to receive from the judge? We are dealing with the law of this country. My hon. and learned Friend says that, regardless of all our traditions and everything for which the world respects us and in which we take pride, we never act retrospectively unless it is the law of the world. I cannot accept that for a moment, even given the appalling circumstances in which some of those people may have acted in the past.

Therefore, I object strongly to the Bill. During my time in Parliament, Opposition Members have always gone to the utmost lengths to protect the right of the individual. The Labour party has been renowned for that and has fought many battles, both public and individual, and is still doing so. Therefore, I find it difficult to understand why it is prepared to support a Bill such as this when we have not acted for 45 years—[HON. MEMBERS: "Not everyone] I agree, not everybody. Now Labour Members say, "We must do this regardless of the consequences."

Mr. Rooker

I am grateful to the right hon. Gentleman for giving way because there is an answer to that point. We fight because we want equal treatment for every British citizen and people living under British jurisdiction. Cutting aside all the waffle, the Bill amounts to a technical adjustment to nationality law so that every British citizen and everyone living under British jurisdiction suffers or gains from equal treatment under the British law. It cannot be denied that that is all it amounts to.

Mr. Heath

If that is effective from the time the Bill is passed, all well and good. The hon. Gentleman will then say that everyone, whether they came to be British citizens or were originally British citizens, will be treated equally. But to make the legislation retroactive, turning it back 45 years to deal with events about which the people involved did not know, other British citizens did not know and on which Parliament, if it did know took no action, is entirely unjustified.

Sir Bernard Braine

I am grateful to my right hon. Friend, whose argument I am following with intense interest. He implies that we are embarking on legislation that is unique in this country. He objects to that and has a right to do so. However, is he not aware that the Parliaments of two highly respected democracies—Canada and Australia—have already enacted such legislation and similar action has been taken by the Congress of the United States of America? The Bill is not unique. Many of us feel that it is tardy and should have been introduced before.

Mr. Heath

It is unique for this Parliament. If the Australian and Canadian Parliaments and the United States Congress have changed their law, that is a matter for them. It gives me no reason to follow them and no satisfaction at being asked to do so: let us be plain about that.

My right hon. Friend the Home Secretary said that this was a purely independent decision and that we were not being lobbied. We all know how this began—with one of the biggest lobbies in history, in California. It was highly financed in order to bring, not justice, but revenge and retribution. That is how it all started, and that is why the Bill has been introduced to the House.

Ms. Short

I intervene briefly, for the sake of the record. When Sweden considered the issue, it decided not to bring in such legislation. The United States decided to proceed by depriving people of citizenship, then offering them for extradition. Therefore, the argument put to the right hon. Member for Old Bexley and Sidcup (Mr. Heath) was inaccurate because different countries have proceeded in different ways and have not all passed the same legislation.

Mr. Heath

I am grateful to the hon. Lady, whose knowledge of Congressional proceedings is much greater than mine.

The retroactive part of the Bill is decisive and should never have been reintroduced into the House. I hope that the House of Lords will kill the Bill. By that time, my right hon. Friend the Prime Minister will have decided to go to the country, and that will be the end of the matter.

4.54 pm
Mr. John Morris (Aberavon)

I shall come later to some of the arguments of the right hon. Member for Old Bexley and Sidcup (Mr. Heath).

I am glad that the House has a further opportunity to consider its stance on this important legislation. Fortunately, as we have been told, there will be a free vote, and I venture my own opinion on the subject. First, I wish to spell out loud and clear that I yield to no one in my commitment, some of it emotional, to wish to remedy injustice and bring to book those persons who can be proved to have committed horrendous crimes. That is a moral duty.

I listened to the arguments when the original White Paper was presented and debated. I was concerned that, if evidence against a British-born person were found, he would be liable to prosecution, whereas a person who acquired British naturalisation or, as the Bill, states, was in the alternative a resident, after the commission of the relative facts, would not be. I believe that if the facts were proved, both categories of people should be dealt with in the same way. Naturalisation should not put a person, who later takes on himself the protection of the British Crown, in a more favourable position than a British-born subject.

I understand and sympathise with the objections of the right hon. Member for Old Bexley and Sidcup to retrospective legislation, and there is an element of retrospection in the Bill. However, the crime of murder on whatever scale is not, in itself, retrospective. If the Bill is passed, we extend the jurisdiction—that is the retrospective element that all of us must face. I am prepared, and was prepared, to accept that on the basis that a British-born subject should not be in a worse position than someone who had come here at a later date. That was my approach and I voted for the principle of the White Paper when it was debated in the House.

By the time the first Bill was presented and debated I was not convinced about its implementation. That is why I welcome this third opportunity for the House to make a decision. It would be regrettable if, for some reason, the House decided that, regardless, it had to challenge a decision of the other place. I say that as one who believes fundamentally that the will of the Commons must prevail. But the opportunity means that it would be right and proper for us to consider afresh the practicalities of the Bill's implementation, if it becomes an Act, before any further vote. Today, I wish to dwell on the practicalities, which have caused me increasing concern.

The Hetherington-Chalmers report noted a number of prosecution difficulties, which its authors stated should not be underestimated. The report observed that there was a likelihood that many witnesses from eastern Europe would be unable to travel to the United Kingdom to give evidence by reason of their age and/or health. Some witnesses said that they would not be willing to travel, others that they were unfit to do so. The report's authors envisaged that there would be new developments, such as video links, satellites and various new devices to overcome those difficulties. That is why, like my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hatterdey), I want an assurance that normal rules of evidence as regards presentation of evidence will prevail if the Bill is enacted.

Anyone with an ounce of experience of our criminal courts knows the difficulties in successfully persuading a jury of a prosecution, even when the evidence on paper might appear strong, and the warnings about identification that judges are enjoined to give, time after time. Judges also have to warn juries that honestly held views may well be mistaken. That is part and parcel of ordinary trials, where memories have to go back only for a few months, or perhaps a year or so. How much greater will be the need of warnings in the time scale of war crimes trials?

However, a more significant difficulty would face any prosecutor of alleged war criminals: the allegation of "abuse of the process" referred to my right hon. Friend the Member for Sparkbrook. That is an important concept in common law, where the court has an inherent power to prevent its process from being abused. The thrust of an application that an indictment might be quashed or proceedings stayed on the ground that they are an abuse of the court's process does not necessarily involve allegations of bad faith or manipulation by the prosecuting authorities. It is founded on the fact that the delay in bringing the defendant to trial and the consequences that flowed from that delay may make it impossible to ensure that the defendant receives a fair trial. The courts have the power to consider that issue and, if they so find, have the inherent power to quash the indictment.

The legal principles were reviewed by His Honour Judge Denison at the Central Criminal Court in the case of the Queen v. Grob and Hart. He stated that certain propositions were beyond dispute. They were, and are, first, that the court had an inherent power to ensure that its proceedings were not abused; secondly, that the power to quash an indictment to stay the proceedings on the ground of abuse of a process should be exercised only in exceptional circumstances; thirdly, that the power should not be exercised merely because the judge thought that the prosecution should not have been brought or because he felt that, in some imprecise way, it was unfair to the defendant. The judge must balance the public interest that allegations of crime should be tried and determined with the defendant's interest that the trial must be fair. The fourth proposition is that undue delay in bringing a case to trial might amount to an abuse of process. I should add a fifth proposition, which is that the fact that Parlaiment had only recently considered legislation might be a matter to which the courts would attach considerable significance.

Mr. Dalyell


Mr. Morris

May I develop my argument?

In particular, the judge questioned whether "unjustifiable delay" by the prosecution was a precondition to a plea of abuse of process. He concluded that it, was not. He agreed with the judgment of Lord Justice Watkins in the Wapping policing case—the Cherry case. He stated : We see no warrant for not following ample precedent now well set for the proposition that mere delay which gives rise to prejudice and unfairness may by itself amount to an abuse of the process. What has to be demonstrated to the court is that the delay complained of has produced genuine prejudice and unfairness. In some circumstances prejudice will be presumed from substantial delay. Where that is so it would be for the prosecution to rebut, if it can, the presumption. In the absence of a presumption, where there is a substantial delay, it will be for the prosecution to justify it. The judge concluded that there were five matters to be considered in deciding whether a plea of abuse of process should succeed. I shall deal with them briefly. The first was the length of the delay. In the Grob case, the judge found that a delay of 10 years was substantial. In the more recent case of the Blake escape trial, another court found that it would not be an abuse of process to try the defendants, even though the acts complained of had occurred in the 1960s. Each case would be decided on its merits. It is obvious that the facts alleged in the war crimes cases would have occurred between 45 and 50 years ago or more. The longer the delay, the stronger the presumption of prejudice and unfairness.

The second matter to be examined would be the reason for the prosecution to justify the delay. In this case, there would be the absence of legislation. The third is the defendant's responsibility for, and past attitude towards, the delay, which might be one of indifference in these cases. The fourth is the proven or likely prejudice to the defendant. I believe that the 40 or 50-year delay is likely to cause much prejudice against the defendant in the preparation and in the conduct of his defence. At least, I am confident that that will be strongly argued. The passage of time means that the memories of the prosecution and defence witnesses fade. Defence witnesses die or cannot be located and documentation is destroyed. We have only to go to Westminster Hall to see a plaque commemorating the trial of Warren Hastings. I am not enough of a legal historian to say what length of time the facts covered, but, as we all know, the trial lasted for seven years and at the end of it Warren Hastings was acquitted. Let that be a warning to us.

Mr. Gorst

The right hon. and learned Member for Aberavon (Mr. Morris) mentioned Warren Hastings, but to what extent does he believe that impeachment was an example of acting with hindsight?

Mr. Morris

I am not sure that it would be wise to pursue that matter now. I mentioned it merely as an illustration of lengths of time and of the effects in that case.

As the Home Secretary said in another context only last week, justice delayed is justice denied. The accuracy and reliability of recollection and identification are problems faced by the hundreds of prosecutors in our courts.

The fifth matter is the public interest in a disposition of serious charges and the conviction of those guilty of crime. While it must be right that it cannot be in the public interest that there should not be trials of serious criminal offences merely because of the passage of time, there is a counter-balancing public interest to ensure that trials are fair and take place within a reasonable time of the commission of the alleged offence.

On the basis of the foregoing, the prosecution would face a difficult hurdle if the plea of abuse of process were raised. The matter would, of course, be for the court to determine, but it is obvious that a strong case can be argued. Each case would have to be determined on its merits. That is not to say that the defence would be home and dry—far from it. All that I can safely conclude is that the Crown would face a difficult, but not necessarily insurmountable, task.

In view of those considerations, are convictions likely? We cannot be sure one way or the other. However, there cannot be much—if any—similar legislation under which the Crown would be faced with such a difficult task. Would it help the rule of law if successful prosecutions were found, time after time, to be impossible? If so, the Act would be a dead letter and would fall into disuse. Parliament cannot and should not exempt the legislation from the plea of abuse of process.

I have drawn on my deep concern as a lawyer to outline some of the practicalities of successful prosecution and I have tried to give a balanced view of my concern. If the House wishes to pass this legislation—taking full account of, and giving what weight it wishes to, the difficulties—we must do the best that we can with it. We shall soon learn the attitude of the courts. I have thought about the issue long and hard over the past few months and, at the weekend, I was not sure how I should cast my vote—if at all—tonight. As I am so troubled in my own mind, I shall, after considerable deliberation, cast my vote against the Bill because I suspect its practicalities.

5.9 pm

Sir John Wheeler (Westminster, North)

I shall be brief, because this is the fourth debate that the House has had on this important question. There is no doubt that the arguments for and against the Bill have been well rehearsed in all those debates, as well as in this one.

I remind this House, and especially the House of Lords, that in December 1989 the House voted in favour of the principle of legislation by a majority of 348 to 123—a margin of 3 : 1. The House voted in favour of the War Crimes Bill receiving a Second Reading by a majority of 273 to 60, an increased majority of 4 : 1, and in the free vote on Third Reading the majority was 135 to 10—an overwhelming majority of 13 : 1. Any objective observer would conclude that the will of this elected House of Commons is firmly in favour of the principle of the Bill.

Even in the House of Lords, when their Lordships rejected the War Crimes Bill, 74 Members of that House voted in favour of the principle and many others were sufficiently moved to write an open letter to the Prime Minister stating their opinion that the House of Lords is best used as a revising Chamber, and not to question the principles of the House of Commons' decisions on such matters of substance.

I will not reiterate all the arguments in favour of the Bill, which have been rehearsed many times. I want simply to state the principle that the Bill is not concerned with creating a new crime or a new kind of crime. What was done 50 or more years ago was so vile and infamous that those who did those things knew that they were committing a crime under any jurisdiction and under any circumstances. In the Bill, the House seeks merely to confer jurisdiction within the two criminal jurisdictions in the United Kingdom—in Scotland, and in England and Wales—to make it possible for a case to be considered before the criminal courts.

I agree with the right hon. and learned Member for Aberavon (Mr. Morris) that bringing a prosecution will be difficult. All the factors to which he referred will have to be considered by my right hon. and learned Friend the Attorney-General. However, that is not the issue for today. The House is concerned with the principle of jurisdiction and with jurisdiction alone. If the House and Parliament as a whole pass the Bill and it becomes law, it will be for the normal processes of investigation, of preparation and of prosecution, should there be accused to prosecute, to take into account all the normal procedures.

Those matters are for the future. We are concerned with the principle. I have heard nothing in previous debates, in the debate in the House of Lords or in subsequent discussions elsewhere to cause me to change my vote. The majority of my constituents expect me to vote for the Bill tonight and I will gladly do so.

5.13 pm
Mr. Robert Maclennan (Caithness and Sutherland)

Like those from other political parties who have spoken, I want to begin by making it clear that my right hon. and hon. Friends will be voting individually on this matter and not according to a party line.

I stated in an earlier debate that the proposed trials are misconceived. In the months that have passed, I have reflected on the state of British public opinion and on the difficulty of the trials with a view to considering whether it would be right to revise my views and to take a supportive line on the Bill. As time has passed, my doubts, like those of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), have grown. I have been fortified in my earlier view that the trials are misconceived and cannot be attended by the standards of justice that we seek to ensure here.

Sir Thomas Hetherington and Mr. Chalmers, who were responsible for the report that underlies the legislation, viewed the problem too exclusively from the point of view of the prosecution and inadequately from the point of view of the defence. That may not be surprising in view of the professional occupations that those two gentlemen held with distinction for many years. In their professional lives, they had been committed to the introduction of prosecutions in Scotland and in England but, when considering the potential predicament of the defence, they did not show the rigour appropriate to reaching a balanced conclusion.

Mr. Alex Carlile

I must take my hon. Friend to task for a travesty. I do not know much about Mr. Chalmers, but I know that it was a travesty in relation to Sir Thomas Hetherington. Is not my hon. Friend aware that Sir Thomas, before he was the Director of Public Prosecutions, was the Treasury Solicitor who acted for a number of years to protect, for example, the interests of children before the court? It is wrong to suggest that he is wholly and subjectively in favour of prosecution.

Will my hon. Friend be kind enough to tell the House whether he believes in a statute of limitations for criminal prosecutions? If he does, will he tell us when, morally and legally, he believes that murder should stop being a crime?

Mr. Maclennan

I do not rest my case on biographical analysis of either Sir Thomas Hetherington or Mr. Chalmers, distinguished gentlemen though they are. I have no doubt that they did their best to come to the right conclusion and I have no doubt that they weighed their words with considerable care, but they condemned themselves out of their own mouths. I will allude later to some of the things that they said in their report that give rise to concern that justice and the standards of justice that we are right to seek could not be achieved if we enacted the Bill.

The Bill rests its moral case on the enormity of the crimes which, it is argued, have been committed by a number of citizens and residents of this country and which are beyond the memory of many of those who debate the matter today. It has been observed that several of those taking part in the debate, including my hon. and learned Friend the Member for Montgomery (Mr. Carlile), were not alive when these matters occurred. It is not in question that the crimes of which those concerned will stand accused are monstrous, that they are against the law of the countries in which they were committed and that they would be crimes according to the general principles of law recognised by all civilised nations. The question is not whether we believe that the crimes were of an enormity that must be condemned. The question is whether we can establish in a British court of law that the individuals who are allegedly responsible actually committed those crimes.

It does not seem right to pass a law, as the right hon. Member for Sparkbrook suggested we should, to demonstrate to the world our abhorrence of the holocaust. As he systematically advanced his argument, with every sentence he seemed to strengthen the doubts that he had expressed in the earlier debate and ended by saying that he was proposing to vote for the Bill simply as a declaration of his revulsion against the crimes of the holocaust. I cannot and do not believe it necessary to make such a declaration. I do not believe that there is any hon. Member who does not share that revulsion; nor do I believe that the British public need to be reminded of that fact.

One of the fears that I expressed in our earlier debate was that if the trials go ahead they may elicit some sympathy for those who are alleged to have perpetrated crimes of a kind that would stand the moral order on its head. That would be the reverse of sensible.

The crucial question that one must examine in this debate is whether the defendants to these charges could, in practice, experience the facilities that the prosecution will enjoy in handling the evidence against them. I doubt whether they can. My understanding is that most of the offences are alleged to have taken place in countries that are now part of the Soviet Union. Most of the cases will have to be subject to the evidence of eye-witnesses for identification. It must be common sense that after 45 or 50 years the evidence of the eye-witness is less than reliable. However, it is also more than common sense, because the evidence from earlier committees that considered the nature of such evidence was that even those who said in courts of law that they had seared into their memories the face of the man who committed the atrocity—I am thinking especially of the Virag case that was referred to in the Devlin committee report—had got it wrong. Identification years after the event turned out to be wrong.

Mr. Rupert Allason (Torbay)

Is the hon. Gentleman aware that when Sir Thomas Hetherington originally considered the issue he was sceptical about whether such evidence could be obtained and would be available to the defence? Is the hon. Gentleman further aware that, having taken a great deal of time and trouble to study exactly that issue, he concluded that the evidence was overwhelming and compelling?

Mr. Maclennan

I shall read from what Hetherington and Chalmers said on this subject, which I find most disturbing. They stated: Because of the sickening efficiency of the mass killings we found few Jewish eye witnesses of the actual crimes: those who had witnessed the atrocities were usually themselves killed. Many, however, were able to help with circumstantial and hearsay evidence, and some were able to identify suspects from photographs. I do not believe that the quality of such identification is likely to convict or to be convincing. It seems probable—

Mr. Lawrence

Will the hon. Gentleman give way?

Mr. Maclennan

No, I shall develop my argument before giving way again.

It seems probable that such prosecutions will not stick. In introducing the Bill, the Government appear to contemplate those evidential problems being overcome by the arrangements that are being made for television and video recordings of evidence taken abroad. Such arrangements may be open to the prosecution, which can deploy the limitless resources of the state when gathering evidence, but I question whether such an approach will be open to any of the defendants who are seeking to rebut the charges—

Mr. Alex Carlile

It should be.

Mr. Maclennan

My hon. and learned Friend says that it should be. However, I am not aware of any arrangements that have been made to finance such a trawl for evidence for the defence and nor am I aware of the practicalities of so doing. We have heard about the old people who are to be the subject of the trial. It is beyond imagination that it would be within their physical capacity to conduct their defence efficaciously.

I further question whether the Soviet Union would feel as ready in such trials to volunteer evidence for the defence as it might for the prosecution. I recognise that substantial and important changes have been made in the administration of justice in the Soviet Union territories in recent years, but I am not unmindful of the fact that in the Soviet Union the whole history of the second world war is still fraught with high emotion. Many of those who would be charged under the legislation would be considered guilty in the Soviet Union of the most grave offences. It seems unlikely that the Soviet Union would offer to the defence the co-operation with evidence that it might be prepared to offer to the prosecution.

Mr. Gorst

Is not the hon. Gentleman's argument tantamount to saying that if, when debating the passing of any law, the House can see difficulties with evidence, we should not pass that law, even if the crime that we are contemplating is odious?

Mr. Maclennan

In passing any legislation one should be aware of the consequences of what one is doing.

I find it impossible to accept the argument that this is not retrospective legislation, because it plainly is. The practical consequences of setting up such retrospective jurisdiction and of bringing into court a number of people who, by the nature of the process, will be gravely disadvantaged when compared with the prosecution lead me to believe that such cases would not be in accordance with the standards of British justice or with the European convention on human rights. Although the convention is not incorporated into the law of the land, it is none the less an indication of the standards that we have accepted internationally. Some play has been made of the international nature of the offences—

Mr. Latham

Will the hon. Gentleman give way?

Mr. Maclennan

I shall give way to the hon. Gentleman, who has not yet intervened, when I have finished this point.

Article 6(3) of the European convention on human rights provides: Anyone charged with a criminal offence has the right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. Anyone who can say that that is possible or likely has taken a small step towards justifying the trials. However, one need only contemplate that to realise that, in practice, it will not be done.

Mr. Latham

I am grateful to the hon. Gentleman, who has given way to me with his usual courtesy. I am trying to follow his argument because he seems to be arguing that the defence would be gravely disadvantaged, yet the argument used in the House of Lords by the Master of the Rolls and others, and in this House today, is that it would be impossible to bring a trial successfully because no jury would convict. Does the hon. Gentleman agree?

Mr. Maclennan

The Master of the Rolls has more experience than I of such matters and he may well be right. We are considering whether such trials should be set up and the prospects that would flow from the establishment of such trials. I cannot say whether a jury would be convinced. It seems highly improbable that a fair-minded jury would consider that the burden of proof had been discharged. Indeed, it seemed to be the purpose of the report to demonstrate that a remarkably small number of people among the cases that were considered would be likely to be convicted. However, there is a small number of people who would be convicted. I believe that the number has diminished by one death since the report was published.

The House should not legislate for demonstration purposes. We can demonstrate our revulsion of crime in many ways. We do not need to embark on retrospective criminal legislation to do so. I see the Minister of State, Home Office, the right hon. Member for Oxford, West and Abingdon (Mr. Patten), shaking his finger at me. Perhaps he would like to shake his lips at me.

Mr. John Patten

I did not make a rude gesture from a seated position. I am grateful to the hon. Gentleman for giving way with characteristic courtesy. He has been exact in his use of words so far, but he has suddenly suggested that the Bill is retrospective criminal legislation. Whatever else the Bill is, it is not that. It affects jurisdiction. There may be arguments about whether that jurisdictional change is retrospective, but the Bill does not change the criminal law in any way.

Mr. Maclennan

That is precisely the distinction that I cannot understand, although I admit that I am not a lawyer. If this country does not have the jurisdiction to prosecute someone for a crime, that is a function of the criminal law. It is the limit of the criminal law. The Government are seeking to change the jurisdiction of the courts to prosecute people for offences for which hitherto they could not be prosecuted. The Minister is logic chopping. We are not in dispute about the facts. How one cares to describe them is a matter of nuance which does not carry the argument much further forward.

I was impressed by the weight of argument against the Bill in another place. I do not normally consider that the House of Lords, for all its great expertise, is more in touch with the realities of life than the House of Commons. But on this occasion, the House of Lords predicted with much greater accuracy than this House did during our debates what would happen if the Bill were enacted and the travesty of justice that we ran the risk of initiating by putting the proposals on the statute book.

I hope that the House will think again and will realise that every month that passes makes it more likely that our standards of justice will be seen to be less than adequate and less than we aspire to in Britain.

5.31 pm
Sir Ian Gilmour (Chesham and Amersham)

I understand that the hon. Member for Caithness and Sutherland (Mr. Maclennan) intends to change his vote from an abstention to a vote against the Bill. The right hon. and learned Member for Aberavon (Mr. Morris) is changing from a vote for the Bill to a vote against it. The deputy Leader of the Opposition, the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), has changed his argument and his views, but not his vote. Nevertheless, there has been a change of opinion on the Opposition Benches.

The Bill seeks to deal with enormous and terrible crimes which excite revulsion and strong feelings among us all. That is common ground. But before I deal with the merits of the Bill, I should like to deal briefly with the constitutional point. Formally, the Government are within their rights to employ the Parliament Acts. But, in reality, what they are doing is an abuse of those Acts. It shows, at the least, a sorry sense of proportion.

The Parliament Acts were designed to prevent a minority party in the House of Commons from using its majority in another place to frustrate the will of the elected Government. Of course, that is far from being the case on this occasion. This is not a party matter and no democratic principle arises. All that has happened is that a heavy majority of the other place, with great knowledge of the subject, has voted strongly against the Bill and an even bigger majority of this House has voted the other way. In those circumstances, if the Government were not prepared to take the obvious and proper course—to drop the Bill—their duty was surely to amend it to make it more acceptable to the overwhelming majority in the other place. There is no excuse whatever for using the Parliament Acts.

The Government's behaviour is wholly disproportionate. As far as I am aware, the Parliament Acts have been used only to force through Bills of major constitutional or other importance such as Welsh disestablishment, Irish home rule and the Parliament Act 1949 itself. Furthermore, the Parliament Acts have never been used by a Conservative Government. They are being used for the first time for this, in many ways, highly objectionable little Bill. That is all the more ridiculous because, as the hon. Member for Caithness and Sutherland said, the Bill was annihilated in the Second Reading debate in the other place.

It was conclusively shown that the Bill was retrospective legislation, selective legislation and, in addition to those crippling disadvantages and contraventions of the rule of law, legislation which would not produce a fair trial. Of course, the Government are not bound to defer to the vote of the other place. But surely they are bound to pay attention to the authoritative views stated there. The Government have singularly failed to do that.

I do not wish to be rude to my right hon. Friend the Home Secretary, who made a statesmanlike and moderate speech, and still less to the Minister of State, Home Office, my right hon. Friend the Member for Oxford, West and Abingdon (Mr. Patten), but why in matters of law do they believe that they know better than the extraordinarily impressive array of legal and other talents which annihilated the rationale of the Bill in another place? I am aware that the prestige of the judiciary is not at its highest at present, but, rightly or wrongly, that is because we have had some alarming cases in which the Bench was slow to realise that innocent men had been convicted. The position is absolutely the opposite in this case. The Law Lords in another place are worried that under the Bill people will not be given a fair trial. Surely their views should be listened to carefully.

Mr. Gorst

Are not we safer with men of common sense than with men of erudition?

Sir Ian Gilmour

That is an uncharacteristically philistine point from my hon. Friend, which is singularly inapplicable to a Bill of this nature.

Lord Hailsham, Lord Bridge of Harwich, Lord Ackner, Lord Donaldson of Lymington and Lord Goodman variously said that the Bill would not be British justice, that it would damage the rule of law and that it would debase the standards of British justice. Where is the matching expertise of my right hon. Friends in the Government which entitles them to dispute that view? We certainly have not heard any arguments against that view so far today.

Almost everyone agrees that retrospective legislation is undesirable. Lord Hailsham, Lord Ackner and Lord Donaldson, to say nothing of distinguished historians such as Lord Dacre of Glanton and Lord Blake, pointed out that the Bill was retrospective legislation. Of course, it is clearly retrospective. If it were not, we should not need the Bill. People could be prosecuted without it.

Equally clearly, the Bill is highly selective legislation. After the war I was lucky enough to visit the Nuremberg trials, which were presided over in a most distinguished and fair way by Lord Oaksey, then Lord Justice Lawrence. In 1946 much less was known about the iniquities of the Soviet regime. But even then a great deal was known or suspected. In particular, it was widely suspected that the Katyn massacres had been perpetrated by the Soviets, not the Nazis. So, even in 1946, it seemed odd that representatives of the Soviet regime sat side by side with British, American and French justices at the Nuremberg court. Yet in the circumstances of 1946 it was inevitable.

The selectivity of this Bill is not inevitable. It is confined to offences committed in Germany or in German-occupied territory and offences committed before 1945. Such selectivity is not inevitable and it is wrong. That was demonstrated in another place by Lord Hailsham, who said that there was no attempt to be fair, by the Scottish Law Lord, Lord Morton of Shuna, and by Lord Donaldson.

One may believe, like the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), that the whole business is declaratory—in which case I believe that it could be done better by a declaration than by an Act. Supporters of the Bill clearly want to see fair trials. Otherwise, the whole business would be pointless. Again, we have unanswerable testimony that that will not happen.

Lord Shawcross pointed out that in 1948 two distinguished judges felt that a four-year delay was too long. We are now faced with a delay of 50 years. Apart from the delay, Lord Shawcross thought that the changes in procedure that are being introduced to help the prosecution at the expense of the defence would prevent justice from being seen to be done. I was struck by the fact that my right hon. Friend the Home Secretary thought that the changes in procedure were introduced to help the defence—that is exactly the opposite of the truth. All the changes are biased in favour of the prosecution.

Lord Goodman agreed with Lord Shawcross. Lord Hutchinson of Lullington, a most distinguished criminal advocate for the defence over many years, pointed out that naming suspects first and then building up evidence against them had led to many miscarriages of justice. He did not think that we could guarantee a fair trial.

Lord Ackner made a similar point strongly and expressed similar doubt about a fair trial being provided. Lord Morton of Shuna went even further and spoke of the practical impossibility of achieving a fair trial. Lord Donaldson had the same view. He said: Identification after 45 years is a wholly preposterous proposition".—[Official Report, House of Lords, 4 June 1990; Vol. 519, c. 1174.] Lord Blake is not a judge, but he was a prisoner of war. He said that he would have the greatest difficulty identifying any of his captors or guards 50 years later. Lord Bridge of Harwich believed that the procedures under the Bill would be a breach of the criminal process. Once again, I ask the Government: on what possible grounds do they think that they know better, on a specifically legal point, than the experienced and distinguished judges whom I named? My right hon. Friend the Home Secretary seemed a bit shaky on that matter this afternoon.

There is one final point. The enormous lapse of time since these dreadful crimes were committed means that the accused men—guilty or not—were very young at the time. In other words, they were small fry who were obeying orders. If they had disobeyed orders, they would certainly have been killed. No doubt they should have disobeyed orders, but I do not think that we can all be sure that we would have behaved heroically and disobeyed those appalling orders.

Mr. Winnick

Does the right hon. Gentleman accept that there are known cases of soldiers serving in the German army who refused to commit war crimes and who managed not to be shot? Surely, to a large extent, the right hon. Gentleman is trying to find excuses for those appalling crimes. Day after day, men, women, children and even babes in arms were systematically murdered. Surely the fact that those soldiers were young at the time and were serving in the most monstrous army known cannot be an excuse for their not being brought to justice.

Sir Ian Gilmour

I have not been making excuses. The crimes were appalling. I am not sure that I, or even the hon. Gentleman, would have been heroic enough to disobey orders, and be shot for doing so. The hon.

Gentleman may be confident about his courage—I do not dispute his courage—but he is demanding great courage from everyone. But that is a relatively minor point.

The main point is that these people will not be given a fair trial, even with the highest testimony. The whole debate on this matter has shown that the Labour Government in 1948 and Sir Winston Churchill a little earlier were right in saying that the process of retribution should be brought to an end and that it had gone on long enough. Sir Winston Churchill said that a "sponge" should be drawn across the whole story of horror and atrocity. The Labour Government and Sir Winston Churchill were right then and the Government are wholly wrong now. For those reasons, I oppose the Bill.

5.44 pm
Mr. A. E. P. Duffy (Sheffield, Attercliffe)

I agree with the Home Secretary that, given the developments that have taken place since proceedings in the House just a year ago, there must be an opportunity to see how feelings have changed. Already in the debate we have had ample evidence that feelings are changing and of how far accommodation is possible between the two Houses. We heard a persuasive speech from the right hon. Member for Chesham and Amersham (Sir I. Gilmour). There clearly is a case for such an accommodation.

Above all, there must be an opportunity for reconsideration—happily, we have been provided with that this evening—in the light of the debates in both Chambers. As the right hon. Member for Chesham and Amersham pointed out, the evidence so far suggests that hon. Members are re-examining their positions. At this stage, the argument seems to be going in one direction.

As my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) said, nothing that any hon. Member says—no matter which side of the argument he is on—moves any of us either to forget the holocaust or to be prepared to forgive it. That is not in question. Like the right hon. Member for Chesham and Amersham, I was intrigued to hear the argument put by my right hon. Friend the Member for Sparkbrook and then to note his final position. It was similar to the speech he made a year last December when we debated the principle. His argument then was persuasive most of the time, but suddenly he made a big jump and said that, despite all his reservations, he would go into the Division Lobby in support of the Bill. Apparently my right hon. Friend is content with taking a declaratory position. I thought that I heard him murmur—I hope that he will forgive me if I misjudge him—that, if the Bill is passed, we are unlikely to hear much more about it. If my right hon. Friend did not say that, that view is certainly held by other hon. Members.

I have sat through all the debates and wondered repeatedly about the confidence displayed by, and even the authority expressed on war crimes by, hon. Members on both sides of the argument. I did not agree with my right hon. and learned Friend the Member for Aberavon (Mr. Morris) or with the right hon. Member for Chesham and Amersham that the passage of 50 years would make it almost impossible to identify a defendant or a witness.

Those who have known war will agree that it leaves a shadow across a person that never leaves him—it leaves an indelible mark.

The days of the war were extraordinary times and none of those who knew them can ever really communicate the flavour of them to those who did not. Anyone who has been a party to death, much less stood in its shadow or become reconciled to it, will know that the minutest details of the circumstances are etched on one's mind—Dr. Johnson was right.

Given the record of Dresden, Hiroshima and Nagasaki in particular, I doubt whether too clear a distinction could be drawn, as some hon. Members insisted a year ago—notably the right hon. Member for Castle Point (Sir B. Braine)—between the wholesale slaughter of defenceless women and children who played no part in the war and killing in the heat of battle.

If there is one phrase that I associate with war more than any other—I am reluctant to use it because it has become a cliché—it is the fog of war. War became a fog. No matter how long it went on, no matter how clear one's recollection of part of it, there was always a fog. Unlike some hon. Members, I doubt whether, this final step having been taken, we can put the horrors of war behind us once and for all or that, given Stalin, Mao, Pol Pot, Idi Amin and now Saddam Hussein, the Bill will act as a deterrent.

I have never been able to rid my mind of the concern, expressed by some hon. Members, about how the people of this country will be affected once the process starts. The right hon. Member for Old Bexley and Sidcup (Mr. Heath) has warned us of that yet again. I fear that this will stir cynicism, or worse, and at a time when Europe is looking to the future we shall be seen to be delving into the past.

I came down on the side of those who were against the proposal, and then only with great reluctance—like my right hon. Friend the Member for Sparkbrook. For me, it remained a matter of doubt so that, in common with half the membership of this House, I abstained on Second Reading three months later. The general attitude of those right hon. and hon. Members who remained committed to the Bill struck me as half hearted. That appeared to be confirmed when the Bill's defeat in another place produced only one question to the Prime Minister the following Tuesday—from the right hon. Member for Castle Point. There was no passion elsewhere in this House on that day.

We owe this opportunity to reconsider the Bill to another place. We also owe it to the Upper House that many moral, legal and potentially constitutional issues were widely aired in the debate there, in a way that they were not in this Chamber. No one who has studied the debates of both Houses can deny that the other place had overwhelmingly the best of the argument. Despite some recent comments to the contrary, today's House of Lords is the very model of constitutional circumspection. There is no breach of the Salisbury convention. Their Lordships' treatment of the Bill is ample proof of the contemporary value of the other place as a second Chamber. It is making us think again. There is already evidence in this debate that other right hon. and hon. Members are thinking again—and I am one of them.

I am entirely persuaded by the plea of my noble Friend Lord Callaghan. I share his belief that the Members of this House ought to express their deep conviction and experience—especially our experience of war. Concern has inevitably focused on the moral and legal issues, but there is considerable interest in the subsidiary matters. One is whether defendants can be guaranteed a fair trial after 50 years; the other is the nature of the charges, 'without knowledge of which, given the claim that the Bill is a unique provision to meet unique circumstances—although tonight the Home Secretary substituted the word "unusual" for "unique"—right hon. and hon. M embers may find it difficult to form a view.

The first of the major issues is moral outrage It will undoubtedly unite the House. Where mass murder is the issue, all right hon. and hon. Members will yield initially to the moral argument that we cannot tolerate in our midst the presence of unprosecuted persons, however few they are or however old they may be, who are perhaps guilty of certain crimes. There are crimes that cry out to heaven for justice.

What of the legal response involved? The Hetherington report refers to an element of retroactive justice—that is to say, laws passed against deeds that were not unlawful at the time that they were supposedly committed. In this case, the crime is murder by non-British nationals many hundreds of miles from British soil.

The most balanced case against altering the law was made in the Upper House by Lord Goodman, who is one of our most distinguished lawyers, and who is also Jewish. He said that parts of the Bill would alter the rule of law in Britain, and would thus do "appalling damage" to all the minorities who find their defence in it.

When I visited Dachau, I was interested to note that, long before the horrors that were perpetrated against the Jews in the early 1940s, waves of German socialists, trade unionists, gipsies, and similar dissidents and minorities had been taken there. In 1939 and 1940, the Poles arrived—most of them Catholic priests—and then there followed the torrent.

In the debate in another place, Lord Bauer said that he is of Jewish extraction, that his father was killed by the Nazis, but that he regarded the Bill as another step in the erosion of the rule of law. When moral outrage and the sense of legality clash with such force, where does one turn in a democracy but to public opinion?

I distinctly remember the decision, announced after the second world war, not to continue prosecuting or surrendering suspected war criminals because parliamentary and public opinion was critical of war crime trials. I attended the London School of Economics with my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees), and often used to visit the House of Commons. Any suggestion then that war crime trials would be revived 40 years later would have been received with incredulity. If there is one institution in this land that would have protested if there had been even the smallest dissent against that decision, it would surely have been the London School of Economics, given its character then.

Mr. Rooker

Does my hon. Friend agree that, if the British public had been told at that time that it was likely, because of inadequate vetting procedures or as a result of deliberate policy—because we needed information from the war criminals concerned—that such persons could come to this country and be immune from prosecution for ever after, British public opinion would have remained silent?

Mr. Duffy

I am truly astonished when I hear my hon. Friends impugn the motives of the postwar Labour Government at this late stage.

Ms. Short

In the debate in another place, Lord Shawcross made it clear that, when the decision was made in 1984 to stop prosecutions, the decision was taken also to free German generals, who were much bigger fish than the suspected war criminals who are the subject of the Bill. That kind of knowledge was available at the time.

Mr. Duffy

The Nuremberg trials were designed not only to punish barbarism but to act as a deterrent. The Chief Rabbi fears that if such people escape justice, humanity will never be safe. The trouble is that the revival of such trials might in some twisted minds have precisely the opposite effect to that which is intended. There is a risk—and one that I identified in the speech of the right hon. Member for Old Bexley and Sidcup—that the passage of time may change people's perceptions.

Late last June, I was walking down Leipzigstrasse in east Berlin before unification when a car pulled up alongside me and a couple of young Scandinavians jumped out to ask for directions. They did not want to know the way to Checkpoint Charlie, which was just behind me; to the Brandenburg gate, just two blocks away; or to the Reichstag just beyond. Instead, they wanted to know the way to the building immediately opposite the Reichstag—across the river from it—which they described as Goering's air ministry. There is a danger of desensitising a public already prone to saturation with the details of man's bestiality.

Just as Nuremberg had little moral influence on individuals, so has it failed to serve as a deterrent internationally. What is the purpose of continuing to hunt down the geriatric remnants of the Nazi scourge? Some hon. Members believe that it will encourage other nations—notably Germany, Canada, and the United States—to proceed against other alleged war criminals. Will it serve that purpose? The failure of this House to initiate any move against Saddam Hussein, who gassed an entire town, while tinkering with its own domestic legal process to permit the prosecution of three old men and the investigation of others residing in Britain will strike many people as being misconceived.

Mr. Winnick

This is one of the few subjects on which my hon. Friend and I do not agree, having achieved so much unity in the past few months in respect of the Gulf crisis. My hon. Friend referred to the gassing of the Kurds in March 1987—and other Iraqi atrocities were committed more recently in Kuwait. If those alleged to have committed such crimes are not brought to justice, but are found, even 50 years later, to be living in this country, for reasons that I cannot explain, is it suggested that they should not be brought to justice then?

Mr. Duffy

I am considering their prosecution now and in present circumstances. It is difficult to project one's mind 50 years hence, into the circumstances that would be present then. We have the advantage of knowing the present circumstances, even though there is a 50 year gap. My hon. Friend the Member for Walsall, North (Mr. Winnick) is right—we usually fight on the same side. He makes a difficult demand of me, but we must agree that we would like a move to be made against Saddam Hussein now.

Mr. Lawrence


Mr. Deputy Speaker (Mr. Harold Walker)

Order. I remind the House that a large number of right hon. and hon. Members wish to speak, and that at 6 o'clock the 10 minute time limit on speeches will begin. Those hon. Members who seek to intervene do so only at the expense of their colleagues' time.

Mr. Duffy

In view of those remarks, I shall proceed.

The recent concern for a just war in the Gulf reminds us how far even the most civilised nations have progressively departed from that idea in this century. The idea of the just war was complex, but ultimately rested upon the principle that violence may be used legitimately only against an opponent who possesses the means and the forewarnings with which to defend himself.

In part, it is because the victims of the crimes that we are debating were defenceless that we all feel so outraged. However, there were other defenceless victims of the second world war. They were killed by the war strategies of the democracies. Most were German—600,000 German civilians, the majority women and children, were killed in the strategic bombing campaign. Another 2 million German civilians died during the mass expulsions from eastern Europe in 1945—expulsions to which the western leaders acquiesced.

This is not an argument for moral balance, much less for moral equivalence. No moral equivalent accommodates genocide. The moral balance, measured in terms of the individual's conscience, even among service men on active operations in the midst of the war—notably following the 1,000-bomber raid on Cologne, the unfolding strategy of Bomber Command and the dropping of the atomic bomb and its repeat—weighed overwhelmingly to the allied side. Those of us who were serving worried throughout the war—we did not wait until the revelation of post-war horrors. We were concerned at every step throughout the war, from 1941, lest we were going too far. We may be made to pause for thought on the horror of total war if we remember that it was practised by democracies as well as by tyrannies.

Because our sense of justice is so keen and because our obligation to the rule of law has been consolidated by such terrible deeds, we must question how far we can be morally justified in tampering with the foundations of democracy—which is the rule of law.

The examples of Canada and Australia have been held up to us, although their experience is, as yet, limited. Interestingly, the United States has not yet passed legislation to enable trials of war criminals to be held there. It seems that the reason is that any such prosecutions would be in breach of the American constitution's prohibition on ex post facto law. Why are we prepared to proceed when our American friends are determined not to?

Finally, as with all serious questions of law and justice, what matters as much as how the law affects suspected war criminals is what it says about us—in whose name the law may or may not be changed. We may pursue the matter in such a manner and temper as to be exposed to the charge of vengeance—and there is no emotion which is so degrading of the human spirit—or we may decide that the spirit of the times is no longer in tune with scavenging the dreadful reminders of the past. Distasteful though it is that terrible crimes may go unpunished, there are times when the past is best left to history. When people are guilty of such terrible crimes there is an ultimate justice from which they cannot escape.

6.4 pm

Mr. Michael Latham (Rutland and Melton)

It is an honour to follow the hon. Member for Sheffield, Attercliffe (Mr. Duffy) who served in the war. I was born on the day when Montgomery's Army entered Benghazi in November 1942, so I do not remember these things, but the hon. Member does and the House listens to him with respect.

Ten years ago I discussed with the late Airey Neave and my hon. Friend the Member for Edinburgh, West (Lord James Douglas-Hamilton) a debate that my hon. Friend was about to introduce on whether Hess should be released from Spandau. Airey Neave said that he had served the indictment on Hess and I asked him whether he thought that we should have had all those Nuremberg trials. I asked whether he thought that we should have made a new law about waging aggressive war. I asked, "Why didn't you just stick them up against a wall and shoot them"—these mass murderers and Nazi leaders? I asked, "Why did you bother with trials?" Airey replied that there were plenty of people who thought that way but that if we had done that we would have been as bad as the Nazis. He said that we had to have trials to show that the world believed that men could be put on trial for such dreadful deeds. Of course, he was right—as he was right about so many other matters.

Nevertheless, when I first considered this issue, before the first of our four debates on the subject many months ago, I was doubtful whether this was the right way to proceed and I shall tell the House why.

I wondered whether the Bill would lead to an increase in something that has been below the surface throughout this debate, but is lurking there—whether the Bill would increase anti-Semitism. I wondered whether people would say—as was hinted in one speech today—that the Jews had got up this Bill with their money and their pressure.

Therefore, I spoke to the hon. and learned Member for Leicester, West (Mr. Janner). I am not allowed to call him my hon. Friend, although he is honourable and he is my friend. No one has fought harder for the Jewish people than he has done. I asked him whether, as a Jewish leader—which he has been for many years—he was worried that war crimes trials would increase anti-Semitism. He said, "No, I am not worried and neither is the community. This must be done." If that is what Jewish leaders and the Jewish community think, who am Ito stand in the way and to say that it would stir up anti-Semitism? I am meeting that argument head on, because I know that it is in many people's minds.

As a Gentile, I receive large amounts of anti-Semitic literature every time that I speak on this subject or on Israel, even when I write letters to the Church Times. If I receive that, how much worse must it be for people such as the hon. and learned Member for Leicester, West?

I decided that the argument that trials would stir up anti-Semitism has to be resisted because a greater evil has to be fought—the evil of violence and mass murder, which has to be met and fought every time that it comes to light.

When I was wondering what I should do I also thought of the extract from the Torah which the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) quoted from the Dispatch Box today: Vengeance is mine; I will repay, saith the Lord. I wondered whether we should pursue the line of leaving this matter to history, as the hon. Member for Attercliffe suggested. As we are quoting a religious book, I also asked myself what theology is so robust that it can withstand babies being thrown into crematoria. What theology can say that we should put all that behind us and forget it? I do not know what theology that is, but it is certainly not one that I can understand.

I thought about all those matters and I decided that all I can do in the House is to vote, and that I cannot withhold my vote in favour of putting in place legislation that will do something about those who may have been responsible for the murder of millions.

6.9 pm

Ms. Clare Short (Birmingham, Ladywood)

I am very troubled by the Bill. I voted for it last time, for two reasons. The first was the horror of the holocaust—one of the most evil events in human history, if not the most evil, which can never be forgotten or forgiven. The second was my anxiety that we should enforce international law. The 1947 Geneva convention was a consequence of the horrors of the second world war and the Nuremberg trials. I want that convention to be implemented throughout the world so that the tyrannical and monstrous treatment or people can be dealt with without the need to resort to war and the destruction of the innocent.

I have no doubt that Saddam Hussein was entirely in breach of the Geneva convention, which is part of our law, when he gassed the Kurds and prosecuted a war against Iran; yet our Government offered him export credits. The Geneva convention obliges us to arrest representatives of that Government in any country in the world. Similarly, I have no doubt that Pol Pot and the Khmer Rouge have been gravely in breach of the convention, and that under our law—and international law—we should take action against them. But we supported a coalition that included representatives of the Khmer Rouge.

Painful and ironic though it is, there is no doubt that Israel is also in grave breach of the convention because of its treatment of the Palestinians in the occupied territories. International law and our law oblige us to enforce the convention and take action against representatives of the Israeli state.

I do not believe that such action should be simply for revenge: it would be taken to prevent the recurrence of such oppression. If the international community would rise to the challenge, we should be able to protect human rights across the world, and prevent the brutalities that happen everywhere. I voted for the Bill previously because I believed that if we enforced a law on war crimes we might prevent future crimes of the same kind.

Having followed the debate in the House of Lords, I became increasingly worried about the likely consequences of the Bill. I remember appearing on "Question Time" at about that time, and saying that I might have to reconsider my vote. I said that I would have to read the Hetherington report, for instance.

Mrs. Llin Golding (Newcastle-under-Lyme)

Will my hon. Friend give way?

Ms. Short

I will in a minute.

I received a good many letters from Jewish people who said, fairly and rightly, that the horrors of the holocaust had been such that no one involved should get away with it. I also received many letters from older service men, saying, "All sorts of atrocities are perpetrated in a war. We have had the war crimes trials; it is wrong for us to return to the matter now." I found the difference of opinion interesting.

Mrs. Golding

I have a copy of the record of the Second Reading debate, along with the details of the vote that followed it. My hon. Friend's name is not recorded in either.

Ms. Short

I may or may not have missed one of the votes, but I voted deliberately—[Interruption.] We can return to the matter later, but I remember the occasion and I remember going through the Lobby. We can double-check, but I voted. I think that my hon. Friend should be careful. I will see her later. I will find the record. I object to such challenges. I know that I voted. If my hon. Friend is calling me a liar, we will sort it out later, but I am telling her now that I voted.

Mrs. Golding

It is not me; it is Hansard.

Ms. Short

I voted, and I voted for the Bill. My hon. Friend is pushing it too far.

Because of my increasing concern, I read the Hetherington report this weekend, and became increasingly troubled by it. I was struck by the enormous difficulties faced by the people who have to travel around the world trying to find out the real names of the individuals concerned, establishing whether they had found the right ones and collecting evidence in faraway countries from people who did not speak English and were also very elderly. I felt increasingly that we would not be able to obtain accurate information, and that it was dangerous to contemplate any trials.

There can be no excuse or forgiveness for such terrible crimes as those committed in the Baltics, the Ukraine and Byelorussia; but they were committed 46 years ago, and the witnesses involved are very old, as are those alleged to be guilty. It is hard to believe that identification will necessarily be accurate or, indeed, that the evidence will be so. I fear that fair trials will be impossible. I also see a real danger that, as frail and elderly people are brought to trial, the effect on public opinion will be the creation of sympathy for those who are charged and the lessening of anger about the evil of the crimes that were committed. People will not be reminded of the horrors of the war.

My other fear is that, because we ceased to try war criminals in 1948, we will be haphazard about who is tried now. Some war criminals who committed much worse offences than others may get away with it. Surely it is deeply wrong that, because of the way in which the Baltic issue arose, the less evil criminals may be the ones who are brought to trial.

In Australia, where powers have been taken to try war criminals, no trials have taken place. In Canada, there has been one such trial. A man was tried for enormously serious offences—organising the shipping of large numbers of Jews to concentration camps. There were many witnesses; the man was acquitted. That is another angle. First, the Bill might result in unfair trials; secondly, public opinion might be sympathetic to the old men, rather than angry about the evils that had been committed; thirdly, serious war criminals might be acquitted because of the passage of time and the attendant doubts. That is what happened in the Canadian case.

If the Bill is not passed, it will be open to the Government to consider stripping British citizenship from any individual against whom there is evidence. The possibility of extradition also remains open. I stress to my hon. Friend the Member for Birmingham, Perry Barr (Mr. Rooker) that the Bill is not the only possible remedy.

Mr. Allason

The hon. Lady passed over one point very quickly. Is she advocating the extradition of people from this country so that they can be tried elsewhere? The only countries likely to accept them would be those that retain capital punishment.

Ms. Short

I am not advocating anything. I am simply saying that I oppose the Bill, and that, if we reject it, we have other options in regard to individuals against whom we have seen no evidence. I have read the report: it tells of serious allegations. There is a historical description of the awful things that happened in the Baltic states and the Ukraine, but we do not know the nature of the allegations made against the individuals whose cases have been looked into. If we reject the Bill, and if some of the evidence becomes available—if we want to take action against some monstrous war criminal living in our country—it will be open to us to consider stripping him of British citizenship, symbolically and demonstrably. Alternatively, we could decide on deportation or extradition. We may want to consider that in future, given the changing situation in the Soviet Union.

The crimes that we are discussing—the holocaust, and all that happened in the second world war—can never be forgiven. The guilt of those involved goes with each of them to the grave. I oppose the Bill, however. I do not believe that the trials would lead to justice; I fear that they would lead to a diminution in public anger about the historical crimes that were committed. I believe that the House would be making a grave mistake if it proceeded with the Bill.

6.18 pm
Mr. Julian Amery (Brighton, Pavilion)

First, let me tell the House that my hon. Friend the Member for Northampton, North (Mr. Marlow) has consulted the Division list and has confirmed that the hon. Member for Birmingham, Ladywood (Ms. Short) voted. No doubt her hon. Friend the Member for Newcastle-under-Lyme (Mrs. Golding) will apologise in due course, but not in the 10 minutes allotted to me.

Mrs. Golding


Mr. Amery

No. I will not give way.

Mrs. Golding

On a point of order, Madam Deputy Speaker.

Mr. Latham

It is injury time.

Mrs. Golding

It is indeed. I assure the House that I have consulted the record of the Second Reading debate and the subsequent vote as recorded in Hansard and that my hon. Friend's name does not appear.

Madam Deputy Speaker (Miss Betty Boothroyd)

Order. This may be a point of interest, but it is not a point of order for the Chair. It does not concern the Chair which way an hon. Member voted, or whether she voted at all.

Mr. Amery

Thank you, Madam Deputy Speaker. I hope that you will allow the clock to start now.

We all agree that it is a long-standing convention that in the ordinary way the Executive should never interfere in the judicial process, but here we are not concerned with the judicial process; we are concerned with new legislation. Therefore, it is not only our right but our duty to consider the political circumstances that surround the Bill. It is aimed at a certain number of individuals of Lithuanian, Latvian, Estonian and Ukrainian origin and citizenship in their own time. They joined the German forces to fight against the Russians whom they regarded as their natural enemies. None of that in any way excuses any crime that they may have committed. However, within a few months of the crimes that they are alleged to have committed, Soviet citizens were committing similar crimes in much the same locality. The Bill does not provide for the prosecution of any of those individuals if, by any chance, they happen to be already resident in this country, which is unlikely but not inconceivable.

The Ukraine and the Baltic states are, alas, again on the agenda. The process of liberation or reoccupation that characterised the events that we are talking about is already, in a smaller way—thank God, so far—taking place. I doubt very much the validity of the argument advanced by the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) about the importance of a declaratory gesture. This Bill would be declaratory against those who sided, as they thought, with those who were fighting for the liberation of their country against the Soviets, but it would not be declaratory against those who committed similar crimes on behalf of the Soviet Union. That would be to send the wrong message.

My right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) talked about show trials. He was completely right. I am sure that the judiciary would conduct the trials in an honourable way, but we have to consider not only what our press would say; imagine the meal that the hard-line press in Moscow would make of them. They would show up Baltic atrocities on the Nazis side but would make no reference to any atrocities that might have been committed by the Soviets in a similar context. We must take account of the international context.

The hon. Member for Walsall, North (Mr. Winnick) movingly drew attention to the war crimes being committed by Iraq now, against both the Kuwaitis and their own people. Apart from loose talk, I can find no procedure for penalising those who are committing such crimes—the leaders in particular. As far as I can make out, we are referring in this Bill to people who would be the equivalent of non-commissioned officers or warrant officers in this country.

Apart from the issue having been blown out of proportion, the Bill is historically wrong. We are always told that generals want to fight the last war. Here it is a question of the lawyers wanting to fight the last war. They are trying to fight the unfinished business of the second world war without paying the slightest regard in the Bill to the crimes that have been committed since then. That must offend our sense of equity and justice. To make just another declaration against the unforgivable holocaust and to say nothing about the crimes that have been committed since seems to me grotesque.

One of the curious aspects of eastern Europe at present—I follow its affairs as closely as I can—is how little evidence there is so far of vengeance and vendetta. There is the German protest about Mr. Honecker being taken off to Russia for medical treatment, but there have been very few charges. We should take that into account. A degree of merciful oblivion is required because, Lord knows, the crimes committed in eastern Europe, not only by the Germans in their day but by the Soviets in theirs, are equally unforgivable. We have to live with that. The time has come, to use Churchill's phrase, to pass a merciful sponge over the record. The House ought to do nothing that would revive old antagonisms and reopen old wounds. That would be beneath the dignity of this House.

At a time when our judiciary is under some question, the Bill that we are discussing does not seem to provide a solid basis for a constitutional challenge to the other place. We should do well to reject it and to think again about the future—about whether there is the need for wider legislation to encompass war crimes in all parts of the world, if war criminals should come to reside here. I hope that they will not, but if that happened perhaps there ought to be another measure to deal with them. Entirely to direct our fire at a few old men who are the relics of the second world war and to ignore in any declaratory announcement what has happened since would be little short of obscene.

Ms. Short

On a point of order, Madam Deputy Speaker. As I was accused, in effect, of being a liar by my hon. Friend the Member for Newcastle-under-Lyme (Mrs. Golding), may I say that on 12 December 1989 we endorsed in a vote the need for legislation on the basis of the Hetherington-Chalmers report. I voted for that. Thereafter, I abstained in the vote on the Bill, and I shall vote against it tonight. That is the position, which I wanted to put on the record.

Mrs. Golding

On a point of order, Madam Deputy Speaker.

Madam Deputy Speaker

Order. Is the hon. Lady sure that her point of order is for the Chair and something that I can resolve? I cannot resolve much, but I shall try to resolve this point of order.

Mrs. Golding

Was it in order for my hon. Friend the Member for Birmingham, Ladywood (Ms. Short) to call me a liar?

Ms. Short

I did not. I said you called me a liar.

Mrs. Golding

I was quoting from Hansard, which cannot lie, as we all know.

Madam Deputy Speaker

Order. I have had enough points of order which do not relate to the debate.

6.27 pm
Mr. Ted Leadbitter (Hartlepool)

have read every speech on this matter since the principle of the Bill was first debated in December 1989. One of the most impressive facts that I have learnt from those speeches was the absolute sincerity of Members of the other place and of this when addressing themselves, without rancour, to the issue. An interesting facet of the debate is that Members of both Houses have expressed their differing points of view with great skill, thought and responsibility. This, therefore, is one of those occasions when there is no need for any hon. Member to get upset. The House is addressing the issue in a highly responsible manner.

I remind the House that this is a Bill to Confer jurisdiction on United Kingdom courts in respect of certain grave violations of the law and customs of war". We are being asked to pass legislation that would enable our courts to deal with breaches of the laws and customs of war. I remind the House that for over 100 years we have been signatories to a bank of international jurisprudence and international law—treaties and conventions that addressed violations of the laws and customs of war. Therefore, we have to ask ourselves whether it is correct to suggest for one moment that the House of Commons was wrong to introduce the Bill. Before the mid-1980s, the House, the Government and the country were not aware that war criminals were living in Britain, so there was no need to question our commitment to the European convention on human rights or the Hague convention. To comply with conventions made following the second world war, all civilised nations accepted that the passage of time should not inhibit a country in dealing with war criminals.

In the mid-1980s we became aware of the possibility of war criminals living in Britain and hon. Members set up a war crimes group, of which I had the honour of being a member. We carefully considered the information that was available to us. To its credit, the group made it abundantly clear that it would not reach hasty conclusions and set about, through the Home Office, seeing how best it could assist the House in reaching a reasonable conclusion—thus, the Hetherington report.

After that, as senior hon. Members will understand, the Government had to go through the processes of drafting a Bill and so on, so it was not a hasty process. In 1989, we were asked to discuss the principle of the Bill.

The Hetherington report deals with restrospection. Page 92 says: Both the European Convention on Human Rights (1950) and the International Covenant on Civil and Political Rights (1966) contain Articles to prevent the introduction of retrospective legislation. Both, however, contain provisos to allow the trial and punishment of persons for acts or omissions which were, at the time they were committed, already regarded as criminal by the international standard. That is quite clear. Page 97 says: In our view, to enact legislation in this country to give the British courts jurisdiction over murder and manslaughter committed as violations of the laws and customs of war would not be to create an offence retrospectively. That was the view of people who had considerable legal experience.

Some specious arguments were advanced in the other place on whether we should proceed with the Bill. If we are complying with international jurisprudence on retrospection and therefore not committing an offence in our own country or abroad, it is pertinent for someone to ask, "After all these years, should we hesitate because of the possibility of an unfair trial?" As I said in debate in March last year, that is not the job of this House. Many lawyers who spoke on the Bill in the other place and in this House made the mistake of addressing a court. We give courts the powers to work. If a judge believes that a trial may be unfair, he can stop it; he does not consult the House because that proviso applies to all trials.

Another objection to the Bill is that more than 40 years have passed. I understand that a Member of the other place said, "After 40 years, old men forget." I served as a young officer in the war and I am now 72, but I am neither old nor do I forget. If I committed an offence, no hon. Member would say "Do not go to court because you cannot defend yourself." I am quite capable of doing that.

We are tampering retrospectively with laws on evidence, which is not our job. Our job is to provide the courts and investigating authorities with the powers to get on with their work. I do not want to criticise lawyers, but sometimes they think that they have a monopoly of reason and experience. Often, they have a monopoly of mediocrity. Those who have been in public life for many years know when to advance an objective case. No prosecuting counsel, Director of Public Prosecutions or person involved in instigating committals will proceed if there is a lack of evidence or doubts about a case.

It was said in the other place that these trials will cost £12 million. Not long ago, £5 million was spent on finding out whether five officers were telling the truth in the Cleveland child abuse case.

I have firmly mentioned the duties of the investigating and judicial authorities. Our duty is to comply with the letter of the Bill and to enable courts to bring someone to trial if they can do so.

6.37 pm
Mr. John Gorst (Hendon, North)

Although my argument is a factor for consideration, it is not necessarily the main justification for giving the Bill a Second Reading. The evidence against some of the alleged war criminals is not known only to the Home Office. Although some of the names on the Hetherington list have been broadcast on Scottish Television, it does not follow that they are the chief or the only people who will be investigated.

Information is now available that war criminals are living in our midst—this is the new factor that did not exist 40 years ago—but do we want to endanger ourselves with the ugly and distasteful alternative of trial by media? Make no mistake, names may be leaked and the media will decide what to do if we do not pass the Bill and provide a legal procedure.

The accused will have more protection from the processes of law than he would from the jungle of media harassment. In court, he will have to face evidence, and only evidence that is admissible and properly tested. If, as the Law Lords and my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) suggest, that evidence is inadequate, the accused will be exonerated; he will be found not guilty and acquitted and that will be the end of the matter. If we do not provide for a trial in a court of law, the "evidence" that will be adduced by the media will be based on hearsay; it will be untested, tendentious and partial. The verdict will never be promulgated. The case will be inconclusive and an ugly slur will remain. I therefore believe that the Bill is in the interests not only of justice—as has been argued by right hon. and hon. Members on both sides of the House—but, ultimately, of the accused.

I accept that an unpleasant prospect is no excuse for choosing an undesirable or unjustifiable legal procedure. That would not be my contention. However, I do not believe that the Bill is either desirable or unjustifiable. It is a necessary deterrent to show not only the willingness of the House to act but its unwillingness to forget. The Bill is justifiable because the infamies committed were so infamous. That has been true not just before their perpetration but at the moment of their commission and ever since. The fullest possible penalties and legal processes are called for, and are justified.

Last Tuesday, when we discussed the procedure motion, I asked whose conscience matters most in our system of government: is it that of the elected or of the erudite in another place? If we will the end, we must justify the means. If we want justice, we must legislate to obtain it. Leaving the matter to the media would be an abdication of responsibility and would be quite without justification.

6.42 pm
Mr. Jeff Rooker (Birmingham, Perry Barr)

To the best of my knowledge—in case hon. Members should wish to interrupt me—I have attended every one of our debates on this matter. I have intervened from time to time, but this is the first occasion on which I have made a speech—and I came to the House today not to make a speech but to listen to the opening speeches and as much of the argument as possible.

Let me make it absolutely clear that I have not read the House of Lords debate. I make no apology for that. I was elected to the House of Commons to use my common sense and judgment to the best of my ability. We make mistakes, and sometimes we have a second chance and can rectify them. Nevertheless, on this issue, I have remained consistent throughout.

I read the Hetherington-Chalmers report, and, some time after it was published, I had the opportunity to listen to both authors address a small conference here in London and to question them. At that time, we also had the opportunity to question the head of the war crimes investigation offices in the United States, Canada and Australia, and I took that opportunity. I was convinced that they had made the right decisions and were proceeding correctly. I accept that the American circumstances are different. The Americans have done something that, frankly, we would not have contemplated doing. In some ways, I am sad that my hon. Friend the Member for Birmingham, Ladywood (Ms. Short) is not in the Chamber. The Americans have extradited back to the Soviet Union and effectively deprived people of citizenship—a concept that both Government and Opposition have forsworn. If the Bill fails, that is not an option. I cannot understand how my hon. Friend the Member for Ladywood can think that it is. How can she think that if, for whatever reason, this House, or both Houses, decide by a majority not to proceed with the Bill, there will be a long stop—that we can try something else such as depriving people of citizenship or extraditing them? We have forsworn that concept throughout by accepting the recommendations of the Hetherington-Chalmers report, which sets out the matter in detail. For reasons that all of us on both sides of the House understand, we would not extradite; that is not an option. The Bill represents our only opportunity to redress a wrong and correct an anomaly—and I accept that, in this context, that is a somewhat neutral word—in our nationality legislation, so that everyone who is at present a British citizen or residing in Britain under our protection is treated equally.

In an earlier intervention, I caused my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) to be accused of saying that this is just a declaratory Bill. I do not think that my right hon. Friend put it quite like that and it was unfair of hon. Members to suggest that he did. In my intervention, I suggested that, once the House had passed the Bill following an open debate based upon the evidence put to us, it would not matter to us if the prosecuting authorities in their wisdom decided not to take a prosecution or, once someone had been charged, not to proceed with an action in court. That is the decision of the prosecuting authorities and it is not for the House to prejudge the issue by refusing to pass the Bill. That needs to be made absolutely clear, and as a non-lawyer I can say that because I do not have hang-ups about whether I am in court or in the House of Commons. I am here as a legislator. Unlike the Director of Public Prosecutions, the Attorney-General and the prosecuting authorities, I do not have to make those decisions.

I do not think that enough has been made of the fact that we are not talking about crimes committed during conflict between armed forces. We are talking about the mass murder of unarmed civilians of all ages—the wiping out of whole villages. In some cases, it never even came to concentration camps; the victims did not even get that far.

Suppose that the House does not pass the Bill. I hope that that will not happen, but, if it does, the Government ought to respond by ensuring that volume 2 of the Hetherington-Chalmers report is published so that the British public can make their own judgment. It could be published without the names—I would not go so far as to suggest that they should be included—but the British public should see the details of the crimes to which volume I refers and the reasons given for our passing the Bill. It is crucial that the matter should be out in the open so that the British public can judge for themselves.

For all the world, one might think that war crimes prosecutions had stopped around the world, but the German Government are still proceeding with war crimes prosecutions—not vigorously enough, in my view, as General Mohnke is still collecting his £400-a-week pension and the Germans still have not made up their minds whether to take any action. After the war, the British military forces were looking for General Mohnke. The evidence is there in our files and the Germans are considering the matter. If they agree that it is right to do so, they will press a charge. They have not wiped the slate clean. The Germans are also looking for Mr. Honecker. One presumes that they want him back so that they can look at what happened years ago. Time cannot diminish the gravity of the crimes that we are discussing, and it would send the wrong signals to the rest of the world if we suggested that it could.

The concept of deterrence has been mentioned. I agree that the Bill will not necessarily provide a deterrent because we are talking about a short period of history during which a small group of people have escaped justice because of a quirk of nationality law. We are told, "This cannot happen because the quirk has been corrected both by British and by international law."

During this debate and earlier debates on the subject, I have been reminded of a telling phrase uttered at the Dispatch Box 10 years ago and in a slightly different context. The former Prime Minister, Lord Callaghan, said of a statement by the right hon. Member for Finchley (Mrs. Thatcher), then herself Prime Minister, that it was like the rustle of dead leaves. This Bill relates to issues that date back much further than the issue to which my right hon. Friend referred on that occasion. However, crimes were committed and people are living in this country who have not been charged.

The money argument about the cost of the trial and the investigation is irrelevant. The former Home Secretary stated that there would not be a shortage of money to pursue a defence. The trials would be fair, but this House and the other place must consider the point made by the hon. Member for Hendon, North (Mr. Gorst). These issues will not go away. Many people outside the parliamentary system have names and dossiers and that information may be misused. There could very well be trial by media.

We should not be afraid to legislate because we are worried about the standards of The Sun. Similarly, by not legislating, we might give a free reign to the gutter press. We can control matters by legislation with an organised process under which people can receive justice.

The threat of being charged may have a salutary effect. It should be made abundantly clear that not all war crimes were committed by the losing side. In respect of evidence, there is chapter and verse to prove that, if General Patton had survived the war, he would have been in real trouble.

However, in this case, evidence is available and charges have been made. Over the past five or six years it has become clear that this country did not know that we had allowed alleged war criminals to reside in this country and obtain British citizenship. If they are criminals, those people clearly told lies to obtain citizenship. Therefore, it should be possible to charge them under a law that would treat them the same as me and everyone else in this House. I see no justification for allowing a quirk of British nationality law to prevent them from being charged if there is sufficient evidence for it.

6.51 pm
Mr. Tony Marlow (Northampton, North)

A terrible thing happened half a century ago. Millions of people died and millions more were deeply and unimaginably wronged. The acid is still gnawing at their souls. They exist and they survive, but their lives have been destroyed.

There is a justifiable motive for the Bill which one would share if one were an heir to the holocaust. One could not rest until justice had been seen to be done. We can begin to understand the feelings of some of those people, but we cannot begin to understand their full depth. However, we are entitled to ask questions on their behalf. Would it help if these dreadful details were laid bare and they were forced to relive the horrors of the past in a show trial or a series of show trials? Whatever my right hon. and learned Friend the Attorney-General may say, there will be show trials as was the case with the Demjanjuk trial in Israel. The hopes of those unfortunate people may be justified if the prosecution is successful. If not, would not it be a harrowing experience to fall at the final hurdle?

No one would dispute or wish to stand in the way of the motivation of justice. However, if justice is unlikely to be secured, is not that a justification for the view that the exercise is best avoided on everyone's behalf?

Mr. Allason

Will my hon. Friend give way?

Mr. Marlow

No, I do not have enough time.

There is another motivation involved apart from the motivation of justice. Here I am forced to refer to the speech of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley). He seemed to say that the Bill was unnecessary; prosecutions would be unlikely to succeed; the Bill is not good legislation and is unlikely to produce justice, but none the less he was forced to vote for it because he might otherwise be labelled anti-Semitic. He would be happy to see a law placed on the statute book, not for the better governance of Britain, but, as I said in my point of order earlier, as a gesture. In one of those characteristic acts of political courage that we have come to associate with the right hon. Gentleman, that exercise in moral gymnastics has been devised purely to get a persistent and effective lobby off his ample back.

What is it about the right hon. Member for Sparkbrook? He can argue passionately for a principle and believe passionately in it, but he is forced to vote against lest his motivation is misconstrued. I would rather be a used car salesman. As I said, there is another possible motive—and that is propaganda. The right hon. Member for Sparkbrook has naively allowed himself to become the tool of such an exercise.

I asked my right hon. Friend the Home Secretary why the Bill was restricted to 1939 to 1945, to areas of German influence and to British citizens. He said that there were no cases from Japan, from other periods or other parts of the world. However, the people about whom we are concerned were not British. Their crimes were not committed in Britain and they were not under British jurisdiction. Their victims were not British. If the principle of the Bill holds good, why not extend it to those cases in which British interests and individuals were involved? This is, after all, the British Parliament.

I am afraid that we have allowed ourselves to become involved in a propaganda exercise which happens to be against British interests and British policies in the middle east. We are puppets on a string. My fear is that we are dancing to a tune that is played by the most sophisticated and heavily orchestrated lobby of the post-war world. As my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) explained more tactfully than I, is it not at least possible that the victims and bereaved of this the most savage, extensive and depraved mass crime of our century are being used cynically in an act of policy by the state of Israel to build up a wall of moral blackmail behind which the excesses and ambitions of that state can shelter without criticism?

We all mourn the holocaust and its victims, both dead and alive. However, we should have nothing to do with this Bill.

6.56 pm
Mr. David Winnick (Walsall, North)

The hon. Member for Northampton, North (Mr. Marlow) mounted once again his favourite hobby horse and it surprised none of us that he saw a conspiracy linked to the same sources to which he often refers. The only surprise was that black people did not get a mention. We know how hostile and antagonistic he is to people who do not have white skins.

I do not dispute for a moment that the Bill is in many ways unsatisfactory. I agreed with much of what my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) said. He understandably argued the pros and cons and concluded that he would vote in favour of the Bill, but I share some of his reservations about the Bill, although perhaps not to the same degree. The machinery that the Bill provides is, in many ways, unsatisfactory.

I recognise some of the obvious difficulties in dealing with crimes committed 50 years ago. Neither am I unaware that if the measure become law and charges are brought, there could be what I and others would describe as misplaced sympathy for the defendants. I recognise the limitations and that is why I have reservations about the Bill.

However, what is the alternative? If there is sufficient evidence that those who are known to have committed the most monstrous crimes against humanity are living in Britain, and if under the present law no action can be taken, we would be turning a blind eye. We would simply be saying that it was unfortunate and that we wished that we had known of those people's records when they arrived here. However, we would be able to take no action, despite the fact that the Home Secretary told the House that there seems to be substantial evidence at least against three people currently living in this country.

I cannot accept that justice should fail to be done because such crimes were committed so many years ago. Of course, it would have been much better had justice been done at the time. The allies could have pursued Nazi criminals at the end of the war. Action after the war was promised when this House first learned of the extermination camps. There were statements about the atrocities. The late Sydney Silverman—to his lasting credit—said that the House should rise in memory of the victims. During the war, there was a very strong feeling that action should be taken. I understand that feeling. Of course, very little was done.

To the credit of the allies, justice was undoubtedly done at the Nuremberg proceedings. There were other proceedings too. However, by 1948–49 the cold war had begun, and there was not much enthusiasm for such action. Many of the sentiments that were expressed today by the right hon. Member for Brighton Pavilion (Mr. Amery) could be used to describe feelings in the Federal Republic of Germany during the 1950s and the 1960s. There was no real wish for proceedings against people accused of Nazi war crimes. Only because of international pressure—to some extent, pressure inside Germany, but pressure that was much more international, which the hon. Member for Northampton, North might regard as some kind of conspiracy—did the German authorities agree that such crimes against humanity should not be covered by any statute of limitations.

In the period since we last debated this subject, the Gulf war has taken place. One thinks of the atrocities that were carried out in Kuwait by Saddam Hussein's thugs. I take the view that the people who committed those crimes—not 50 years ago, but within the last few months—should be brought to justice.

Mr. James Coachman (Gillingham)

Does the hon. Gentleman agree that there is a major difference between the crimes committed recently in Kuwait and Nazi war crimes? Those that were committed in Kuwait are very fresh in the minds of the victims, whereas, in the case of those committed 50 years ago, identification is quite impossible.

Mr. Winnick

The hon. Gentleman has anticipated my point. We know that many Nazi war criminals escaped by fleeing to various countries. If the people who committed atrocities in Kuwait in the last few weeks and months were to escape justice, and if, in years to come, they were to be found in Britain or some other country, they ought to be brought to justice. The fact that justice was not done at the time is no reason for its not being done at all.

One thinks of the moors murders. Suppose that the people responsible for those crimes had not been brought to justice at the time. Would anyone argue that they should not now be brought to justice because too much time has elapsed? Consider the case of the Birmingham Six, who have now been found innocent. In November 1974, 21 people died in Birmingham as a result of the pub bombings. Many others were injured, and some were paralysed for life. Why should not the people actually responsible for that crime be brought to justice, after however long a period? It will soon be 17 years since that crime. However desirable it is that justice should be done at the earliest possible date, it is better that it should be done late than that it should not be done at all.

I should like to see established an international court, under the auspices of the United Nations, to deal with crimes such as we are debating today. Hon. Members may know that in the early 1950s the United Nations decided in favour of the creation of such a court. In view of the state of international affairs in those days—a situation that continued until recently—it is not surprising that agreement was not reached. I hope that, in the more relaxed international atmosphere of today, the United Nations will find it possible to agree to the creation of a court where such crimes could be tried. Several hon. Members have referred to other crimes committed during, and since the end of, the second world war—for example, those committed under Stalin. An international court such as I have in mind could be used to try such people.

The right hon. Member for Old Bexley and Sidcup (Mr. Heath) reiterated views with which we are familiar. He has been against this measure from the very beginning. He referred to crimes committed in Kuwait. If we had listened to his advice, those crimes would be going on right now, and would continue into the future. The fact that they have been brought to an end is due to the war and to the way in which the allies liberated Kuwait. As I have said from the very beginning, what happened in Kuwait was a just war, as the second world war was. Everything that has happened vindicates my views and the view of the large majority of hon. Members.

The right hon. Gentleman concluded his speech by talking about vengeance. I am certainly not interested in vengeance. I hope that I never have been, and I hope that no hon. Member is. It is said—whether it is true I do not know—that at one stage during the last war Winston Churchill suggested that a large number of Nazi officers and officials should simply be taken out after the war and shot. I do not think that there is any record of such remarks, but it is said that Churchill made them. Perhaps he changed his mind. Had such action been taken, I would have opposed it. That would have been vengeance. What I am interested in is justice and the rule of law. Summarily shooting people—whether criminals connected with the Nazi regime, or Saddam Hussein's thugs—is not the sort of action that I want to see taken. None the less, this measure, with all its limitations, and despite all the reservations about it, is one means of ensuring that justice will be done, however long the delay.

So long as I live, I shall remember not only what I have read and what I have heard from other people, but also the camps that I saw in a cinema newsreel in 1945. I know that several hon. and right hon. Members actually experienced the liberation of concentration camps. I was too young to be involved in that. I do remember, however, seeing film of the opening of Belsen and other extermination camps where monstrous crimes had been committed. Then there were the events such as those at Babi Yar, near Kiev, under Nazi occupation. Day by day, men, women and children were systematically slain. Does anyone suggest that because those crimes were committed so many years ago, at a time when the people concerned were not British citizens, the criminals should be allowed to go scot free? I cannot accept that—which is why I support the legislation.

7.8 pm

Sir Bernard Braine (Castle Point)

I have been deeply impressed by the speeches of the hon. Members for Walsall, North (Mr. Winnick) and for Birmingham, Perry Barr (Mr. Rooker). I too do not seek vengeance: I seek justice.

I am a veteran of the second world war. During that war, I was conscious that we were fighting against something bestial and evil. The war crimes trials in Nuremberg proved that that was so. Not until 1986, when it was first alleged that Nazi war criminals were living in this country, was the spotlight turned on this aspect of the matter. We have come a long way since then.

In February 1988, the Hetherington-Chalmers inquiry was set up. At that time none of us could have imagined what would emerge—that living here in Britain, having secured the high privilege of British citizenship, were individuals against whom there was powerful evidence of involvement in the wholesale murder and manslaughter of innocent civilians.

There have been many references to what happened in the concentration camps. I have not seen the evidence, but I know what Nazi henchmen did in the occupied territories. They committed appalling and abominable crimes against defenceless citizens who were sometimes pushed into their own churches and burnt alive. I can think of scores of such cases that have been made known to me over the years.

Sir Thomas Hetherington, the former Director of Public Prosecutions, and Mr. William Chalmers, his Scottish equivalent, are very highly respected former prosecutors. They were the most experienced persons who could be found to assess the evidence and to apply the strict criteria that must be met before such evidence could be admitted into a British court. They produced two reports, the second of which, quite rightly, remains unpublished and locked away and contains the evidence available against a certain limited number of individuals.

Since the publication of the inquiry's report the Government have been consistently committed to war crimes legislation. I am glad that they are not wilting now. I congratulate them on reintroducing the measure so speedily. Successive Home Secretaries, supported by former Home Secretaries now on the Opposition Benches, have wholeheartedly supported the Bill. They have seen the unpublished report, and are among the Bill's most important proponents.

I fail to understand how, particularly during the Second Reading debate in the other place, some could argue that there was insufficient evidence. Had they, by some chance, seen the unpublished report? Were they unaware of the appalling behaviour of the Nazis and their henchmen during the second world war? Have they forgotten Oradour and Lidice and the thousands of other Oradours and Lidices that occurred across occupied Europe and the Soviet Union? Were they oblivious to what happened at Buchenwald, Auschwitz and Dachau and all the other abominable centres of human persecution that were wiped away as a result of Nazi defeat?

Far from having any wish for vengeance, I have been the chairman of the British-German parliamentary group for the past 30 years. Why?—because the first victims of the Nazis were the Germans themselves and because one of the greatest happenings in Europe since the war has been the way in which the German nation has purged itself of the Nazi past and governs itself in a democratic and sensible way.

There is no vengeance in my advocacy of the Bill, but—I hope that the Government will not wilt on this point—I demand justice. The matter is simple. Those who have been accorded the high privilege of British citizenship should not be excused the liabilities that go with it. I inform the faint hearts and the doubters that if a British subject allegedly committed murder overseas during that period he would be liable to prosecution. If we had known then what we now know, the persons concerned would never have been granted British citizenship. That is what lies at the heart of the Bill.

Earlier, it was asked why the legislation applies only to world war two. The answer is clear. It is because that is where the loophole exists. People who committed crimes after 1957 are already punishable under the Geneva Conventions Act 1957. Prosecutions for wilful killing and torture may take place in the United Kingdom wherever in the world the offence was committed and whatever the nationality of the alleged offender at the time. That is the answer. We are plugging a gap in our experience.

Some have argued that there would inevitably be show trials. Why should that be? The standards of evidence necessary for conviction would be the same as for other criminal trials in the United Kingdom. Witnesses are cross-examined, documentary evidence is subject to forensic testing, and experts are heard. One does not need to be a lawyer—it is a distinguished profession—to know that judges in this country can exclude any evidence if it appears that the accused has suffered prejudice from the circumstances in which that evidence was obtained. My hon. Friend the Member for Gillingham (Mr. Couchman) asked a perfectly legitimate question, and I can easily understand why he asked it. If an accused is unfit to mount a proper defence, and if the judge is not totally satisfied that the accused had every opportunity to defend himself, the case will not proceed. In short, anyone who believes that there will be show trials does not have a very high regard for the British system of justice.

What is the point of trials so long after the offences were committed? Again I refer to the point I made at the outset—justice. Is someone prepared to tell the family of the innocent bystander who was killed by the IRA last month at Victoria station that the perpetrators, if they are fortunate enough to escape capture for a certain period, will not be brought to justice for their crime? We have no time limit in this country for the prosecution of murder, and nor should we.

A 45-year lapse between crimes and their prosecution is in fact a period of borrowed time. It was time borrowed by the perpetrators of crime for the enjoyment of freedom, democratic rights, and for living under the rule of law, when all along justice had a prior claim. Indeed, such persons have enjoyed the very rights they denied to others. Borrowed time should count against the evader, not for him.

May I say something about the rejection of the Bill in the other place? It is a Government Bill, proceeding through Parliament in exclusively Government time. It was drawn up by the Home Office and presented to the House of Commons by the Home Secretary. The measure was confirmed in the Queen's Speech. Last year the Bill received large majorities in this House—the elected House. On Second Reading the margin was a substantial 213 votes. Members of this House are responsible to electorates. We must listen to our constituents and consider their interests before making any decision. Free votes are not taken lightly in this House. The other place should be made to understand that.

We must understand also that the crimes that we are considering were not committed in the heat of battle. I emphasise that. They are cases of the premeditated mass murder of men, women and children—often committed hundreds of miles from the war front. During the debate last year in the other House it was said that the crimes that we are considering were committed as acts of state and regarded by the Nazis as part of their war effort. With your permission, Mr. Deputy Speaker, I shall quote—

Mr. Deputy Speaker (Harold Walker)


Sir Bernard Braine

I shall be brief. I wish to quote Kitty Hart, a survivor of the notorious Auschwitz concentration camp and a witness in 1939 at the trial of Gottfried Weise in the High Court of Wuppertal, Germany.

Mr. Deputy Speaker

Order. Even the Father of the House must observe the rules that have been laid down by Mr. Speaker.

Sir Bernard Braine

I wholly agree, Mr. Deputy Speaker.

7.18 pm
Mr. Alex Carlile (Montgomery)

I am grateful to you, Mr. Deputy Speaker, for allowing me to make a speech. During the previous Second Reading debate I attempted to argue the case on the merits. I do not propose to repeat everything that I said then. It was not an easy speech to make, and I do not wish to make it again. It is in the Official Report for anyone who wishes to read it.

When we spend much of our time rightly talking about the victims of crime, we should not forget that there are still living victims of the crimes under discussion. They remember what happened. They have as much right to have those crimes dealt with in accordance with justice as has a victim of any other crime.

My hon. Friend the Member for Caithness and Sutherland (Mr. Maclennan) spoke of difficulties for the defence in obtaining a fair procedure and fair acess to witnesses. He suggested that there may be what he caricatured as show trials and that justice could not be done to both sides. I say to my hon. Friend and others who share his doubts that justice can sometimes be a slow train comin'. Justice is not a train that runs to any timetable or even on a predictable track. However, it is a train that will not be derailed if its destination is true. If it would be unjust for a court to proceed against a defendant—perhaps because the way in which the evidence had been assembled would put the defendant at a disadvantage or because he is so infirm that it would not be fair for him to stand trial—justice will not be derailed, because the judge will rightly say that it would not be fair for the trial to go ahead.

If, however, a defendant is fit to stand trial and the evidence has been properly assembled, it will be open to the defence to obtain the necessary evidence. That has been done. In two recent cases—the United States against Artishenko and United States against Kowalchuk—the defence counsel could obtain his evidence. In the first case, the defence counsel secured the evidence of six Soviet witnesses even though he requested it only on the day of travel to the Soviet Union. In the second case, Soviet witnesses provided exculpatory evidence for the defence. On the basis of that testimony, the United States justice department terminated proceedings against him. Those are just two examples of circumstances in which Soviet authorities co-operated with both sides. They are conscious of their position in the world and know that they must meet international standards of justice in these matters.

We discussed earlier the opinion of lawyers. I hope that most other practising lawyers have as high a regard as I have for the opinions expressed by their Lordships in the other place. Like all senior practising lawyers, I have a particular regard for the opinions of the Law Lords. However, they are not necessarily infallible; and they represent a small, although extremely distinguished, minority of lawyers in this country. Although they provide wise opinions on cases that are referred to them on appeal, by the nature of their position they are judges who have not heard cases at first instance for many years. With the greatest respect, they are perhaps not the best qualified people to judge how jurors, witnesses and lawyers react or how the atmosphere of the court is reactive today.

As I am conscious of varying opinions on the. Bill, I have gone out of my way to find out what my legal colleagues think about it. I have spoken to many dozens of young lawyers throughout the country at various times. Some of them share the misgivings expressed by hon. Members, but the great majority of them—especially young lawyers whose strongly burning fire of an ideal of justice has not yet become case-hardened—believe that the Bill should proceed. They believe that, when one talks about show trials of war criminals, one is not talking about a case that is qualitatively different from, say, a celebrated murder trial. We have a free press and if they want to make a show of a case, it is up to them to do so. It is certainly not up to the House to stop them.

Most lawyers believe that the courts can exercise the necessary control, especially now that more safeguards are built into our judicial system than at the time of the Birmingham Six trial. That control can be effective in ensuring that justice is done. I have seen cases in which one would have thought that there would have been tremendous prejudice against the accused because of what they were alleged to have done, because of their colour or where they came from, or because they had allegedly committed a crime that was prevalent in an area to which they were strangers. Yet many of those cases resulted in acquittals. Juries are capable of fearsomely and fearlessly administering justice so that those who are not guilty are acquitted and those who are guilty, but against whom guilt cannot be proven beyond all reasonable doubt, are acquitted. I do not think for one moment that we have reason to doubt the ability of British juries to reach such just conclusions in war crimes trials.

7.25 pm
Mr. Ivan Lawrence (Burton)

It is a pleasure to follow the hon. and learned Member for Montgomery (Mr. Carlile), to speak so soon after my right hon. Friend the Member for Castle Point (Sir B. Braine), who leads Back Benchers on human rights issues, and even to follow the hon. Member for Walsall, North (Mr. Winnick). The number of times that the hon. Member and I speak on common causes is becoming embarrassing. It is a pleasure to speak because I was getting fed up with hearing hon. Members on both sides of the House say that the crimes in question were the most heinous ever committed in the history of the world but that we should do nothing about bringing to justice those who committed them.

Two weeks ago I went to Majdanek. The fact that so few people remember Majdanek is one reason for introducing the Bill. It was a concentration and extermination camp just outside Lublin, about two hours drive from Warsaw. It is not remembered because fewer people died there than in Auschwitz, a little further down the road. However, 360,000 people perished in Majdanek between 1941 and 1944. One can go into the huts crammed with victims' clothes—one of the huts has children's clothes piled from the ground to the roof. One can see the showers into which they were told they were going to be cleansed five minutes before they were put into the gas chamber next door. One can also see the empty cyclon B containers that killed, in 15 minutes, the women and children, the weak and the old who could not work. There are also containers of carbon monoxide—there was insufficient cyclon B—which took 45 minutes to asphyxiate the innocent. I walked around Majdanek practically alone two Saturdays ago and saw the trenches that had been dug. In one day, someone gave the order to shoot 18,400 Jews as they stepped off the backs of lorries, and they fell into the graves that had been dug for them. In one day, 18,400 people were systematically shot on the orders of a human being.

Therefore, when somebody asks whether the perpetrators of such heinous crimes should be excluded from justice because they have taken advantage of a loophole in the legal machinery that we were supposed to provide but did not provide, what am I to say? What would anyone who went round Majdanek, or anywhere else that such crimes were perpetrated, say if they knew that the people who ordered them and were responsible for them were alive today and sheltering in this country because there was a defect in our legal machinery?

I shall try to deal with two points raised by my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour). He said that bringing back the Bill was an abuse of the Parliament Acts because it could have been amended; but if he had listened to the debates in the House of Lords he would realise that it was clear that they did not want an amendment: they did not want the Bill. The Bill could not have been amended as they wanted because that would have destroyed it. This is precisely when the Parliament Acts should be invoked because what was being said in the Lords was totally different from the view repeatedly expressed by the overwhelming majority of the elected representatives of this House.

My right hon. Friend the Member for Chesham and Amersham said that he wanted to know why the Government knew better than the distinguished lawyers who made the speeches in the House of Lords. Not all distinguished lawyers are opposed to the legislation. If Lord Elwyn-Jones, the former Lord Chancellor, had lived, he would have spoken in favour of the Bill. Unfortunately, he died on the day it was debated.

Their Lordships expressed much emotion because they were closely connected with the events at the end of the war. They were involved for different reasons—perhaps they were in the Government who allowed the war criminals into this country, knowingly or unknowingly; perhaps they knew of the loophole and did nothing to close it; perhaps they were responsible for, or were a party to, letting the Cossacks go back to the Soviet Union where they died and so felt guilty; perhaps they believed that more anti-Semitism would be stirred up if the Bill were enacted; perhaps they fought valiantly in the war and were sick to death of everything to do with it and so did not want to go through the horror again. Whatever the reason, their Lordships were too closely involved with events immediately following the war. Sometimes people who are too closely involved are not the best ones to make judgments. That is not to say that their Lordships' speeches were not worthwhile, should not be listened to or examined. They are listened to and have to be examined as to the viability of their arguments.

Some of their Lordships said that the Bill was retrospective legislation. It may be, but that is not of itself a reason for not having such legislation. Such legislation is bad, evil and not to be countenanced when it makes something a crime today that was not a crime when it was perpetrated. It is for that reason, and no other, that retrospective legislation is wrong. When the crimes were perpetrated, those who shot the 18,400 people or gave the order or gassed or hanged or burned or flogged to death or drowned the people in Majdanek could not have been in any doubt that what they were doing was a crime against the world order and the law of every civilised country. It might be time to "throw in the sponge" if the crimes had not been so heinous—shoplifting or, perhaps, one murder—but we are talking about mass murder and genocide. Perhaps the Bill should be extended to other war crimes, but that is no reason not to introduce the Bill in its more limited form.

There are doubts about the procedures and identification, but Sir Thomas Hetherington made it clear publicly that the identification issue will not often arise. In many of the cases that he considered there was no dispute about identification—the dispute involved what was done. There have been objections that there will be no committal proceedings, but they are not held when a voluntary bill of indictment is introduced or in fraud cases, because we changed the law to get rid of committal proceedings. Live television from abroad was introduced in this House under the Criminal Justice Act 1988, and is being extended to Scotland. Statements of the dead are admissible in our courts, provided that the judge thinks that justice is being done. The judge provides the protection and has overall responsibility to ensure that justice, not injustice, is done. Whether prosecutions will or will not be possible is not a matter for us. We are talking about the machinery that gives the Director of Public Prosecutions the opportunity to say that there is sufficient evidence for the case to go forward, for a judge to ensure that justice is done and for a jury to decide whether a defendant is innocent or guilty. All we are being asked to do is to fill the gap in the legal

It has been asked why no action has been taken under international law. It was because we are now a party to the Genocide Act 1969, which is as retrospective as anything could be—it is specifically retrospective but it does not cover the war crimes of the second world war. The "violation of the principle of British justice" has been mentioned, but the principle of British justice is that justice be done, the wrongdoer be caught and sentenced, there is no time limit on murder, still less on mass murder and everyone should receive a fair trial.

That is British justice. British justice demands that the perpetrators of these crimes should be brought to justice. I congratulate my right hon. Friend the Home Secretary on bringing the Bill again before the House.

7.37 pm
Mr. Tam Dalyell (Linlithgow)

I greatly appreciated the sentiments of my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) when he said that he would not presume to give advice to any of his colleagues. However, I am conscious of walking on eggshells. I simply say for the benefit of my hon. Friend the Member for Walsall, North (Mr. Winnick) that I have been to the holocaust museum in Jerusalem recently. I did national service in an armoured regiment, and when we fired guns on the HÖhne ranges, the commander made all national service men go to Belsen; Colonel Douglas Stewart was right to insist on that.

I should like to talk quietly to the Home Secretary and I hope that he will forgive me if I do so in terms of my constituency. The first Polish armoured division came to West Lothian—to Fife and the west of Edinburgh—during the war. As the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) knows, and as was outlined in the Hetherington-Chalmers report, many of the Polish service men said, for self-evident reasons, that they could not return immediately after the war. Those Polish people have, by their vigour and intelligence, greatly enhanced the life of my constituency and its surrounding constituencies.

When I was a teacher I taught many of the first generation. Those children, including the Nawrockas, were bright and vigorous. I was greatly influenced by a man called Stefan Haluch, who was later to be a headmaster in one of the West Lothian schools and whose brother was, like many others, massacred with the Polish officer corps at Katyn. For many years it was said that the Germans were responsible for that massacre in the forest. Now, we know differently; it was as Mr. Haluch always told me. From that experience I have concluded that we had better be careful about trying to sort out blame, even after 20 years, let alone 50.

The formidable nature of the task is referred to in the report, paragraph 8.26, the issue of the Cyrillic alphabet, and identifying precisely who was whom. The problem of identification to which Hetherington and Chalmers referred is formidable.

I also wish to put it on record that, as a Scottish Member of Parliament, in one particular case, I had a great deal to do with William Chalmers who was the deputy Crown Agent. In my opinion, he is a man of considerable seriousness and quality of mind whom I greatly respect.

I shall continue to be rather anecdotal. When I was a very new Member of Parliament, I was invited to a Latvian wedding in the village of Stoneyburn in my constituency. It was a lovely occasion, but late into the night many things came out into the open which left an indelible impression on me, especially the number of relatives of the families who had been killed not by the Germans—we have to face that—but by the Russians. Subsequently, it has become only too clear that the British agents who landed on the Latvian coast—the hon. Member for Torbay (Mr. Allason) may know exactly what I am talking about, because Philby and others may have been involved, but I must not pursue that idea—bumped off the Latvian people, often family by family. That caused great suspicion and resentment. My hon. Friend the Member for Birmingham, Ladywood (Ms. Short) is right to say that that is covered in the report.

I remember that as a young Member of Parliament I sat late into the night at that wedding in my kilt. I was told that I should be very careful of one Latvian immigrant because his background was terrible. I asked his name—it was Hamish Mackenzie. I do not think that his name in Latvia was Hamish Mackenzie. There is a problem of identification—it is bad enough after 20 years, but after half a century the practical difficulties are formidable.

I admit that I was greatly influenced by the speeches made in another place, especially that by Lord Goodman. I wish to ask the Home Secretary whether he is worried by an element of what I believe Goering called "victor's justice". That is always a problem. We cannot pretend that all the injustices have been on one side, as I have tried to outline with reference to the Germans and the Russians. I ask the Minister to comment on what can be encapsulated as the problem of victor's justice.

Time is short, but I should like to comment on one other matter. It is incredible that the House should spend six hours of prime time discussing this issue when the overnment have found no time since the third week in January to discuss the urgent problems of the Gulf.

Mr. Anthony Beaumont-Dark (Birmingham, Selly Oak)

Thirteen million Jews died.

Mr. Dalyell

I understand that, but the here and now is rather more urgent for today's debate. We should be discussing who decided to bomb the road to Basra, what we are going to do about the continuing crimes of Saddam Hussein in Kerbala and elsewhere in southern Iraq, what our relations should be with the Shi'ites in the south and with the Kurds in the north, who are in the middle of what seems to be a bloody and open war. I am the last to complain because I was lucky in the ballot on Friday, but let us make no mistake—it should not be left to private Members' time to discuss the health hazards of cholera, typhoid and hepatitis, which will become more acute as the cool spring develops into a scorching summer. We should be discussing what on earth to do about the oil slicks and, above all, about the oil fires. Those issues are more urgent for six hours of prime time—

Mr. Barry Porter (Wirral, South)

On a point of order, Mr. Deputy Speaker. I should like to speak about the immediate problems of Northern Ireland, but I do not see what they have to do with the debate.

Mr. Deputy Speaker

The hon. Gentleman is quite right. Although we have a wide ranging debate on Second Reading, it is not as wide ranging as the hon. Member for Linlithgow (Mr. Dalyell) is trying to make it.

Mr. Dalyell

I bow to the Chair, Mr. Deputy Speaker. It is arguable whether we should be discussing war crimes committed by all sorts of people rather than events that took place before any of the party leaders were born. We are in danger of being highly selective about this issue. Why go back to Latvia and Lithuania? In answer to the hon. Member for Wirral, South (Mr. Porter), it strikes some of us that, as the right hon. Member for Brighton, Pavilion (Mr. Amery) said, we are dealing with some rather lowly people. No one is suggesting that the major decision-makers are the objects of the present debate.

7.46 pm
Mr. Jacques Arnold (Gravesham)

I wish that this problem had never arisen. I wish that our predecessors had not allowed to exist the conditions which permitted these people to slip into this country. I almost wish that these people had never been identified. However, they have been identified and we cannot leave it at that.

Britain's reputation for justice and the honour of this country depend on the Bill being passed. The House is being asked simply to allow that jurisdiction be granted over all current British residents to cover crimes that were then and are now breaches of international law. It is not being asked to act as judge or jury or even as prosecutor. It is being asked to allow a legislative loophole that relates solely to jurisdiction to be corrected and to allow British justice to prevail. Prosecution is and will be—quite rightly—a matter for the Director of Public Prosecutions. Judgment is and will be a matter for the courts. In an individual case, either or both may conclude that a conviction cannot or should not be achieved, but that is a matter for them, not for the House.

Why should not we sweep the problem under the carpet? Why should not we—as some hon. Members suggested earlier—let bygones be bygones? The answer was given by our erstwhile colleague Lord Waddington who, as Home Secretary, said on Second Reading last year: sometimes one is brought face to face with facts that cannot be buried, with deeds so terrible that they cannot be forgotten, and as long as one of those responsible survives, the world will cry out for justice."—[Official Report, 19 March 1990; Vol. 169, c. 896.] What brought him face to face with such facts, especially as he was, as an eminent Queen's counsel, initially sceptical about all this? Unlike us, he has read part two of the Hetherington-Chalmers report which contains the detailed evidence on many of the cases concerned. Is not it ironic that that part remains confidential—so we cannot see it—to safeguard the entitlement of the accused to a fair trial, which their victims never had?

I declare an interest. My father was a Dutch refugee who fled to this country in 1940. When he returned to his native Holland in 1945, he found that 52 of his relatives were missing. They had been torn from their homes and loaded on to trains. Men, women, children and infants in arms went eastward to the death camps and never returned. My father believed in many of the great qualities of this nation and he believed especially in British justice. I hope that this House, the representative assembly of the British nation, will pass the Bill and let justice be done.

7.50 pm
Mrs. Llin Golding (Newcastle-under-Lyme)

Many arguments have been put in favour of the Bill tonight and I will not detain the House by repeating them. Let me for a moment take the House back to the time when the dark clouds of war were gathering across Europe and to a time when thousands feared a knock on the door, which could mean that they would be dragged out of their homes, that their weeping children would be torn from their arms and that wives would be separated from husbands to be herded like cattle into trucks, to be beaten, starved and humiliated and to end their days in the horrors of the concentration camps.

Are we, who, in those dark days, stood virtually alone against the evils of Adolf Hitler and all that he stood for, to condone by our inaction the crimes committed by those who enacted those murderous deeds? What is our answer to the defenceless, innocent people who suffered so much and who were deserted by so many who did not hear their cries or who turned their faces away from the suffering? Are we, who speak for the British people, to allow those evil men to remain safe in our country in the knowledge that as long as they live within our shores the law can never touch them? Are we to allow this country to continue to remain a haven for those criminals? If those murderers had been born British, they could have been tried under our present law, but because they have become British citizens or have settled in this country since the war, as the law now stands, they cannot be prosecuted. Should not all who live in this country be covered by the same laws? I believe that they should be, and that is one of the many reasons why I will vote for the Bill.

The Bill may not lead to the single prosecution of a war criminal who resides in this country, but at least it will give those criminals the bitter taste of fear that one day someone may knock at their door and take them away to answer for the suffering and misery they inflicted on so many innocent men, women and children.

7.52 pm
Sir John Stokes (Halesowen and Stourbridge)

I am dismayed that the Bill should once again be brought before us. As the noble Lord Hailsham said recently: our objections to it are ones of principle. It is retrospective, discriminatory and it will be impossible to guarantee a fair defence. It is a thoroughly bad Bill. I am rather surprised that the Government brought back the Bill, as my right hon. Friend the Prime Minister voted against its introduction on our first vote of principle. Such post hoc legislation does Parliament no good. It is wrong to alter the general law for special cases. If the Bill were passed, it would cause enormous legal problems. There would be a change in the way in which the law of evidence is presented and there would be huge difficulties over identification after such a long time.

We all know and understand how appallingly heinous the misdeeds were, but that does not mean that we have to alter the laws of England. The Bill is all about special cases. It is narrow in scope and deals only with alleged war crimes in Germany or in German-occupied territory which took place between certain dates. It does not deal, for example, with war crimes committed elsewhere or with crimes committed since 5 June 1945.

The Bill has never been adopted as official Conservative party policy in any manifesto that I have seen and it has not been put to the nation in a general election. I have not had a single letter in support of the Bill and no one seems interested in it.

I am also dismayed and surprised that a Tory Government—I hope that the Home Secretary will listen to this—should seek to pass such an odd law by resorting to the Parliament Acts, which were passed by a Liberal Administration and then by a Labour Government after the war. I thought that the Tory party believed in a second Chamber and that it supported the House of Lords. The debates in the other place were of a high order and many men of wisdom, experience and knowledge of the law expressed powerful objections to the Bill. This House has neither the expertise nor the experience to challenge the views so powerfully presented in another place. We are not a complete democracy in this country. We have the Crown, the House of Lords and the House of Commons. Who are we in this special and difficult moral case to say that we are above everyone else and that what we do must become law?

What would the great Tory leaders of the past have thought of such behaviour by this Conservative Government? If the Bill is eventually passed, thanks to the Parliament Acts, I shall bow my head in shame. Have we in this House become so craven that we are prepared to give way to a well-organised lobby and to special pleading? Have we no sense of honour left? If the Bill is passed, it will be a sad day for the laws of England.

I am one of the few in this debate who served in the forces throughout the second world war. I hope that I have no bitterness against our former enemies. I have often said that I greatly admired—and admire—the German army. Years ago, Lord Randolph Churchill described Mr. Gladstone as an old man in a hurry". Perhaps I may be allowed to say on this occasion, with regard to this extraordinary Bill, that the measure is being pressed on us by young men in a hurry. If the Bill becomes law, they will in time very much regret what they are doing.

7.57 pm
Mr. Gerald Bermingham (St. Helens, South)

It is sometimes sad when people who seek only justice for all are told that they are part of a tradition that has gone and that they are young men in a hurry". I am glad that I am young and I do not think that I am in a hurry.

Mr. Rees


Mr. Bermingham

All things are relative.

Mr. Frank Haynes (Ashfield)

I am 65 and I am young.

Mr. Bermingham

My hon. Friend the Member for Ashfield (Mr. Haynes) has a problem.

What are we talking about in the Bill? We are talking, as was said earlier, about murdered children, and about men and women who committed crimes that none of us can bear or tolerate. By some quirk of law, they were never brought to justice. Is it wrong for the House to say that we think that all citizens of the world are equal before the law? That is all we are saying. We are not saying anything novel.

My predecessor bar one as Member of Parliament for St. Helens was Lord Shawcross, who prosecuted at Nuremberg. He said recently that he thought that time had gone and that time had somehow forgiven and forgotten. That must be wrong. If I murder somebody today and, by a quirk of fate, avoid prosecution for 20, 30 or 40 years, have I committed any less of a crime after, say, 40 years? Have I somehow, by the passage of time, gained the right not to be prosecuted? We do not have a statute of limitations in this land. Why should we have a statute of limitations for war criminals? We should not, we must not, and I suspect that, after tonight, we will not.

As time goes by, perhaps education improves and we learn how to deal with the sins of the past. Perhaps we should always deal with the sins of the past, but why? In other lands, people can be prosecuted for war crimes committed in Europe. The Bill is too limited because it restricts prosecution to crimes committed in German-occupied territories from 1939 onwards. War crimes are being committed in the name of inhumanity all over the world, all the time—

Mr. Allason

There is a law to cover that.

Mr. Bermingham

Of course there is not. The hon. Gentleman should look at the legislation—

Mr. Allason

What about the 1956 and 1969 Acts?

Mr. Bermingham

With great respect, the hon. Gentleman is wrong. If he wants to intervene, I shall certainly give way to him. By seeking to intervene from a sedentary position, he is perhaps showing the paucity of his cause.

Mr. Allason

Is it not the case that the Geneva Conventions Act 1956 and the Genocide Act 1969 make clear the international law and the law of this country on this issue? Is it not the case that the Bill tackles a small loophole in the jurisdiction, which it aims to close because it is exploited by war criminals?

Mr. Bermingham

If I remember correctly, the Geneva Conventions Act gained Royal Assent in 1957, not 1956—but it matters not.

The Bill seeks to plug the loophole for the period 1939–57. Is that wrong? Are we to pass the Billl simply because we wish to close the gap?

Mr. John Browne (Winchester)


Mr. Bermingham

Another Conservative Member intervenes from a sedentary position to say, "retrospectively". Murder is murder whether it was committed in 1940 or 1941. There is nothing about retrospective legislation in the Bill. We are not turning what was a legitimate act into an illegitimate act. Quite the contrary—we are saying that what was done in the period from 1939 onwards was illegitimate and illegal. It was murder—it is as blunt as that. If hon. Members say, "We shall use the argument of retrospection as a means of excusing the prosecution of killers", I ask them why there should be a rule for some people in the European continent which does not apply to other people in the European continent. Just because by a quirk of fate and legislation someone moves from, for example, the Ukraine or Latvia to the United Kingdom, why should he or she escape prosecution when, if that person were to stay in the first country, he or she would face prosecution? That must be wrong.

It is also argued that, because another place argued so eloquently against the Bill, we who are elected by the people have no right to challenge that view. I thought that was what the civil war was all about, back in 1640. I thought that we had solved that problem and decided that the elected House has the right, on certain occasions, to say, "No, we reflect the will of the people, the will of the electorate, and our view must prevail."

The Parliament Acts have been used on only three occasions on major matters—and this is a major matter. If, by luck, someone has left the place in Europe where he or she committed a crime and has taken up residence here and therefore has not been prosecuted, we must say on behalf of the people of the United Kingdom, "That is not good enough."

The tragedy is that we did not have the courage to introduce such legislation 20, 30 or 40 years ago to bring our law into line with the European continent. That is why I ask the House to support the Bill.

Since our previous debate on this matter, I have considered the arguments about identification with great care. As a practising lawyer—I declare that interest—I have always been worried about identification cases because there have been many miscarriages of justice as a result of misidentification. I listened with care to what my hon. Friend the Member for Linlithgow (Mr. Dalyell) said earlier, but disagree fundamentally with him. Identification need not be simply a line-up in an identification parade. We have sophisticated techniques that could be used in this case. Provided that we have the safeguards which, as the hon. and learned Member for Montgomery (Mr. Carlile) said, are safeguards with which the English courts are well used to dealing—I concede that we do not always get it right—I do not foresee problems with identification.

That was the problem that worried me greatly last time. I have thought about it a great deal since, because it was always apparent that the Bill would return to this House and that this issue would not go away. I therefore asked myself a simple question. If I were a member of the investigating team, would I be satisfied that suitable safeguards could be built into the system to ensure that any identification, if it forms a major part of the case, could be safely relied upon? The provisions of the Police and Criminal Evidence Act 1984 crossed my mind and I wondered whether they were enough in themselves.

However, there are records of what happened. There is record on film and there are photographs. There are hundreds of pieces of documentary evidence and there are forensic and other experts who can interpret the films and decide who the people were. I believe that we now have the scientific knowledge to help us with the problem of the aging process. After all, most of us go through it in one form or another as the years go by. I am no longer so worried, therefore, about the identification problem. If any trials involve identification, we must consider making available to the defence the same wide range of forensic skills and experts as are available to the prosecution. That is the one remaining area that causes me a niggling worry, but I believe that it can be overcome.

When people kill, they take the life of another. The millions who were killed did not ask to die. They are the victims. Is it not time that we in this House thought more about the victims than about the aggressors? Have not the victims of the holocaust a right to justice no matter how much time has elapsed? Why should those who committed the crimes and who, by a quirk of law, were lucky enough to escape the justice that should have been due to their victims escape it still? Why should those victims continue to be denied their justice? After all, they gave their lives. Those whom we now seek to prosecute took those lives.

8.8 pm

Mr. Rupert Allason (Torbay)

As a member of the all-party war crimes group, I attended the debate in the other House. I was pretty stunned by what I heard there. There seems to be a tendency in this House to assume some kind of monopoly of wisdom for some of their Lordships, especially Lord Goodman. From my experience, receiving letters which have threatened all kinds of things, Lord Goodman is just a large, big bully and I do not believe that he speaks for anybody and I do not suppose—

Mr. Deputy Speaker

Order. It is contrary to our conventions to criticise in that fashion members of the other place, who cannot answer back.

Mr. Allason

I apologise, Mr. Deputy Speaker, for calling into question the integrity of a member of the legal profession.

When I listened to their Lordships, I noted that they pursued three particular red herrings on which I should like to take them to task. First, the essence of the Bill is a technical change in jurisdiction, rather than the criminal law—or specifically the criminal law relating to murder. When the people committed the offences, they were outside our jurisdiction. They have remained outside that jurisdiction through a loophole in the law. We do not seek to criminalise what they did, but merely to extend the jurisdiction. The unpalatable fact that their Lordships were not prepared to face was that the United Kingdom has become a bolthole for war criminals. Indeed, only one other place in the world offers the same measure of protection to these people and that is Damascus.

Mr. John Browne

My hon. Friend's argument is not quite right. We are seeking to extend the jurisdiction. I believe that that is right and I agreed with much of what the hon. Member for St. Helens, South (Mr. Bermingham) said. But in this case we are seeking to extend the jurisdiction retrospectively. That is the crucial issue.

Mr. Allason

If my hon. Friend will give me a moment, I shall come to that point. It was one of the more bogus points raised in another place.

It is not a matter of reviving old memories. The individuals are known. There are no difficulties over identification. They know who they are and, of course, their names have already been published on Scottish Television. Those two issues are complete red herrings.

I now come to the business of retrospective legislation. I have rarely heard such utter rot from the other House. We constantly pass retrospective legislation. If anyone challenges that, I simply refer them to the Official Secrets Act 1989, in which we created a new offence. Anyone who has ever served in the security and intelligence services at any time has suddenly been drawn into a brand new Act. They did not sign anything relating to the Act. They may have served long before the last world war. The creation of that offence was entirely a retrospective exercise. That the Bill is retrospective does not automatically mean that it is bad. In this case, retrospectively to extend the jurisdiction of the House seems perfectly satisfactory.

The third issue that their Lordships appeared to ignore was the whole business of the time limit. It was suggested that, because the events happened an awful long time ago, somehow those responsible should be excused. I am prepared to listen to that line of argument, but there is one logical question to be asked. If one gets away with a murder, at what stage can one stop looking over one's shoulder wondering whether one is going to be arrested? Is it 10, 20 or 40 years? That logical question must be asked of their Lordships. They were not prepared to answer it in the debate. All that they said was that it was an awfully long time ago and it was a great shame to dredge it all up again.

Mention was made of defendants being feeble and senile. Of course, that is not the point. The legislation will allow our legal system to address a particular problem presented by individuals who have sought asylum in this country. We shall not automatically prosecute such individuals. If they are not in any condition to stand trial, of course the judge will sling the case out immediately.

I am sorry that my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) is not in the Chamber. He raised several issues which, again, were red herrings that must be addressed. He wondered why these people had come to this country. More to the point, he said that the British authorities were aware of the background of those individuals when they entered the country. That is a grave allegation. I simply do not believe that that is the case. But if my right hon. Friend persists in making that allegation, there is no clearer argument for ending the secrecy that surrounds all the cases.

I hark back to one of the first questions that I asked in the House. I asked whether it was possible to see the British files—admittedly in Foreign Office archives—relating to Klaus Barbie. I was told that because the British Government had employed Klaus Barbie in an intelligence capacity after the war, the information was too terribly secret to be revealed. What could be more preposterous?

I hope that the House will support the Bill. Moreover, if, sadly, the Bill is rejected, I urge the authorities and Sir Thomas Hetherington to publish part two of the report to demonstrate to all hon. Members exactly how overwhelming is the weight of evidence against these individuals. I urge the House to support the Bill.

8.15 pm
Mr. Merlyn Rees (Morley and Leeds, South)

The point that the hon. Member for Torbay (Mr. Allason) has just made about the information available in part two of the Chalmers-Hetherington report is extremely important. I shall return to it later, if only to argue that, at present, the information is in the hands of the Home Office. Only the Home Secretary and his closest advisers have seen it. I believe that, if the Bill is not passed, that information will not remain secret. Several people who supplied it will make sure that it is made known. That is a factor which we should take into account because it has greatly influenced successive Home Secretaries who have read the report. As is said in the report, the information is horrific. I have always felt that that is what influenced the Government and what may well have influenced the new Prime Minister, who previously voted against the Bill.

I support the Bill as chairman of the all-party war crimes committee and for myself. Over the weekend, I re-read our debates in the House over the past two years and the White Paper by Hetherington and Chalmers. I have read the papers that were prepared for the use of the war crimes committee, some of them by eminent lawyers explaining—with the aid of the Home Office, I am glad to say, which certainly did not approach our endeavours secretively—why the other approaches, of extradition or altering citizenship, were not the correct avenues to pursue. I must say that the citizenship avenue attracted me at the beginning.

It is good training and concentrates the mind to read the explanatory and financial memorandum, which encapsulates the purpose of the Bill. It says that clause 1 provides that: proceedings for murder and manslaughter (or culpable homicide) may be brought against persons who are British citizens or resident in the United Kingdom or the Islands in respect of actions committed in violation of the laws and customs of war in Germany or German-occupied territory between I September 1939 and 5 June 1945. I have had letters asking why Japanese and Russian war crimes have not been included. It is because the Home Office, in its wisdom, with the information available to it, said that it did not know of any Russians or Japanese people who came here to live. Large numbers of people came here from eastern Europe as displaced persons, as is set out in the Hetherington-Chalmers report. The Bill was spawned out of that report.

Referring to a draft convention to which the United Kingdom might have become a signatory and quoting Home Office papers in 1944, the report stated: The United Kingdom need not sign this convention because there is little or no likelihood of 'War Criminals' or `Quislings' escaping to this country since for no doubt many years after the war all persons coming here from abroad will require a visa". In 1944, in its wisdom, the Home Office thought that there was "little or no likelihood" of people with war crime backgrounds coming from mid-Europe to this country, so there was no need to sign the convention. The Home Office was wrong.

For economic reasons, because of work in the textile industry in the north or in the coal mines in south Wales, large numbers of people were brought to the United Kingdom. I invite right hon. and hon. Members to read page 42 of the Hetherington-Chalmers report, 'which states: the existing screening arrangements … were as good as could be devised". A large number of people came to this country for economic reasons. Some had been involved in the commission of war crimes in mid and central Europe. That is the genesis of the Bill.

I am as worried as anyone about the practicalities of any trials. Although I was only marginally involved in the Birmingham case, I was heavily involved in the Guildford case. I am glad that the Government have said that a royal commission will investigate the criminal justice system. It is necessary to investigate the police and forensic evidence. I am sure that the Home Secretary will deal with those matters in the short term, but the problem associated with the Court of Appeal will not be dealt with overnight. The more I become involved arid the more I prepare evidence for the royal commission—which I was preparing for the May investigation—the more I realise that this is not an easy matter. There are problems in terms of the practicalities of the court.

The hon. and learned Member for Montgomery (Mr. Carlile) and my hon. Friend the Member for St. Helens, South (Mr. Bermingham) referred, in a way that I could not, to the way in which courts deal with jurors and witnesses and identification. I am glad that lawyers in another place said that they were concerned about fair trials, but I wish that there had been equal concern about fair trials for those involved in the Guildford case, for example. I hope that there will be a fair trial for anyone who is dealt with under the Bill.

It is 17 years since the Birmingham case was first brought up. It may be another 20 years before those who committed those horrors in 1974 are caught. Should we therefore argue that, as nearly 40 years have passed since a crime was committed, it should be forgotten?

Mr. Gorst

Does the right hon. Gentleman agree, in relation to much of what he said about the Birmingham and Guildford cases, that what happens depends on the quality of the investigators?

Mr. Rees

I agree. That was to be my next point. Once the Bill is passed, investigation will determine the nature of a trial. I have some sympathy with those members of the judiciary who say that they take what comes in front of them. Investigation is very important.

My experience partly explains why I became involved in the war crimes issue. I saw the evidence of war crimes in Lyons in France, the town where Barbie operated, but I do not want to develop that point. I have never forgotten what I saw. Those were not crimes committed in the heat of battle. I have often argued with members of my family, who have now grown up, about how to distinguish between Dresden, the cab-rank operations in which I was involved and the events on the Basra road. When I took my children to France, I saw acre upon acre of graves of the millions of German, French, British and Irish people who died in the first world war—

Sir Nicholas Fairbairn (Perth and Kinross)

And Scots.

Mr. Rees

And Scots. I am not making a silly point. There were large numbers of people from all parts of Europe. The whole thing is an obscenity. The real war crimes involve those who committed the crimes in the cool light of day. Some of the stories told in the Hetherington report reflect the horrifying events.

As a young man, I was astonished to find that the young soldiers who were taken prisoner in the south of France were, we were told, Russians—they were Ukrainians. I do not know whether Germans or Ukrainians committed the crimes in Lyons. The same things happened in Yugoslavia and in Austria-Hungary. Thousands of people poured in. We now read that they were enthusiastically on the side of the Germans. That is as may be—I am not concerned with that after all this time.

What is a war crime? In much of the debate, we have gone beyond the Bill. The Hetherington report states: It is … appropriate to consider … the terms 'war crime' and 'war criminal' … Most of what are termed 'war crimes' in the Second World War were committed far from the front line and have little to do with the actual waging of war. Most of these crimes would be more appropriately termed crimes of occupation". My hon. Friend the Member for Sheffield, Attercliffe (Mr. Duffy), who served with the Fleet Air Arm during the war, and the right hon. Member for Old Bexley and Sidcup (Mr. Heath) expressed a view which I understood. Those who have seen war realise how horrific it is and pull back from considering war crimes. I do not pull back from war crimes but am concerned with the horrors that took place in mid-Europe in the cool of the day—not the heat of battle—when thousands of people were done to death for anti-socialism.

Sir Nicholas Fairbairn

That is all right.

Mr. Rees

I am proud to be a socialist. This is not something to be funny about. Good socialists were done to death by communists in central Europe. They had stood up for their cause throughout the war. It is interesting to note who supported the communists when the war was over—many were slightly to the right of Genghis Khan. They had a home in the communist party. There is a certain circularity in this matter, fascism and communism becoming very much the same. A socialist understands that.

"War crime" is defined in the Hetherington report. What did Governments do in the 1940s? I referred to the Home Office statement in 1944, that quislings and people who committed war crimes would not come to the United Kingdom, but the Home Office was wrong. Many of us get things wrong because we do not comprehend what will happen. The Hetherington report stated: War criminals were not given an assurance that they would not be prosecuted here, and we see nothing in the policy or practice of successive British Governments that would prevent the present Government taking whatever action it considers suitable. Similarly, on retrospection, the report stated that enactment of legislation in this country to allow the prosecution of 'war crimes' in British courts would not be retrospective: it would merely empower British courts to utilise a jurisdiction already available to them under international law since before 1939, over crimes which had been internationally recognised as such since 1939 by nations including both the United Kingdom and Germany. The report adds that that argument is not made in respect of offences of genocide, which would be retrospective, and which were not attended to until the 1957 legislation.

I comprehend the need for legislation as a matter of principle. The principle involved was that cited earlier by my hon. Friend the Member for Birmingham, Perry Barr (Mr. Rooker). The Bill really exists to plug a defect in our nationality laws. If I, who was British born, had committed such a crime, I would be brought to trial, but the man or woman living next door to me who did not tell the truth when they were made British citizens or when they completed the forms to enter this country as displaced persons would not be prosecuted.

Ms. Short

As my right hon. Friend knows, if someone lies for the purpose of acquiring British citizenship, they can subsequently be deprived of it. It is not true to say that the Bill provides the only remedy against a liar who wrongly secured British citizenship.

Mr. Rees

No, but I said earlier, when my hon. Friend was temporarily absent for a spot of dinner—understandably, because she has been present in the Chamber all evening—that that point had been made in the Select Committee and was put to the Home Office. It is not just a matter of depriving a person of his British citizenship. It is not—as I know, as a former Home Secretary—just a matter of making an executive decision, because the case will end up in the courts. My hon. Friend may be concerned about The Sun splashing a particular case over its first and second pages. It would do the same if British citizenship was rescinded, because the case could end up in the courts. There is no way of avoiding court action.

Ms. Short

But it is not the only remedy.

Mr. Rees

No, it is not the only remedy. That point is made in the Hetherington report, as it was in the report published by the appropriate Home Office department some time ago.

Mr. John Browne

The right hon. Gentleman makes an eloquent argument for plugging the gap, with which most right hon. and hon. Members would agree. The question is whether that gap should be plugged retrospectively. It may be convenient and popular to take that action, but would it be just?

Mr. Rees

I quoted earlier the advice offered by Hetherington and Chalmers. One is a former Director of Public Prosecutions and the other held a similar appointment in Scotland, as Crown Agent. They argued that it is not a case of retrospection in relation to the crime itself, but to the jurisdiction.

Mr. Peter Archer (Warley, West)

Does my right hon. Friend agree that the inception of the idea embodied in the Bill was a merciful alternative to extradition?

Mr. Rees

Replying earlier to my hon. Friend the Member for Birmingham, Ladywood (Ms. Short), I said that we had considered the option relating to citizenship, which appealed to me. I wish that we could get around the problem of citizenship in this country, but we are haunted by nationality and British subject status, going back to the days of a British empire on which the sun never set. As to extradition, one thinks of the days to which my hon. Friend the Member for Sheffield, Attercliffe (Mr. Duffy) referred, when we were both students. I wonder whether he sat in the Strangers' Gallery when the House debated a famous extradition case involving a Pole, which featured in all the newspapers. Extradition was found to be not as easy as all that.

Mr. Stanbrook

I imagine that the right hon. Gentleman is thinking of the Batory case.

Mr. Rees

The hon. Gentleman is correct. Extradition does not provide an easy solution either. The Government came down on this side—

Mr. Archer

The objection came from them.

Mr. Rees

My right hon. and learned Friend says that the objection came from "them". I take his words in the way that he put them.

Plugging the gap of citizenship and of nationality is of the greatest importance. I am old enough to recall that, even in the first year or two of the second world war, many people on the right ignored the reality of Hitler. It was a long time before the reality of the concentration camps was accepted. Equally, after the war, many on the left ignored the reality of Soviet Russia. We are back to the circularity that I mentioned earlier—the way in which intelligent men and women can close their eyes and ears to the reality of the world, which is extremely surprising.

Sir Alan Glyn (Windsor and Maidenhead)

I recall that a command paper published in 1939 set out all the atrocities that had been committed. I obtained a copy from the Library.

Mr. Rees

The hon. Gentleman is right. I had other things on my mind at the time, but I imagine that many people chose to ignore those facts. Ignoring reality is not a function of academic attainment either.

There is no reason why those who live here as citizens or residents should be treated any differently from the rest of us. I keep saying that I have been a Member of the House for a long time, but it is germane. I have never quite faced up to being a politician, because politicians are great ones for shouting and attracting the attention of the national media when something happens to get coverage of what they intend to do. Not long ago, right hon. and hon. Members were denouncing the way in which RAF pilots were being treated as prisoners of war and saying what they intended to do about it. I will tell the House what will be done about it—nothing. It was good stuff at the time.

I mentioned that because I have been in correspondence with Wing Commander Stapleton as a result of a letter that he wrote to The Times. He pointed out that, in. June 1944, following the Gestapo murders of 50 allied air crew officers, the Foreign Minister, Anthony Eden, assured Parliament that the Government were firmly resolved that these foul criminals shall be tracked down to the last man wherever they may take refuge. When the war is over they will be brought to exemplary justice."—[Official Report, 23 June 1944; Vol. 401, c. 481.] What was done? They were forgotten. It is easy to forget, but I do not want to forget those who came here to live as British citizens. If they had gone to another country, it would be someone else's responsibility, but as they came here to reside, they are our responsibility.

I commend the Bill to the House, on the basis of both parts of the Hetherington and Chalmers report. I do not believe that the second part will go away. It has affected successive Home Secretaries, and in my view it affected the Prime Minister and led to his change of mind. If the Bill does not die a natural death, I do not believe that many people will be touched by it—and I do not want them to go to prison, to be hanged, or locked up. They will be old men of my age, and older. I want them to face the light of day. In some small way, that will show others that there is no hiding place for those who commit the kind of war crimes that have been listed by Hetherington and Chalmers. If we do not take that action, someone else will, because although that information is privy to the Government—as long as they want to keep it—others provided it, and it will be provided. I would rather that the press dealt with a trial, instead of the untested evidence in part two of the Hetherington-Chalmers report.

Mr. Deputy Speaker

I see that five hon. Members seek to catch my eye and there are 40 minutes left for debate. I think that the arithmetic will be obvious.

8.39 pm
Sir Nicholas Fairbairn (Perth and Kinross)

May I respond with care to what the right hon. Member for Morley and Leeds, South (Mr. Rees) has just said, and let me remind him that two of those at Nuremberg were executed because they signed the order for the airmen in question.

Let me also remind the right hon. Gentleman that when the four international judges went out they decided to get the easy cases out first. They said that von Papen, Hjalmar Schacht and Fritsche were guilty, but eventually those three were acquitted. So let us not be too pompous about the certainty of justice in the wake of Birmingham and Guildford.

As a Scots lawyer, what I find most objectionable about the Hetherington-Chalmers report is not that it is retrospective or that it alters the extraditional concepts of the law, but that it alters the evidential concept of the law—the idea that one can be convicted on the hearsay evidence of someone who is dead, when that evidence is not capable of any form of investigation.

My goodness, if we were not able to get a conviction right 17 years ago, are we likely to get it right on hearsay evidence when the crime happened 50 years ago? I find the concept contrary to the theory of justice upon which the law of Scotland is formed, if not the law of England. Uncorroborated hearsay from the dead seems to me to be a strange basis for attempting to try people for crimes, however frightful they were.

Let us not forget that it took this Government to admit that it was the Russians who murdered the Polish officer corps at Katyn. It was this Government who allowed the memorial to be built. It was blown up by Russian agents and then recreated.

I have a great friend called Zoe Polanska-Palmer, who was taken from Russia, at the age of 12, to Auschwitz. She was the principal object of experiments by Dr. Mengele. She was moved to the pleasures of Dachau by a Polish officer. During an air raid she escaped and walked—speaking only Russian—from Dachau over the Alps and was hidden by the partisans. Then she was taken to Klagenfurt and, on the orders of Sir Toby Low, she was loaded at bayonet-point, to be taken back and shot. Because she was only a young girl and she was injured, a British officer pushed her off the lorry and that is why she is still alive, in Tayport in Scotland.

I do not have any sentimentality when it comes to the wrongness or the brutality of those who committed these crimes, but I believe that if we attempt to get these old jellyfish into court now, they would either be wrongly or pointlessly convicted.

Lithuanians, Latvians, Estonians, Russians, Czechoslovakians and Poles—how many thousand war crimes did they each commit? Let us bury the past.

8.45 pm
Mr. Ivor Stanbrook (Orpington)

I can be brief because the contributions against the Bill that we have heard today, especially in the earlier part of the debate, have been first class and extremely persuasive. There is no doubt whatsoever that the balance of the argument is now substantially against the Bill.

Although I have been against the principle of retrospective legislation—legislation bent for the purpose of establishing cases against alleged war criminals—from the very beginning, in view of the speeches that we have heard against the Bill, it is not necessary for me to speak at length.

One of the best contributions was that of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) because he demonstrated conclusively to anyone who had not already made up his mind about the Bill—

Ms. Short

Or hers.

Mr. Stanbrook

Yes, or had not made up her mind. He showed that it would be wrong to proceed with it. It is certainly a pity for his argument and for his reputation that he rested his opposition to the Bill upon a matter of such little merit, namely, that it is desirable to declare that we are against the holocaust. Of course we are against the holocaust, but that is not part of the argument.

The right hon. Member for Sparkbrook put the Home Secretary on the spot by asking whether there will be prosecutions under the Bill if we pass it. The Home Secretary did not answer in a satisfactory manner, and the right hon. Member for Sparkbrook would not allow me to intervene to point that out. The argument, which ought to be pressed home, is that unless the Bill is passed, the people concerned—three elderly individuals who now live in this country—cannot be prosecuted. The Bill must be passed to enable that. Only one Law Officer can decide that they will not then be prosecuted.

Sir Nicholas Fairbairn


Mr. Stanbrook

My hon. and learned Friend is right—two. Another Law Officer is responsible for Scottish jurisdiction. It is said that at least one of the three lives in Scotland.

However, the ultimate law enforcement authority in this country has to decide whether a prosecution is in the public interest. That cannot be laid down in the Bill. It is not in the Bill. The Bill does not contradict the existing constitution of this country—or not as far as England and Wales are concerned.

The Attorney-General must decided ultimately whether any case should go forward for prosecution and whether to prosecute it would be in the public interest.

I thought it rather daring of my right hon. and learned Friend the Attorney-General not only to be present for the earlier speeches, but to intervene in the speech of my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) to suggest that the Attorney-General could not possibly authorise a trial that became a show trial. That must be one of the strongest arguments against the Bill. If it is passed, the chances of a show trial, or show trials, for the three old men is very great.

I felt that my right hon. and learned Friend the Attorney-General was skating on thin ice when he posed that question. Ultimately—whatever happens to the Bill—if some jurisdiction is given to the British criminal courts to try the people concerned, he will still have to decide whether, in the light of the evidence and every other consideration, it is in the public interest to pursue the matter. He should keep that judgment clear and separate in his mind. I have no doubt that he will do so, but it would be better if he expressed no opinion until the time came.

There are good reasons why prosecutions are not in the public interest. Let me list three of them. The first lies in the concept of retrospection—for, no matter what my right hon. Friend the Minister of State and the proponents of the Bill may say, this is retrospective criminal legislation. The Minister says that it is not criminal legislation; that, while it may be retrospective, it extends only to jurisdiction. This is the first time that I have heard anyone say that a change in the jurisdiction of a criminal court is not part of the criminal law. Of course it is—especially, and more definitively, because in this instance the jurisdiction will be changed in a particular way, in relation to particular events, at a particular time and in a particular place. That is very selective, and cannot possibly escape the label of retrospective criminal legislation.

Many arguments have been advanced against treating the Bill as retrospective legislation; we have heard some tonight. Let us not forget, however, why we do not like retrospective legislation. Not only would it be unfair to charge someone with an offence when no such offence existed at the time of its commission; it would also be unfair if, because of what had passed since the commission of the offence, it was impracticable or, indeed, almost impossible to initiate a prosecution. Do not let us become involved in arguments about whether we knew in 1948 that certain people had come to this country whom we knew to be guilty of certain offences and whether that was deliberate, a question raised rather unworthily by some hon. Members in regard to the speech of my right hon. Friend the Member for Old Bexley and Sidcup. Such arguments are irrelevant.

To change the law after 50 years is to say to the individual concerned, "No matter that you kept no records, no documents and no memories of the events of 50 years ago. No matter that you have not kept in touch with friends who could possibly help you to defend yourself. No matter that you did not keep alibi evidence. You simply did not know that you would be prosecuted." It is fundamentally unfair, 50 years on, to bring a charge and to ask the accused to defend himself against the weight of a Government machine that has spent half a million pounds, engaged the services of 20 or 30 police officers and toured eastern Europe for 18 months trying to obtain the evidence that, according to part two of the report, will be damning enough to justify the legislation.

Retrospection is the offence embodied in the Bill—an offence that we should not contemplate, because, in view of the time lapse, it is doubly unfair. If we cannot give these people a fair trial, we cannot say that we are exercising British justice, for a fair trial is fundamental to all British justice.

My second point has already been made—although with less force—by my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn). For the purposes of the Bill, the law has been changed in the past 12 months to enable evidence to be admitted in court that is derived from sources who are deceased, or, for some other reason, unable to appear as witnesses to give honourable testimony. We should bear in mind that 50 years have passed. Written statements from witnesses can be used, regardless of how they came to be made—up to 50 years ago—and regardless of the possibility that they are forgeries.

Ms. Short

The Hetherington report even suggests that statements from people who are now dead can be used, whatever the conditions in which they were made.

Mr. Stanbrook

That is indeed one of the report's recommendations. The report has proved very useful, in that it gave us the sources that we needed; but, when discussing the legal difficulties, it effectively told us, "The way in which to bring a case is to bend, or change, the law." The ultimate consequence is a Bill like this, which changes the jurisdiction of the courts. That is an inherent injustice. If the Bill is enacted and trials follow, three people will be arraigned—three known people: the Simon Wiesenthal Centre has made sure that the newspapers, and everyone else, know their names and where they live. Simon Wiesenthal's own people have paraded up and down outside the House of one of the prospective defendants, accusing him of being guilty.

If the Bill is passed, the law will be directed solely towards the object of bringing three people to court on evidence that has been changed and adjusted for that specific purpose. As a practising barrister of some 30 years' standing, I would have voted against the Bill on that ground alone. There is, however, another argument—the argument that the people concerned should be entitled to obtain witnesses and evidence in their defence. It has been pointed out that legal aid is available to them, but those of us who have used legal aid in such circumstances, or have tried to, will laugh at that. It is difficult enough to obtain a witness from overseas; to obtain a witness who can testify to events of 50 years ago is another matter, and the resources of the legal aid fund will not rise to such a challenge. The argument is spurious: it would riot be practically possible for any of the accused to defend themselves. In the end they will have to answer these charges, unsupported by all the paraphernalia that applies to prosecutions and without all the resources that are available to the prosecuting authorities.

Therefore, we have to ask ourselves whether we intend to legislate for an injustice. It is no use those who support the Bill saying that justice can be done. Due to the way that it has been contrived, it will be impossible for the defence to establish credentials and evidence of such a nature as to enable it to make its case.

The question of identification was referred to by the hon. Member for St. Helens, South (Mr. Bermingham). Can one imagine the difficulties of identification after 50 years? One case was in 1941, 50 years ago. Identification ought to depend not on whether the individual was there but on whether he committed the crime. He may well be identified as having been present, but British justice ought to require that it is proved that he was the criminal, not a bystander, with German guns in view and German soldiers standing around.

The hon. Member for St. Helens, South suggested that modern techniques—DNA testing, no doubt, and all the other wonderful techniques that are now available—are used to identify defendants as criminals. However, they could not be used in Lithuania in 1941, under wartime conditions.

Please let us not legislate for an injustice. We cannot say that it is possible for British justice to be applied now to what happened then: It is no use talking about what happened in this country years ago but has been discovered only now. Trials could take place at any time in this country under our jurisdiction. The evidence would be available in a civilised country where law and order is, happily, the normal rule. Documentary evidence would have been preserved. We are not, however, talking about such a case; we are talking about doing an injustice to people who at the moment are living under the British system of justice. Justice will not be obtained if we bend the law in the way that the Bill requires us to do. Therefore, I call upon the House to vote against it.

9.1 pm

Miss Emma Nicholson (Torridge and Devon, West)

The speech of my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) was very well constructed, valuable and helpful. I pay tribute to him for what he said against the Bill and recognise his knowledge of the issue. However, I believe that the Bill ought to be supported. Therefore, I intend to put before him a different point of view—though briefly, as I know that other hon. Members wish to speak.

Perhaps each generation sees the war that it experienced as the war—the benchmark of evil, the hallmark of horror, the epitome of brave deeds and thus its war criminals as unique in the evil that they committed. The Bill addresses only the second world war and the criminals that it spawned.

Alas, there is no end to the cruelty of mankind. Man's inhumanity to man continues ceaselessly and with a ferocity that is heightened and deepened by today's fiendish inventions, Cambodia's genocide—that mountain of skulls—Iraq's barbarism—what we read of the abominable cruelty to Kuwaitis—and the impassive horror of China's army in Tiananmen square, with the blood of students flowing over the stones. We do not attempt to deal with those killers tonight, nor do we plan to do so in the future. Why, then, this Bill, when the voices of all those who have been treated cruelly, or who have been tortured, maimed or killed, echo throughout the centuries? It is because we, as a Christian nation, played our part in the anti-Semitic European movement over the centuries. Today, as a multi-faith society, rooted and grounded in a more tolerant Christianity, we have a small chance to make reparation. We can rebalance the scales. Anti-Semitism is not dead. The Jews are persecuted always. In England and Scotland in the 12th century, we piled Jews into chimneys and lit the fires beneath them. In the 1940s, those chimneys were recreated in Auschwitz, and with the freeing of Poland we now have the opportunity to see them.

That shows the uniqueness of the Bill; anti-Semitism is the key. As a Christian, I have some responsibility to wipe out that evil.

9.4 pm

Mr. Richard Shepherd (Aldridge-Brownhills)

If my hon. Friend the Member for Torridge and Devon, West (Miss Nicholson) will forgive me, I shall not follow the sentiments that she expressed.

Three speeches reflect the dilemma in which I find myself in confronting this issue. One speech stood out: would that I had the eloquence of my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn). The three speeches were made by the hon. Member for Birmingham, Ladywood (Ms. Short), the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) and my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour).

We all agree about the enormity of the crimes that were committed. I do not intend to impugn any hon. Member who expressed hatred and abhorrence about those crimes, but it takes little imagination to know the evil that was perpetrated.

The hon. Member for Ladywood expressed the dilemma truly in wanting to hit out and to express the rage and concern of humanity by saying that those crimes are unacceptable.

Why should not we pass the Bill? The right hon. Member for Sparkbrook addressed that issue powerfully—so powerfully that he reached the conclusion that, should anybody be mistaken about the fact that he regarded these crimes as an anathema, he was going to set aside the most formidable list of reservations that I have heard about the Bill in order, for declaratory purposes, to show that he could not be associated with a scintilla of doubt about his distaste and hatred for the activities that took place almost half a century ago.

I shall not question the conclusion that the right hon. Member for Sparkbrook reached from the evidence that he adduced. That evidence was well expressed by my right hon. Friend the Member for Chesham and Amersham, who, in a detailed, clinical, detached but cerebral manner, reminded us of the principles of our legal system.

I sympathise with all three expressions of opinion. I do not condone the activities that took place 45 or 50 years ago—no hon. Member would wish to be associated with them—but I must ask myself, not as a lawyer but as a human being, whether I honestly believe that we shall effect justice according to the terms of our courts. I doubt whether we shall do so and on that basis, mindful of my abhorrence of the acts that took place, I cannot support the Bill.

9.8 pm

Mr. John Browne (Winchester)

I support the sentiments expressed by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and the eloquent speeches of my hon. Friend the Member for Orpington (Mr. Stanbrook) and of my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn). As they put the case extremely well, I shall make only one fundamental point about retrospection. Most hon. Members, if not all, would agree that war crimes are horrific and should be punished.

Indeed, I would go further than many hon. Members, because I support capital punishment. Although the punishment may be severe—

Ms. Short

This is a very funny time at which to be talking about supporting capital punishment. If ever two groups of criminals would have been hanged, it is the six men convicted of the Birmingham bombings and the men convicted of the Guildford bombings. Years later, we know that they were wrongfully convicted. In view of that fact—quite apart from all the other arguments—how does the hon. Gentleman now dare to stand up and say that he supports capital punishment?

Mr. Browne

I do not agree with the hon. Lady that it is a funny time. It is an important time, and the hon. Lady has made my point clearly. The more severe the punishment—capital punishment even—the more we must strive for justice. There can be no justification for supporting capital punishment if trials admit of the possibility of injustice. That is my key point in this case, and I am glad that the hon. Lady said that. However severe the punishment, it must be just and not just convenient. In this case, it may be popular. It may be politically convenient. But it must also be fundamentally just.

It is for basic justice that we and our forefathers have fought over centuries.

A key element of our principles of justice is the onus of proof. The accused is innocent until proved guilty. At the weekend, I heard a well-meaning member of my own party saying on television, "Oh, but the Guildford and Birmingham men had not been proved innocent." Surely they had to be proved guilty. That is the fundamental point. We in the House have already bent the rule of the onus of proof in respect of some of our anti-drugs legislation. I do not support that principle because it leads to a slippery slope.

My second point relates to the right to cross-examination.

Sir Nicholas Fairbairn

Before we get lost in the idea that the debate is about the holocaust, let us not forget that 60 million gentiles died in the last war.

Mr. Browne

I am sure that we shall remember that.

My second point relates to the right to cross-examine witnesses, which is fundamental to natural justice. My hon. Friend the Member for Orpington made it clear that, in this case, the rules have been bent to suit this Bill.

The last of my three basic points concerns knowledge of the law, which is assumed in our system of justice.

I support the argument of the right hon. Member for Morley and Leeds, South (Mr. Rees), who made an eloquent speech in favour of plugging the gap. I agree with him that the gap should be plugged and that its very existence is abhorrent. However, attractive as it may be, it should not be done retrospectively.

I believe that the Bill would lead to show trials. Doubtless, they would be very popular and highly convenient politically. But they would be a travesty of justice.

The Bill was debated in the other place and their Lordships, many of whom are extremely well versed in the law, voted against it. Their Lordships do not have party constituencies and were able to speak and vote relatively unaffected by considerations of public popularity and political convenience. They defeated the Bill by a large margin—by 273 to 60. That may have been a political nuisance but it was right because it was just.

I believe that the Bill represents retrospective legislation which would be intrinsically unjust, and I urge the House to vote it down.

9.13 pm
Mr. Alistair Darling (Edinburgh, Central)

This has been an extremely thoughtful debate—on both sides of the argument. It is interesting to note that several hon. Members appear to have changed their minds since we last debated the matter. It will be extremely interesting to see not only the outcome of tonight's vote but the number of hon. Members who, for whatever reason, choose not to vote. It is to be a free vote, and there will be no rancour if hon. Members choose to go different ways when we divide.

Before I deal with the substance of the argument, I should like to refer to one matter raised by the hon. Member for Torbay (Mr. Allason), who is not in his place at the moment. The hon. Gentleman said that, if the Bill fails to be given its Second Reading tonight, there will be those who will publish the information contained in the second part of the Hetherington-Chalmers report. That is a dangerous and threatening statement. If there are to be trials, they should be conducted in a court room and not in newspapers or on the streets. We do not want witch hunts. The Minister must make it clear when he replies that the report will not be published under any circumstances unless a trial was to proceed.

Mr. John Patten

Does the hon. Gentleman accept that I agree entirely that it would be wrong for the Government at any stage to publish that information? Does he also recognise that to do so would be deeply prejudicial to those who might in future find themselves accused of a crime and also to the many people whose names were brought forward for the investigation, were examined and found to be totally innocent and were exonerated? If that were to happen, it would be deeply prejudicial.

Mr. Darling

I am grateful to the Minister of State and I wholeheartedly agree with him. I hope that those who follow our proceedings and those who might have access to information that might be highly damaging to individuals will take note of what has been said.

The principle underlying the Bill remains correct. However, like my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley), I have reservations about how it would work in practice. I did not intervene when hon. Members, particularly Conservative Members, said that my right hon. Friend had rested his entire case on the need to make a declaratory statement against those people who might have perpetrated such horrific crimes. He did not peril his case simply on that statement, because it would have been wrong to do that. Like me, my right hon. Friend the Member for Sparkbrook believes that the principle underlying the Bill is correct.

It is wrong that British courts have no jurisdiction over crimes of murder, manslaughter or culpable homicide committed abroad by people who were not British subjects at the time but who have now become so. That problem has not arisen since 1957 and British courts now have such jurisdiction. However, it is wrong that a person accused of such crimes can escape prosecution while another person who was a British subject at the time cannot do so. That is especially important when we consider the nature of those crimes.

Ms. Short

Under the Geneva convention that was incorporated into British law around 1956 and under the Genocide Act 1969 to which my hon. Friend has referred, we have powers, but we have never prosecuted in relation to the killing of Kurds or other awful war crimes. This debate is not simply about powers; it involves war crimes in recent history as well as distant history. Does that not trouble my hon. Friend?

Mr. Darling

My hon. Friend is quite right. Since 1957—and since 1969 when the legislation was considerably widened—British courts have had jurisdiction to hear the case of an individual accused of such crimes who is resident within any of the jurisdictions of the United Kingdom.

Many crimes have gone unprosecuted and will continue to go unprosecuted and my hon. Friend the Member for Birmingham, Ladywood (Ms. Short) identified some of them. If someone is living in this country against whom charges can be made, it is wrong to say that nothing should be done simply because there are others elsewhere in the same position or perhaps in a far worse position. I accept that the people who are likely to come before our courts may feel aggrieved because others may be responsible for far worse crimes. However, it does not seem to be any more right to say that we cannot prosecute anyone for any crime on the ground that there may be someone somewhere else who is guilty of a worse crime. That argument does not stand up.

While I have no doubt about the principle of the Bill, I have every doubt about the implementation of its provisions. Before I consider the provisions, I want to refer to retrospection, which particularly taxed members of the other place in their debates on the matter last year.

Of course the legislation is retrospective in the strict sense. We should not be here tonight if it were not. However, it seems that there is an important point: the Bill seeks to give British courts retrospective jurisdiction. It does not seek to create a new crime. It would be wrong to do that. As such atrocities have probably always been criminal and since the Hague convention of 1907 they have certainly been criminal, we are not establishing a new crime; we are merely making it possible to prosecute those individuals in one or other of the jurisdictions in the United Kingdom.

Sir Nicholas Fairbairn

Surely it would be a new crime if a Lithuanian were to kill a Russian in Germany, and surely it would be new if that person were to be tried in Scotland. I have never heard of such a thing.

Mr. Darling

The crime is the act of killing. The subsequent charging of someone is no part of the crime. In Germany, and elsewhere in Europe, it has always been a crime to kill someone. The purpose of this Bill is to enable a court in England or Scotland to hear the case and, if it is satisfied that there is sufficient evidence, to convict. It seems to me that the hon. and learned Gentleman's point is misconceived.

On the question of retrospection, it is important to bear in mind the fact that in 1950 the European convention on human rights anticipated that someone might be prosecuted for an act even though, at the time of the offence, there was no jurisdiction to hear the case.

When the other place declined to give the previous Bill a Second Reading, it was said that that decision was controversial. Indeed, the Home Secretary made the point that the other place had overruled the elected Chamber. I accept that entirely. There is some force in the argument that, in the event of a conflict between the two Chambers, the will of the House of Commons must prevail. Indeed, it would be far better if the second Chamber were elected. In that case, its revising and delaying role would be fully accepted as part of the democratic process. Thus, that element of such a controversy would be removed.

In answer to a point that was made by the right hon. Member for Chesham and Amersham (Sir I. Gilmour), I should make the point that legal arguments were not the only ones to be employed in another place. The Members of the other place who are lawyers are quite capable of raising points that are entirely political. Indeed, they do just that. As Parliament is currently constituted, they are entitled to express their views. We should be in some danger were we to believe that everything that lawyers say must be right. In saying so, I speak as a lawyer.

Let me say something about my doubts. It seems to me that the fundamental duty of any court is to ensure that the accused gets a fair trial. That is a matter which has troubled many hon. and right hon. Members during the debate today. Before deciding to charge an individual, the Crown must give serious consideration to the weight and quality of the evidence. Once a person is charged, the die is cast. There will be publicity, and set in train will be certain events that would be difficult to undo. If there is a doubt, the Crown should not proceed.

I lay some emphasis on the role of the Crown, as it seems to me that it is a strength of the Scottish system, and now of the English system, that the Crown is given a considerable degree of judgment. It is important that the Crown should evaluate the evidence that it is prepared to lead—the quality of the evidence that the court is likely to hear—before deciding that prosecution is justified. Indeed, one of my reasons for supporting the Bill is that it will enable the Crown to make that judgment—to weigh the quality of evidence against any individual, and decide whether prosecution is justified. Of course, the prosecutor will still have a duty to have regard to the public interest. If the Crown's view is that it would not be in the public interest to prosecute an individual, nothing in this Bill will take away from that.

Reference has been made to the possibility of show trials. It would be wrong to characterise any trial in this country as a show trial as we understand that term. Not even in our wildest moments would we accuse the present Government, or a Government formed by my party, of being so crass as to stage a show trial for political purposes. The media, especially in England and Wales, have quite wide latitude in the way they report matters, both before and during a trial. We must be very careful that, before the Crown decides to proceed, it is satisfied that it has a case that it can prosecute to a successful conclusion. No proceedings should be started on the basis of the mere chance of success, or in the belief that, once this Bill becomes a statute, we must be seen to be doing something about the problem. That would be quite wrong.

The Crown will have a number of substantial difficulties. The first, which was referred to by my right hon. and learned Friend the Member for Aberavon (Mr. Morris), is delay. Delay in itself is not a bar of trial, but it presents formidable difficulties. It is not enough to stop the prosecution in its tracks, but none the less the Crown will have to have regard to the fact that nearly 50 years have elapsed since the crimes were allegedly committed. I strongly believe that the fact that a crime took place some years ago should never be a reason for not prosecuting. We do not have a statute of limitations, and nor should we have one. In fact, within our recent memory is a case in which the body of a baby was found in an individual's back garden and it was found that the baby had died in the 1960s or late 1950s. No one ever argued that that individual should not have been prosecuted. As it happened, if I recollect correctly, he was subsequently convicted. I understand that delay may be a ground for stopping a trial in England, but I am less certain of the position in Scotland. The position in Scotland was referred to in the other place.

Connected with delay is consideration of the quality of evidence. It has been said that old men never forget. I accept that, but I cannot believe that old men, or even young men for that matter, always remember things exactly as they happened. Anyone who has been in a court room must be aware of the difficulties that arise even after a short period. In Scotland, people in custody are brought to trial within three months, yet it is quite common for a witness not to remember what he saw, despite being quite certain about it until he went into the witness box and was cross-examined. How much worse would the position be after 50 years? Indeed, a witness may remember an event that sticks in his mind—perhaps the killing of an individual—but will he remember the circumstantial evidence and the various bits of evidence that fit into the crucial jigsaw?

Sir Nicholas Fairbairn


Mr. Darling

Once more, out of deference to the hon. and learned Gentleman from the same Bar as myself, I shall give way.

Sir Nicholas Fairbairn

I am anxious to know whether, when it comes to evidence, the law of England is to be raised to the qualifications of the law of Scotland, or whether the law of Scotland is to be lowered to the laxity of the law of England.

Mr. Darling

I was about to refer to that very point. There is one difficulty that the Government must address, and that is the problem that they face with different laws on corroboration. It is ironic that the Home Secretary should announce a royal commission last Friday—I hope that it will address the desirability of corroboration being part and parcel of English criminal law—yet trials may take place under this legislation before the royal commission reports and certainly, I suspect, before anything is done about its findings. It will be ironic that someone accused of a war crime and prosecuted in Scotland will be entitled to various protections that he would simply not have in England. For example, the evidence that is laid against him will have to be corroborated. It will not be possible in Scotland to have evidence delivered by video.

In Scotland, identification of the accused is vital. The Crown cannot proceed without it. In England the system is different because there is no dock identification; instead identification is done by a different system that may have many advantages, but I suspect that in this case an accused would rather be brought to trial in Scotland, where it will be necessary for witnesses to appear in the witness box and to point the finger at the accused and say, "That is the man whom I saw do those things 50 years ago."

I should be grateful if the Minister would let us know whether the Government will try to resurrect the attempt to introduce video evidence in Scotland. The Minister will recall that, last year in the debacle on the Law Reform (Miscellaneous Provisions) (Scotland) Bill, that was one of the provisions that were lost, and so also was the Chalmers report recommendation that statements made by people who are now dead should be admissible. I should be grateful if the Minister would tell us whether the Government still intend to amend the legislation.

Although I believe that the Bill should get a Second Reading and that people who are accused of war crimes should be prosecuted, I would take great objection if any attempt were made to amend the laws of evidence to bring about those prosecutions. If those people are to be brought to trial, it must be done under existing criminal procedures. The law must not be altered to secure a conviction, as that would be wholly wrong and objectionable.

The Hetherington-Chalmers proposal that evidence on commission should be widely accepted is not satisfactory. Indeed, it is difficult to see how a jury will convict if it cannot see the witnesses, evaluate their credibility and demeanour and do everything normally expected of juries. I strongly believe that if witnesses are to point the finger at individuals, they should—except in the most exceptional circumstances—do so within a court. Juries should not be invited to convict on the strength of documentary evidence, perhaps taken on commission or from some old, frail individual giving evidence on a video against an accused person whom they cannot and will never see.

I support the Bill because if a charge is to be brought against those individuals, it is important that they should be prosecuted. The trials must be fair and be seen to be fair or far more injustice will be done than if we simply let matters lie.

My hon. Friend the Member for Ladywood said that the Hetherington-Chalmers report mentioned that many names were translated into the Cyrillic alphabet. It is easy to make mistakes—indeed, it is not beyond the bounds of possibility that deliberate mistakes were made. During the cold war under Stalin, Soviet officials may have altered the records for their own reasons. It would be wrong for someone to be convicted on bogus evidence that cannot be cross-examined. I suspect that those who made the alterations and those responsible for keeping the records are now long dead or, if not, would certainly not be keen to speak up.

Mr. Marlow

The hon. Member rightly mentions various constraints and caveats. He seems to be coming to the conclusion that the chances of securing a conviction in a war crimes trial would be minimal. Does he agree with that, and, if so, why does he support the Bill?

Mr. Darling

I do not believe that. If I believed that there was no prospect of a conviction under the law of evidence in Scotland or England, there would be no point in supporting the Bill. I support the principle of the Bill because I believe that, although there are formidable difficulties, a fair trial is possible. As I said earlier—I am not sure whether the hon. Gentleman was present—the Crown must weigh up all those considerations when deciding whether to mount a prosecution. In the light of the hon. Gentleman's speech, it is possible to support the principle of something while holding honest doubts about it. Ultimately, the question is whether the doubts are sufficient to change one's mind. In my case, they are not.

Other matters were considered this evening and in the debate in the other place. There was a question about what happened in 1948 and whether the British Government decided to abandon war trials for all time. Although I was not born then, I understand why the Parliament of the day decided that it did not wish to go on with the war trials in Germany. However, we must differentiate between investigating about 8 million possible former Nazi party members—who would all have been culpable to varying degrees—while at the same time trying to rebuild West Germany and Europe, with the position that exists in 1991, when we are confronted with evidence that a few individuals may have been responsible for horrific crimes about which we can do nothing because we lack the jurisdiction.

Ms. Short

The Bill empowers us to prosecute anyone for murder, but we know that after 1948 people accused of the monstrous organisation of mass murder were not prosecuted. Does my hon. Friend agree?

Mr. Darling

I thought that I had already dealt with that matter. I do not quite understand my hon. Friend's question. In view of the shortage of time, if she would like to pursue the matter later I shall be happy to discuss it with her.

I believe that the principle of the Bill must be right. However, one issue troubles me, and it did so when we debated the subject in Committee. It involves pre-trial publicity. Ostensibly the law in England and Scotland is the same. I can do no better than rely on the Minister of State, who told me that they were the same, so that must be right. However, those of us who read the newspapers, north and south of the border, wonder whether there is any relationship between the two legislations. In Scotland, once suspicion has been focused, the press are severely restricted in what they can report, but in England that does not seem to be the position.

We are all familiar with the concept of trial by newspaper. In the fairly recent past, trials have attracted great publicity, and newspapers have felt free to publish photographs and highly damaging articles about an accused individual. The Government must consider whether it is time to amend the law in England to stop such things happening. The issue of the innocence or guilt of an individual is a matter for the jury alone. It is no use saying to the jury, as judges frequently do, "You must ignore anything you read in the newspaper, hear on radio, or see on the television." That is like throwing a skunk into the jury room and asking the jury to forget the smell—that simply will not work. I hope that, having had a year to reflect on the matter, the Minister will say that the Government are prepared to do something about that problem. If he does not, perhaps it is something to which the royal commission could attend when considering what should be done with British criminal law.

On the last two occasions that the House debated the Bill, a majority supported the principle behind it. I hope that that will remain the case. Most people accept that there are difficulties, most of which will have to be shouldered by the Crown. I also hope that if we give the Bill a Second Reading, the other place will note that we have given a considered judgment and have not taken a hasty decision. This debate was born not out of great emotion, but out of a recognition that there is a problem in this country and there are individuals against whom serious allegations have been made which should be answered. We do not underestimate the difficulties that will face the Crown or the accused in the event that he or she is brought to trial.

It seems to me and many of my right hon. and hon. Friends that the principle behind the Bill must be right, notwithstanding the difficulties. For those reasons, I urge my right hon. and hon. Friends to give the Bill a Second Reading.

9.37 pm
The Minister of State, Home Office (Mr. John Patten)

I shall endeavour to do all I can to reply to the points raised by hon. Members in what, by any standards, has been an excellent debate. By my counting, if my arithmetic is correct, there have been 32 speeches, including mine, since 3.30 pm—a prodigious number. I have done a rough running count of those in favour and those against, and, to borrow from your terminology, Mr. Speaker, the ayes seem to be 19, including me and my right hon. Friend and the Opposition Front-Bench spokesmen, and the noes 13. However, this is a matter to be decided not by the numbers who spoke in favour or against the Bill, but in the Division Lobbies afterwards and in another place.

I must address the majority of my remarks to those people who are against the Bill, so I shall not say a great deal about those who have spoken strongly in its favour, except to say that, as the hon. Member for Edinburgh, Central (Mr. Darling) said, the debate has been marked by extremely calm and lucid argument on both sides, with little emotion and certainly no acrimony, apart from one enjoyable outburst between a Whip and an hon. Lady on the Opposition Benches. The incident entertained the few of us in the Chamber who were privileged to see it, but I suspect that it has nothing to do with us or the Bill.

Of those who have spoken in favour, my hon. Friend the Member for Westminster, North (Sir J. Wheeler) said that prosecutions were difficult, but that we should proceed on the issue of principle, and I agree with him. My hon. Friend the Member for Rutland and Melton (Mr. Latham) said that he had consulted widely in the British community, including the Jewish community, because he feared that the measure might lead to a growth in anti-Semitism in this country. He and others had seen none of that, so he felt that the Bill should proceed unencumbered, with which I agree.

The hon. Member for Hartlepool (Mr. Leadbitter) made a remarkable speech. As I sat listening to him, I could not believe that he had not been legally trained. He stressed the importance of the House exercising its judgment and of individual Members of Parliament deciding the law, willing the law, willing the means and then leaving it to the courts to decide. I entirely agree with him; and my hon. Friend the Member for Hendon, North (Mr. Gorst) felt much the same. I also agree with the tone of the remarks of the hon. Member for Birmingham, Perry Barr (Mr. Rooker), who had not intended to speak, but I am glad that he decided to do so.

The Father of the House, my right hon. Friend the Member for Castle Point (Sir B. Braine), spoke with authority, and I agree with all that he was allowed to say in 10 minutes before he was so cruelly cut off by the rule.

I was especially glad that the hon. and learned Member for Montgomery (Mr. Carlile) managed to catch the eye of Mr. Deputy Speaker. He was able not only to examine the arguments of learned Law Lords and others in another place where, generally speaking, legal experts tend to take one view, but to compare and contrast the views of the senior judiciary—Law Lords and others—with the developing views of those who are much younger. It was a case of, "Let generation speak to generation". What the hon. and learned Gentleman said perhaps illustrates a substantial generation difference between some of those in another place and some of those who practise with him or who sometimes sit under his eye when he is in court as a recorder.

My hon. and learned Friend the Member for Burton (Mr. Lawrence) spoke most movingly of his recent visit to a concentration camp, but he also spoke unemotionally, and his speech was all the more telling for that. Nobody tried to play on the emotions of any other hon. Member. The hon. Member for Newcastle-under-Lyme (Mrs. Golding) broke her Trappist vow by sprinting from the Whip's seat to the Back Benches to make a powerful speech in support of the Bill. The hon. Member for St. Helens, South (Mr. Bermingham) and my hon. Friends the Members for Gravesham (Mr. Arnold) and for Torbay (Mr. Allason) also made powerful speeches. We were then treated by the right hon. Member for Morley and Leeds, South (Mr. Rees) to what the Michelin guide used to call "a little history". I am glad that he gave us that little history of war crimes from 1939 to 1945 and the period immediately after the war, because his speech set much in context. I should like to return to some of his comments when I deal with the important points raised by my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath). My hon. Friend the Member for Torridge and Devon, West (Miss Nicholson) also supported the speech in an intervention.

From the Opposition Front Bench, the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) and the hon. Member for Edinburgh, Central said that they would support the Bill, although they would not seek to advise their hon. Friends. I welcome what the right hon. Member for Sparkbrook said. I understand his deep thinking on the issue since last year and the concerns that have moved him to cleave to his earlier decision to support the Bill, although there was a large declaratory element in the reasons that he gave for doing so. The Home Secretary and I are also grateful to the right hon. Member for Sparkbrook for expressing the view that the Government have acted with constitutional propriety. Some people would not agree, but I do, unlike one or two colleagues who feel that we have not behaved with constitutional propriety. I agree with the right hon. Gentleman that the Bill represents a change in jurisdiction in the criminal law but does not introduce any new offences. I shall deal with that point when I respond to my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour). I certainly agree with the strong view—and I have not heard it disputed by any hon. Member from either side of the debate—that there should not be a statute of limitations in this country. That point was made by the right hon. Member for Sparkbrook.

I owe the right hon. Member for Sparkbrook and the hon. Member for Edinburgh, Central an answer to the points that they raised about Scottish legislation. I tread with some temerity into Scottish law, all the more so as I see the menacing shape of my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) behind me. I am no expert in Spanish—[Laughter.] I am no expert in Spanish practices, which I am sure are not practised at the Scottish Bar.

The Hetherington-Chalmers inquiry recommended that the facility of live television evidence should be available in war crimes trials. The law already provides for that generally, as we saw in the Criminal Justice Act 1988.

Mr. Hattersley

What about Scotland?

Mr. Patten

I am coming to that point. I was comparing and contrasting England and Scotland. That provision is now in force for many serious crimes such as murder, manslaughter and serious fraud, and not especially for war crimes. Following a period of consultation. the Government proposed that a similar general facility should be provided in Scotland. A provision to that effect was included in the Law Reform (Miscellaneous Provisions) (Scotland) Bill last Session. The provision was removed from the Bill during its parliamentary passage because, I am advised, of the pressure of parliamentary time. The Government remain of the view that live television links should be available for the giving of evidence from abroad in all Scottish trials of all serious crimes. It is the Government's intention to add a provision to that effect and to have it introduced at an early legislative opportunity.

Mr. Darling

Will the Minister tell us when the Government intend to introduce the change? It seems to us that it is being introduced only for the benefit of this legislation. I do not know what consultation the Minister has had. Presumably, from what he said earlier, he is having that consultation in Spain rather than in Scotland. He must understand that there will be deep resentment if the law in Scotland is to be amended simply to enable convictions to take place under this legislation.

Mr. Patten

Any future legislative changes will not be brought forward before the end of this Session. If such changes were made to parliamentary law as it affects Scotland, had any trials begun, they would not be affected by any changes in the law that were coming at a later stage.

Sir Nicholas Fairbairn

Will my right hon. Friend give way?

Mr. Patten

It is difficult to mix it with my hon. and learned Friend, but I will give way on this point on Scottish law and then no more.

Sir Nicholas Fairbairn

It would be absolutely outrageous if it were thought in the House that the reason that the Government withdrew that absurd condition in the Law Reform (Miscellaneous Provisions) (Scotland) Bill was time. We in Scotland are not willing to have our laws of evidence mucked about and watered down just to suit English legislation.

Mr. Patten

The north and south sides of the border should sometimes learn from each other about evidential and other procedures. I am content to say to the hon. Member for Edinburgh, Central that we might learn from some of the ways in which pre-trial publicity is dealt with in Scotland. I am advised by my hon. Friend the Member for Edinburgh, West (Lord James Douglas-Hamilton) that the subject of a Scottish allegation raised interdict proceedings following the preparation of a programme on war crimes. Perhaps we should listen to what Scottish law says and, equally, the Scots should look to English and Welsh law to ensure that television evidence, which can be useful in obtaining convictions under proper process of those who are accused of murder, manslaughter, fraud, forgery and other serious international crimes, can be achieved.

Mr. Darling


Mr. Patten

I must try to answer the rest of the arguments. I have given way on the Scottish point and I must now turn to the important points raised by my right hon. Friend the Member for Old Bexley and Sidcup. I greatly respect him and I know that I will not be able to persuade him to change his mind. His speech gives me the opportunity to try to lay to rest two ghosts about what happened in post-war England. The first is that somehow the post-war British Government decided not to proceed against war criminals in this country. With great respect, I must advise my right hon. Friend that not only is there no evidence that there were any such war criminals in this country, but we did not have any laws at the time that would have enabled us to proceed against any such people in this country. That means that at no stage could Her Majesty's Government have decided to stop prosecutions. In any event, it would not have been Her Majesty's Government who would have taken that decision; it would have been the prosecuting authorities of the time.

The second important ghost that we need to lay to rest is that a distinguished Minister came to the Dispatch Box in 1948 and said, on behalf of the Government, that all war crimes trials should come to an end. I shall tell the House what was said on that occasion; indeed, it was widely reported. I have gone into this matter in great detail because I respect the views of those who feel that a binding statement was given at that time. Let us forget the issue whether it is possible to bind one's successors. I have looked at the papers myself and have indirectly employed some historians. It may interest some of my hon. Friends to know that we have a surprising number of historians in the Government service. It is clear to me that the only announcement that was made in this place in 1948 was that the quadripartite allied hearings of alleged war criminals in Germany or German-occupied territory of nationals or foreigners who were then in German-occupied or German territory should cease and that it should be the legislative task of the future German Government to take over those prosecutions. The Federal Republic of Germany took over that legislative burden from 1948 and prosecuted alleged war criminals, not just in 1948, 1958, 1968 and 1978, but almost up to the present day—and those provisions still remain on their statute book.

The right hon. and learned Member for Aberavon (Mr. Morris) was, rightly, concerned about fair trials. In his opening speech his right hon. Friend the Member for Sparkbrook flagged the fact that we should listen carefully to the right hon. and learned Gentleman—and we did so. He raised three important points. The first related to identification and its importance. As I understand it, judges can give clear warnings to juries about identification and its dangers. The English and Welsh system varies from the Scottish system, with its different dock identification system.

The right hon. and learned Gentleman's second point related to process. Under the present law and present procedure, there is nothing to prevent any judge at any time stopping a case from proceeding if he thinks that a fair trial would not be possible. That important common law principle exists now. I note that I have the assent of the hon. and learned Member for Montgomery and others.

The third point raised by the right hon. and learned Member for Aberavon was also mentioned by my right hon. Friend the Member for Chesham and Amersham in his important speech. We have the judgment of the Deputy Chief Justice of England, Lord Justice Tasker Watkins, on this issue. It will always be up to the courts to decide whether a delay acts against the interests of a fair trial. I believe that the right hon. and learned Gentleman's mind can be set at rest on that matter.

Several other opponents of the Bill made their views starkly known, including the hon. Members for Sheffield, Attercliffe (Mr. Duffy) and for Birmingham, Ladywood (Ms. Short), who made several interesting interventions. The opponents also include my hon. Friends the Members for Northampton, North (Mr. Marlow), for Halesowen and Stourbridge (Sir J. Stokes), and my hon. and learned Friend the Member for Perth and Kinross. Among their number is also my hon. Friend the Member for Orpington (Mr. Stanbrook), who has considerable expertise in extradition law to which we all pay tribute—[Interruption.] I suggest that hon. Members visit the Library where they will find that "Stanbrook on Extradition" is the standard text for anyone wishing to bone up on that subject.

We have also heard speeches from my hon. Friends the Members for Aldridge-Brownhills (Mr. Shepherd) and for Winchester (Mr.Browne). I guess that the hon. Member for Caithness and Sutherland (Mr. Maclennan) and I will never have a meeting of minds over what is and what is not retrospective legislation. But he was unfair to Hetherington and Chalmers, a pair of distinguished former Directors of Public Prosecutions. I do not have any DPPs as close personal friends, but I have taken advice and I am told that they are not men normally given to rash judgments or to setting out on quixotic crusades to achieve prosecutions. The hon. Gentleman was less than fair to those retired DPPs.

I wish to say three things in response to the important speech of my right hon. Friend the Member for Chesham and Amersham. His speech will bear reading. First, the making of statute criminal law in this place is in the hands of all Members of the House, not those of lawyers, however distinguished, in another place or in the courts. Secondly, the very nature of legislation is that it is selective. My right hon. Friend has been in this place a long time and he must know that in the criminal law, for example, we legislate to deal with specific nuisances and evils. These days we rarely legislate generally because much of the generality of criminal law—thou shalt not kill, thou shalt not steal and so on—has already been dealt with.

Sir Nicholas Fairbairn

That is common law.

Mr. Patten

Of course, it is common law. That is an important element in England and Wales.

I remind my right hon. Friend the Member for Chesham and Amersham and my hon. Friend the Member for Orpington that in the Bill before the House we are not inventing any new offence. Murder was an offence in Germany and in German-occupied territory between 1939 and 1945. As many right hon. and hon. Members will be aware, international law finds its fountainhead back in the fourth Hague convention of 1907. That made it absolutely clear that activities involving murder, manslaughter or culpable homicide were against international law. That was recognised in the manuals of both the British and German armies. There is no doubt that murder, manslaughter and culpable homicide were crimes then, as they are now. It is rather a matter for the judgment of the House and the other place: we must decide whether to extend our jurisdiction and provide the laws, which the courts may then interpret.

In answer to my right hon. Friend the Member for Chesham and Amersham, let me say that our judgment must be of equal standing to that of any lawyer outside the Chamber.

My right hon. Friend the Member for Brighton, Pavilion (Mr. Amery) asked about the present state of international law on any alleged incidents connected with the Gulf conflict. All the states involved in the Gulf conflict are parties to the Geneva convention of 1949. We took that convention into our own law in 1957. So we have a wide jurisdiction over war crimes committed anywhere in the world after 1957 under international law.

Ms. Short

Will the Minister give way?

Mr. Patten

No. I am afraid that I do not have time.

There is no need for new legislation to deal with those who might be accused of crimes in the Gulf conflict, but there is definitely a need for legislation in the cases which may be covered by the Bill.

As a result of the procedural motion which the House passed on a free vote last week, if the Bill receives a Second Reading—I am confident that it will—it will go straight to a formal Third Reading at a subsequent date. My right hon. Friend the Lord President of the Council explained on Wednesday why we were following that course. The House has given overwhelming support to both the principle of war crimes legislation and the Bill itself. I have no doubt that that support will be expressed again this evening. As my right hon. Friend explained last week, that was one of the decisive factors in the Government's mind in concluding that the Bill should be reintroduced.

As we have said, the Government hope that accommodation will be achieved between this place and another place without the need for any special measures. Nevertheless, the Government concluded that the Parliament Act 1949 should remain in reserve as a means of resolving any irreconcilable differences. The Bill is a good Bill. The task may be regarded as a difficult one, but the Bill should be passed. I look forward to its reaching the statute book, with the concurrence of both Houses of Parliament, at an early date.

Question put, That the Bill be now read a Second time:—

The House divided: Ayes 254, Noes 88.

Division No. 98] [10 pm
Abbott, Ms Diane Archer, Rt Hon Peter
Adams, Mrs Irene (Paisley, N.) Arnold, Jacques (Gravesham)
Alexander, Richard Atkinson, David
Ailason, Rupert Baker, Rt Hon K. (Mole Valley)
Allen, Graham Baldry, Tony
Alton, David Banks, Tony (Newham NW)
Amess, David Barron, Kevin
Arbuthnot, James Batiste, Spencer
Battle, John Glyn, Dr Sir Alan
Beaumont-Dark, Anthony Godman, Dr Norman A.
Beith, A. J. Golding, Mrs Llin
Bell, Stuart Gordon, Mildred
Bellotti, David Gorst, John
Bendall, Vivian Grant, Sir Anthony (CambsSW)
Benn, Rt Hon Tony Greenway, John (Ryedale)
Bermingham, Gerald Gregory, Conal
Bevan, David Gilroy Griffiths, Win (Bridgend)
Blackburn, Dr John G. Grocott, Bruce
Blunkett, David Gummer, Rt Hon John Selwyn
Bottomley, Mrs Virginia Hague, William
Boyes, Roland Hamilton, Hon Archie (Epsom)
Boyson, Rt Hon Dr Sir Rhodes Hattersley, Rt Hon Roy
Braine, Rt Hon Sir Bernard Haynes, Frank
Brandon-Bravo, Martin Hicks, Mrs Maureen (Wolv' NE)
Brazier, Julian Higgins, Rt Hon Terence L.
Bright, Graham Hinchliffe, David
Brooke, Rt Hon Peter Hind, Kenneth
Bruce, Ian (Dorset South) Hogg, N. (C'nauld & Kilsyth)
Burns, Simon Howard, Rt Hon Michael
Burt, Alistair Howarth, George (Knowsley N)
Butler, Chris Howells, Geraint
Callaghan, Jim Hoyle, Doug
Carlile, Alex (Mont'g) Hughes, John (Coventry NE)
Carrington, Matthew Hughes, Robert G. (Harrow W)
Chalker, Rt Hon Mrs Lynda Hughes, Simon (Southwark)
Channon, Rt Hon Paul Hunt, Rt Hon David
Chapman, Sydney Hurd, Rt Hon Douglas
Chope, Christopher Jack, Michael
Clark, Rt Hon Alan (Plymouth) Janman, Tim
Clark, Dr David (S Shields) Janner, Greville
Clark, Dr Michael (Rochford) Jessel, Toby
Clarke, Rt Hon K. (Rushcliffe) Johnson Smith, Sir Geoffrey
Clelland, David Jones, Barry (Alyn & Deeside)
Cohen, Harry Jones, Martyn (Clwyd S W)
Cook, Robin (Livingston) Kellett-Bowman, Dame Elaine
Coombs, Anthony (Wyre F'rest) Kennedy, Charles
Cope, Rt Hon John Kilfedder, James
Corbett, Robin King, Roger (B'ham N'thfield)
Corbyn, Jeremy King, Rt Hon Tom (Bridgwater)
Cousins, Jim Kinnock, Rt Hon Neil
Crowther, Stan Knapman, Roger
Cryer, Bob Lang, Rt Hon Ian
Currie, Mrs Edwina Latham, Michael
Curry, David Lawrence, Ivan
Darling, Alistair Leadbitter, Ted
Davies, Rt Hon Denzil (Llanelli) Lee, John (Pendle)
Davis, Terry (B'ham Hodge H'l) Leigh, Edward (Gainsbor'gh)
Dixon, Don Lennox-Boyd, Hon Mark
Dobson, Frank Lloyd, Peter (Fareham)
Dorrell, Stephen Lloyd, Tony (Stretford)
Douglas-Hamilton, Lord James Luce, Rt Hon Sir Richard
Dunwoody, Hon Mrs Gwyneth McAvoy, Thomas
Durant, Sir Anthony MacGregor, Rt Hon John
Eastham, Ken MacKay, Andrew (E Berkshire)
Evans, David (Welwyn Hatf'd) McKelvey, William
Evans, John (St Helens N) Maclean, David
Evennett, David McLeish, Henry
Ewing, Mrs Margaret (Moray) McLoughlin, Patrick
Fallon, Michael McMaster, Gordon
Fatchett, Derek McNamara, Kevin
Fearn, Ronald Madden, Max
Field, Barry (Isle of Wight) Mahon, Mrs Alice
Field, Frank (Birkenhead) Mans, Keith
Fields, Terry (L'pool B G'n) Maples, John
Finsberg, Sir Geoffrey Marshall, Jim (Leicester S)
Flynn, Paul Marshall, John (Hendon S)
Forman, Nigel Maude, Hon Francis
Forsyth, Michael (Stirling) Mawhinney, Dr Brian
Forsythe, Clifford (Antrim S) Meale, Alan
Foster, Derek Mellor, Rt Hon David
Fox, Sir Marcus Mitchell, Andrew (Gedling)
Franks, Cecil Molyneaux, Rt Hon James
Fraser, John Moonie, Dr Lewis
Freeman, Roger Morgan, Rhodri
Fry, Peter Morris, Rt Hon A. (W'shawe)
Fyfe, Maria Morris, M (N'hampton S)
Gale, Roger Needham, Richard
Garrett, John (Norwich South) Neubert, Sir Michael
Nicholson, David (Taunton) Smyth, Rev Martin (Belfast S)
Nicholson, Emma (Devon West) Spicer, Sir Jim (Dorset W)
Norris, Steve Squire, Robin
Onslow, Rt Hon Cranley Stanley, Rt Hon Sir John
Page, Richard Steen, Anthony
Patnick, Irvine Stevens, Lewis
Patten, Rt Hon John Stewart, Allan (Eastwood)
Pattie, Rt Hon Sir Geoffrey Stewart, Andy (Sherwood)
Pendry, Tom Sumberg, David
Pike, Peter L. Summerson, Hugo
Porter, David (Waveney) Taylor, Ian (Esher)
Powell, Ray (Ogmore) Taylor, Matthew (Truro)
Prescott, John Taylor, Teddy (S'end E)
Price, Sir David Thomas, Dr Dafydd Elis
Quin, Ms Joyce Thompson, D. (Calder Valley)
Radice, Giles Thompson, Jack (Wansbeck)
Raffan, Keith Thornton, Malcolm
Redwood, John Thurnham, Peter
Rees, Rt Hon Merlyn Tracey, Richard
Reid, Dr John Tredinnick, David
Rhodes James, Robert Wakeham, Rt Hon John
Richardson, Jo Waldegrave, Rt Hon William
Riddick, Graham Walden, George
Rifkind, Rt Hon Malcolm Walker, Bill (T'side North)
Roberts, Sir Wyn (Conwy) Wallace, James
Roe, Mrs Marion Waller, Gary
Rogers, Allan Wardell, Gareth (Gower)
Rooker, Jeff Wardle, Charles (Bexhill)
Ross, William (Londonderry E) Wareing, Robert N.
Rossi, Sir Hugh Wheeler, Sir John
Rowlands, Ted Widdecombe, Ann
Sainsbury, Hon Tim Williams, Rt Hon Alan
Shaw, David (Dover) Winnick, David
Sheldon, Rt Hon Robert Wood, Timothy
Shersby, Michael Worthington, Tony
Shore, Rt Hon Peter Yeo, Tim
Sims, Roger Young, Sir George (Acton)
Skinner, Dennis
Smith, Andrew (Oxford E) Tellers for the Ayes:
Smith, Rt Hon J. (Monk'ds E) Mr. Tim Boswell and
Smith, J. P. (Vale of Glam) Mr. Timothy Kirkhope.
Adley, Robert Illsley, Eric
Amery, Rt Hon Julian Jopling, Rt Hon Michael
Ashdown, Rt Hon Paddy Kirkwood, Archy
Banks, Robert (Harrogate) Knowles, Michael
Blaker, Rt Hon Sir Peter Knox, David
Body, Sir Richard Lester, Jim (Broxtowe)
Bonsor, Sir Nicholas Lloyd, Sir Ian (Havant)
Boscawen, Hon Robert Macdonald, Calum A.
Bottomley, Peter Maclennan, Robert
Buchanan-Smith, Rt Hon Alick McNair-Wilson, Sir Michael
Budgen, Nicholas Madel, David
Campbell, Menzies (File NE) Malins, Humfrey
Carlisle, John, (Luton N) Meyer, Sir Anthony
Carttiss, Michael Michie, Mrs Ray (Arg'l & Bute)
Clark, Rt Hon Sir William Miller, Sir Hal
Coombs, Simon (Swindon) Mitchell, Austin (G't Grimsby)
Cormack, Patrick Mitchell, Sir David
Couchman, James Monro, Sir Hector
Dalyell, Tam Morris, Rt Hon J. (Aberavon)
Dewar, Donald Morrison, Sir Charles
Duffy, A. E. P. Mudd, David
Fairbairn, Sir Nicholas Nelson, Anthony
Faulds, Andrew Owen, Rt Hon Dr David
Fookes, Dame Janet Raison, Rt Hon Sir Timothy
Gardiner, Sir George Ridsdale, Sir Julian
Gilmour, Rt Hon Sir Ian Robertson, George
Greenway, Harry (Eating N) Shaw, Sir Giles (Pudsey)
Griffiths, Peter (Portsmouth N) Shaw, Sir Michael (Scarb')
Grylls, Michael Shepherd, Richard (Aldridge)
Harris, David Short, Clare
Haselhurst, Alan Skeet, Sir Trevor
Hayhoe, Rt Hon Sir Barney Smith, Sir Dudley (Warwick)
Hayward, Robert Smith, Tim (Beaconsfield)
Heath, Rt Hon Edward Soames, Hon Nicholas
Hicks, Robert (Cornwall SE) Speller, Tony
Howell, Ralph (North Norfolk) Stanbrook, Ivor
Hunter, Andrew Steel, Rt Hon Sir David
Stewart, Rt Hon Ian (Herts N) Warren, Kenneth
Stokes, Sir John Whitney, Ray
Tapsell, Sir Peter Wiggin, Jerry
Tebbit, Rt Hon Norman Winterton, Mrs Ann
Temple-Morris, Peter Winterton, Nicholas
Townsend, Cyril D. (B'heath)
Trotter, Neville Tellers for the Noes:
Viggers, Peter Mr. John Browne and
Walters, Sir Dennis Mr. Tony Marlow.

Question accordingly agreed to.

To be read the Third time tomorrow, pursuant to Order [12th March].