Lords Sitting of 19 May 1949

Preamble
The House met at three of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers

  MID-NORTHAMPTONSHIRE WATER BOARD ORDER CONFIRMATION (SPECIAL PROCEDURE) BILL
  3.5 p.m.
  Order of the Day read for consideration on Report.
  LORD SHEPHERD: My Lords, in moving that the Report on this Bill be received it may be desirable that I should make a short factual statement. This is the first Bill to come before your Lordships' House under Section 6 of the Statutory Orders (Special Procedure) Act, 1945. Apart from the preamble to the Bill, it is indistinguishable from an ordinary Provisional Order Confirmation Bill. The Bill now comes before your Lordships' House on the Report stage—Second Reading and Committee stage having been dispensed with by reason of the fact that the Order which preceded the Bill went before a Joint Committee of the two Houses.
  After the Order, which forms the Schedule of the Bill, had been drafted it was the subject of a local inquiry; and, subsequent to that inquiry, the Minister made the Order. Within the time allowed, there appeared a number of Petitions against the Order, and under the Statutory Orders (Special Procedure) Act, 1945, the Order had to be sent to the Joint Committee so that the petitioners might be heard, and the Joint Committee Could give consideration to the points put before them. After the evidence had been received and considered, the Joint Committee made a number of Amendments to the Order. Most of these Amendments have been accepted by the Minister, but two were not accepted by him, and because of that he felt it necessary that the matter should be brought before Parliament by including the Order in a Bill, and thus bringing the Bill in as a public instrument.
  The Order provides for a joint water board in Mid-Northamptonshire, comprising eighteen authorities, including the
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  Borough of Northampton. The Order authorises the water board to take out of the Riven Nene up to 20,000,000 gallons of water a day during the winter months; and it was left to the Minister to decide at other times, according to the level of the river, what amount of water should be taken. The Order also provided—and I mention this because it will be the subject of an Amendment later—that the accounts of the joint board should be subject to audit by the district auditor. The Committee considering the Order decided, on representations from the Nene Catchment Board, to take out the name of the Minister as the person to determine the rate of extraction in other than winter months and to substitute in the Order the name of the Nene Catchment Board. The Minister took exception to this, because he thought it was against public policy that power should be given to one local authority to issue a veto against another public authority without that public authority having an opportunity to appeal. Consequently, when this Bill came before another place, the Minister moved an Amendment to restore the position as it was in the original Order, with the result that he again became the person who would decide, when the river was low, the amount of water that had to be taken out of it.
  On the other point, under Section 293 of the Local Government Act, 1933, the district audit is applied to joint boards where the joint boards consist of authorities which are themselves largely subject to joint audit. When this point came before the Joint Committee, representations were made by the professional auditors, as a result of which the Order was amended so as to give a choice to the joint boards of having either the district auditor or a professional auditor. Again, the Minister thought that this was a matter of very great principle, in view of the developments of recent years, and therefore he asked the House of Commons to put back the old conditions under which the audit should be carried out by the district auditor. The Bill has now come to this House amended, and although the first stages are not to be observed in your Lordships' House, the Bill, now being a public Bill, is open to amendment. Your Lordships will no doubt have seen that on the Order Paper there are a number of Amendments for

  837
  your consideration. With that short statement, I beg to move that the Report be now received.
  Moved, That the Report be now received.—(Lord Shepherd.)
  3.14 p.m.
  LORD BELSTEAD: My Lords, as a member of your Lordships' House who had the honour of being the Chairman of this Joint Committee, I should like to say a few words on the extremely fair opening statement which the noble Lord, Lord Shepherd, has made. I had intended to speak upon the second of the two Amendments, and I may yet wish to give your Lordships some information on that. But on the main issue I am hound to admit that under the Statutory Orders (Special Procedure) Act, 1945, the Minister has the right to take the action he has done if he does not approve of the Amendments made in his Order. Therefore, my objection is perhaps a matter of degree rather than of policy.
  It seems very unfortunate that the Minister has acted in this way. All your Lordships will be aware, or at any rate will be easily reminded, that the Committees which sit upstairs are not easy to man. The Clerks and the Party Whips of both Parties are well aware of this. It is rather difficult to obtain the continuous attendance which is necessary. The Committee on this Bill took six days of very careful consideration. We had before us four learned counsel and five members of the Junior Bar. Some 2,339 questions were answered, and a large number of speeches were listened to and considered. It seems rather a pity, and not very encouraging to those who serve on these Committees, that, at the will of the Minister, however honestly applied and intended, it should be possible to reverse the decision of a Committee who have had every conceivable detail laid before them, cross-examined, re-examined and dealt with almost, I was going to say, ad nauseam.
  There is one other aspect of the matter. It is decidedly hard on the parties, who are often put to considerable expenditure in coming up from a distance to London to attend the Joint Committee day after day, for six days, coming up again over the week-end and then finding afterwards that the whole thing can be reversed at the will of the Minister. I suggest that
  838
  this is an unfortunate precedent. This is the first Bill under the new procedure, which, to a certain extent, takes the place of the old Private Bill procedure. I do not think it is a very fortunate omen for the examination of Orders under the new procedure. I have nothing more to say on this particular point, but on the second of the two Amendments, on the purely permissive choice of whether a professional or a district auditor should be employed by a corporate body, I should like to be allowed to address a few further remarks to your Lordships.
  3.18 p.m.
  THE MARQUESS OF READING: My Lords, may I say a word on the main point raised by the noble Lord—namely, the question of procedure? As one who has had some experience of presiding over Committees upstairs, and knows something of the difficulties and something of the responsibilities which fall on noble Lords who form part of these Committees, I think I may say that all those members of your Lordships' House who from time to time are selected to constitute these Committees bring to the deliberations a great deal of care, thought and industry, and that this is one of the more important, although one of the more unobstrusive, functions of your Lordships' House. If this kind of procedure is to be followed in future, it will not be likely that the members who constitute these Committees will either be so ready to give their time to them, or, having given their time, will be inspired to give the same attention to them, because they will feel—and this is the effect of what the Minister is doing—that they are put in nothing more than a sort of advisory capacity, to make recommendations to the Minister which the Minister can adopt or reject according to his will.
  Of course, the House itself is always in the position of the overriding authority. When a Committee of the House report to the House they willingly accept the House's decision as to whether what they have decided is right or wrong. That is a very different situation, however, from having to accept an arbitrary decision of the Minister after a Committee of your Lordships' House have given close and detailed attention to an intricate matter. It is very much to be

  839
  hoped that, if it is in accordance with the new procedure, it will not be a course frequently adopted by any Government Department.
  3.21 p.m.
  LORD GIFFORD: My Lords, I did not have the honour of sitting with the noble Lord, Lord Belstead, on this particular Committee under discussion, but I did sit with him for no fewer than eight days up till Tuesday last on the Staffordshire Potteries Water Board Bill Committee. I should like to pay tribute to the noble Lord's wisdom, and to his great knowledge of such affairs. Having tried to do my duty on Committees of that kind in your Lordships' House, I should like to say this. Nearly all these Committees are composed of members of all Parties, and I do not think I have ever known any difference of opinion on Party lines in any one of them. Although, with the wealth of detail and information put before one by counsel, it is perhaps difficult to come to a decision at first, at length the way becomes clear, and on every Committee on which I have sat the final view has been unanimous.
  Surely the great feature of these Committees is that it enables all the local interests to put their views before Parliament. I understand that inquiries have been made of the Clerk of the Peace of Northamptonshire and the Town Clerk of Northampton in regard to the action of the Minister in this case, and they take a very grave view about it. They feel that if, after hearing fully the Petitions and evidence put forward, an arbitrary reversal is to take place on the instructions of the Minister, the considerable expense which they incur in putting forward their cases before these Committees is wasted. Most of us here are fully experienced in this sort of Committee work, and we feel that it is a good procedure. In this case there is even less ground for the reversal, because the Committee dealing with this Order was one of both Houses of Parliament, and not merely of the House of Lords. I feel that it is very unfortunate, to say the least, that this arbitrary reversal of the Committee's decision should be made by the Minister.
  On Question, Motion agreed to.
  The Schedule:
  7.—
  (3) The authorised quantity for the purposes of the said section 10 shall be—

  (a) in the case of the said Work No. 1, twenty million gallons in a day of twenty-four hours;

  (b) in the case of the 1944 works, four million three hundred thousand gallons in such a day as aforesaid:

  Provided that if at any time in the opinion of the Minister and the Minister of Agriculture and Fisheries it shall be necessary having regard to the state of the river to reduce the authorised quantity specified in paragraph (a) of this subsection and the said Minister give notice to the Corporation requiring them not to take by means of the said Work No. 1 any greater quantity of water than the quantity, not being less than sixteen million gallons in such a day as aforesaid, specified in the notice, the Corporation on the receipt of the notice and until in the opinion of the said Ministers it is no longer necessary to maintain a reduction in the authorised quantity shall not take water by means of the said Work No. 1 otherwise than in accordance with the notice.
  33.—(1) The accounts of the Board shall at all reasonable times be open to inspection and transcription without payment by any member of a constituent council or the county council, or by any officer of any such council authorised by that council for that purpose and shall be subject to audit by a district auditor.
  LORD SHEPHERD: My Lords, one, at any rate, of the Amendments down on the Order Paper to-day will be put into the Bill. That being the case, the Bill will have to go back to the other place, and that will entail a further delay. In order to meet that I have to move this Amendment to substitute July 1 for June 1 as the appointed day. I beg to move.
  Amendment moved—
  Page 4, line 5, leave out ("June") and insert ("July").—(Lord Shepherd.)
  EARL DE LA WARR: My Lords, I have no desire to object to this Amendment, but I do not think it would be out of place if I pointed out to your Lordships that the only reason why it is needed is because of the procedure the Ministry of Health have insisted upon adopting. The original date was April 1. That date could have been adhered to if your Lordships had been presented with an Order arising out of the Report of the Joint Committee of both Houses, presided over

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  by the noble Lord, Lord Belstead, instead of having these Amendments forced upon us.
  On Question, Amendment agreed to.
  3.25 p.m.
  EARL DE LA WARR EARL DE LA WARR moved to omit the proviso in sub-paragraph (3) of paragraph 7 and to insert:
  "Provided that if, having regard to the state of the river the Catchment Board and the Corporation agree, or in case of dispute it is determined by the Minister and the Minister of Agriculture and Fisheries, that a smaller quantity than that specified in paragraph (a) of this subsection, being a quantity not less than sixteen million gallons, should be substituted for that specified in that paragraph, that smaller quantity shall be so substituted during such period as may be so agreed or in case of dispute so determined."
  The noble Earl said: My Lords, the noble Lord, Lord Shepherd, has already assisted your Lordships a great deal by a full and, as the noble Lord, Lord Belstead, has said, very fair statement of what has happened. As your Lordships have been informed, this Order was submitted and it was approved by the Minister. As a result of objections it was referred to a Joint Committee of both Houses of Parliament. As the noble Lord has already said, certain Amendments were inserted, and I think I am right in saying that every one of those Amendments proved subsequently to be satisfactory, not only to the Nene Catchment Board, in whose favour, on the whole, they were (I refer to the first point on the Order Paper), but to all parties concerned. In spite of that, the Minister objected to these two Amendments, and on the Report stage in another place the proposals of the Joint Committee were removed.
  It has been made clear from what has already been said that it is generally agreed that the overruling of a Report of a Committee of either House or both Houses of Parliament is an exceedingly grave matter. That is always so, but in this case, which deals with what was originally an Order arising out of the Water Act, 1945, it is made doubly grave by the statement that Mr. Arthur Greenwood made in another place in 1945 on behalf of His Majesty's Government. With your Lordships' permission, I will read part of what he said:
  "I cannot speak for any future Government, least of all for a Government drawn from the
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  opposite Benches, but I can speak for His Majesty's present Government. I do not want to mince my words at all, and I give the most specific assurance that we do not regard this Bill as a weapon with which to beat down opposition or to carry proposals through without due regard to all the interests who ought to be considered."
  Mr. Greenwood went on to say that he hoped this procedure would be used in such a way as to ensure that only matters that deal with the root of the matter (that is to say, the gravest matters of policy) should be dealt with on the floor of the House, and he further used these words:
  "… whore national policy is involved, or is likely to be imperilled or embarrassed. …"
  Mr. Greenwood used those words in the discussion on the Statutory Orders (Special Procedure) Bill, 1945, in another place, on November l4, 1945. In spite of those words, the Minister has seen fit to make the Amendments.
  As the noble Lord, Lord Belstead, has already said, the fact that this is the first Bill arising out of a new form of procedure makes it doubly unfortunate, because, whatever noble Lords speaking on behalf of the Government like to say, a precedent is a precedent, and it is bound to make its lasting mark. It is not going too far to say that this type of procedure defeats the whole intention of what has been laid before Parliament as the appropriate method of dealing with matters of policy such as this. Therefore in my view it would be exceedingly difficult to justify what has been done, even if on balance the merits of a particular question—and for the moment I deal purely with the generalities of the subject—were slightly in favour of a Minister and against the Report of a Committee of either House of Parliament.
  What are the merits of this particular case? In the Bill as it stands before your Lordships, it is proposed to give power to the Joint Water Board or, in a particular instance, the Nottingham Corporation, to take 20,000,000 gallons a day from the river Nene. The Nene Catchment Board, as I think your Lordships know, have for many years been considered amongst the best-administered of all catchment boards in this country, presided over by one who is universally respected, certainly throughout the whole agricultural industry, and who, indeed, in his time has been Chairman of the

  843
  Trades Union Congress. The Nene Catchment Board's objection is that they are responsible for the maintenance of the river, and that there may well be times when to extract so much water from the river may be extremely harmful, both to the river itself and to those interests connected with food production who are dependent upon water for maintaining their livestock and other agricultural activities. Therefore, the Board claim—and they were supported in this claim after very long consideration, as the noble Lord, Lord Belstead, has already told us, by the Joint Committee of both Houses—that the Corporation should be given only the absolute right to extract up to 16,000,000 gallons per day, and that with regard to the 4,000,000 difference between the 16,000,000 and the 20,000,000 gallons now proposed in this Bill, the Catchment Board should have the right of veto on extraction.
  Now, as the Bill stands, it is left to two Ministers, the Minister of Agriculture and the Minister of Health, to decide whether that extra 4,000,000 gallons may or may not be extracted from the river. It is all very well to talk about the public interest, and to say that this matter must be left, or can be entrusted only to the wisdom of Ministers acting in Whitehall. Any of us who has had anything at all to do with the administration of drainage of these rivers—and particularly as we are discussing a river which is most difficult, tricky and chancy in its flow—knows that decisions of what can or cannot be extracted are taken in accordance with not only daily but almost hourly readings of a great number of gauges along the river; and nobody but the engineer to the catchment board is really in a position to say what quantity of water can be extracted. If the procedure proposed in the Bill is accepted, it will mean that the matter has to go back to London for consideration, not only by one Minister but by two Ministers. Those of us who have tried to get the most petty licences out of even one Government Department, know how long it can sometimes take, but when two Ministers and two Departments have to agree, then I think it is very difficult to feel that in rejecting the Amendments proposed by the Joint Committee of both
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  Houses the Minister of Health had in mind the reality of the position.
  I am fully aware that everything I have said leads logically to the fact that we as a House should reinstate word for word the Amendment proposed by the Joint Committee of both Houses. But I do not think that in this House we always proceed entirely by logic. We should very much prefer to make it easy for a settlement of what is now in fact a difficult position to be reached. Therefore I have put down an Amendment which does not go so far as that proposed by the Joint Committee. I have put down an Amendment to the effect that the Corporation and the Catchment Board should be left to agree on whether the river can or cannot afford to have the extra 4,000,000 gallons extracted from it, and that only in the event of disagreement between these two bodies shall the matter be referred to the Minister in London. I think the noble Lord opposite will realise that my Amendment represents a considerable concession to his point of view. I do not think my Amendment entirely meets the position, but it is at least an advance towards sanity. I beg to move.
  Amendment moved—
  Page 7, leave out lines 32 to 43 and insert the said new proviso.—(Earl De La Warr.)
  3.39 p.m.
  LORD SHEPHERD: My Lords, apart from the Bill before us, perhaps I ought to say that we stand by the speech or Mr. Greenwood, quoted by the noble Lord. We do not look upon the new procedure as a means of keeping down all opposition. We stand by every word of my right honourable friend's speech. Unfortunately for the noble Lord, the speech was made on a subject other than the one we are now discussing, although during the same debate. As a member of a Joint Committee of both Houses, I would like Committees of which I am a member to have their Reports properly received, and on the whole I think that Committees and Joint Committees have no complaint about the reception of their Reports in either House. I hope that that condition will continue. At the same time, I do not think any noble Lord will be prepared to say that whatever a Committee or a Joint Committee propose, Parliament must, willy-nilly, accept. Parliament does not give up its rights in legislation after it has referred particular

  845
  measures to Joint Committees for a special function.
  I am in the very happy position to-day of being able to inform the noble Earl, and noble Lords generally, that the Government are prepared to accept this Amendment. The Amendment is not new to noble Lords on this side, and we are glad to give it our support. Moreover, there are two undertakings that I would add. First, we give an undertaking that should a matter ever be referred to the Ministers, after disagreement locally, expedition will be shown in dealing with it. Perhaps I ought to add that in relation to rivers there is a practice in operation in the Ministry of Health which in cases of emergency permits of a decision being taken at twenty-four hours' notice. We will try to do our best in that respect. The second undertaking is this: that immediately this Bill becomes law, the two Ministers will meet representatives of the Joint Board and of the Catchment Board, in order to see whether a sliding scale can be adopted for the river, so that instead of being faced with the issue of a drop of between 20,000,000 and 16,000,000 gallons per day at one fell swoop, the, rise and fall of the extraction of water will be dependent on the level of the river from time to time. If we can get such a sliding scale—and I think it possible—it should meet the case.
  EARL DE LA WARR: I should like to thank the noble Lord for accepting this Amendment, and also for adding to his acceptance those two assurances. We know, of course, that ministerial assurances have some value on these matters, though in the end we have to get down to the interpretation of Acts of Parliament. However, I think that what the noble Lord has said is very helpful.
  On Question, Amendment agreed to.
  EARL DE LA WARR EARL DE LA WARR moved, in subparagraph (1) of paragraph (33) to omit "and shall be subject to audit by a district auditor" and insert:

  "(a) The accounts of the Board shall be audited annually;

  (b) The Board shall by a resolution passed not later than two months after the appointed day (hereinafter in this section referred to as "the initial resolution") adopt either the system of district audit or the system of professional audit;

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  (c) The provisions of Part X of the Local Government Act, 1933 other than those of sections 237 and 238) shall mutatis mutandis and with all necessary modifications extend and apply to the Board as if the Board were the council of a borough:

  Provided that—

  (i) neither the requirement as to a two-thirds majority prescribed by paragraph (a) of subsection (4) of section 239 of the said Act of 1933 nor the provisions of paragraph (b) of the said subsection shall apply to the initial resolution: and

  (ii) paragraph (b) of subsection (3) of the said section 239 shall have effect as if the Institute of Chartered Accountants in Ireland were one of the bodies specified in the said paragraph and as if at the end of that paragraph there were inserted "or any other body of accountants established in the United Kingdom and for the time being recognised by the Board of Trade for the purposes of the provisions of section 161 of the Companies Act, 1948 relating to the qualification for appointment as auditor of a company other than an exempt private company."

  ( ) It shall be lawful for the Board subject to the consent of the Minister at any time and from time to time after they have passed the initial resolution by means of a subsequent resolution passed and confirmed in accordance with subsection (4) of the said section 239 to adopt the other of the two systems which are referred to in the said section 239."
  The noble Earl said: My Lords, after what happened on the last Amendment, I rise to move this Amendment with a sense of considerable encouragement. It is always pleasant to meet a Minister on the other side who is obviously anxious to meet us in our ideas. The main burden of my complaint I have already expressed on the first part of the last Amendment, and I will not repeat what I said then. I would say only that this Bill as it now stands is another direct reversal of the proposal of the Joint Committee of both houses. I am in some difficulty here to find a compromise. On the last Amendment it seemed to me to be possible to put down something that was rather different from what had already been discussed in another place; and here we always prefer, if we send something back to another place, to make some concession to their view. The trouble in this case is that the Joint Committee went so far in the direction of compromise that I do not see how we can go further.
  The point at issue is an exceedingly simple one. The Water Board wanted to be permitted to have their accounts audited by the means commonly spoken of as professional audit; that is to say,

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  by a professional auditor. The Minister said that the audit must be carried out by the district auditor. Now, the Joint Committee made what I should have thought would appeal to all of us as the most reasonable compromise—namely, that the decision should be left in the hands of the Water Board, and that they should be given the choice of audit either by district auditor or by a professional auditor. Not that that is a novel proposal, as I think the noble Lord Belstead will agree, because in fact it is a proposal that is based on the Local Government Act, 1933, Section 239, whereby all borough councils and county councils are given that choice. While it is not my purpose to-day to argue which is the best form of audit, I am arguing only in favour of a choice being given.
  It is not without interest that no fewer than 134 boroughs have made the choice in favour of a professional auditor, as against 109 in favour of the district auditor. Of the county boroughs, 73 out of 83 have declared for the professional auditor. As we all know, owing to changes in public opinion—which some of us may think fortunate and some unfortunate—which have been demonstrated in the last month or so, the vast majority of these county boroughs were in fact being administered by a Labour majority. In addition, it has been laid down in the recent nationalisation Acts put before your Lordships by Ministers who are now sitting opposite that all nationalised industries should have their accounts audited by professional auditors.
  How, then, the Minister of Health finds it possible to argue that here is a grave matter of public policy and principle in which he must lay down a definite law, a sufficiently grave matter of principle to override the proposals of a Joint Committee of both Houses of Parliament, I find it hard to understand. I repeat that I see no point in arguing the respective merits of these two forms of audit, but I do ask the noble Lord why no choice can be allowed to the Water Board as to the method of audit that they adopt; and further, how he can contend that it is so important to refuse them a choice that the Report of a Joint Committee of both Houses has to be overridden. That is all I wish to say on this question at the moment. I beg to move.
  Amendment moved—
  Page 19, line 24, leave out ("and shall be subject to audit by a district auditor") and insert the said new words.—(Earl De La Warr.)
  3.50 p.m.
  LORD BELSTEAD: My Lords, I should like to make a few remarks, if I may, for the benefit of those noble Lords who did not hear all the arguments and questions upstairs. Whether they are to be congratulated or commiserated with on that account I am not sure, but the fact remains that they did not hear them. It must be remembered that Clause 33 (1), which the Minister has felt himself impelled to alter, is purely permissive. It is entirely a question of giving the Water Board the choice of having their accounts made up and audited either by the district auditor or by a professional auditor. As the noble Earl, Lord De La Warr, has said, the borough councils and the county borough councils practically all now employ professional auditors. I think that amongst the great cities and towns of the country there are now five exceptions that have a district auditor.
  Heaven forbid that I should say anything against district auditors or the district audit! District auditors are civil servants. They get their professional training after they are civil servants, during their service. They are not like the members of the Institute of Chartered Accountants or the Society of Incorporated Accountants, who have had a long professional training, ending in a series of examinations. No doubt, they are most suitable for what they were intended—that is, to audit the accounts on rate funds and to surcharge and disallow discrepancies in the accounts of small bodies, but for something which is really a trading concern, I submit, and the Committee felt, that the professional auditor is far more suitable. The field for the district auditor has been very much narrowed in view of some of the recent nationalisation measures, under most of which the Minister is empowered to choose who shall be an auditor, and he has in fact chosen a professional auditor in case after case.
  I am bound to admit that of the forty-seven water boards in the country, thirty-seven have a district audit; but that is not half such a convincing argument as it sounds, because some of them, like the Metropolitan Water Board, have had a

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  district audit from the time when the professional audit was practically unknown; and in other cases they are small bodies who have chosen the district audit because their constituent members have a district audit. In fact, of recent precedents—the only two since the war—in the case of the Mid- and South-East Cheshire Board the Minister sought to have a district audit imposed upon the Board, and he was unsuccessful. In the other case—that of the North Cumberland Water Board—a district audit was imposed by the Act, but each of the very small constituent bodies that made up that Board themselves had a district audit, and therefore they did not oppose it.
  There is one other, as I think, rather cogent argument, and it is this: that in cases where district audit is adopted, the audit is not opened or commenced until after the end of the financial year. It is rather late when the public body in question receives the audit; therefore it is not always easy to find out discrepancies, overtake them, put them right or do them salutary justice. In the case of a professional audit, it is what is called a continual audit, which goes on all the time, and the facts as they come out are available to the public bodies. I do not wish to weary your Lordships with this argument. I do, however, wish to revert to the point I started with: that this is really a permissive clause. Therefore, in all the circumstances, I hope that your Lordships will uphold the decision of your Committee.
  LORD SHEPHERD: My Lords, it is quite true to say that the chief trend today on the subject of audit amongst local authorities is towards the district audit and not the professional audit. As the noble Lord, Lord Belstead, has said, it is also quite true that a greater proportion of the municipal corporations have a professional audit, but it would be equally true to say that they have taken their professional audit subsequent to finding their elected auditors of other days unsuited for their purpose. But even today a number of municipal boroughs are adopting the district audit instead of the professional audit. The noble Lord has mentioned one or two facts, and in a short statement that I want to make, I hope your Lordships will permit me to mention a few facts also. Thirty-seven
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  out of forty-seven wafer boards in the country, including the Metropolitan Water Board, are subject to district audit. Therefore, we suggest that district auditors in the matter of auditing accounts of water boards are infinitely more experienced than the professional auditors. The second point I would like to mention is that the district audit is more independent than the professional audit, in that the auditor is not appointed by the body whose accounts are coming under review.
  VISCOUNT SWINTON: Really, does the noble Lord suggest that a member of the Institute of Chartered Accountants will not be completely independent in his audit?
  LORD SHEPHERD: I have not suggested that, and I should be very sorry indeed if what I have said conveys that impression.
  LORD BELSTEAD: It does.
  LORD SHEPHERD: What I said was that the district audit is more independent. I did not question the honour or integrity of the professional auditor. I do not cast any reflection at all in that direction. The district auditor also has powers of calling for documents, summoning people to interviews and making surcharges, which facilities are not available to the professional auditor. The district auditor alone has the powers which enable an auditor to get to the bottom of things. In the case of this particular Water Board, out of fifteen constituent members of the Board, thirteen are subject to public audit; and, that being the case, we suggest to your Lordships that it would be eminently suitable that the co-ordinating body should come under public audit as well. It would make for unity which in turn, I think, would make for progress. As I have already said, the modern tendency is towards district audit and not towards professional audit. The noble Lord, Lord Belsteed, conveyed a little too much in what he said about the attitude of the Water Board in this case. I understood hint to say that they had made proposals that they should be given powers to adopt a public audit—I am sorry if I am misquoting him.
  LORD BELSTEAD: I said that the whole clause is permissive. You are paraphrasing it.
  LORD SHEPHERD: The point I want to make is that, so far as we know, no protest has been made by this Board (or what will be this Board) in respect of this proposal at all; we do not understand that there is any resistance to it whatever. There are two points about the Amendment. First, there is a proposal in the Amendment that in order to enable the professional audit to be carried through, this Water Board should be presumed to be the council of a borough. I think that is rather stretching words too far. Certainly by no stretch of the imagination could such a composite body, consisting of all kinds of authorities, be likened unto the council of a borough. Then there is one other curious feature about the Amendment. At the start, in order to decide whether there should be a district audit or a professional audit, a majority vote of one will carry the day. But if afterwards the authority desires to change from the professional to the public, or vice versa, then a two-thirds majority would be required. We feel that on this point the Government are in the right; that it is in the line of progress and development; and we sincerely trust that noble Lords will not press the Amendment upon us.
  THE MARQUESS OF SALISBURY: My Lords, perhaps I may say one word in a further appeal to the Government on this question. We are grateful for the assistance they have given in regard to the other Amendment. We do not mean to be obstructive in regard to this question, but we regard it as a matter of some considerable importance. I will not make any reference to the differentiation made by the noble Lord, Lord Shepherd, between the independence of district auditors and that of professional auditors, because although it appeared to cast a rather unfortunate reflection upon the professional auditors, I am sure he did not mean to do that; therefore the less said about it the better. But with regard to his other points, there are things which should be said.
  First, as I understood, he said that there was a trend to-day amongst local bodies towards district audit, as against professional audit. That, of course, is a matter of opinion, but I think my noble friend Lord De La Warr quoted the fact that seventy-three out of a total of eighty-three county boroughs, including Manchester and Liverpool, have adopted professional
  852
  audit. That does not seem to bear out the statement made by the noble Lord opposite. I would also add that in the case of these constituent bodies, more than half at present have professional audit—I am told I am wrong in that; I should have said that over 50 per cent. of the Board's revenue is derived from such bodies. That is relevant.
  LORD SHEPHERD: Will the noble Marquess forgive me? The difference in the revenue is accounted for by the large borough. The figures which I have given comprise the whole of the bodies in the area, and thirteen out of the fifteen are subject to district audit.
  THE MARQUESS OF SALISBURY: The borough bodies have a district audit, but the fact remains that by far the larger proportion of the revenue comes from bodies which now have professional auditors. The point I ask the Government to look at is this—I want to put it in the most uncontroversial way I can. All we ask is that they should have second thoughts. We are not asking for more. The noble Lord, Lord Shepherd, has more knowledge of these matters than I have, and if he is right in saying that there is a trend in the direction of district audit, there is nothing whatever to prevent the Board having a district auditor. If they follow the fashion, if they are in the movement they can say "By all means let us have a district auditor." But on the other hand, if they think that on the balance of consideration they would prefer to have a professional auditor, I do not see why the Government should deny them a right which, as I understand it, is enjoyed by every borough council in the country.
  There is one other point. If the Government look forward, as I hope they do, they will observe that all the great nationalised industries have professional auditors. I rather gathered that if the Government are returned to power after the next General Election they propose to nationalise water; and in that case they would be placed in the extremely embarrassing position of having to undo all the work they have done on this occasion. For all these many reasons—short-term and long-term reasons—I think the Government might give us this permissive Amendment; for it is no more. If they are right in thinking that the trend is towards

  853
  district audit, they can put it to the test, and it is always open to the Water Board to adopt that course.
  I am sure that the Government do not wish to delay the passage of this Bill; neither do we. Obviously, it is important for the locality that it should be passed as soon as possible. What I would suggest is that the Government might consider the matter further before Third Reading. We in this House are in the happy position of being able to move Amendments on Third Reading, a course which is not open to members of another place, so long as we move a properly considered Amendment and not a manuscript Amendment. Will the noble Lord not consider the possibility of approaching the Ministry of Health again in order that they may consider whether they can meet us? We are not going to insist upon a professional audit. All we want to do is to give the local people the type of audit they want. That is a very moderate proposal. If the Goverment would consider this point again between now and Third Reading we could have discussions with them; and if we can come to an agreement upon it, a proper Amendment can be put down at that stage.
  LORD SHEPHERD: My Lords, as usual, the noble Marquess is most persuasive, and on these Benches it is difficult to resist his influence. While not promising undue commitment in the matter—I know he will understand that we cannot do that—we are perfectly willing to agree to the suggestion that he has made, to consider the matter again between now and Third Reading.
  THE MARQUESS OF SALISBURY: I am grateful to the noble Lord. We shall look forward to hearing the result.
  EARL DE LA WARR: I beg leave to withdraw my Amendment.
  Amendment, by leave, withdrawn.
  LORD SHEPHERD: My Lords, the purpose of this Amendment is to defer the date of the first meeting from July 1 to August 1. I beg to move.
  Amendment moved—
  Page 22, line 5, leave out ("July") and insert ("August").—(Lord Shepherd.)
  On Question, Amendment agreed to.

  AGRICULTURE (MISCELLANEOUS PROVISIONS) BILL
  4.8 p.m.
  Read 3a (according to Order), with the Amendments, and passed, and returned to the Commons.

  AGRICULTURAL MARKETING BILL
  4.9 p.m.
  Amendments reported (according to Order).
  Clause 2:
  Directions by Ministers to boards as respects certain matters.
  (5) The Minister may at any time, after consultation with the board concerned, by order revoke or vary any order in force under the said subsection (2) as either—

  (a) to withdraw the whole or any part of the directions in force thereunder; or

  (b) to vary or add to those directions in any manner which he thinks necessary or expedient in order better to attain the purposes for which those directions were given.

  EARL DE LA WARRhad given notice of an Amendment in subsection (5) to omit paragraph (b). The noble Lord said: My Lords, I do not think I need to detain your Lordships long on this matter. We discussed it very thoroughly on the Committee stage of the Bill, in an Amendment moved by the noble Lord, Lord Carrington. Your Lordships will remember that we on this side of the House felt that the Minister was assuming to himself very great powers under Clause 2 but that, in the main at least, under that clause the Minister could operate these powers of giving directions to the marketing boards only after discussion of the problem by the committee of investigation. We felt that by paragraph (b), however, the Minister was given power, without any further reference to the committee of investigation, to make subsequent variations in the decisions he gave. The noble Earl, Lord Huntingdon, gave me a definite undertaking that this was, in fact, not so. He was also good enough to say that if he proved to be wrong he would then put down an Amendment making the point quite clear. I must confess that the Amendment which stands on the Marshalled List in the name of the noble Earl does not go so far as I should have

  855
  liked. I do not think it gives complete protection. On the other hand, it undoubtedly goes a very long way, and in the circumstances I shall not move my Amendment.
  THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF AGRICULTURE AND FISHERIES (THE EARL OF HUNTINGDON)THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF AGRICULTURE AND FISHERIES (THE EARL OF HUNTINGDON) moved to add to subsection (5):
  "Provided that, except with the consent of the board, the Minister shall not vary or add to any directions under paragraph (b) of this subsection where, in his opinion, the need for the variation or addition arose from circumstances not obtaining at the date when the directions were given."
  The noble Earl said: My Lords, in moving this Amendment I should like to thank the noble Earl, Lord De La Warr, for not moving his. It is true, that we had considerable discussion on this point, and as to the meaning of this clause, and that I undertook that the matter would be carefully looked into. We have now examined this very thoroughly indeed, and in order to meet the noble Earl's point we have introduced this Amendment. I do not wish to go over all the arguments that we had before, but I am glad to think that this Amendment meets the noble Earl's point. I beg to move.
  Amendment moved—
  Page 4, line 27, at end insert the said proviso.—(The Earl of Huntingdon.)
  EARL DE LA WARR: I thank the noble Earl.
  On Question, Amendment agreed to.

  MILK (SPECIAL DESIGNATIONS) BILL [H.L.]
  4.13 p.m.
  Order of the Day for the consideration of Commons Amendments read.
  THE EARL OF HUNTINGDON: My Lords, I beg to move that these Amendments be now considered.
  Moved, That the Commons Amendments be now considered.—(The Earl of Huntingdon.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  [The References are to Bill No. 38]
  Clause 2, page 3, line 24, at end insert ("or that the buyer was not a caterer").
  THE EARL OF HUNTINGDON: My Lords, I beg to move that the House do
  856
  agree with the Commons in this Amendment.
  Moved, That this House do agree with the Commons in the said Amendment.—(The Earl of Huntingdon.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  Clause 3, page 3, line 38, leave out from ("which") to end of line.
  THE EARL OF HUNTINGDON: My Lords, I beg to move that the House do agree with the Commons in this Amendment.
  Moved, That this House do agree with the Commons in the said Amendment.—(The Earl of Huntingdon.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  Clause 10, page 7, line 11, after ("revoked,") insert ("and a grant of a licence by way of renewal of a licence so held shall not be refused on the ground of breach of a condition of the licence so held,")
  Clause 10, page 7, line 23, at end insert ("and
  (c) the decision of the licensing authority to revoke, or to refuse renewal, as the case may be, is made within twelve months from the date of the breach in question.")
  Clause 10, page 7, line 24, leave out from beginning to end of line 28.
  THE EARL OF HUNTINGDON: My Lords, I beg to move that the House do agree with the Commons in these Amendments.
  Moved, That this House do agree with the Commons in the said Amendments.—(The Earl of Huntingdon.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  Clause 11, page 10, line 1, leave out subsection (5).
  THE EARL OF HUNTINGDON: My Lords, I beg to move that the House do agree with the Commons in this Amendment.
  Moved, That this House do agree with the Commons in the said Amendment.—(The Earl of Huntingdon.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  Clause 14, page 11, line 13, leave out ("and in the principal enactment")
  Clause 14, page 11, line 26, at end insert—
  ("'licensing authority' means, in relation to grant of a licence authorising the use of a

  857
  special designation, the authority having power to grant it by virtue of Milk (Special Designation) Regulations or Milk (Special Designations) (Scotland) Orders, and, in relation to such a licence which has been granted, the authority who would for the time being have power by virtue of such Regulations or Orders as aforesaid to grant a licence by way of renewal thereof if it had expired.")
  Clause 14, page 11, line 31, leave out ("does not include cream,") and insert ("has the meaning assigned to it by subsection (3) of this section").
  Clause 14, page 12, line 20, at end insert ("and in subsection (2) of the principal enactment the reference to sale shall be construed in accordance with the definition of the expression 'selling' in the preceding subsection.
  (3) In this Act the expression 'milk' means cows' milk, but does not include cream, or separated, skimmed, dried, condensed or evaporated milk, or butter milk:
  Provided that for the purposes of section twelve of this Act and of the last preceding subsection (which relate to the interpretation and amendment of the principal enactment) the said expression has the same meaning as in the principal enactment.")
  THE EARL OF HUNTINGDON: My Lords, I beg to move that the House do agree with the Commons in these Amendments.
  Moved, That this House do agree with the Commons in the said Amendments.—(The Earl of Huntingdon.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  Clause 16, page 12, line 36, leave out from ("to,") to ("and,") in line 37, and insert ("other expressions defined in section fourteen of this Act shall be construed in accordance with that section)")
  Clause 16, page 12, line 43, at end insert ("(except that references in this Act to expressions defined in section fourteen of this Act shall be construed in accordance with that section).")
  THE EARL OF HUNTINGDON: My Lords, I beg to move that the House do agree with the Commons in these Amendments.
  Moved, That this House do agree with the Commons in the said Amendments.—(The Earl of Huntingdon.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  In the Schedule, page 13, line 21, after ("milk") insert ("not so produced or subjected or other things").
  THE EARL OF HUNTINGDON: My Lords, I beg to move that the House do agree with the Commons in this Amendment.
  Moved, That this House do agree with the Commons in the said Amendment.—(The Earl of Huntingdon.)
  On Question, Motion agreed to.

  JAPANESE WAR CRIME TRIALS
  4.15 p.m.
  LORD HANKEY LORD HANKEY rose to call attention to the present situation in Japan in relation to war crimes trials and to the sentence on ex-ambassador Shigemitsu; and to move for Papers. The noble Lord said: My Lords, to-day, under inescapable impulse of personal conscience and public duty, I call attention to the Tokyo trials of war criminals generally, and, in that framework, to the plight of one of their victims, an old and true friend of this country, Mamoru Shigemitsu, who was Japanese Ambassador here before the war. If I had time I would expand on his love of peace, his patriotism, his vision to see that Japan's higher interests lay in peace and friendship especially with this country and America, his courage to press his views on his Government, even when they were unpopular, and the aura of integrity and goodness that surrounded the man. But, more eloquent than anything I can say, are the first and last lines of the dissenting judgment of the learned Netherlands Justice at the Tokyo trials, Mr. Roling. His first words were:
  "The evidence laid before this Tribunal reveals Shigemitsu as a diplomatist and statesman who worked for peace rather than for war …"
  The learned Justice's last words in his judgment were:
  "Summarising, the accused Shigemitsu Mamoru should be acquitted on all charges brought against him."
  I must begin, however, with the less exciting question of my request for Papers, which is no mere formality in this instance. Although more than six months have passed since the publication of the judgment and findings of the Tokyo Tribunal, the Government have published nothing at all so far as I am aware. I must thank my noble friend Lord Henderson, who is not in his seat to-day, for allowing me access to the one typescript of the judgment and findings in the Foreign Office Library. It is many times longer than the Nuremberg White Paper. It is not an easy method, having to get one's information in that way, and check

  859
  it. The majority judgment covers more than a thousand pages of close typescript and the three dissenting judgments are, in the aggregate, longer still, but they are of considerable importance. I realise that, in present conditions, it will take some time to produce a White Paper similar to the Nuremberg Report, though it must be done in the case of so important and historic a document, and I must ask particularly for an answer on that point. I suggest that pending the print, a typewritten copy of the judgments, including the dissenting judgments, should be placed in the Library. I have given notice of that.
  In this country, what little information has been published about the trials, is not edifying. In America more has been published and it is less edifying. Private communications and impressions from Tokyo are the least edifying of all. As a leading article in the Washington Post of January 11, 1949, put it:
  "It is more and more evident to us that the good name of justice, let alone of the United States, has been compromised by the War criminal cases in Tokyo."
  The Proclamation establishing the Tribunal was issued on January 19, 1946, and the trials have taken about two and a half years. That is very hard on the accused and indeed on everyone. But it is not surprising. There were eleven judges, and twenty-five accused who were all pronounced guilty. Seven, including six generals, were sentenced to death by hanging; sixteen were imprisoned for life; one was sentenced to twenty years' imprisonment and one, namely Shigemitsu, to seven years' imprisonment. I am coming to him in a minute. There were, as I have already mentioned, three dissenting judgments. They were delivered by the learned French. Netherlands and Indian justices respectively, which shows how controversial these trials must have been. It all sounds very unwieldy and cumbersome and not exactly the milieu in which men ought to be tried for their lives.
  According to a notable dispatch in The Times of November 12, the President, Sir William Webb, the learned Australian Justice, expressing an opinion differing in certain ways from the majority judgment, said that the crimes of the persons accused were far less heinous, varied and extensive than those of the
  860
  Germans accused at Nuremberg. He also expressed the opinion that it might prove revolting to hang or shoot such old men as some of the accused. After some adverse remarks on the responsibility of the Emperor, who had been granted immunity from trial, he went on to say:
  "If in such a case the court must by law impose capital punishment, the prerogative of mercy would probably be exercised in order to save the lives of the condemned."
  In spite of that strong hint, all the death sentences were carried out.
  According to The Times report, counsel for the defence protested vigorously against the Tribunal's refusal to read in open court the three dissenting opinions, and accused the court of unfairness in refusing to allow the defendants "to know what is said touching their lives and liberties." This is rather serious, because the dissenting judgments, individually and collectively, are very critical of the majority judgment. Much more has appeared in reputable British and American newspapers. I have quoted only The Times and the Washington Post and I will not quote any more; it is sufficient to mention the titles of leading articles, such as "Injustice in Tokyo" and "Shigemitsu Travesty." These reports, which have not been challenged, were sufficiently serious to stir me to very close scrutiny of the judgments, as close a scrutiny as I could manage of this enormous mass of documents, for which I had to go to the Foreign Office Library. That scrutiny did not reassure me.
  There is one feature in the Tokyo trials which distinguishes it markedly from Nuremberg. At the latter nearly all the defendants convicted of serious crimes against peace were also found guilty of serious crimes against humanity, for which they would have received death sentences anyway, as the greater crime included the less. That was true also of the seven men sentenced to death at Tokyo: they were all condemned for crimes against humanity as well as crimes against peace. But in the case of the sixteen life imprisonment sentences, no fewer than fourteen of the accused were sentenced only for political crimes—I mean by that, crimes against peace. In addition, Tojo was sentenced to twenty years' imprisonment, making fifteen of these cases altogether. In the case of the Tokyo trials the historical background of the trials, which I

  861
  raised a fortnight ago in discussing the Nuremberg trials, may become important, but until we have easier access to documents not much can be said on that point, which I reserve.
  The matter has to be considered, however, and all the more carefully because the procedure in findings of fact at the time of the trial was severely criticised by the learned French judge, and this was one of the many reasons for his dissent. After stating that the guarantees, which the law of nations grant the defendants, include "oral deliberations outside of all influence bearing on all produced evidence among all the judges who sat at the trials." he continued:
  "All the part of the judgment relative to the findings of fact were proposed by a drafting committee and submitted by the latter as its preparations progressed, first to a committee of seven judges called the 'Majority.' Copy of this draft was also distributed to the four other members of the Tribunal. The latter were called upon to submit their own views to the majority in view of their discussion, and should the case arise, for modification of the draft. But the eleven judges were never called to meet to discuss orally a part of or in its entirety this part of the judgments."—
  I am referring to the factual part—
  "Only the part of the draft relative to individual cases was the object of oral discussion."
  To the layman who knows nothing of these methods of procedure, it would be rather interesting to know whether this system of majority and minority groups is usual. I imagine that one has to adopt all sorts of expedients when there is such a large court.
  On one point the Tokyo Tribunal seems to have imitated the Nuremberg trial rather too closely—namely, in trying to establish that there was a conspiracy in Japan to do all these wicked things. As I read the majority judgment I felt that the arguments on this point were rather thin, and the dissenting judgments strongly confirm that view. With your Lordships' permission I will read two short extracts. Here is one from the French dissenting judgment:
  "No direct proof was furnished concerning the formation among individuals known, on a known date, at a specified point, of a plot, the object of which was to assure Japan the domination, unaccepted by its inhabitants, of some part of the world. The only thing proved is the existence among certain influential classes of the Japanese nation of the desire to seat at all costs the domination of Japan upon other parts of East Asia."
  862
  The second extract is from the judgment of the Honourable Justice Pal, the learned Indian Justice, who said:
  "The case of the accused before us cannot in any way be likened to the case either of Napoleon or Hitler. The constitution of Japan was fully working. The Sovereign, the Army and the Civil officials all remained connected as usual and in normal ways with the society. The constitution of the State remained fashioned as before in relation to the will of the society … These accused came into power constitutionally and only to work Me machinery provided by the constitution… These persons did not usurp any power."
  And so on.
  This makes it look as though the Japanese, though stupid and sometimes wicked, did not conspire. During my own association with The Japanese in the years between the wars there was no change at any time in the personnel one met at international conferences. The various representatives were always very much the same. The point is of importance, because the accused with the exception of only three, including Shigemitsu, were convicted on Count 1, of conspiracy, which was treated as the worst of the political crimes. "Conspiracy" appears in a very large number of the individual findings. With conspiracy in Count 1 went wars of aggression, and some of the dissenting judgments point out how desperately controversial the question of defining "aggression" has been in the past. I have myself seen three great efforts of the League of Nations fail largely on the question of aggression, and I have never yet seen a definition that could pass muster, at any rate, of the Service staffs. This is such a big question I dare not enter upon it to-day. All these points seem to me to tend towards the desirability of a revision of the sentences. Although the case against Shigemitsu is the only one I pretend to have examined carefully. I am told that there are grave doubts about some of the others. For instance, the sentence of death on Hirota is very much criticized, particularly in Japan, where the people cannot understand why he was condemned to death.
  To sum up that part of my speech, I have found nothing in any of the individual judgments to weaken the criticisms that were made in our debate a fortnight ago on the policy on these trials, and of their continuation. I do not think I need repeat my criticisms, because they

  863
  are recorded in Hansard. I find nothing that invalidates the recommendations of the right reverend Prelate, the Lord Bishop of Chichester, and at the end of my speech in accordance with notice which I have given to my noble and learned friend on the Woolsack, I shall ask for assurances on similar lines in the case of the Tokyo trials.
  I now come to Shigemitsu. Much of the criticism of these trials, private as well as public, centres around the case of Shigemitsu, where there seems to me to be a strong prima facie case for revision. The American papers and broadcasts have stated repeatedly that the Chief Prosecutor, Mr. Joseph B. Keenan, has declared that Shigemitsu should not have been put on trial, let alone convicted, and that he disagrees with the International Court in imposing a seven-year term of imprisonment. He also says that, but for the Russians, Shigemitsu would neither have been tried nor convicted. From the sponsor of the pretty tough indictment made at the beginning of the trial, that is a strong statement. It does not surprise me, because I heard rumours of the same kind as early as 1946.
  His Excellency Mamoru Shigemitsu to give him his full title, was, as I have said, Japanese Ambassador in London from 1938 until the outbreak of war with Japan on December 7, 1941. He was a worthy successor to a distinguished line of Japanese Ambassadors, and was much respected here, even during the difficult months before the war, when he was doing his best to avert that catastrophe. I have in my hands more than a dozen tributes, prepared as evidence by well-known people, and sent under affidavit to Tokyo, to his work for peace, here and elsewhere. They include an extract from the speech in secret session by Mr. Winston Churchill, and statements by Mr. R. A. Butler, and three British Ambassadors, Lord Killearn, Sir Robert Craigie and Sir Francis Lindley. The last asks me to say that he considers the sentence of Shigemitsu the grossest miscarriage of justice. The list of those who have paid tribute includes six American diplomats, among them Mr. Joseph E. Davies, Mr. Kennedy and Mr. Joseph Grew. The noble Lord, Lord Killearn, was anxious to make a short statement to-day, but had to leave for
  864
  distant lands by air yesterday. I understand, however, that he has authorised my noble friend Lord Sempill to communicate the gist of what he intended to say. The noble Lord, Lord Altrincham, regrets very much that at the last moment he has been prevented from coming here to put in a word for Shigemitsu.
  My own statement was concerned solely with the first half of the war when, in conjunction with the late Lord Lloyd and one or two others, with the permission, of course, of the Foreign Secretary, I was in close touch with Shigemitsu on how to avert the extension of the war to Japan. There is no need to develop that theme, because—I hope with some aid from the documents sent to Japan—Shigemitsu was pronounced not guilty on the charge of conspiring or instigating wars of aggression; that is to say, he was not found guilty on the most serious charge, which would certainly have involved his death. To quote the majority findings:
  "He was not one of the conspirators. Indeed, he repeatedly gave advice to the Foreign Office which was opposed to the policies of the conspirators."
  But Shigemitsu was found guilty of waging aggressive war, on which the majority finding records:
  "He waged no war of aggression until he became Foreign Minister in April. 1943, by which time his country was deeply involved in a war which would greatly affect its future."
  To the layman, that charge of waging war after 1943 is answered very effectively in the long dissenting judgment of the learned Mr. Justice Roling, whom I have already quoted. In April, 1943, when Shigemitsu joined the Cabinet, he could not have been waging war of aggression, for the simple reason that the aggression had run out; it had been planned before the war, and had failed. Japan—and, indeed, the whole Axis—was fighting a defensive war. The battle of Midway Island had been lost; Japan had been thrown back in New Guinea and in the Solomon Islands; the Allies had landed in North Africa, and the Germans were retreating in Russia.
  Moreover, Shigemitsu had entered the Cabinet as Foreign Minister, with the object of promoting peace, on which Mr. Justice Roling cites a good deal of evidence—for instance, approaches to the Swedish Minister (I could give the actual

  865
  references in evidences on those points), an attempt to secure Russian mediation, talks from the very early days of his tenure of office, continued until his retirement, with Kido the Emperor's adviser, and reports on peace prospects to the Emperor himself. All that I get from Mr. Justice's Roling's judgment, but I could not see anything about it in the majority findings. I had to read them hastily, of course, but I do not think they are there, Mr. Justice Boling says:
  "He who assumes public office in order to oppose that war, who accepts his appointment in order to promote peace, cannot and should not be accused of waging an aggressive war."
  Mr. Justice Roling scouts as untenable the contention of the majority judgment that the mere fact of entering a Cabinet as Foreign Minister, as Shigemitsu did in 1943, is per se a crime. And I think he is right. The majority findings say of Shigemitsu that on taking office
  "he played a principal part in waging that war until he resigned on April 13, 1945."
  You can search the majority findings, and you cannot find what that "principal part" is, either in the general judgment relating to all defendants, or in the verdict relating to Shigemitsu.
  As one who has lived with Cabinets in two major wars, in the first as a Secretary and in the second as a Miner of Cabinet rank, I am a little puzzled to know what "principal part" he can have played outside his own sphere. For example, I have never considered myself responsible for events like the loss of the "Prince of Wales" and "Repulse," of which I knew nothing beforehand. The point was raised in the Dardanelles Commission in the First World War, when (as some of your Lordships may remember) Mr. McKenna and some others repudiated all responsibility for the naval attack on the Dardanelles. On that the Dardanelles Commission's pronouncement was as follows:
  "We consider that the responsibility of those members of the Cabinet who did not attend the meetings of the War Council was limited to the fact that they had delegated their responsibility to their colleagues who attended those meetings."
  Of course, that limitation on the responsibility of civilian Ministers applies especially in Japan, where the military authorities were so dominant. As Mr. Comyns Carr, just back from Tokyo, told the Royal Empire Society the other day:
  866
  "The War and Navy Ministers in the Japanese Government were not selected by the Prime Minister: they were appointed by the three senior officers in each of the two Services."
  These officers, by the simple process of refusing to appoint a Minister, could prevent any Government of which they did not approve from ever being formed. They could smash it by withdrawing their Minister and refusing to appoint another. That shows very graphically the position of the military authorities. Moreover, I submit that the precedents are against the majority judgment. Your Lordships will remember the Nuremberg findings in the case of Speer, who was Minister of Munitions. This is the extract:
  "His activities in charge of German armament production were in aid of the war effort in the same way that other productive enterprises aid in the waging of war; but the Tribunal is not prepared to find that such activities involve engaging in the common plan to wage aggressive war as charged under Count I or as waging aggressive war as charged under Count II."
  While we are on precedents, what a precedent Tokyo had created! Any statesman in any country joining a War Cabinet as Foreign Minister to get peace when his country is in trouble will, in future, by the simple fact of doing so, be liable to condemnation by his enemies—for nobody else will condemn him—of waging aggressive war! I submit that the majority findings on Shigemitsu on the charge of waging aggressive war are so controversial as to support my demand for revision. In such revision I think the minority findings should receive close attention, and that Shigemitsu should receive the benefit of the doubt.
  Now I come to the prisoner-of-war charges, which are the most serious. Shigemitsu was found not guilty on the more serious charge of authorising or permitting or encouraging the commission of war crimes, or of crimes against humanity, but guilty on Count 55, that he
  "deliberately and recklessly disregarded his legal duty to take steps to secure the observance and prevent breaches of the laws of war."
  Before coming to the details of this charge I must refer to a new principle (mentioned in Mr. Comyns Carr's talk to the Royal Empire Society) which did not arise at Nuremberg but which, as I understand him, was established for the

  867
  first time at Tokyo. It seems that the Tribunal held that
  "a Government and not merely its military commanders is responsible for the proper carrying out of the duties under the Hague and Geneva Conventions for the proper treatment of prisoners of war."—
  I have nothing to say on that—
  "Even civilian members of the Government, if they are made aware that these Conventions are being broken in a wholesale manner by the forces for which they are responsible and take no proper steps to put matters right, are criminally responsible, as well as the military leaders, to whose conduct it is directly due."
  I have given the Lord Chancellor notice of my intention to raise this matter, and I hope we shall be told under what power and by what authority this interpretation was adopted. Was it legal or was it not? Neither the Fourth Hague Convention of 1907, nor the Regulations thereunder, nor the Geneva Convention of July 27, 1929, say more than that
  "Prisoners of war are in the power of the hostile Government but not of the individuals or corps who capture them."
  Every Government has to set up an inquiry office—which the Japanese did—but there is not a word as to what Minister or Department is to be responsible for administration and co-ordination. That is very properly left to each Government to decide for itself. As Mr. Justice Roling, said:
  "In every Government a division of labour is established, and where, as in Japan, special departments of the Government were charged with a special task, e.g., the War and Navy Ministries with the care for prisoners of war and civilian internees in occupied territory, the Home Ministry with the care for civilian internees in Japan proper, the Ministry of Overseas with the care for civilian internees in Formosa, Korea and Saghalin, the responsibility for not preventing violations of the rules of war should be limited to these officials especially indicated in the pertinent domestic law."
  We shall see in a moment that the duties in regard to prisoners of war of Shigemitsu as Foreign Minister were very closely limited by Japanese law. He was practically no more than a post office. This interpretation hit him very hard. At any rate, neither Shigemitsu nor the other prisoners can possibly have known when they were in office that, after the war, their action or inaction would be interpreted by their enemies in that way. To invent a new interpretation
  868
  during or just before the trial and to make it retrospective, does seem to be rather an extreme measure and rather a grim precedent for the future. There is an unsavoury flavour of vindictiveness about it.
  I shall now come to some very queer points about this verdict. I cannot help thinking that there must have been a slip somewhere. Here is the first. When Shigemitsu became Foreign Minister on April 17, 1943, he was a member of the Government of Tojo, who had been War Minister from 1940 and, in addition, Prime Minister from October, 1941. He combined the two offices and retained them until July, 1944. If we turn to the majority findings on Tojo, we note that as Head of the War Ministry—to quote the text—
  "… he was charged with the care of prisoners of war and of civilian internees in the theatres of war.… Above all he was head of the Government which was charged with continuing responsibility for the care of prisoners and civilian internees."
  The finding continues:
  "The barbarous treatment of prisoners and internees was well known to Tojo. He took no adequate steps to punish offenders and to prevent the commission of war crimes in the future."
  After two pages of detail of Tojo's criminal callousness and neglect, the finding states that Tojo was also responsible for preventing knowledge of the ill-treatment of prisoners reaching the outside world. He was found guilty under Count 54.
  From the general judgment on all the accused, we learn also that there was a bi-weekly conference of all bureau chiefs in the War Ministry—that was, on prisoners of war—which was presided over and usually attended by Tojo as War Minister, and by the Vice-Minister, at which the protests and the draft answers were brought up. Now if we turn to the findings on one Sato, Chief of the Military Affairs Bureau, and a member of the weekly Bureau conference, we find that
  "Tojo presided at these meetings and he it was who decided that action or inaction should be taken in regard to the protests. Sato, his subordinate, could not initiate preventive action against the decision of his chief."
  For that reason, I may add, Sato was found not guilty. Turning to Tojo, you can say he was completely and almost

  869
  exclusively responsible for all decisions on prisoners-of-war questions. He was a soldier by profession, leader of what the majority judgment calls the conspirators who had brought Japan into the war, and a very tough man. He had been brought into office as Prime Minister in the manner I have described. He was not open to Western moral principles and concepts. His explanation of his attitude on the Bataan march was (to quote the majority finding):
  "that the commander of a Japanese Army in the field is given a mission in the performance of which he is not subject to specific orders from Tokyo."
  Such then were the powers and responsibilities, and such was the character and temperament, of the man under whom Shigemitsu, a civilian Foreign Minister, had to work for fifteen months in this prisoner-of-war business—that is to say, for just over half the time he was in office. That, of course, was only a fraction of his duties. They left very little responsibility or power to Shigemitsu, or to anybody else; and they show how extraordinarily difficult it must have been for him to secure redress, however anxious he was for it.
  I suggest that the bearing of these difficulties on Shigemitsu's innocence are submerged in the majority judgment, for on reading the judgment on Shigemitsu you find no mention of Tojo, and on reading the judgment on Tojo you find no mention of Shigemitsu. There is not even a cross-reference or a hint to show how decisively his initiative must have been hampered by the fact that Tojo was his chief, as Prime Minister, and wielded these tremendous powers in prisoner-of-war questions, as War Minister, and was such a violent man. It is all the worse because, broadly speaking, the findings are in alphabetical order, so that the story of Tojo is not in the reader's mind when he reads the findings on Shigemitsu; and the point has not been mentioned in the earlier general judgment. That promotes a suspicion that it was not in the mind of the Tribunal either, or they could not have ignored it. It looks as if one judge had written the findings on Tojo and another on Shigemitsu, and as if they had not been compared and "stitched together" properly. I ask your Lordships to bear that in mind, for it is a grave omission, while we turn to
  870
  the majority judgment's finding that Shigemitsu
  "deliberately and recklessly disregarded his legal duty."
  What was his legal duty? It was what was left over from Tojo. It is not disputed that under Japanese law this was limited to receiving and passing on complaints on prisoner-of-war camps to the responsible department and to obtaining, if he could, their replies and passing them on to the complainant. That was his official duty. There is no suggestion that he failed in this respect. But the answers from the department were always slow; often they never came at all; and they were rarely satisfactory. Perhaps some allowance should be made for the fact that a large proportion of the complaints related to camps in distant Islands, spread all over the Pacific, which as the war proceeded became more and more inaccessible. Even in a country like this, highly organised as it is, extraordinary mistakes can be made. It took me over two years to secure the release of a family of German Jews who were proved in the end to be absolutely and completely innocent. There were two brothers, one of whom was sent to Australia and the other to the isle of Man. The wife of the Isle of Man brother was sent to Australia, and the wife of the Australian brother was sent to the Isle of Man. And the poor mother-in-law or grandmother (I forget which), who was a very strict vegetarian, died of a wrong diet before anything could be done. A matter like that can take two years, even in this country; and I have heard of a great many other cases. One cannot be surprised, therefore, if these prisoner-of-war cases took some time, in a war that was spread all over the high seas.
  The Tribunal, however, say that Shigemitsu had also legal responsibility as a member of the Government. The word "legal" seems arguable; but, anyway, as a diplomat with Western experience, he had, of course, a moral responsibility to do all that he could—and he would be the last mail to neglect it. To begin with, we must bear in mind that before he could get anyone to listen to him he had to secure some confirmation of the alleged facts, which the responsible military authorities would obviously seek to belittle. He had no time and no authority to visit the camps, either in

  871
  Japan or in the distant islands, or to send anyone to check the allegations. He was entirely in the hands of the military authorities, and especially of Tojo, who alone had the knowledge, the means of obtaining knowledge, the power to issue orders and the decision. Yet Shigemitsu was much more active than the majority finding led us to believe. Mr. Justice Roling's dissenting judgment, though it is not in the majority judgment, states that:
  "he complained to Kido"—
  that is, the Emperor's adviser—
  "that the military were not easy to deal with regarding these matters, and on some occasions personally approached the War Minister on the subject."
  Undoubtedly the approaches to Kido were intended to be, and probably were, passed to the Emperor. I do not know what passed between him and Tojo, but we can all imagine it. Nothing of that appears in the majority finding. The majority judgment on all the prisoners, however, showed that occasionally he secured promises of concessions, which he passed on—only to find they were never implemented.
  After Tojo's retirement in July, 1944, Shigemitsu took an even more important step, which again is omitted from the finding in the majority judgment on Shigemitsu. To dig that out we have to turn back many pages to the judgment on Koiso, where we find:
  "that in October, 1944"—
  that is, after Koiso had been Prime Minister less than two months—
  "the Foreign Minister"—
  who, of course, was Shigemitsu, though his name was not mentioned in the finding—
  "reported to a meeting of the Supreme Council for the Direction of War, which Koiso attended, that according to recent information from enemy sources it was reported that the Japanese treatment of prisoners of war left much to be desired."
  That was the restrained way in which it was put.
  "He further stated that this was a matter of importance from the point of view of Japan's international reputation and future relations. He asked that directions be issued to the competent authorities so that the matter could be fully discussed."
  That reads like a soulless Cabinet summary, devised to avoid friction—of which, I fear, I have drafted many in my time—conveying nothing of the passion and
  872
  drama that often weighs over such a scene. But the passage is of enormous importance to Shigemitsu's innocence, for it shows that he forced the question—no doubt against military opposition—to the highest military authority in the land. Yet it is completely ignored in the Shigemitsu findings of the majority judgment: there is not even a cross reference to it, and, as I have said, his name is omitted from the reference to him in the Koiso findings, where he is referred to only as "the Foreign Minister."
  I submit that, combined with the evidence I have already mentioned of what Shigemitsu did in Tojo's time, that evidence goes far to dispose of the statement in the majority findings that
  "he took no adequate steps to have the matter investigated, although he as a member of the Government, bore overhead responsibility for the welfare of the prisoners."
  I do not know what more he could have done. He took steps to ensure that the Emperor knew what was going on. On occasions he went to the Prime Minister and eventually he took the question to the highest military authority in the country, the Supreme Council of War, which included the naval and military authorities responsible for prisoner of war camps. Mr. Furness, counsel for the defence, wrote a letter on December 10, 1948, which I have here. He said:
  "He did many things which I could not bring out in evidence or in my petition."
  He did not say what the "many things," or some of the many things," were, but, as Mr. Furness considered that his lips were sealed, I cannot mention the matter either. But I did inform the Lord Chancellor confidentially.
  THE LORD CHANCELLOR (VISCOUNT JOWITT): May I point out that the only reason why Mr. Furness could not say these things was that Mr. Shigemitsu declined to go into the witness box?
  LORD HANKEY: The reason why Shigemitsu declined to go into the witness box, as I find from other letters, is that he was afraid of giving away other people—colleagues. The noble and learned Viscount on the Woolsack smiles. This is a man who has been in prison. It is exactly what I gather he would do. I know him quite well and I am perfectly certain that he would not give away a colleague. To me, that is something very admirable.

  873
  The letter continues:
  "I am certain that he had no knowledge. Civilians were not allowed to investigate, but he was deeply disturbed by the protests he had received. It is admitted that any man who had served as a diplomat in Western countries would be disturbed. His power was limited to persuasion, to bringing the matter before the Supreme Council for the Direction of War, which he did, and to trying to end the war."
  And, of course, to end the war was the one sure way of curing the trouble. The Tribunal said that Shigemitsu should have pressed the prisoners of war question to the point of resignation, if necessary. What good would that have done in a country like Japan? In Japan, resignation would have been treated as a cowardly desertion of his country in time of war and would have prevented his pursuing his main object, to bring the war to an end. His efforts for peace failed: how could they succeed in view of our policy of "unconditional surrender? Nevertheless, a few months later, Shigemitsu, at the risk of his life—it was the second time he risked his life for peace—signed the surrender on behalf of the Emperor and the Government, which should stand him in good stead with His Majesty's Government. It is not mentioned in the findings of the majority, so far as I can discover.
  I solemnly urge the Government, with all the force at my command, to make a great effort to secure the release of Mamoru Shigemitsu, so that he may become available once more to help his country on to sounder lines. I know the difficulties, but they are not insuperable. It cannot be that a body, whatever body it be, that can create a great international machinery like this for trials and sentences and for carrying Out imprisonment, cannot devise some means of revision. Appeals for clemency were made to General MacArthur, but the time allowed for them was very short. The actual judgment was published in a Japanese newspaper which I think appeared on December 13, and only until December 19—six days—was allowed for appeals. I myself signed a telegram, in company with Mr. R. A. Butler, Sir Robert Craigie, Mr. Arthur Edwards, Mr. H. A. Gwynne, Sir Francis Lindley, General Francis Piggott and Lord Sempill—there was no time to collect more names—but nothing came of it. It means an approach to all the nations, or at least to the majority, that took part
  874
  in the trials, which, alter all, means only ten approaches, including approaches to three Dominions and the countries of the three justices who entered dissents. But the solid fact remains that Shigemitsu is in American custody and it ought not to be impossible to secure his release and, I should hope, his reprieve. We ought to hammer away until we obtain it.
  I realise, of course, that I have made only a prima facie case, a layman's case at that, and that before they take action the Government have to satisfy themselves that it has sonic validity. It is not for me to suggest the precise machinery. I can only urge that it should be speedy and calculated to reassure public opinion. It should include persons with political as well as judicial experience. Shigemitsu should have the benefit of the doubt, if there is a doubt. Subject to this, my suggestions are as follows: first, speedy action to secure the release of Shigemitsu; second, a review of all the Tokyo sentences; third, an end Jo the Japanese war crimes trials, and fourth, as soon as practicable, an amnesty. I beg to move for Papers.
  5.8 p.m.
  LORD OAKSEY: My Lords, I hope that I may be permitted by your Lordships' indulgence to say a few words in answer to the speech made in your Lordships' House by the noble Lord, Lord Hankey on May 5, on the subject of the Nuremberg trial of the major war criminals. No notice had been given to me by the noble Lord, and as it appeared to me irrelevant to the subject of your Lordships' debate I was not present when the noble Lord dealt with the Nuremberg trial, or I should have attempted to answer him at once. And, as this part of his speech was not reported in the public Press, I was unaware of it until the day before yesterday. The noble and learned Viscount on the Woolsack, if I may say so, effectively answered Lord Hankey at the time, but certain observations were made by the noble Lord which I think it is incumbent upon me to answer.
  The noble Lord began his speech by contending that German atrocities were in retaliation for the declaration in January, 1943, that only unconditional surrender would be accepted, and that the proper policy for this country would have been to make peace on honourable terms. I think the noble Lord must have

  875
  forgotten the date when the atrocities began, or else he must take an unusual view as to the sort of enemy with whom it is right to make peace on honourable terms. I will not weary your Lordships by citing many of the crimes which preceded the declaration of January, 1943. It is sufficient to remind your Lordships that as early as September, 1939, at the outset of the attack on Poland, an order was issued that the Polish nobility, intelligentsia and Jews should be liquidated, and that five weeks before the attack upon Germany's Soviet allies in June, 1941, a directive was issued that political commissars in the Soviet Army should be liquidated on capture. It was not suggested at the trial that these orders were not given, or that they were not carried out. Are these the sort of superior orders which the noble Lord thinks all soldiers must carry out? Is this the sort of Government with which this country should make peace upon any terms but unconditional surrender?
  My Lords, the noble Lord then proceeded to contend that the Tribunal based their judgment entirely upon evidence obtained from the Germans; and he referred to the invasion of Norway. But he failed to notice that the Tribunal's judgment considers (on pages 28 and 29) the defence that Norway was invaded to forestall the Allies and points out that Raeder's memorandum of October 3, 1939, does not refer to this object. As for obtaining evidence only from Germany, the statement is entirely untrue. Naturally, use was made of German documents which proved the crimes out of the mouths of the criminals, but both by the prosecution, in presenting their case and in order to help the defendants to present their defences, the whole world was searched to obtain evidence. The Tribunal spent days and weeks in considering the applications by the prisoners for evidence which they thought might help them, and if the evidence was even remotely relevant every effort was made to obtain it. Witnesses were brought from all over Europe, interrogatories were sent to America and to England, and counsel for the defence were even allowed to search naval files at the British Admiralty.
  Then the noble Lord complains that, though the account given in the judgment is perfectly correct, it makes such
  876
  omissions that they, as he said, "Really make one's hair stand on end." He continues, in column 404, of the OFFICIAL REPORT:
  "I do not confess to any great affection for the Germans, but I admit that I am very jealous of our reputation for fairness, and I am horrified at the idea of future Anglo-German relations being poisoned by false history, which will also give the Germans an excuse for making martyrs of Hitler and his gang."
  But, my Lords, the only omissions which the noble Lord cites are the occupation of the Ruhr in 1923, the use of black troops in the Rhineland, and the attempt to detach Bavaria and Saxony from Germany. The Tribunal had some years to cover in their judgment, and though they recited the rise of Hitler to power they could scarcely be expected to write a complete history of the period. Moreover the Tribunal refused to treat as evidence of the conspiracy alleged in the indictment any facts before November 5, 1937. So perhaps they may be forgiven for not referring to the occupation of the Ruhr in 1923 as provocation of a war in 1939.
  LORD HANKEY: My Lords, if I may interrupt, I did not say that it was a provocation of the war. I said that it was what led the German people to accept the abominable régime of Hitler. That is quite a different question; it is a preliminary part of it.
  LORD OAKSEY: Perhaps I misunderstood what the noble Lord said; if so I regret it. Then in dealing with the holding of the trial at all, he says (column 400):
  "There was something cynical and revolting in the spectacle of British, French and American Judges sitting on the Bench with colleagues who, however impeccable as individuals, represented a country which before, during and since the trials has perpetrated half the political crimes in the calendar. And in spite of the specious arguments on page 38 of the Nuremberg judgment, I do not see how anyone can deny that under a cloak of justice these trials were just the old, old story—one law for the victors and another for the vanquished."
  My Lords, if I may say so, the noble Lord appears to be guilty of a confusion of thought in saying that a spectacle can be revolting by reason of events which take place after the spectacle. For instance, can the Berlin blockade of 1948 make the spectacle of a trial in 1946 revolting? But I am not concerned to

  877
  defend the conduct of the Soviet Union since the trial; nor do I wish to. But if it was a revolting spectacle to see British judges sitting with Soviet judges, was it not revolting to accept Soviet assistance as Allies? Was it not revolting to the noble Lord himself to remain in the Government in 1941 and 1942, as I gather he did, after we had accepted the Soviet as Allies? Was it not revolting to see Mr. Roosevelt and Mr. Churchill sitting with Generalissimo Stalin at the various conferences? The noble Lord finds the arguments of the Tribunal specious. I confess that I find his arguments illogical.
  I will trouble your Lordships with only one more passage from the noble Lord's speech. He said at column 401:
  "If we were to get some of the judges from Nuremberg in a corner and ask them in private what was the attitude of one of their colleagues, I wonder what they would say?"
  My Lords, had it not been for that unworthy suggestion, I think I could have treated the speech with the silence which I think it deserves. But that observation is equally an insult to my Soviet colleagues and to Mr. Justice Birkett and myself. I can only tell the noble Lord this: that the Soviet judges, throughout the trials and throughout all our deliberations, demonstrated their ability and their fairness.
  5.18 p.m.
  THE EARL OF PERTH: My Lords, I am glad that the noble Lord, Lord Oaksey, has referred to the speech made by Lord Hankey on May 5. I was unable to be present on that occasion, but there are points in the speech which I must take up, particularly because they so very clearly relate to the question of the Japanese trials. I have always agreed with the noble Lord, Lord Hankey, about the tragic results of the policy of unconditional surrender. I agree it is also a question of political appreciation, and I could not accept what Lord Oaksey said upon that point. I also agree with Lord Hankey when he said how necessary it was that these war crimes trials, both in Japan and in Germany, quite apart from Nuremberg, should have taken place much more speedily and that the proceedings should not have continued for such a long time. I do not know if your Lordships remember, but there was a Liberal committee
  878
  which sat to consider the post-war treatment of Germany. I happened to be chairman of that committee, which declared in 1941 that we felt it to be of great importance that the trials of the accused should be held as quickly as possible, and that they should not be allowed to drag on for many months or, as has happened now, for years. We hoped that it might be possible to conclude the vast majority of the processes within three to six months of the signing of an Armistice. I believe those recommendations were right. I say that applies also to the Tokyo trials, and I wish that the warnings we gave at that time had been accepted.
  But, my Lords, the noble Lord, Lord Hankey, did not confine himself to these two points. Had he done so, I could have supported him: but he went much further. I want to take up three of the points he raised, although some of them have been mentioned by the noble Lord, Lord Oaksey. The first in importance is his challenge to the introductory review in the Nuremberg judgment relating to the rise of Hitler. The noble Lord, Lord Hankey, admitted that it is a correct account, but then stated that it is guilty of serious sins of omission. It is not my business to defend the Nuremberg judgment—Lord Oaksey, of course, does that much better than I could possibly do—but obviously, as Lord Oaksey said, it does not purport to be a complete history of events in Germany and elsewhere between the two wars. It purports to—and does—deal solely with the rise of Hitler and his party. When the noble Lord, Lord Hankey, talks of the occupation of the Ruhr and the use of black troops in the Rhine garrison as being two of the chief causes of the rise of Hitler, he is surely guilty of the very same, or rather greater, sins of omission. I do not defend the Ruhr occupation, but I would remind the noble Lord that the French were suffering a great amount of provocation as a result of the attempts of the Germans to evade their Treaty responsibilities. The Treaty was one which I think, except for the reparation clauses, was fair and reasonable.
  But surely all questions of the occupation of the Ruhr and all question of the use of black troops in the garrison of the Rhine were obliterated by the treaty

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  of Locarno and by the entry of Germany into the League of Nations, where she received most favoured nation treatment. The noble Lord never mentioned that phase of history in his speech. And he did not mention what to my mind was a very serious and important factor—the terrible effects of the economic blizzard of 1931. The Allies suffered greatly from that too. What I particularly regret about the noble Lord's speech is that he has given his support to propaganda which is being undertaken by a certain number of Germans who wish to attribute the rise to power of Hitler and the Hitler gang mainly to the actions of the Allies between the two wars, and to try to free the German people of all guilt. I regret very much that the noble Lord has given his great authority to such a proposition.
  The second point is his story of the beginning of the Norwegian campaign. I have read The Gathering Storm, and I have read the judgments on that point. Although I do not want to argue the matter at length, of the two accounts I prefer the history of the judgments to that put out by the noble Lord. I would just ask the noble Lord this one question. Does he really consider that the seizure of the "Altmark," which had 200 or 300 British prisoners on board, and the mining of the Norwegian leads can be put in the same category as the occupation by Hitler of Norway and Denmark?
  LORD HANKEY: May I answer that straight away? It raises the very large question of what is aggression. The British plan was to cut the Norwegian leads, as Mr. Churchill made quite clear in the memoranda which he had published in The Gathering Storm. That operation, the operation of cutting the Norwegian leads, was a major operation of war—and Mr. Churchill explained it—because it cut off completely the German main supply of material for steel. Mr. Churchill said that, if we could do that, we should bring them very low indeed by reason of their shortage of steel, and their munitions industry would be crippled. That is what you might call a throttling operation. What the Germans said was: "We cannot afford to allow this, but we cannot stop it except by an operation on the coast line." They had no sea power and no aerodromes in the
  880
  area. There was no way in which they could deal with that menace except by occupying the country. So while we were prepared to throttle them, they were prepared to invade and occupy Norway. I would point out to your Lordships that that is where the question becomes so difficult. Is it not just as bad to throttle a man as to stab him? I think if our operation was non-aggressive, theirs, which they took as the only way they could save themselves from being throttled, was equally non-aggressive. I was a member of the Cabinet at that time of the war, and we had no illusions about the matter. Everyone knew that the Germans had to do it. As I say, it is all in the memoranda published by Mr. Churchill. So my answer is quite definite that the two operations are both major operations of war, within limitations, and they are inseparable. I believe that that would be the military view.
  THE EARL OF PERTH: I deeply regret the answer which the noble Lord has given because, in that case, he justifies the invasion of Belgium in 1914. I would now like to ask whether the noble Lord really holds that the trials of Archbishop Stepinac, of Cardinal Mindszenty and the Bulgarian pastors were consequential and caused by the Nuremberg trials. I really cannot follow his reasoning in that respect.
  LORD HANKEY: My Lords—
  VISCOUNT ADDISON: My Lords, I must ask the noble Lord to remember that he will have an opportunity of replying. The conduct of ordinary debate becomes impossible if we have these repeated interventions.
  LORD HANKEY: I thank the noble Viscount very much for reminding me of that.
  THE EARL OF PERTH: I was going to say that I believe the prototype of the trials to which I have referred will be found in the trials which took place in Moscow, where the accused, after being softened-up, confessed with most remarkable alacrity and asked that grave sentences should be passed upon them.
  My Lords, I have said enough about that subject. May I now pass to the Tokyo trials? I am not altogether convinced that the Tokyo trials were as satisfactory as were those at Nuremberg.

  881
  That is my feeling, particularly in view of the two dissenting judgments. But we must remember, and the noble Lord must remember, that though at Nuremberg it was laid down that a war of aggression was an international crime, that was by no means the first occasion on which a solemn declaration of this character was made. I will say one word about aggression—as a matter of fact I said it yesterday. It is very difficult to define, but I think everyone in this House knows aggression when it occurs. At the Assembly of the League of Nations on September 24, 1927, a formal Resolution was passed unanimously — Japan, Germany and Italy voted for it—which began with these words:
  "Being convinced that a war of aggression can never serve as a means of settling international disputes and is, in consequence, an international crime.…"
  Therefore I would remind your Lordships that the Governments of Japan, Germany and Italy, when they began to plan their wars of aggression—because they were wars of aggression—knew that what they were preparing was an international crime and that they would be liable to punishment as criminals.
  The Japanese aggression in the Far East was planned as far back as 1932. I remember that towards the end of that year I had dinner with the chief Japanese delegate who represented his country at Geneva, Mr. Matsuoka, who later became the Minister of Foreign Affairs. At that dinner, when we were discussing the beginnings of the Sino-Japanese war, Matsuoka frankly expained to me what the Japanese plans were. They were to drive out completely from East Asia all American and European influence and establish a Greater East Asia co-prosperity sphere, to be dominated by Japan. If I remember rightly, India was to be included in that sphere. His frankness was remarkable. Your Lordships may think it rather odd, but he gave all the details—except, of course, Pearl Harbour. Of course, we had a very good dinner, and in those days my head was strong ! I said to Matsuoka, "Surely to make war on China is an odd way of starting a co-prosperity sphere." He replied, "Leave it to us. We understand the Chinese mentality completely !" I sent home an account of that conversation, because I thought it worth while.
  I have told that story only to show that, to my mind, practically every Japanese in
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  a responsible position must have been aware of what was intended, even though he did not approve. I believe, from conversations I had with one or two responsible Japanese who did not approve—there were a few—that the Emperor and his brothers were not in agreement with the policy of adventure, but, perhaps because they wanted to preserve the position of the Imperial House, they did not feel able to oppose the adventurers. Your Lordships must remember that the assassinations of sonic very "high up" men had taken place at the time.
  With these preliminary remarks on the trials and sentences as a whole, I pass to the sentence on Shigemitsu. I feel that he was faced with one of those difficult choices, perhaps one of the most difficult that can confront a person who holds a responsible position, which placed him in a terrible dilemma. He was one of those not in any way a party to aggression; he did not approve of it. But I think that he was aware of what was going to happen, and I think the noble Lord, Lord Hankey, will agree with me there. In 1943 he was summoned by the Emperor to become Foreign Minister. He was a loyal and patriotic man and felt bound to accept. He hoped to be able to extricate his country from the disaster into which the adventurers had plunged her. Could he do that better by being a member of the Government and trying to exercise a restraining influence from inside, even though he risked being associated with the acts of the Government as a whole, of which he distinctly disapproved? He chose that course. I do not think that any of us are in a position to blame him for that choice. That being so, I feel that the verdict and sentence did not take sufficiently into consideration the extenuating factors. Seven years imprisonment was too much. Therefore, I would like heartily to support the plea of the noble Lord that this sentence may be revised. If and how that can be done, I do not know, but I with that both the case of Shigemitsu and the case of Weizãcker, who had found himself in a somewhat similar dilemma, could be reviewed. I hope that the noble and learned Viscount will be able to tell us that His Majesty's Government will consider whether any possibilities for revision are still open.
  5.35 p.m.
  LORD WRIGHT: My Lords, like others of your Lordships, I was unable to be here when the question of war crimes was discussed on the last occasion. I became aware of the discussion arranged for to-day only at the end of last week, and I was entirely unable to obtain any sight of the judgments of the Tokyo Tribunal. They had all been sent to the United Nations for their records. I saw the outside of the judgments, and they certainly presented a most alarming appearance. They were more like a library than a judgment! I gather that my noble friends Lord Hankey and Lord Perth have read them. I think it was a great achievement if they have read them, and it is certainly one I cannot claim.
  The question here is, these judgments having been delivered, what can this House do in the matter? On that I want to ask my noble friend Lord Hankey a question which I am sure he will be able to answer: What power of revision of the sentences, or of anything else in the judgments of that court, is vested in anybody except General MacArthur? It turns on the constitution of the court. It is a military court which was established by General MacArthur on his responsibility as Supreme Commander in that area. I know that when I was in Japan two years ago he took a great interest in what was going on in connection with war trials. I discussed these matters with him more than once, and my impression is that the decision of this court of eleven judges was final, save that the Supreme Commander who constituted the court could revise the sentences downwards—though not up-wards—if he were so minded.
  I put to myself the question which I have just addressed to Lord Hankey, and I am sorry that I am not able at the moment to answer it categorically, but only from my own memory. I hope that some noble Lord who has examined the question can give a definite answer. If the position is that no one but General MacArthur can interfere with the judgments, this House would be dealing with something which is entirely beyond their competence. On the other hand, I have no doubt that if this House felt, on a sufficient consideration of the whole position, that something was wrong, they
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  would have the means of putting that before General MacArthur, and I am sure that he would give the greatest and most careful attention to whatever was represented to him in that way. But there I must leave the matter. No doubt it will be looked into in appropriate quarters, and if anything can be done in the way of representation to whomsoever is the competent authority, I have no doubt that that course will be duly followed.
  As to the delay at Tokyo, which I think is a matter of comment, I must point out that from my own knowledge, which I obtained in 1946 when I was there, the difficulties of this trial were enormous. The difficulty of trying Japanese through interpreters on these questions of law, diplomacy and commerce would have seemed insuperable if I had not seen how it was being worked out, and if I had not known that the result had been so satisfactory. But that involved enormous delays. If I may say so, without any responsibility for it, I think a good deal of delay was caused by the well-meaning, act of the United States Government in sending out from the United States one American counsel to act for each of the defendants. Perhaps it may not appear strange that that did not tend to expedition in the course of the trial. But it was well meant, and I hope it was fully appreciated by the beneficiaries. Taking the whole thing together, although I think two years was a long time, I can understand that it turned out so, and I should not be disposed to blame anybody.
  Another point which occurred to me at the time was that the prosecution were spreading their net too wide. But there again I expect I was wrong, because the proceedings in China, which started in 1931, were of immense importance in showing the general predatory and aggressive intent of the Japanese. That is not a matter to be ignored, in view of what we have heard about the finding that the Germans were guilty of a crime of aggressive war. I should like to express my sympathy and concurrence with the observations which fell from my noble and learned friend Lord Oaksey, who presided at that Court with so much distinction. He knows—and I think we all ought to realise it—that that decision, both on fact and law, has been received

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  with almost universal applause. As to the law—the Tokyo judgment had not then been given, but I do not think there is any substantial difference between the law declared by these two Tribunals—the General Assembly of the United Nations have unanimously expressed their concurrence with the law as stated in the judgments and in the London and Tokyo Agreements. The view so expressed was that these judgments stated completely and accurately the international law on the topics which had to be discussed. Indeed, apart from a few discordant voices—which I suppose are inevitable in connection with any question of law—no one has really disputed the justness of the legal conclusions. I will not attempt to say any more about that, although I would like to say a few words on two topics.
  One is the question of superior orders and the effect of superior orders as relied on by a defendant. As to that, if I may refer to the proceedings in the War Crimes Commission with which I was concerned, no one seemed at that time to doubt what the law was. The law so accepted was what was declared in the London Agreement, in the Tokyo Agreement and in the judgments. The difficulty which seems to have arisen came from the expressions of an extremely erudite lawyer, a professor at the University of Cambridge, who qualified, and indeed, denied, the invalidity of any defence based on superior orders. I will not discuss the logic or the wisdom of that. I am fully satisfied that the contrary conclusion has been upheld, and the verdict and view of the learned Professor Oppenheim repudiated.
  The change, I think, came in about 1940, when someone must have detected in the Sixth Edition of that learned work Oppenheim's International Law that there was something wrong in the passage about superior orders. The editor of the Sixth Edition, which I have here, corrected that view. He said that it is difficult to regard the view as expressing sound law that superior orders would confer upon the perpetrator immunity from punishment from the belligerent. I will not read the full passage, but I only mention that so well recognised was the view which found favour in the Charter and at the Nuremberg and Tokyo Trials, and so-well-established was it, as long ago as 1924, that one of the much-
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  criticised German courts which sat at Leipzig rejected the opinion that superior orders afforded immunity. They said:
  "… the defence of superior orders would afford no justification where the act was manifestly and indisputably contrary to international laws—as, for instance, in the case of killing of unarmed enemies or of shipwrecked persons who have taken refuge in lifeboats."
  VISCOUNT SIMON: I think it was as early as 1921.
  LORD WRIGHT: Yes, it was. I am quoting from a report published in 1924. The result of that was that at long last the law was correctly stated in the Manual of Military Law, by an Amendment of April, 1944. I do not want to read that again in full, but it was clearly expressed that the
  "order of the belligerent Government or of an individual belligerent commander does not deprive the act in question of its character as a war crime; neither does it, in principle, confer upon the perpetrator immunity from punishment by the injured belligerent. Undoubtedly, a court confronted with the plea of superior orders adduced in justification of a war crime is hound to take into consideration the fact that obedience to military orders, not obviously unlawful, is the duty of every member of the armed forces and that the latter cannot, in conditions of war discipline, be expected to weigh scrupulously the legal merits of the order received. The question, however, is governed by the major principle that members of the armed forces are bound to obey lawful orders only and that they cannot therefore escape liability if, in obedience to a command, they commit acts which both violate unchallenged rules of warfare and outrage the general sentiment of the community."
  There is a useful note to that. The principle, therefore, is that obedience to orders is no defence if the orders are manifestly unlawful, but that in any case of that sort a court may consider the fact of the orders by way of extenuation.
  I will trouble your Lordships to imagine some of the orders which people have obeyed, later claiming that they acted in obedience to commands. For instance, I might mention the shooting of the airmen who escaped from Stalag IV, which was one of the most disgraceful breaches of military law which is recorded. Your Lordships will no doubt remember that when an order reached one of the greatest and most important men at the German war office, ordering the slaughter of Commandos, he objected to it. Keitel said: "Well, your objection would have been perfectly good under the old ideology, but this is a new ideology." I think the Tribunal trying Keitel held that they had

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  to take into account that act of Keitel in passing on the order with his authority. I wanted to mention that only because I think it would be very unfortunate for the future history of international law if any doubt were cast by this House upon that question.
  The only other matter I want to mention is this. We are constantly told, by way of criticism of these Tribunals which have dealt with war crimes, that it is conqueror's law. I confess that that seems to me a very unfair and irrelevant consideration. The only questions are: Did the man have a fair trial? Were the facts properly put before the court; and did the court impartially come to the best view it could? If it is wrong, of course, it is wrong. But to condemn a judgment merely because the court has been appointed by, or consists of, individuals belonging to the belligerent forces, is quite unsustainable: the test is impartiality. There are two classes of courts which have tried crimes and are competent to try war crimes. One is the national court of the country in which the crimes have been committed during the period of the occupation and then, when the occupation ends, if the offender can be brought into custody he can be tried by the national law of the country, with such modification as international law requires, usually in the interests of the defendant. The other class of case is the military court, and the justification of military courts was examined at great length a few years ago by the Supreme Court of the United States. The conclusion at which they arrived was undoubtedly sound, and it was that, in the traditional method of trying war criminals, the court has jurisdiction if they come within the custody of the belligerent who desires to try them. In the case of the Japanese and of the Germans, of course, the act of surrender, or the armistice, contained provisions for the surrender of criminals and, in the case of the Japanese, for their surrender for trial.
  5.58 p.m.
  LORD SEMPILL: My Lords, it is a privilege to speak in full support of the Motion submitted by my noble friend Lord Hankey. Had I been present during the entire debate in which he participated some two weeks ago, I would certainly have supported him in regard to his main contention in relation to war crimes. With the noble Lord, Lord Hankey, we
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  all regret the absence of the noble Lord, Lord Killearn, from this debate. He is now in the Far East. Lord Killearn's experience in the Far East extends over four decades, during which time the record of his vital work is writ large in history. My noble friend has asked me to apologise to your Lordships for his absence and, with permission, to make known his views on one aspect of this Motion—that touching Mamoru Shigemitsu, the last Japanese Ambassador to the Court of St. James. Lord Killearn does not feel he could enter, at least through a third party, into the wider aspects of the question raised by Lord Hankey, but he wishes to join with the mover of the Motion and others of your Lordships in praying that something should be done with regard to Mamoru Shigemitsu.
  The noble Lord, Lord Killearn, writes as follows:
  "I was one of the ex-Ambassadors who, at the time of the trial and with the approval of the Foreign Office, put in a statement on his behalf in the following terms."
  This document starts with the usual preamble and continues:
  "… hereby certify that Mr. Mamoru Shigemitsu was well known to me when he was Japanese Minister to China.
  In the spring of 1932, when fighting broke out in the suburbs of Shanghai between the Japanese and Chinese forces, I, with other neutral colleagues, endeavoured to put a stop to hostilities and to prevent them spreading, and to this end arranged meetings attended by both Japanese and Chinese representatives. On the Japanese side Mr. Shigemitsu from the outset co-operated whole-heartedly, and much of the credit for reaching an agreement was due to his persistent efforts and patient co-operation.
  When agreement had been signed he was unfortunately seriously wounded in a terrorist outrage. Despite the fact that he was in severe pain, he refused to allow his injuries to hold up the signature of the agreement, which was accordingly taken to him in hospital where he signed it."
  That was the deposition made by Lord Killearn, with the permission of the Foreign Office.
  In his personal letter to me he continues:
  "Throughout my association with him—and it was particularly close—he expressed repeated and, to the best of my belief, genuine wishes for collaboration with the Western Powers. His influence, was I believe, in general directed towards moderation: and we all felt at the time that it was a great misfortune when he was moved from China and his restraining advice was no longer available there to guide

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  Japanese ambitions in China into useful and constructive channels. Like many others who knew him, I was shocked when I heard of the sentence of seven years in prison pronounced by the court."
  My Lords, I, too, am one of the many who knew him and who were shocked by this sentence. I have worked for several years in Japan and can claim an active experience of some three decades of Far Eastern affairs, political as well as commercial. I have spoken more than once with most of the Japanese statesmen on the political map between 1921 and 1939, and one or two became close friends: in particular Mamoru Shigemitsu, a great Samurai, who later became Ambassador in London. For years my noble friend, Lord Hankey, and I, with the late Lord Lloyd, General Piggott and others, worked in an endeavour to re-create the spirit of the Anglo-Japanese Alliance, so far-sightedly conceived by a great Prime Minister, the grandfather of the noble Marquess who leads the Opposition in your Lordships' House. A number were with us, here and in Japan, in this ideal; and without a doubt His Excellency Mamoru Shigemitsu was always in the lead in endeavouring to re-create the spirit of that splendid instrument the Anglo-Japanese Alliance, that bound the two Island Empires together and, as history shows, helped the security of each.
  I submit, with all the respect due to your Lordships' House, that these trials and all that devolves therefrom should be annulled, and that we should return to more normal conditions with greater rapidity. I feel that the trials are making a knotted whip for posterity. I pray, therefore, that His Majesty's Government will listen to those who join, as I do, with my noble friend, Lord Hankey, to secure the early release of one who worked without stint to avoid war between our respective countries.
  Your Lordships will remember that His Excellency Mamoru Shigemitsu worked in an atmosphere best described by Mr. Winston Churchill in Volume I, Chapter II ("The Follies of the Victors") of The Second World War. The passage runs:
  "The annulment of the Anglo-Japanese Alliance cause a profound impression in Japan, and was viewed as the spurning of an Asiatic Power by the Western world. Many links
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  were sundered which might afterwards have proved of decisive value to peace."
  6.6 p.m.
  LORD WINSTER: My Lords, I support the Motion and speech of the noble Lord, Lord Hankey, in so far as it relates to the sentence passed upon Mamoru Shigemitsu. I support it with this reservation: that, as has been pointed out several times this afternoon, papers in this matter are not accessible. Therefore I must reserve a final opinion until I have heard what the noble and learned Viscount: who sits on the Woolsack has to say on the matter. What I have to say will be confined to this particular question; I have nothing to say about the occupation of the Ruhr or about the invasion of Norway. As regards Nuremberg. I would say only this: I took a particular interest in those trials, which I endeavoured to follow as closely as a layman could. I also had the opportunity of visiting Nuremberg while the trials were in progress. I came away with an overmastering impression that while, quite properly, there was an atmosphere of great sternness in that court, at the same time, complete fairness was shown to the defence; and every possible latitude was given to the defence in the presentation of their case. I also came away with a feeling of great admiration for all the representatives of the Allies who were participating in the trials—and, may I say, not only of admiration but also of great pride in our own representatives who took part in those proceedings.
  On the general question of war trials, I would say that I do not think the British find such trials very congenial. As a race we are not good haters, and we have an ingrained partiality for "calling it a day" when the contest is over. I should say that the general British view about these matters, so far as I hear it expressed, is that where there was an absolutely clear cast it was quite right to proceed, but that if any doubt whatever existed we should let the matter go, and on no account try to strain anything. Above all, I have always found that public opinion has immensely disliked delay in reference to these trials. Any long drawn-out deity is extremely repugnant. There has also been, I think, a vague general uneasiness in the matter. I speak, of course, as a complete layman, but I feel that these war trials have involved many points of law, and

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  many novel points of procedure; and that fact also has given rise to a certain amount of uneasiness. For these reasons, in the matter which we are discussing this afternoon, the sentence upon the former Ambassador to this country, or in similar cases, I am sure that, if it is possible for any clemency to be shown, public opinion will desire it to be shown.
  In the case of Shigemitsu, condemned for waging a war of aggression—which is a charge which must surely involve many peculiar constitutional points—it seems to me that there is a great deal of evidence to show that he did try, by all means in his power, to keep his country out of the war. He tried hard to avert war. Moreover, what we have heard this afternoon shows that in circumstances of great difficulty he did make an effort—I should say a very courageous effort—to do something about the treatment of the prisoners of war in Japan. When he was tried, there were long and weighty minority judgments pronounced in his favour. We have also heard that reputable organs in the American Press—and the American Press are not likely to be prejudiced in favour of any Japanese on trial for war crimes—expressed their uneasiness about the verdict. It is clear that the President of the Court also felt some uneasiness. There has been the testimony to which we have listened this afternoon from several members of your Lordships' House. I feel that all these things go to show that there is a large and varied body of opinion which is not really happy that justice was done in the case of Shigemitsu. I say that recognising, of course, that the majority judgment was to the contrary effect. I would not wish to criticise or attempt to controvert that majority judgment, but at the same time I feel that we cannot entirely ignore the weight of the minority opinion. In the light of the information that we have had about this matter, I must say that I feel uncomfortable about it. I am quite sure that there are a large number of people who also feel uncomfortable.
  The noble and learned Viscount who sits on the Woolsack, if he will allow me to say so, while a stern upholder of justice would be the last man to have any sympathy with harshness or vindictiveness. I hope that in his ministerial official capacity he may be able to say
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  something to us this afternoon in favour of clemency in this matter. Of course, in this our Government are not free agents. Other Governments have to be considered. The noble and learned Lord, Lord Wright, has raised the question of who possesses the power of remission. That is a matter into which I cannot enter, but I feel sure that any expression of opinion, however moderate or however light, by our Government, from our Government spokesman, in favour of clemency in this matter would have very great weight indeed. If our Government expressed a willingness to reconsider this matter, I feel sure that the ways and means of doing so would speedily be found.
  I feel all the more strongly upon this point because I think that the future in matters where this country is concerned in the Far East is very anxious and delicate at the present moment. In relation to the Yangtse incident, we heard a great deal about what was called "loss of face." In view of the courage and devotion to duty and discipline shown by ships involved in that episode, I am not very worried about any loss of face in this country in that regard; but I think that what is called "face" in the Far East largely depends upon the British reputation for humanity, for fairness and for justice. If, on our suggestion, clemency can be shown in this matter then I am sure that the result will redound greatly to our credit and to our reputation in Far Eastern countries.
  6.15 p.m.
  THE LORD CHANCELLOR: My Lords, I propose to reveal some facts to your Lordships which I think may alter the opinion which some of your Lordships may have formed on most inadequate evidence or, sometimes, on no evidence at all. Before I come to those facts, I will say just this one word about the Nuremberg Trial. On the previous occasion, I ventured to call the attention of the noble Lord, Lord Hankey, to the fact that, before making those attacks (for attacks they were) on the judges at Nuremberg, he might, following our usual practice, have intimated to the noble and learned Lord, Lord Oaksey, that he intended to do so. The noble Lord, Lord Oaksey, was actually in this very Chamber when the noble Lord started his speech. Therefore, it would have been

  893
  easy for him to indicate that he was going to make those attacks. But he did no such thing. What I think of the noble Lord, Lord Hankey, is this: I think he is one of those well-meaning theorists who go about trying to get facts that fit his preconceived theories. If that is not so, I would suggest that, had he not only given the noble Lord, Lord Oaksey, notice of what he intended to say, but found out from Lord Oaksey what he thought about these various matters, he would have discovered that Lord Oaksey was very approachable; and he might have obtained authentic information from the noble Lord.
  The second point I found out about the noble Lord, if he will forgive my saying so—for he spoke frankly, and he must not mind if I speak frankly—is the extraordinary inaccuracy of his statements. I give one illustration of that, and will then leave the Nuremberg judgment. In dealing with the Nuremberg judgment, the noble Lord, Lord Hankey, in effect, asserted that the German occupation of Norway was not unnaturally in consequence of what we were doing, and was thereby justified. He said that the Nuremberg judgment had made no reference to that proposition. If he had read as far as page 29, which is quite early on in the judgment—
  LORD HANKEY: I read it all.
  THE LORD CHANCELLOR: I read these four sentences from the Nuremberg judgment:
  "It is, however, to be remembered that the defendant Raeder's Memorandum of 3 October. 1939, made no reference to forestalling the Allies, but it is based upon the aim of improving our strategical and operational position. The Memorandum itself is headed The Gaining of Bases in Norway.' The same observation applies mutatis mutandis to the Memorandum of the defendant Doenitz of the 9 October, 1939. Futhermore, on the 13 March, 1940, the defendant Jodl recorded in his diary 'Fucker does not give order yet for "W"'—that is the Weser exercise. 'He is still looking for an excuse (justification?)' On the. 14 March. 1940, he again wrote 'Fuehrer has not yet decided what reason to give for Weser exercise.'"
  In the face of that, it seems to me that nobody can say that our conduct in Norway was the urgent excuse for the German attack in Norway. If the noble Lord had taken a little care, he must have known that to be absolutely untrue. I have finished with the Nuremberg trial.
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  In regard to Japan, again we had a most distinguished judge. In this case I was asked to suggest a judge and I thought it would be right to go to Scotland, because the contribution Scotland has made to our jurisprudence is immense. I personally like to think that in my life at the Bar I learned more law from, I think, the greatest judge who ever practised here who was a judge from Scotland. I ascertained that there was available to undertake this task a judge of great distinction—for I wanted to find for this task somebody as much like Lord Oaksey as I could; I found Lord Patrick, and Lord Patrick was willing to go out. I, for my part, resent the attacks which Lord Hankey has made on Lord Oaksey, and I resent the implied attack he has made on Lord Patrick. I rely profoundly on Lord Patrick's judgment, and to speak, as Lord Hankey did, about vindictiveness and so on, is completely out of place, when he knows, or should know, that Lord Patrick formed one of the majority who gave this decision. Whether Lord Hankey has read the majority judgment or not I do not know, but judging from his speech he seems to have confined himself to the minority judgments. At any rate, as I will point out in the course of the next few minutes, if he has read it at all he seems to have failed completely to apprehend what the case was all about.
  Before I come to the details of the case, I would like to brush aside one or two small matters. With regard to documents, the verbatim account of evidence—remember, this trial lasted two years—consists of 48,000 pages. There is at the Foreign Office Library a pile of double-spaced foolscap, thirty feet in height. The noble Lord has access to it, as of course have other noble Lords. I see no reason whatever for having that copied and placed in the Library of this House; I do not think the task would be in any sense justified. But the judgment is here. I have it in various volumes. There is the majority judgment of 1,600 pages, the dissenting judgments, comprising the Indian judgment of 1,235 pages, the Dutch of 249 pages, and the French of 25 pages—I noticed Lord Hankey quoted rather extensively from the French—and there are a further twenty-two pages of dissenting judgment. Those altogether amount to 1,531 pages. What I will do is to arrange for the 1,600 pages of the

  895
  majority judgment and the 1,531 pages of the dissenting judgments to be placed in the House of Lords Library, and at a later stage I will consult with my right honourable friend, the Foreign Secretary, as to whether there is a case for having all this printed.
  I was asked this further question: Are there to be any further trials? The fact is that the Far Eastern Commission decided on February 24, 1949, that there shall be no further international military tribunals, and recommended to the member nations that the investigation of minor war crimes should be completed by the end of next month; and that is dated this month, May, 1949. So much for those questions.
  Now let me explain how the trial arose. The trial arose out of the Potsdam Declaration of 1945 that "stern justice shall be meted out to all war criminals." The Charter under which the trial took place was agreed to on January 18, 1946. The Tribunal was to consist of not less than five and not more than nine members—that was later increased to eleven members. Article 5 of that Charter gave power to try persons who, as individuals or organisations, were charged with offences as follows: (a) crimes against peace, such as the waging of a declared war of aggression; (b) violation of the customary laws of war; and (c) crimes against humanity. The Charter, which should have been the judges' Bible, as it were, directed that persons participating in a common plan were to be responsible for anything done by others in pursuance of that plan. That is provided in the Charter. It is further stated—and this is perfectly good law—that the fact that any particular defendant acted under orders, though relevant to the question of the extent of his punishment, is not relevant on the question of his guilt. Accordingly, in April, 1946—again there was no delay—the indictments were served and the trial then proceeded for the better part of two years, and judgment was delivered at the end of 1948.
  The Charter provides for a review by the Supreme Commander who, of course, would consult (and this is so provided) with diplomatic representatives of the various Powers. The Charter provided for no other form of review at all. In fact, the Supreme Commander did review
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  these trials, awaiting for that purpose representations from all the various countries concerned, and he confirmed the decision in toto. No further review is possible unless, of course, the various nations like to agree amongst themselves, in which case they can obviously agree to anything. But it is not possible for one nation to arrange for a re-trial; it could be done only by common consent of the eleven nations concerned. They have had their review; that review has been discharged.
  Notwithstanding that difficulty, if I felt that injustice had been done, or even that there was a grave risk that injustice had been done, I should not hesitate to see if I could initiate steps to bring about a re-hearing or another review. But as I feel no such thing, as I see no reason whatever to doubt the fairness of the trial or the accuracy of the conclusions that were come to, I, for my part, shall do nothing whatever, nor will this Government, to attempt to initiate a review either of the sentence with regard to Shigemitsu or the sentences with regard to the others.
  I pass to consider the case of Shigemitsu, because if I satisfy your Lordships with regard to his case, all the others are quite obviously a fortiori cases. Let me therefore consider that case. First, your Lordships will remember him as Ambassador here. He left this country and went as Ambassador to the puppet Government of China in 1941, and in April, 1943—and the date is a little important—he became Foreign Minister. My Lords, as Sir Henry Wootton, I think, once said, "An Ambassador is an honest man who is sent abroad to lie for his country." Perhaps it was right that the Tribunal should have found Shigemitsu not guilty in respect of all his activities whilst he was over here. But when I heard Lord Hankey, who sent out testimonials of character, speaking of this man, talking of his "aura of integrity"—that was one phrase I believe he used—I was staggered. I will read to your Lordships one telegram—not that I am questioning the fact that Shigemitsu was found not guilty in respect of his work as an Ambassador: an Ambassador must have great latitude. Here is a telegram from Shigemitsu to his Foreign Secretary, Matsuoka. It is dated August 5, 1940—that was just

  897
  about the time he was having these discussions with the noble Lord, Lord Hankey, and the telegram was sent from London. It reads:
  "… in order to establish our position in Greater East Asia it would be necessary to consider measures for gaining the maximum benefits at the minimum loss by carrying them out at the direct expense of small nations (for instance, France and Portugal, although indirectly it may turn out to be at the expense of Britain and America) and by avoiding conflict with other countries so as not to make many enemies at once but to dispose of them one by one."
  That man, you see, advocated hitting first at the "little ones." He included France in that description, France being then occupied and unable to defend herself. This is the man whom we are asked to think of as possessing this "aura of integrity."
  He joined the Cabinet in April, 1943. That Cabinet was waging aggressive war. May I tell the noble Lord, Lord Hankey, that aggressive war does not cease to be aggressive war because you cannot define it? You cannot define a pretty girl but, thank God, pretty girls exist! Does anybody doubt, does the noble Lord himself doubt, that Pearl Harbour, for instance, was aggression?
  LORD HANKEY: This was long after Pearl Harbour. Pearl Harbour was in December, 1941.
  THE LORD CHANCELLOR: Of course, it was. This was in 1943. I am trying to point out to the noble Lord that if Pearl Harbour was aggression, then he admits that there can be such a thing as aggression, even though he cannot define it.
  The next doctrine which the noble Lord develops, and it is an extraordinary doctrine, is that aggression ceases to be aggression because, in fact, it does not pay. When Japan began to lose, when she began to find that she had "bitten off more than she could chew," her warlike activities were still in pursuance of a war which started as—and indeed was—a war of aggression. Shigemitsu, as I have said, joined the Cabinet. He is said to have joined to end war and to promote peace. That is said. But by whom? Not by Shigemitsu. No doubt it is said in some of those newspapers in America which the noble Lord has been reading. But it was not only for that that Shigemitsu was convicted. He was
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  Foreign Minister, and as Foreign Minister he had direct responsibility for seeing that treaty obligations which his country had entered into were observed.
  Countless protests were made to him about the shocking brutality going on in prisoner-of-war camps. And that is a matter about which I am going to tell your Lordships something. We must not be mealy-mouthed about this business; I will tell you what it was in due course. Time after time the Swiss Minister—Switzerland was, of course, the protecting Power—asked for the right to inspect, a right which was granted by the Hague Convention, to which Japan had put her hand. Time after time Shigemitsu refused, finding, sometimes, specious excuses. In one case, when the Americans made a very specific complaint on December 12, 1942, he delayed his answer till April 24, 1944. In his interrogation before trial he was forced to admit that he strongly suspected that things were very wrong indeed. And yet when, at last, he did reply to complaints by the United States Government he said that they were "distorted." He rejected our complaints on October 3, 1944, in regard to the health of the prisoners who were labouring on the Burma-Siam railway—and to place those prisoners on that railway was, in itself, a breach of the conventions of war because it was a military work. He said this:
  "The Imperial Government, by exercising great vigilance as to the health and hygiene of prisoners of war, takes added measures such as monthly medical examinations of each prisoner-of-war camp to enable sickness to be treated in the first stage."
  I now read a passage from the majority judgment—perhaps the noble Lord, Lord Hankey, did not get so far as this:
  "The facts stated were entirely false, as the prisoners had not received medical attention and had been dying by thousands from beriberi, cholera, malaria and other tropical diseases."
  Of the 40,000 prisoners there, at one time, 15,000 were sick and the number was put as low as 15,000 only because those suffering from malaria, beri-beri and dysentery were made to work and were counted among those who were still well. Matters were the same at other prisoner-of-war camps, and it is clear that this was no mere instance of individual brutality on the part of incensed soldiers—it was planned from above. We captured

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  from a Japanese Division in Burma on August 6, 1943, a book entitled Notes for the Interrogation of Prisoners of War. This is an extract from that book:
  "Care must be exercised when making use of rebukes, invectives or torture, as it will result in his telling falsehoods and making a fool of you. The following are the methods normally to be adopted:
  (a)Torture which includes kicking, beating and anything connected with physical suffering. This method to be used only when everything else fails, as it is the most clumsy one."
  Then came this marked passage
  "Change the interrogating officer when using violent torture and good results can be had if the new officer questions in a sympathetic manner.
  (b)Threats. Hints of future physical discomfort—for instance, torture, murder, starving, solitary confinement, deprivation of sleep.
  That book showed us what sort of thing was going on, and we sent a copy of it to the Swiss Legation. The Swiss Legation sent it to Shigemitsu. So he had no excuse for saying that he did not know the sort of thing that was being done.
  I say this to your Lordships; if this man, in the position of Foreign Minister of his country, knowing that these things were going on, refused to allow inspection of camps, which would have revealed them in breach of the Treaty obligations, can it be said that he was not guilty of gross breach of international law and of crime? Whether he did know, or whether he merely suspected, was a matter for evidence; and particularly for his evidence—which he did not give. But at least he knew that the Government which he joined had passed laws, or regulations, authorising the execution of the American airmen—the Doolittle Flyers—although this was absolutely against international law.
  That was the Government he joined, and the majority judgment quite early on—it is at page 32—says this
  "Department officials having knowledge of ill-treatment of prisoners are not responsible by reason of their failure to resign; but if their functions included the administration of the system of protection of prisoners and if they had or should have had knowledge of crimes and did nothing effective, to the extent of their powers, to prevent their occurrence in the future, then they are responsible for such future crimes."
  LORD HANKEY: "To the extent of their powers."
  THE LORD CHANCELLOR: That seems to me a perfectly sound doctrine. The inference that Shigemitsu knew what was going on is irresistible. The atrocities were on a vast scale and followed a common pattern. The Japanese Military Police, the Kempeitai, were most active in inflicting these tortures. The Army and the Navy Units followed the same methods. The local police forces also applied the same methods; and the chiefs of prisoner-of-war camps were actually brought to Tokyo and given a course of instruction on how to administer torture. They were shown how to fill a man with water and then, when his stomach was completely distended, jump on his stomach. Hundreds of our boys were killed in such ways. There was the electric shock, which was applied to sensitive parts of the body. Then there was burning, sometimes simply by cigarette ends, but other methods were also employed. There was the knee-spread, flogging and vivisection. If the noble Lord will read the judgments, he will find that medical officers in charge of divisions, when they received British flyers, stripped them, tied them up and then, in the presence of young medical officers, vivisected them. In one case a medical officer cut out an airman's heart. One witness said in his diary, "It was most instructive." In another case they cut out an airman's liver. Allied airmen were saturated with gasolene and burned alive by order of an army commander. On the Burma-Siam Railway the instruction was: "Men are of no importance. The construction of the railway has to go on for operational purposes and has to be finished within a certain time, at all costs, irrespective of the loss of lives of British and Australian prisoners."
  At the same time, in September, 1943, the Prisoner-of-War Information Bureau in Tokyo received official information from the Prisoner-of-War Commandant in Thailand showing the vast number of prisoners who were dying. Finally, when they thought the Allies might come and vengeance might be taken upon those who were guilty of these horrible and inhuman acts, this Government promulgated an order advising those in charge of these camps to run away and get lost. Whilst all that was going on, this man, Shigemitsu was Secretary of State for

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  Foreign Affairs in Japan. He had to deal with the Swiss Government which was the protecting Power. He himself admitted, in interrogation, that he had grounds for strongly suspecting that things were very wrong. If the Tribunal had been satisfied that he had done what he could, that would have been a most relevant fact; but they were not so satisfied. I do not pretend I have been able to read all of these judgments, but I have read extracts from all of them. And I am bound to say that I should not feel it in accordance with my duty or my conscience to take any step on behalf of the Government for a review of the sentences on these men and, in particular, the sentence passed on their Foreign Minister, who was primarily responsible for the international relations with the protecting Power, because I believe that if he had made an inspection it would have probably revealed these horrible things.
  6.45 p.m.
  LORD HANKEY: My Lords, when a speaker begins by abusing me, that does not worry me at all: it runs off me like water off a duck's back. I regret not having been able to give notice of my intention to raise this matter, but it arose from the peculiar circumstances of my life. I have to go once a week to Paris, and in that particular week I did not get back until Wednesday morning, the debate being on Thursday. I had originally intended to raise the question of the Tokyo trials with that of the Nuremberg judgment a fortnight ago, but it was only on the Friday that I learned that that was impossible. On that Friday I found I had to recast the whole of this very difficult speech, involving a great deal of work, into a speech on Nuremberg. I was away on Sunday, Monday and Tuesday, and came back from Paris, bringing a typescript of my speech with me. I came down to the House on Wednesday to try to find out who was going to speak. I did not learn then that the noble and learned Viscount the Lord Chancellor was going to speak. Nobody said a word about that. I did not know that until Thursday. So I could hardly have sent the noble and learned Viscount notice. I did speak to the noble Lord, Lord Henderson, who was to reply on the Thursday, when I had in mind taking Tokyo and Nuremberg together. Altogether it was a chapter of accidents which I deeply regret. Even
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  when I arrived back on the Wednesday morning, I had a Government Committee which lasted the whole morning. As to giving notice to the noble Lord, Lord Oaksey, I am sorry to say that I was not introduced to the noble Lord until to-day, and I did not know him by sight. If I had seen him in the House, and known who he was, I certainly would have spoken to him about it.
  I thank the noble and learned Viscount the Lord Chancellor for the trouble he has taken in this matter, but I am sorry to say he has completely disappointed me in what he has said. He has surprised me, too. I shall not go much into the question of Norway, because I have already said something about that, but there is one fact which has been overlooked by all of us. On September 2, before we were in the war, the Germans told the Norwegians that they were going to respect their neutrality. But in telling them that, they warned the Norwegians most seriously that if anyone else violated that neutrality, they would hold themselves free to take necessary measures. So when we did commit what I agree was a minor breach of Norwegian neutrality on February 6, the Germans naturally backed up that view, and on February 20 Hitler told the General in command to get on with it. On March 1, the German Führer decided to go in. They had a very good excuse when the Norwegians protested against our mining those fjords. I will not pursue that further. Norway was very important to us both, and of enormous value defensively, as well as offensively. We wanted to cut the line, and the Germans wanted to prevent the steel line being cut.
  The Lord Chancellor resented my implied attacks on Lord Oaksey and Lord Patrick. I certainly had no intention of attacking either Lord Oaksey or Lord Patrick. After all, the decisions were made, I assume, by the Tribunal. In Lord Patrick's case the Tribunal consisted of eleven people, so there was there a great deal of give-and-take. Lord Patrick was ill a great deal of the time, I am sorry to say (I am not sure that he has recovered yet), and that would necessarily make him rather less mobile than would be desirable. I am certain that what the Lord Chancellor says about him is true, and if he had been able to get

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  about more easily I am sure that he would have been better able to pull his weight in that case.
  On the question of Papers, I thank the noble and learned Viscount the Lord Chancellor for having gone some way to meet me. I understand he is willing to place a certain part of these judgments in the Library, and he will discuss later with the noble Lord, Lord Henderson, whether some of it should be printed. I think he said there would be no more international Tribunals in Japan and I thank him for that. I did not criticise the length of the trials, although the Lord Chancellor seemed to think I did. I said that I quite understood the difficulties, because there were so many judges and so many prisoners. My international experience, though very wide, does not extend to these Tribunals, but it does enable me to know that when a large number of people are concerned it is much more difficult and takes much longer to handle the whole business, especially when there is a great deal of interpreting to be done. On that point we are agreed.
  The next point is that the Charter provided for no review, as I understand it. My main criticism of these trials is that they were wrong from the first; they were an enormous mistake of policy. I think it is a grave reflection on those who drew up these Charters that they did not provide any means for review. On the other hand, the Lord Chancellor says we could initiate a review—possibly, as I suggested, with the other ten nations, if we could induce them all to agree. I hoped he was then going on to say that in the case of Shigemitsu he would recommend a review. But he did not. The Lord Chancellor has made a strong case against Shigemitsu, but the very vehemence of the case he made enabled me, as I thought, to see the weakness of it.
  I have not read all the documents, but I have read every part relating to Shigemitsu that I could. The whole of my point, which the noble and learned Viscount seems to have overlooked, was that the responsibility for these horrible things lay with Tojo, that tough soldier, and with the people working under him. It did not lie with Shigemitsu. Shigemitsu was a Foreign Minister, a contemptible
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  civilian who could not get at the facts; and, even if he could get at the facts, he had no official duty, except to act as a post office. That was his official duty—to receive the protests and to pass them to the appropriate departments, where they were handled by this prisoners-of-war committee presided over by Tojo, who had all powers of decision. They then came back from that department with the answers. I have no doubt that Shigemitsu was horrified. But there he was, in a frightful atmosphere, and he was trying to work for peace, which would have ended the whole business.
  That answers the whole of this case about the prisoners. It is horrible, and I have no desire to conceal it. What I say is that Shigemitsu had moral responsibility but no legal responsibility for it. I tried to show from evidence given that he did all he could to fulfil that moral responsibility, though his great hope, of course, was to end it all by getting peace. The Lord Chancellor said nothing about Tojo and Koiso, and not Shigemitsu, being responsible. It is true that Shigemitsu refused to allow visitors, but that was the order he received from the responsible department. Under the law he had no alternative. I noticed—and I ejaculated, almost at the danger of an interruption—that the Lord Chancellor used the words, "to the extent of their powers." I think Shigemitsu did all he could to the extent of his powers.
  THE LORD CHANCELLOR: The judges thought he did not.
  LORD HANKEY: I read more of the majority reports than I did of the minority, though I perhaps quoted rather more of the minority which said he did: and I thought their case was very strong indeed. The House is so empty now that it is no good my challenging a Division. If the House had not been so empty I certainly should have done so. We are very unlucky in these war crimes debates; we always get put off very late. I think this question will have to be gone into further. I shall not reply to the other speakers, because they have all gone, and I feel that there is no alternative for me but to ask leave to withdraw the Motion.
  Motion for Papers, by leave, withdrawn.

  BUSINESS OF THE HOUSE
  7.1 p.m.
  LORD AMMON: My Lords, before the House adjourns, perhaps it will be for the general convenience of your Lordships if I announce the date of the Whitsuntide Recess. The House will adjourn for the Whitsuntide Recess on Thursday, June 2, or Friday, June 3, and will reassemble on Tuesday, June 21.

  HALIFAX CORPORATION BILL
  Brought from the Commons; read 1a; and referred to the Examiners.

  MOUNTBATTEN ESTATE BILL [H.L.]
  Committed for Wednesday next.
  House adjourned at two minutes past seven o'clock.