Lords Sitting of 4 December 1989

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of St. Albans.

Teachers: Advisory Committee
Baroness David Baroness David asked Her Majesty's Government:
Whether they will re-establish the Advisory Committee on the Supply and Education of Teachers.
Viscount Davidson: No, my Lords. The factors which led the Government to decide in 1985 not to reconstitute the Advisory Committee on the Supply and Education of Teachers still apply.
Baroness David: My Lords, that is not an unexpected reply, but is the Minister aware that when the Advisory Committee on the Supply and Education of Teachers was allowed to lapse by Sir Keith Joseph, as he then was, in 1985 it was suggested that it could be reconvened two years later? Since five years later the committee's projections with regard to teacher supply have come all too true would it not be sensible to establish a similar committee which could determine the facts in a professional manner to ensure that well-informed decisions were made in good time and to reconcile competing analyses about the true extent of teacher shortage?
Viscount Davidson: My Lords, ACSET was established at a time when major changes in teacher education were in progress. Following the work of ACSET, the Council for the Accreditation of Teacher Education was established to advise the Secretary of State on teacher education. If the Secretary of State requires advice on specific questions such as would previously have been provided by ACSET he appoints an ad hoc body to provide the information, as he has done in, for example, the case of information technology and appraisal. The Government see no need for a standing body for that purpose.
Lord Taylor of Blackburn: My Lords, is the Minister aware of the outstanding service that was rendered previously? Is he also aware that a number of Secretaries of State had confidence in the committee and benefited from its advice? In view of the present situation in the teaching profession is this not the time to re-establish that body?
Viscount Davidson: My Lords, I have said that the Government do not consider that to be the case. The Government collect a wide range of information from local authorities. The range of data available on the teaching profession is unparalleled. There was a considerable degree of agreement between the many surveys carried out this autumn, including the
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department's own ad hoc survey, the Labour Party survey and a survey carried out by the BBC radio "Today" programme. Only the union survey produced different figures.
Lord Peston: My Lords, I am slightly surprised to hear from the noble Viscount that all the surveys showed the same result since I understood that they had reflected very different views of the present state of teacher supply. Would it not be wholly advantageous, not least to the Government, if instead of each year having a junior civil servant telephone all the local authorities to find out the position regarding the employment of teachers there was a body to provide the information in a professional manner? As well as being useful to the country, would that not also be of help to the Minister's right honourable friend the Secretary of State?
Viscount Davidson: My Lords, that is a very interesting suggestion. I shall take it on board and pass it on to my right honourable friend.
Baroness David: My Lords, is the Minister aware that it is not just a question of finding out what the position is now, but also a question of planning ahead? Does he agree that we need to be able to plan future intakes of students for initial training and that one needs to look a great many years ahead for that purpose? That is what the DES seems to have failed abysmally to do.
Viscount Davidson: My Lords, that is exactly what the DES is doing. In November 1988 the department produced very tentative supply and demand projections for the mid-1990s in response to a request from the Select Committee. Those figures have recently been updated in response to a further request. On the basis of those projections we expect that overall teacher demand and supply will be broadly in balance. Current initial teacher training entry targets are being met in primary education and we foresee no shortages in the future.
In secondary education, current targets are not being met in key shortage subjects. Targets are adjusted for the future to reflect that. DES projections suggest that unless action is taken there will be deficits between demand and supply in certain subjects. We have made the forward projections and are now taking action to make sure that we put the situation right in the future.
Baroness David: My Lords, is the Minister aware that the department's own projections for the Interim Advisory Committee on School Teachers' Pay and Conditions showed appalling shortages for 1995? Might that have been avoided had action been taken sooner?
Viscount Davidson: My Lords, that is exactly why the Government are taking the necessary action to put the matter right in 1995. I have a list of the actions which the Government are taking. I shall write to the noble Baroness with that information and place a copy in the Library.

War Widows: Pensions Differential
2.42 p.m.
Lord Molloy Lord Molloy asked Her Majesty's Government:
Whether they will bring pensions of war widows of husbands killed in the First and Second World Wars into line with those of widows of servicemen killed in Northern Ireland and the Falklands.
The Parliamentary Under-Secretary of State, Ministry of Defence (The Earl of Arran): My Lords, there are no plans to do so.
Lord Molloy: My Lords, is the Minister aware that that reply will grieve not only the Royal British Legion but also probably the entire nation? In 1973 when the proposals were first made the Royal British Legion was consulted. It was later discovered on implementation that war widows of servicemen killed in the 1939–45 war subsequently became worse off than widows of servicemen killed in later wars. Is the Minister aware that many of us feel that that is wrong? Is he aware that the British Legion is asking that widows of all wars in which soldiers, sailors and airmen gave their lives should be treated the same? The servicemen made no differentiation in their deaths, and the Government should not differentiate between their widows.
The Earl of Arran: My Lords, first, I can assure the noble Lord, Lord Molloy, as I have done on several previous occasions, that the interest of the Royal British Legion concerning war widows is always kept very closely in mind and will continue to be kept closely in mind. As regards the unfairness of which the noble Lord spoke, for the third time in three weeks perhaps I may remind your Lordships that the Government are not insensitive to the case of war widows. But at the same time I must make it clear that that is why the pensions paid to war widows under the DSS scheme and the extra allowances are much more generous than the state pension for other widows.
Your Lordships are by now well aware of the position, but we cannot ignore the fact that from next April war widows will receive between 30 per cent. and 72 per cent. more than other widows receiving a state pension. In addition, all those payments are tax-free. Furthermore, some 75 per cent. of war widows of retirement age also receive a retirement pension as a result of contributions made during their own employment. I apologise if that explanation seems tedious and repetitive, but I want to make clear the Government's aim in this matter.
Lord Boyd-Carpenter: My Lords, I express my admiration for my noble friend's robust defence of the indefensible, but will he tell your Lordships whether those in the Government who take these decisions fully understand that opinion in both Houses of Parliament appears to be overwhelmingly in favour of making that concession? In those circumstances, would it not be better for all concerned, including the Government, if they were to yield gracefully and quickly?
Earl of Arran: My Lords, once again I must say to my noble friend, who, I think, raises the same problem on behalf of all your Lordships, that other ministerial colleagues have explained clearly all along —as I hope I have done —the difficulties involved in making such a change.
Lord Carver: My Lords, I recognise that it would perhaps be invidious to distinguish between the widows of those killed in action and those who died of war wounds or, for instance, in prisoner of war camps. But will the Minister realise that constantly comparing the pensions of war widows with those of other widows does not answer the question? As the noble Lord, Lord Boyd-Carpenter, has said today and on previous occasions, the question is: why should there be an enormous anomaly between the position of those war widows entitled to a pension before 1973 and that of war widows entitled to a pension after 1973?
The Earl of Arran: My Lords, as I have tried to point out in the past, I understand the argument put forward by the noble and gallant Lord, Lord Carver, with regard to this problem. But I hope that, as I have endeavoured to do in the past, I have pointed out the difficulties on the occupational scheme side of trying to make equal pre–1973 war widows and post–1973 war widows. I have endeavoured to point out, first, the considerable cost of £200 million. Secondly, it would be impossible to leave out the war disabled, costing a further £400 million. Obviously, there would also be the knock-on effect of taking into account all the other public services.
The Earl of Onslow: My Lords, did my noble friend or his advisers read the excellent article in The Times by Mrs. Parker explaining that the top-up arrangements given to pre-1973 war widows could invoke serious poverty trap problems and that all those problems would go away if the Government behaved sensibly and humanely and made all widows' pensions the same? This matter gives the Government a bad name and, as a loyal supporter of the Government, I do not want that to happen.
The Earl of Arran: My Lords, in answer to my noble friend I can say that there is a statutory disregard of £5 per week set against war widows where claims for income-related benefits are made. That disregard is to be increased to £10 from April next year. Furthermore, war widows are also able to receive state retirement pension in addition to their war widows' pension if they have worked and paid contributions. It is estimated that about 75 per cent. of those who are of retirement age receive extra pension. Finally, I can also say in rejoinder to my noble friend that my right honourable friend the Minister for Social Security has said in Committee in another place that he would be content to consider cases of hardship to see what further assistance might be given.
Lord Mayhew: My Lords, as the noble Earl quite rightly said, the Government's arguments have been stated clearly and repeatedly by several Ministers. However, is he also aware that those arguments are

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rejected by a large and increasing all-party body of Members of both Houses? Will he heed carefully the advice given to him by the noble Lord, Lord Boyd-Carpenter, to withdraw now when he can do so with some dignity?
The Earl of Arran: My Lords, I have made it clear on two previous occasions that I have informed my right honourable friend the Secretary of State. On both previous occasions I have been able to inform your Lordships that my right honourable friend pays great attention to the feelings of noble Lords and what they say in the House.
Lady Saltoun of Abernethy: My Lords, how can the Government justify the recent huge pay rises to Members of another place when they refuse to raise the pensions of pre-1973 war widows to the level of those of post-1973 widows?
The Earl of Arran: My Lords, I think that that is another question for another day.
Lord Irving of Dartford: My Lords, in view of the growing support for this measure in both Houses, does the Minister think that it would be wise for the Government to be generous and consider at least a review rather than have legislation dragged out of them through a Private Member's Bill which will receive much support in both Houses?
The Earl of Arran: My Lords, the situation as regards war widows is always kept under review.
Lord Grimond: My Lords, did I hear the Minister aright when he said that the total cost was only £200 million and that if the disabled were added it would be £400 million? Have not the Government lately poured far bigger sums of money than that into projects much less worthy? As the noble Baroness said, do we not read every day of increases in pay and allowances and so forth throughout the public service which make this sum look like chickenfeed?
The Earl of Arran: My Lords, with respect, I do not think that the noble Lord heard my previous answer correctly. It was perhaps my fault, for which I apologise. The total combination of war widows' pensions and the war disability situation would amount to some £600 million. The further point that I want to stress is that the knock-on effect would cost billions of pounds in the public services.
Lord Mellish: My Lords, is the Minister aware that not only Members of this House but those in another place too are crying out for this anomaly to be removed? The Minister accepted that there is an anomaly. He told us why things could be different and how much it would cost. But perhaps I may remind the Minister that this Government paid something like £4 billion —or was it even more than that?—into the national debt. Is the Minister telling us that the Government cannot find £400 million?
The Earl of Arran: My Lords, I do not think I have anything further to add to what I have already said on this particular point.
Lord Williams of Elvel: My Lords, can the Minister illuminate the House on one point? He said that the immediate effect would be a cost of £200 million and that there was a further £400 million in disability which, by the token of the present Government's Autumn Statement, is chickenfeed, as one noble Lord said. The Minister then referred to knock-on effects. What are those knock-on effects and can he quantify them?
The Earl of Arran: My Lords, the whole point of any occupational pension scheme is that it is forward-looking and futuristic. The noble Lord knows very well that occupational pension schemes were not made to be retrospective.
Baroness Seear: My Lords, if the noble Earl is really so worried about the retrospective nature of the payment —and throughout this discussion I have been waiting for him to say that —what on earth is there to prevent the Government producing a single one-clause Bill to ensure that these particular widows will be given a pension? One need not tack it on to previous legislation.
The Earl of Arran: My Lords, I have explained on previous occasions the problem about ring-fencing. This would be a very difficult situation in which to ring-fence.
Lord Shackleton: My Lords, I appreciate that the noble Earl is doing his best. However, since the noble Lord the Leader of the House is not present, I wonder whether the noble Earl the Deputy Leader would care to comment on a situation wherein the whole House unites in a particular view. In my opinion the Leader of the House ought to be here to listen to this discussion. It is a matter on which this House will not let go.
The Minister of State, Home Office (Earl Ferrers): My Lords, in view of the fact that my noble friend the Leader of the House is not here, the only comment I shall make is that the view of your Lordships' House is perfectly clear. This discussion has been going on for quite a long while and my noble friend has accepted the questions which have been given to him. I shall draw the views of the House to the attention of my noble friend the Leader of the House and also to that of my right honourable friend the Secretary of State. Having said that, I think it would be appropriate for us to move on to the next Question.
Lord Molloy: My Lords, are the Government aware —
Noble Lords: Next Question!
Lord Molloy: My Lords, it is my Question.
Earl Ferrers: My Lords, with respect to the noble Lord, Lord Molloy, we have been discussing this Question for quite a long time. I know that it was his Question originally, but I think that it would be appropriate and for the convenience of the House for us to move on.

Sheep: Live Exports to Spain
2.55 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether they will prevent the export of live sheep to Spain to be slaughtered by methods not acceptable in the United Kingdom and in distressing transport conditions.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington): My Lords, the Government do not license the export of food animals to Spain and will not do so until that country has properly implemented the existing Community directives on welfare during international transport and on pre-slaughter stunning. Reports that sheep have been sent to Spain are being fully investigated.
Lord Campbell of Croy: My Lords, I thank my noble friend for that reply. Is she aware of a recent case involving about 500 sheep which appeared to be flagrantly in breach of existing United Kingdom regulations? Can more be done to enforce the law to prevent great suffering by livestock in transit, especially when the new EC regulation comes into force?
Baroness Trumpington: My Lords, we are appalled at the seeming disregard for sheep's needs, as expressed in the article to which my noble friend refers. The existing EC directive on transport requires food and water to be offered at suitable intervals, which should not exceed 24 hours, unless the journey can be completed within a reasonable period. We have gone further by requiring the use of staging points for feeding and watering where the journey exceeds 18 hours. The Community is working on a number of proposals including the transport of animals. Our objective will be to negotiate high standards of welfare and for those to be rigorously enforced. In this connection it is reassuring to see that a Commission inspectorate is proposed.
Lord Gallacher: My Lords, is the noble Baroness aware that people who make a living out of slaughtering animals in this country have described what is going on in Spain as stomach-churning? In view of that and the fact that this trade is likely to grow as far as concerns Britain because of changes in the sheepmeat regime, will she ask her right honourable friend to look at the excellent example given to this country over many years by the New Zealand Meat Board and possibly consider asking the Meat and Livestock Commission to constitute part of itself into an export board for this very purpose?
Baroness Trumpington: My Lords, we do not in fact have firm evidence of malpractice with regard to the remark about barbaric slaughter referred to by the noble Lord. However, we are awaiting confirmation from the Commission that Spain has properly implemented EC legislation on welfare at
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slaughter. The EC Commission is in contact with the Spanish Government over details of implementation of the EC directives which are not currently satisfied. I must tell the noble Lord that we are not free to continue our ban once the EC law is being properly implemented. I shall pass on his other suggestion to my right honourable friend.
Lord Hailsham of Saint Marylebone: My Lords, do I understand my noble friend rightly in saying that if these rather disturbing reports are true there has been a breach of regulations? Is so, what chances are there of successful prosecution?
Baroness Trumpington: My Lords, we are following up the matter through the RSPCA and the French authorities. We are helpless to prosecute over what has gone on outside this country.
Lord Walston: My Lords, can the Minister assure us that her department has sufficient information and power to ensure that sheep which have been consigned legitimately from this country to France are not then moved on to Spain without any authorisation from us; or is that something which it is impossible for the Ministry of Agriculture to monitor?
Baroness Trumpington: My Lords, once animals have crossed the Channel, enforcement of the EC transport directive is a matter for other governments. MAFF officials do not follow consignments into other member states, but there has been liaison with the French veterinary service over surveillance of our exports.
Lord Cledwyn of Penrhos: My Lords, is it not the case that the Commission has the power to prosecute where the evidence is clear? Can the noble Baroness tell us whether evidence has been submitted to the Commission and whether any steps are being taken in this matter?
Baroness Trumpington: My Lords, my only information has come through the article in The Sunday Times which needs reinforcement as to its truth. I am sorry but I have forgotten the other part of the noble Lord's question.
Lord Cledwyn of Penrhos: My Lords, I asked whether the Commission is proposing to prosecute and, if the evidence is clear, why it is not doing so.
Baroness Trumpington: My Lords, we have withdrawn licences from those who it is believed are offending against the regulations with regard to our exports to Spain.
Lord Campbell of Croy: My Lords, my noble friend said that the information was simply an article in The Sunday Times. Can she get in touch with the Scottish Society for the Prevention of Cruelty to Animals which drew this case to my attention because the sheep originated in Scotland?
Baroness Trumpington: My Lords, under the Export of Animals (Protection) Order 1981 the

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Minister shall not grant a licence unless satisfied that the arrangements for transporting the animals to their final destination protect them from unnecessary suffering. That also applies to Scotland.
Lord Morris: My Lords, do the EC standards for the transportation of live sheep bear any relationship to the standard set by British Rail for transport of live human beings?
Baroness Trumpington: My Lords, I really do not think that I need answer that.

Tourism: Career Opportunities
3.1 p.m.
Lord Gainford Lord Gainford asked Her Majesty's Government:
What action they are taking to promote the awareness of tourism as a career.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Strathclyde): My Lords, the employment department works with other government departments and the tourist boards to promote the many and varied career opportunities that exist in tourism.
Lord Gainford: My Lords, I thank the Minister for that Answer. Has he any information on what schools are doing to encourage young people to take up tourism as a career?
Lord Strathclyde: My Lords, the picture is most encouraging. There is a GCSE on travel and tourism. Various degree and polytechnic courses, catering colleges, and the industry-backed initiative COMETT promote tourism and travel careers within schools.
Lord Ponsonby of Shulbrede: My Lords, the noble Lord referred to the responsibility for tourism which is fragmented among five government departments. Is he satisfied that this fragmented responsibility will produce the best results?
Lord Strathclyde: My Lords, yes. The fragmentation is acceptable so long as there are good communications. Currently there are good communications. I believe, therefore, that the various initiatives will be successful.

Capital Allowances Bill [H.L.]
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to introduce a Bill to consolidate certain enactments relating to capital allowances. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time. —(The Lord Chancellor.)
On Question, Bill read a first time, and to be printed.

War Crimes Inquiry Report
3.3 p.m.
Earl Ferrers Earl Ferrers rose to move, That this House takes note of the report of the War Crimes Inquiry (Cmnd. 744).
The noble Earl said: My Lords, it often falls to your Lordships to debate important and controversial issues, but I venture to think that it is rare for the House to have to face so difficult, emotive and indeed uncomfortable a subject as that which is before us today. It is a subject which arouses very strong feelings. Powerful arguments can be —and I have no doubt will be—arrayed on either side of the subject. And all this is in order to search for the right thing to do.
We have before us a report by two very eminent people, which says that legislation should be introduced to make it possible for some people, who are at present resident in the United Kingdom, to be liable for prosecution for atrocities which they are alleged to have committed during the war when they were not resident in the United Kingdom and when they did not come under the United Kingdom's jurisdiction. I have no hesitation in saying to your Lordships that this is a weighty decision to make, and the Government would like to have the benefit of your Lordships' views before deciding whether or not to introduce legislation.
I think that it would be right to make clear that, were the alleged atrocities to be committed now, the United Kingdom law would since 1957 permit action to be taken against those who perpetrated them, even if the atrocities had been committed by non-British citizens outside the United Kingdom. This follows the Geneva Conventions Act 1957 and the Genocide Act 1969. What we are considering therefore today is whether there is a need to alter the law in order to take action in respect of acts which particular individuals may have committed at a time—unlike now —when their actions, although contrary as they then were to international law, were not subject to the jurisdiction of the United Kingdom courts.
It might be helpful to your Lordships if I were to explain some of the background to the issue which is before us. But perhaps I may be permitted to say a few general words in which I think and I hope that I shall be reflecting the sentiments of all noble Lords.
The crimes which were committed during the Second World War and with which we are concerned today were of a magnitude and horror which it is hard to comprehend. They were not acts of war. Nor were they killings in the heat of battle. They were premeditated acts of cold-blooded mass murder which were perpetrated upon defenceless civilians.
Millions of innocent people were killed, and there are many families in Britain and the rest of the world who still suffer as a consequence. Those who continue to be directly affected in this way have the sympathy of those of us who have been fortunate enough to be spared experiencing such an ordeal. In our debate this afternoon, we must not forget the real and terrible human tragedy which forms the backcloth to our deliberations.
During the last few years a number of allegations have emerged from different sources concerning the presence in Britain of war criminals from the Second World War. It was suggested that among the many honest people from other countries who have settled in Britain after the Second World War there were a very few who had been guilty of war crimes and who had slipped through the screening process. These allegations were not only made about people who had come to live in the United Kingdom. Similar claims have led other countries to re-examine their position as well.
The United States, Australia and Canada have all concluded that it was possible that people who were guilty of war crimes could have settled within their boundaries too. Australia and Canada have each now changed their laws in order to allow action to be taken against war criminals who are now resident in their countries. In the United States, it has been decided that the proper course is to strip alleged war criminals of their American citizenship and to deport them.
The British Government have naturally taken allegations as important as these are very seriously indeed. We considered that they needed to be examined carefully. Consequently, my right honourable friend the then Home Secretary appointed Sir Thomas Hetherington, the former Director of Public Prosecutions, and his Scottish counterpart, Mr. William Chalmers, to conduct an inquiry in order to see whether the allegations which had been made had any foundation attached to them.
The inquiry's remit was a broad one. It was asked to investigate whether persons who might have committed war crimes had come to the United Kingdom and had settled here after the war, and, if so, whether the available evidence against them would be sufficient to sustain a prosecution. The inquiry was also asked to weigh the legal and other issues of principle which would be raised by any proposal to create jurisdiction for the British courts to try these cases.
The inquiry's report was published on 24th July this year. My right honourable friend the former Home Secretary announced its publication with a Statement in another place, and which I repeated in your Lordships' House. In his Statement, my right honourable friend said that the Government would take no final decision on whether to implement the recommendations which were contained in the inquiry's report until both Houses of Parliament had had an opportunity to express their views. Today we have the opportunity to hear your Lordships' views. The debate in another place will take place shortly.
The report of the inquiry is, as my right honourable friend the then Home Secretary said, an impressive piece of work. It is thorough and detailed in its analysis, and it is clear in its recommendations. I should like to take this opportunity to add my thanks to Sir Thomas Hetherington and Mr. Chalmers and their team for their efforts.
The report first considers the historical situation of the states of Eastern Europe, particularly the
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Baltic States, which provides the background against which the actions which we are considering must be set before it goes on to consider the position of war crimes in our national law and in international law.
The report also portrays a complex piece of detective work as some 301 allegations which were received by the inquiry were investigated. Some of the allegations were detailed and specific. Others were vague, sometimes being no more than a name. Each allegation was investigated and a recommendation on each was made on whether further action was required.
By the time that they had completed their work and had presented their report, Sir Thomas and Mr. Chalmers had been able to investigate seven cases in detail. In four of those cases, one of whom has since died, they considered that the available evidence was sufficient to mount a prosecution. They recommended further work on the other three cases and they identified 75 others in which further investigation would be warranted. They also recommended that attempts should be made to trace a further 46.
Given the existence of apparently strong evidence of guilt in certain cases the inquiry then considered various possible courses of action which might be taken in order to bring the offenders to justice. Extradition to the place where the offence was committed was considered carefully but in the end rejected.
In every case which was examined in detail by the inquiry the offence was committed in part of what is now the territory of the Soviet Union. The inquiry noted the apparent progress towards greater democracy and openness which has recently been made in the Soviet Union but it concluded that, depite all the changes which have taken place recently, there must still remain doubts as to whether the legal safeguards which would be the right of anyone who is on trial in this country would be available to them in the Soviet Union should they be returned there.
The inquiry also ruled out the possibility of depriving the individuals concerned of their citizenship and of deporting them. Any attempts at deportation would be certain to be resisted strenuously through the immigration appeals system and the courts, and it would be quite possible that the outcome might result in being that deportation was prevented.
The inquiry therefore recommended that our law should be changed in order to give British courts jurisdiction over acts of murder and manslaughter which were committed as war crimes —that is to say, as violations of the laws and customs of war—during the Second World War in Germany or German-occupied territory by people who are now resident here in the United Kingdom. I know that many people —and I have no doubt that many of your Lordships too —will wonder whether this would be retrospective legislation. The inquiry considered this and was quite clear that in its view to take such a step would not amount to the creation of retrospective legislation.
Had such crimes been committed by British citizens, it argued, our courts would already have jurisdiction over them. The changes which the inquiry proposed would simply extend that jurisdiction to those who have subsequently become British citizens or British residents.
The report also points out that the Hague Convention of 1907 on the laws and customs of war —and indeed customary international law —outlawed acts of the kind which we are considering and that the offences in question were therefore clearly in breach of international law as it then stood and as it was then understood. It would not therefore be retrospective legislation, it considered, to bring to trial those who, at the time that they were alleged to have committed the acts, would have done so in breach of international law.
The inquiry also made a number of related proposals about the practical and procedural aspects of any war crimes trials which might take place. These take account of the quite exceptional nature of such cases and, in particular, of the fact that most of the witnesses in any trial would be elderly people living abroad. Because of these aspects the inquiry supported the use, in war crimes trials, of the facility for evidence to be taken by live television link, for which legislation already exists in England and Wales, and the admissibility of evidence in the form of video recording by witnesses. If the broad principle of proceeding with legislation to implement the inquiry's main recommendations was to be accepted we should clearly have to give further thought to these details.
In his Statement made in another place on 24th July my right honourable friend the then Home Secretary said that the Government were impressed by the force of the argument which led the inquiry to reach its conclusions. When people of the integrity and experience of Sir Thomas Hetherington and Mr. Chalmers make such firm recommendations, one has to take notice.
Nevertheless, I have no doubt that some of your Lordships may judge that a very strong case can be made against taking further action. That is not because anyone wishes to condone the atrocities which have occurred nor to try to blot out the memory of them but simply, and not unimportantly, because of the problems which are caused because of the length of time which has elapsed since they took place.
It is nearly 45 years since the Second World War ended and 50 years since it started. Time may have gone some way towards healing some of the wounds inflicted then and some may argue that it is unwise, and possibly unkind, to reopen them. Is it right, your Lordships may ask, to stir up and to rekindle the feelings of hatred and animosity which mercifully the passage of years has allowed to die down? Is it right, your Lordships may ask, to deploy the resources of the police and the full weight of the legal system in investigating and prosecuting people who, by the time that they are prosecuted, may well be 80 years of age or more? Is it right, your Lordships may ask, to do this for people who have, rightly or wrongly, been living here for the past 40 years—and living here quite legally?
Those who witnessed these terrible events are in many cases dead or very elderly. While no one would wish to belittle the imprint which these events may have made on their memory, some of your Lordships may ask whether 50 years later we can really expect witnesses to identify accurately the perpetrators of such crimes.
Some may feel that, as most possible witnesses to the alleged crimes live in what is now the Soviet Union, it would be impossible to ensure that their evidence was open to fair challenge by the defence, even if that evidence was given via a television link. Others may judge that, in all the circumstances and after the passage of such a long time, it would be impossible for suspects to gather evidence and witnesses for their defence.
It may also be argued that there is a risk that perfectly innocent people —and even whole communities —who came here at the end of the war may be tarred with the brush of war criminality. Certainly, the representatives of members of the Baltic communities who are living here have expressed their concerns very strongly about this. Let me state quite clearly that the vast majority of people from Eastern Europe who came to this country after the war are entirely free of any taint of war criminality, and since their arrival they have been model citizens who have contributed a great deal to this country. To highlight the small handful who had previously committed the most horrendous of acts should in no way be a reflection upon the rest.
But we should not ignore the concerns of those communities who feel that their position in our society may be threatened by the proposed changes to our law. There may be some among your Lordships who will feel that that is a consideration which deserves some weight. On the other hand there are, as your Lordships will be aware, very powerful arguments in support of taking action along the lines which are suggested by the inquiry.
Six million innocent people were murdered. There is evidence that certain of the people whose acts contributed to this dreadful total are living here in Britain and have never been punished. Some will therefore argue that justice demands that we take action. Time may have passed, but with crimes as terrible as these it may be argued that it is never too late to prosecute. Some may say that we even have a duty, in memory of those who suffered and those who continue to suffer from the physical and mental wounds which were inflicted upon them, to bring the guilty to justice.
Those who take this view may well acknowledge the difficulties of gathering and testing evidence in the circumstances in which war crimes trials would take place. But they may also argue that, in the end, it would be a matter for the infinite good sense of a British jury to decide whether the strength of the evidence in any individual case was such as to enable it to reach a verdict of guilty.
In all this we should not lose sight of the actions which have already been taken by other countries which have found themselves in a similar position to us and which have legislated to allow war crimes

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prosecutions to take place. If Canada and Australia felt constrained to act in this way, having examined all the moral and practical issues, there may be those of your Lordships who would conclude that it would be right for this country to do likewise.
It can be said that, by taking action, we would demonstrate that those who perpetrate barbarity —whenever it is done and wherever it is done—cannot escape the consequences of their deeds, and that they can never hope to find a safe haven in Britain.
I have no hesitation in saying that this is the most distressing of subjects to consider. Its very consideration calls to mind actions and sentiments which offend against basic human decency and which are horrific in their awfulness. And your Lordships will be obliged, as will others, to wrestle with your consciences to try to decide which is the correct course to take.
I have tried to outline the strong arguments which exist on both sides. No doubt, during the course of our debate, we shall hear both points of view strenuously canvassed, and I know that several of your Lordships have personal experience of being present at war crimes trials, and that others have experience of that suffering which is caused by war crimes.
I think it is important that it should be common ground in our deliberations today that we recognise that those who support changing the law, in order to allow prosecutions for war crimes to take place, do not do so out of a spirit of revenge, and that those who favour taking no action must not be implicitly held to condone war crimes.
The Government have not made up their mind what to do. We seek the advice of your Lordships. I shall listen with care to all the views which will be expressed today. In the light of those views, and of the conclusions which will shortly be reached in another place, the Government will then decide whether to bring forward a Bill on the lines which are proposed by the inquiry. My Lords, I beg to move.
Moved, That this House takes note of the report of the War Crimes Inquiry (Cmnd 744).—(Earl Ferrers.)
3.23 p.m.
Lord Mishcon: My Lords, the Minister introduced with his customary clarity and great ability this debate on a report which brings back, as he said, unforgettable and sombre memories of one of the blackest chapters in the whole of human history.
When in the midst of the last war some news of the atrocities perpetrated by the Nazis filtered through —and we did not then know the extent of the massacres of millions of innocent men, women and children, of the concentration camps and their inhumanity and of the gas chambers—Members of Parliament, uniquely in their long history, stood in a minute of silent grief and homage. Today, 45 or so years later, those days of darkness and those vile war crimes are brought back to us in this report.
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In expressing our views on its recommendations, I understand that we do so in this House and in another place as individual Members. That must be right. This is not a party political matter and my humble contribution is from myself and myself alone.
What is the position with which we have to deal? As the House has been told, a number of persons who are alleged to have committed murder or manslaughter or to have contributed actively to genocide during the Second World War in violation of the laws and customs of war are said to be now resident in the United Kingdom or, indeed, to have become British subjects since the date of their alleged crimes.
A full investigation was ordered by the Home Secretary with the commendation of Parliament and was carried out, as the Minister said, under the expert guidance of a distinguished former Director of Public Prosecutions and an equally distinguished former Crown Agent for Scotland. They and their associates delved deeply into the available evidence. They visited, among other countries, the Soviet Union and countries previously occupied by the Germans during the war. They took statements, they collated documents and they came to the following findings as published in their report.
With your Lordships' leave, I should like to read the finding at paragraph 9.50, which states:
"In our opinion, there is sufficient evidence to support criminal proceedings for murder against some persons living in the United Kingdom … and further investigations may disclose the necessary evidence against other such persons … The cases we have investigated disclose horrific instances of mass-murders, and we do not consider that the lapse of time since the offences were committed, or the age of the offenders, provides sufficient reason for taking no action in such cases. We therefore recommend that some action should be taken in each case in which the evidence is adequate".
I need not read paragraph 9.54, which deals with the alternative of extradition, because the Minister dealt fully with that and, as one would have expected, paraphrased very clearly what the report says. I read only one sentence from paragraph 9.55, which states:
"Accordingly, we recommend prosecution in this country of those persons against whom there is adequate evidence".
Those are the main recommendations on which we and Members in another place will be concentrating with the essential prior decision that we should, by statute, give our courts jurisdiction to try those persons if they are charged, because of course they were not resident here nor were they British subjects when their alleged crimes were committed.
What we have to ask ourselves, answerable to history as we shall undoubtedly be, is whether that is consistent with our ideals of justice, and justice includes—and let us be quite clear about it —guaranteeing a fair trial for any accused. We must not be unduly influenced by emotion, for often, when emotion takes control, justice flies out of the window. Perhaps I may say that as a Jewish Member of your Lordships' House, I must be especially careful about that.
Equally, we must not shirk our historic responsibility to see that fiendish crimes against humanity do not go unpunished and that we have fulfilled honourably our duties to the past and to the

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future. It is with those principles in mind that I have tried, as objectively as I can, to deal with some of the relevant considerations as I see them.
The first and primary consideration is that it will be the Director of Public Prosecutions, with all his experience and the traditions of his office, and his Scottish counterpart (should he be involved) who will have to be satisfied that there is sufficient available evidence on which it is likely that a conviction would be obtained, and that it is in the public interest that a prosecution should be brought. That means among other things that he must be satisfied that in the relevant circumstances the defendant will have a fair trial and will not be adversely affected in his particular case by being deprived of genuine evidence through the passage of time.
On the basis of no prospect of a fair trial, no prosecution, should we not at least be in favour of a short Act of Parliament which will enable the Director of Public Prosecutions (and if Scotland is involved the appropriate authorities there) to examine the evidence and make their decision? My submission is that we should and must. In reaching that decision, for my own part I have to consider the following pertinent points with your Lordships. Is the legislation we would have to pass truly retrospective and thus objectionable? Is it of a completely novel character?
The answer I give to both these questions is, "no". To be truly retrospective it would have to create a crime where none existed at the time the acts were done. These were crimes which were well known as such in international law when the war commenced. Neither is the legislation novel. We have recently passed similar legislation giving our courts jurisdiction in cases of hijacking, terrorism and torture. Such legislation as is envisaged is clearly permitted under European and United Nations human rights conventions.
Have other nations adopted similar legislation? As the Minister said, Australia, Canada and the United States have done so. Is it right, even if sufficient evidence is available and can be dealt with fairly under the evidentiary recommendations contained in the report, all of which are known to our procedures in England and Wales, to charge someone after 40-odd years have passed since the alleged commission of the crime? My answer is that it would be an extraordinary and indeed dangerous precedent to say that where a grave crime has been committed the perpetrator of it could regard himself as being safe from being charged merely because by deception or by hiding away he has managed to elude the authorities for any number of years. For what it may be worth, it is my considered opinion, which I respectfully place before the House, that Parliament should speedily legislate, and that the recommendations of the report should be implemented, subject to the safeguards which I have mentioned.
I cannot conclude without mentioning the name of my noble and learned friend Lord Elwyn-Jones who is prevented by serious illness from being with us today. His leading role at the Nuremberg trials as
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prosecuting counsel is part of history. It was an experience which has made an indelible impression upon him. On a visit which I paid him a few weeks ago I told him in general terms what I proposed to say in this debate. He graciously told me that he fully agreed with the line I had taken and he authorised me to say so if he were not able to attend the House today, as most regrettably is the case.
3.34 p.m.
Lord Mayhew: My Lords, the noble Lord, Lord Mishcon, has set an example to all of us in the appeal he made to our sense of justice, but not in any sense to emotion or prejudice of any kind. Like him, I shall speak for myself in this debate. In the autumn of 1946 I was appointed a junior Minister at the Foreign Office and I was given some responsibilities for war crimes problems. I am sure that other speakers will talk about the legal difficulties in the recommendations of the inquiry and about the practical difficulties of bringing these people to trial. I think my best contribution will be to try to explain why in 1948 we decided to end war crimes trials, investigations and extraditions, and to show how the policy we then had differs from the policy now recommended by the inquiry. I shall also explain the reasons why, speaking for myself, we should reject those recommendations.
The report quite rightly states that there were several reasons for calling off the hunt in 1948. Unintentionally, however, the report is misleading because it gives more or less the same emphasis to each of the reasons it describes. It is true that we were worried at that time by the expenditure of money and time. It is also true that we were worried about the very long time, sometimes several years, before suspects were brought to trial or before their cases were decided. We were increasingly aware at that time that so huge was the number of war crimes suspects that it would never be practicable to deal properly with more than a tiny proportion of them.
In 1948 when the United Nations War Crimes Commission was wound up it still had 40,000 cases on its books, 20,000 of which it deemed worthy of consideration for prosecution. In the United Kingdom we had 130,000 foreigners who had entered since the war, of whom it had not been possible to screen more than a tiny proportion. There were 90,000 European voluntary workers and 20,000 in the Polish armed forces who had fought on the wrong side at the end of the war. There were 15,000 German prisoners of war who had elected to stay in this country when they could have gone back and 9,000 Ukrainians brought hurriedly to this country from Italy to avoid the possibility of mass forced repatriation to the Soviet Union which had had such disastrous results a year before with the Cossacks.
I must deny that we were influenced in any way by any wish to use war criminals for cold war purposes. I have seen this suggested. I did not know this at the time but I believe it is true that some suspected war criminals were used quite wrongly by our intelligence. However, it would be absurd to suggest that this had any bearing whatever on the decision we took to wind up the war trials procedures. The overriding reason was that we felt that retribution had gone far enough.

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In September 1946 Churchill said:
"There must be an end to retribution. We must turn our backs upon the horrors of the past and look to the future".
In September 1946 the Labour Government, especially Mr. Attlee and Mr. Bevin, rejected that concept. But by mid-1948 they had come round to that point of view. The first proceedings to be stopped were those concerned with suspected Yugoslav war criminals. I am a little surprised that the report does not deal more fully with Yugoslavs. They came within its terms of reference and their case illustrates many of the problems we were faced with at that time with suspected war criminals of all nationalities. If the House will allow me, I shall describe in a little detail this particular case.
In 1947 there were 400 Yugoslays still in detention in Britain and in the British zone of Germany. Their extradition had been demanded by the Tito Government in full agreement with the Yalta Treaty and the Bled Agreement. Undoubtedly some had committed atrocious war crimes, but at the other extreme some were guilty of no more than fighting on the losing anti-communist side in the bitter Yugoslav civil war.
As the report itself makes clear, it was not possible to take legal proceedings against these people in this country. In those days retrospective legislation, or whatever legislation was required, would have been even more difficult and questionable than it would be today. So what was one to do with these 400 Yugoslav suspects? According to our treaties we had to send them all back. But in the light of what had happened a year earlier, when thousands of Yugoslays were forcibly repatriated, that was unthinkable. So do we let them all free? —some of them war criminals who had committed crimes which were far worse than, for example, the civilian treachery for which two British citizens had recently been hanged? It seemed quite wrong to let them all go free.
Fortunately, we were saved by the fact that in this case, unlike that of the Ukrainians, the Poles or the Baits, effective screening was practicable. This was because there were fewer of them, and in addition, we had a group of people, including notably, Sir Fitzroy Maclean, who were expert on the political and military situation in Yugoslavia at the time and who also spoke the languages. It was agreed that they should form a screening team and go through each of the 400 cases individually. I would approve extradition for those who, in the opinion of the team, would, if tried in a British court, beyond reasonable doubt be found guilty, sentenced to death and executed.
None of us, I am sure, was anything but very uneasy about this arbitrary procedure, though we could not think of anything better. I believe that when it was over we felt universally that we had done our duty and now it was time to call a halt. On 27th July 1948 I made a statement in the other place. After explaining what I have just said —though naturally not publicising the very strict criteria we had laid down for extradition —I continued:
"After careful and painstaking examination of all the charges and circumstances, we have been prepared to surrender some
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58 persons to the Yugoslav Government. In this way we have conscientiously discharged our obligations. Now, however, that we have completed the consideration of all cases of persons whom we have found on British and British control territory, we feel that a new stage has been reached. It is now more than three years since the end of the war, and it is clearly not possible for us to continue the process of search and surrender for an indefinite period of time. Of those persons whose surrender has already been requested we are now only prepared to consider the cases of 19 persons should it so happen that they are found on territory under our control.… Against the remainder of those whose surrender has been requested, we propose to take no further action; and we will not now accept any fresh requests for surrender. We feel that it is time for this matter to be brought to an end. The Yugoslav Government have been notified accordingly". —[Official Report, Commons, 26/7/48; cols. 927–8.]
Shortly afterwards, similar decisions were taken in respect of war criminal suspects of the other nationalities. The point that I wish to make as much as any other is this: these decisions were approved by the other place and by this House. If one looks at the supplementaries to my statement in the other place, one sees that Mr. Willie Gallacher, a communist Member of Parliament, objected and said that if these men helped the Nazis they should all go back.
For the rest, the policy was approved. The only criticism was that the decision had been taken too late. For example, the late Lord Chelwood —Mr. Tufton Beamish —who was known to this House as a man of sterling character, in offering congratulations on this decision described it as, "very proper but very tardy". That was the view in your Lordships' House when these decisions were discussed on 6th May 1949. In that debate there were seven speakers (five plus the two Ministers) and not one suggested that the decisions we had taken were wrong. Such criticism as there was —and there was some —was that the decision had been taken too late.
Therefore the major difference between the policy we then established and the policy now recommended by the inquiry is that we thought that retaliation should end and the inquiry recommends that retaliation should be revived. Now those who support the inquiry's view must begin by showing —I emphasise "begin" —that we were wrong in 1948, that we gave up too soon. Perhaps they will argue that we were indifferent to the brutality of some of these crimes or that we were unaware that there must still be some war criminals in the United Kingdom. I say that those things are not true.
In my own case —perhaps I may be permitted to make a personal point —it seems that they must argue that I too was wrong; that, in the case of the Yugoslays, sending back 58 out of 400 men to their almost certain death was not enough. I should have gone on with the hunt for the remaining 19. Naturally enough, I have thought back often and hard about these matters and I can only say that I believe I was right. Indeed, I go further by saying that I believe that most, if not all, of your Lordships in my position would have done much the same.
I said that the supporters of the recommendations must begin by showing that we were wrong. But that is only the beginning, because they have to go much further. They have to show that the Government, the Commons and the Lords, and, I have no doubt,

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the public also, were so grossly in error in 1948 that the present Government and Parliament —41 years later, when most of the suspects and witnesses are dead; when much of the documentation has been lost; when the memories of the surviving witnesses have become more fallible —must take up where we left off in 1948. My Lords, I cannot believe that is right.
3.48 p.m.
Lord Jakobovits: My Lords, rarely, I dare say, have the walls of this Chamber listened to a debate more sombre than this, discussing as we do the continued culpability or the remission of a crime so horrendous and so unprecedented that a new term had to be invented and coined —namely, the term "genocide" —to describe it, as the Oxford English Dictionary informs us.
Let me at once declare my interest. I have an interest, but it is not as a Jew, not as a rabbi and not even as a refugee from Nazi persecution who lost numerous close relatives in the Holocaust. Rather, I move to speak simply as a member of the human race. The monstrous crimes perpetrated in our lifetime have diminished my own humanity and that of all my contemporaries.
It is a welcome new feature of the post-war period that civilised people everywhere feel involved in the ordeals —be it famine, oppression or discrimination —suffered by others many thousands of miles away. In this new spirit of collective responsibility it is now also widely acknowledged that those who allowed Nazi barbarities to happen, standing by as silent witnesses without protest, must share the guilt of the perpetrators. Silence, indifference and inaction were Hitler's principal allies. If we were, by our own default, to let his henchmen go unpunished, we would be handing the tyrant a posthumous victory. We would make it easier for the dominion of evil to assert itself once again at an incalculable cost in human suffering and degradation. The risks are not diminished by the present turmoil and uncertainties in Europe.
At the same time, I am acutely aware of the danger that, if we are not careful, this debate itself may aggravate tensions and divisions, leading to bitterness and strife within the nation, instead of strengthening our human fellowship to ward off any future threat to man's humanity on such a staggering scale. I sincerely hope that this debate will narrow differences and perhaps even promote a consensus of practical conclusions to which we can all subscribe.
I know that there are some very plausible arguments against the proposed legislation. I believe that they are all questionable and open to refutation. First, the action is seen by many as vengeful. Jews in particular are often charged with feelings of vengeance. This attitude, like many other falsifications which have led to so much persecution and bloodshed over the centuries, is attributed to the Old Testament. Let me once and for all lay the ghost of this vicious canard.
My faith abhors vengeance. The Law of Moses denounces as a grave moral offence the bearing of a
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grudge or the taking of revenge, as will be found in the Bible in the Book of Leviticus. There is all the difference in the world between justice and vengeance. Vengeance, by definition, is when an aggrieved party takes the law into his own hands, circumventing the due process of the law. Justice is when guilt and punishment of a transgressor are determined by an independent agency; by a judiciary. That is what the recommended legislation seeks.
Again, it is argued that after all these years the trials of Nazi criminals cannot be fair, that the witnesses may not be reliable and that there is therefore likely to be a miscarriage of justice. I have enough confidence in British justice and in the judiciary to dismiss these fears as groundless. Whether witnesses and their evidence are acceptable and trustworthy is for the DPP, or in Scotland the Crown Agent, and then for the courts to judge, not for the legislators. Our charge is to establish that the arm of the law is neither withered nor too short to apprehend and punish some of history's worst offenders if there are sufficient grounds to arraign them, as has been established in the Hetherington inquiry.
For my part, I am less interested in securing criminal convictions than in demonstrating our moral convictions. It would be a devastating travesty of justice if the legislation itself were to exonerate such arch-criminals and expunge their guilt. Indeed it is a cruel irony that the Nazi mass-murderers were much more successful in hunting down their innocent victims than were the allied powers in rounding up the major perpetrators of these crimes. I am reliably informed that the Nazis succeeded in herding together, transporting and eventually liquidating 90 per cent. of all Jews in occupied Europe, whereas the allies managed to bring to trial only some 35 per cent. of Nazis suspected of war crimes or crimes against humanity. That is a shocking indictment of the civilised world.
Of course, it is urged that after all these years we ought to forget and forgive. I believe that that would be a supreme betrayal both of the past and of the future. We have no mandate from the victims to pardon the crimes committed against them. And as for the passage of time, that in itself can surely neither condone nor expiate these offences. But worse still, we would betray the future were we to allow potential arch-offenders against humanity to believe that they will eventually be forgiven and forgotten. In fact, far from these crimes being mitigated by the passage of time, they are in a sense worse today than they were 40 years ago. For added to their heinous offences at the time is the further guilt of having escaped from justice all these years: hiding from the law and evading justice is itself an unconscionable crime.
Finally, it seems fallacious, as has been so impressively argued by both the opening speakers to the debate, to call this retroactive legislation, and therefore alien to British law and perhaps even without a relevant precedent. After all, the conduct was criminal in international and in British law at the time of its perpetration. Moreover, the crimes under discussion were infinitely more

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unprecedented and rather more alien to the British tradition than the proposed legislation.
I see in The Times today that the noble and learned Lord, Lord Shawcross, who regrettably cannot be with us this afternoon, argues, as he has done before, against the proposed legislation on the grounds —to quote him —that the major trials at Nuremberg seem, alas, to have done nothing to deter the odious crimes of Idi Amin, of Pol Pot, of the Khmer Rouge and so on. I would reach the opposite conclusion. The fact that they no longer had to fear that the civilised world would not tolerate them getting away with such crimes and that they were no longer convinced that we would one day apprehend them, try them and punish them in itself encouraged them and made their crimes possible. Who knows how many innocent lives—thousands of innocent lives —might have been spared had they known that the law would always hunt them down wherever they were.
Until the perpetrators of crimes against humanity know that they will never be allowed to find a safe refuge from justice, humanity will not be safe, and justice will never be vindicated. We now have an historic opportunity to affirm the ceaseless fight against evil, by the unrelenting pursuit of mass-murderers, so as to ensure the triumph of justice, as both a warning to potential criminals and as a reassurance to future generations that never again will rivers of innocent blood be allowed to pollute the world with impunity. The more unsafe the world becomes for the guilty, the safer it will become for the guiltless.
4.1 p.m.
Lord Campbell of Alloway: My Lords, as in the case of other noble Lords, I should like to thank my noble friend the Minister not only for introducing the debate but also for his even-handed approach to the matter so that on this "take note" Motion, without in any way imposing any strain upon convention or comity between the two Houses, one may take another view from that expressed by the noble Lords, Lord Mishcon and Lord Jakobovits. In my view, to introduce legislation to put these men on trial would be imprudent, unwelcome, unacceptable, counter-productive and not in the public interest as suggested by the noble Lord, Lord Mishcon. It would also not be requisite to restoring the status of humanity and to strengthening human fellowship as we stand at the crossroads of the new evolutionary era in Europe, as just suggested by the noble Lord, Lord Jakobovits. Such is the burden of this speech.
Of course the industry and integrity of the authors of the report is acknowledged; but it is the rectitude of the recommendations, and of the reasoning in support, which is open to serious question. My contribution only presumes to criticise in order to seek to persuade lest by hubris one should unwittingly cause offence on an emotive and sensitive subject.
Let us face the fact that we must look back at an insane and shameful episode in European history, unprecedented in its systematic and calculated brutality to establish, breed and maintain "the master race" and eliminate all elements of
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opposition —I stress the word "all". But retrospective legislation is anathema: whether to create a criminal offence which did not exist when the act was committed —let us not mince words because that is what this proposed legislation would do —or to assume a jurisdiction, which did not exist when the offence was committed, to put a person on trial.
Lord Mishcon: My Lords, I hesitate to interrupt the noble Lord, but in view of his usual courtesy I am sure that he will not mind. To enable some of us to understand his argument, will he say whether he will tell the House that the homicide, murder and genocide were not criminal acts at the time when they were committed?
Lord Campbell of Alloway: My Lords, I am grateful to the noble Lord. I should tell him that the subject is covered on the next page of my speaking notes. Therefore I hope, with his leave, that I may deal with the matter during the course of my speech.
Therefore the whole concept of extending jurisdiction as advocated by my noble friend the Minister in both those respects is simply not understood. It is in effect retrospective legislation.
In chapter 5 of the report the authors considered public international law as it stood in 1939 which laid down broad rules for the conduct of war. It is agreed that violations of those laws and customs of war can constitute war crimes. But these mass murders were not committed as violations of laws and customs of war; they were committed as genocide —that is, crimes against humanity which were not then recognised as such in public international law.
Therefore the reasoning contained in paragraph 9.27 of the report which seeks to dispose of the objection to retrospective legislation by maintaining that these murders were committed in violation of the laws and customs of war, is erected on a totally false premise which predicates a false conclusion and which, with due respect, is elliptical and defective.
In taking the legal objection, (which if there is time I propose to develop a little further towards the end of my speech) it is assuredly not the intention to evince any hint of callous indifference to the agonised sufferings of the victims of the final solution or of their families or in any way to minimise, mitigate or forget the obscenity and horror of that act of state from which the dread decision was taken or, indeed, to forgive. Nor is it the intention to question the motives or the sincerity of purpose of anyone who takes another view.
Therefore, let us start on common ground. There is evidence upon which a handful of men could be arraigned with some reasonable prospect of success for mass murders committed in furtherance of an act of state if we were to alter our laws and procedures to enable such trials to ensue. Your Lordships will remember that as an act of state the fate of 6 miliion Jews was sealed at the Wannsee Conference in 1942. The conference was attended by Reinhard Heydrich, 13 other SS representatives, the Gestapo and members of the Nazi Party who were in absolute control of the affairs of state at that time. The

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decision was taken to purport to legalise all past exterminations of Jews since 1941 when Germany attacked the Soviet Union, and all future exterminations. Your Lordships may well think that as none of those who attended the Wannsee Conference can be impleaded, the trial of a handful of accomplices stretches the fabric of the trappings of justice.
Further, why prosecute? I have with me a booklet which arrived on my desk. It is called Questions of Justice. In paragraph 17 of the document it says, "Why Prosecute?" That booklet comes from an all-party parliamentary group in another place. It gives two reasons: one that individuals who committed crimes should be held accountable; and, secondly, that the defence of superior orders is no defence. Your Lordships may well think that neither of those would warrant the trial of those men in those circumstances.
That decision at the Wannsee conference —let us not forget it —not only sealed the fate of the Jews but that of the gypsies, those of all creeds, or none, some of my friends who worked in the Resistance, Germans who opposed the regime, both civilians and those serving in the armed forces, and even some British POWs caught on the homeward run if surrendered to those not so tender mercies of Himmler.
At the last Colditz reunion of 13th November I asked around on the subject of the debate. The reactions were instantaneous, "We would have lined up everyone involved in the running of these death camps when we entered the camps and shot them out of hand. If we had been ordered not to do so, well, with reluctance, they could have gone on trial with a mandatory sentence of death on conviction, but to put those men on trial today so that on conviction they just spend the rest of their days in prison is not appropriate". That was the unanimous view.
On the subject of retrospective legislation, in the early days of Colditz, 16 Czech pilots serving in the Royal Air Force when shot down were taken prisoner and were tried for treason. Pending judgment and sentence, they were brought to Colditz. Within a matter of days they were served with a notice that they had been convicted of treason by a military court of first instance and sentenced to death. That was under a law, with retrospective effect, which claimed their allegiance to the Third German Reich as from the date of annexation. The supreme appellate military court of Leipzig accepted my main submission that the national law was invalid as it was in contravention of the universally accepted principle, adopted by the constitution of the Third German Reich, that laws should not have retrospective effect.
My only case record of those proceedings is now in the Imperial War Museum, but the Swiss Government have the official file and I have informed my noble friend the Minister of the matter, having regard to its relevance in the debate to the question of retrospective legislation.
Perhaps we may clear away the Barbie problem. In that context it is relevant to point out that the
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Barbie trial was not conducted on the basis of retrospective legislation: the relevant conduct was committed on French soil, within the territorial jurisdiction of the courts of France, and when committed was contrary to the provisions of the French criminal code.
The preferred options in the report —the noble Lord, Lord Mishcon, has seized the main part, as he would —are at paragraphs 9.27 to 9.30. It is that the indictment should be drawn to charge murder committed in violation of the laws and customs of war; but that indictment is open to serious objection on the grounds that when those acts were committed they were not war crimes, as my noble friend the Minister at one stage in his address conceded. He said that they were not war crimes.
Lord Hailsham of Saint Marylebone: My Lords, they are not war crimes.
Lord Campbell of Alloway: My Lords, they are not war crimes, as I gratefully accept from my noble and learned friend Lord Hailsham. If they are not war crimes, one cannot erect them into war crimes in order to try them. As we shall see later, at that time genocide and crimes against humanity were not recognised in public international law. One cannot try something which was not then recognised, without retrospective legislation which says that what was not a crime then is because one says that it is, and then one tries the man. That is not appropriate. If the Germans had adopted such an argument at Leipzig, those 16 Czech pilots would have died. Shot! Firing squad!
Retrospective legislation is a dangerous path. A series of questions arises for your Lordships' consideration. After a lapse of some 45 years, if those men were to be put on trial, might that not appear —I underline the word "appear" —as a step along the path of vengeance, a concept with which justice has no countenance, as the noble Lord, Lord Jakobovits, accepts? As the noble Lord, Lord Mayhew, asked in, if I may say so with respect, a powerful and informative speech: must there not be an end to retribution?
The second matter that your Lordships may wish to consider is whether justice can be done, in the sense in which we understand it, after so many years, when recollections have faded to crystallise in reconstruction; when the report acknowledges the serious problems of mistaken identities; when the evidence for the prosecution cannot be tested under cross-examination in the presence of the accused; when the witnesses for the defence may be dead or unavailable; and when, as I understand it, the law of Scotland does not admit video evidence.
The noble Lord, Lord Jakobovits, says that he has confidence in our system, and so indeed have I; but with respect to the noble Lord, confidence in the system cannot meet any of the objections which I have raised. Another matter which your Lordships may wish to consider is: to what purpose are those men to be tried when there is no condign punishment? If they could be hanged, may be, but they cannot on conviction; and there is no extant threat to destabilise society. The deterrence point is

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not relevant in our new phase of European evolution to which I have referred.
Furthermore, should we introduce legislation to confer jurisdiction on our courts in England and Scotland over persons who owed no allegiance to the Crown at the time when those alleged offences were committed outside the territorial jurisdiction of our courts? Was a crime against humanity such as genocide, defined in the terms of reference as a war crime, at the time when it was committed a war crime merely because it was committed at the behest of government as an act of state after and before the end of declared hostilities?
Another matter for your Lordships is whether at the time when the alleged mass murders were committed, genocide when committed at the behest of government was regarded as criminal by international standards and, if so, what were those international standards? Lastly, why, if crimes against humanity are to be treated as war crimes, should torture, medical experiment also committed at the behest of that government, be excluded? Why should crimes against humanity committed by the Japanese and Italians also be excluded? Why should only death within the magic year and a day be murder and why should not this equally apply to disfigurement or disablement of those who did not die and some who lived?
There is not time to go into the legal analysis which supports what I have been saying to your Lordships about this simply not being a war crime and the fact that according to public international law genocide, when committed by the Germans, was not governed by public international law any more than were, for example, the allied bombings, both nuclear and non-nuclear, of civilians. That is a form of genocide. Some of these actions are taken, as they say in public international law, in the necessity of war. But remember, if your Lordships will, that at the Wannsee conference the decision of that act of state was in terms that these exterminations were part of the war effort. Perhaps I may hand my notes to my noble friend the Minister and perhaps your Lordships will forgive me for shortening my speech.
Lord Annan: My Lords, before the noble Lord sits down perhaps he could enlighten me. I do not think that I followed the ingenuity of his legal argument. Is he saying that because genocide was not a crime in 1945 and that it was not a war crime, therefore it was wrong to shoot and hang the guards at Belsen? Is he saying that the British officers who undertook those distasteful duties were guilty themselves of murder?
Lord Campbell of Alloway: No, my Lords, I did not say so. I do not say so and I hesitate to take more of the time of the House. I only regret that I have been misunderstood.
4.23 p.m.
The Lord Bishop of St. Albans: My Lords, this is a painful debate and it is good for us that we are experiencing the pain of it. In our pain we must be grateful for the opportunity to reflect on the report
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of the War Crimes Inquiry. I should like to express from these Benches our indebtedness to the authors of the report for their detailed historical survey and their sensitive weighing up of the issues involved in this incredibly difficult dilemma.
Perhaps I may couple with that my personal indebtedness to the noble Earl, Lord Ferrers, for the way in which he introduced this debate, the tone of which still remains and I trust will continue. I wish to say also how thankful I am that I have been allowed to speak after listening to the noble Lord, Lord Jakobovits, the Chief Rabbi, with whom I found myself resonating on many occasions.
It goes without saying, I trust, that in this issue of all issues there is no high moral ground that can be claimed conclusively by anyone. Moral principles can be assembled on both sides and they have to be examined and weighed carefully. They are of course not the only factors because here it is a delicate matter of international law. I for one shall look forward to listening to the guidance that will be given to us by the noble and learned Lords who have had a lifetime's experience in such matters.
However, this is too serious a matter to be dealt with on purely juridical grounds. There are also a host of political factors which some noble Lords and many spokesmen in another place will wish to weigh up. How will Her Majesty's Government's decision on this issue affect our status in the eyes of the world? It is an important factor. How will our decision be seen in Soviet eyes, at a time when coldness in Anglo-Soviet relationships is turning to near warmth? Should the political climate dictate the conclusion we come to? Or again, how will our decision be seen by the Jewish community in our midst? How far should the Government be influenced by such considerations? All these are political factors of immense importance and they cannot be ignored.
However, I believe that the question is too important to be answered on purely political grounds. As a bishop, my only right to speak is in relation to the moral considerations this report and its recommendations set before us. The fundamental tenet of moral philosophy to which this inquiry relates is all to do with the nature of justice; not revenge, nor, I think, retaliation, but justice as applied to the most appalling crimes against humanity that the modern world has known. It is not a matter of personal morality, where justice can often be tempered with mercy. We are here dealing with the impersonal application of justice, pure and simple. Forgiveness is not the issue today.
Peter Berger expresses the Christian view in these words:
"A refusal to condemn in absolute terms would appear to offer prima facie evidence not only of a profound failure in the understanding of justice, but more profoundly a fatal impairment of humanitas",
our very humanness.
As long ago as 1945 that was expressed trenchantly in this House by Cyril Garbett, Archbishop of York. On 20th March that year he said, on the relationship between justice and mercy:
Whenever I speak of war criminals, however moderately I may frame my words, I receive afterwards a number of letters from

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people telling me that it is unchristian and wrong to demand the punishment of these people. It would, of course, be much more pleasant for me or for anyone on these Benches to plead for mercy, but sometimes justice has to take precedence of mercy, just in the same way as righteousness has to take precedence of peace. And it is for the sake of justice, for the vindication of that underlying sense of the difference between right and wrong, that we demand that these criminals should receive their punishment, so that mankind may know that civilised nations will never tolerate this kind of crime, and that sooner or later punishment is bound to follow on their heels".
Those are strong words, but they stand today because they typify the right response of justice to those hideous crimes.
Another Prelate, Bishop Bell of Chichester, when speaking here two years later criticised the justice of the Nuremburg Trials on two counts: first, that the law under which the accused persons were charged was a law enacted long after many of the acts specified in the indictment were committed, as none would then dispute; and, secondly, on the principle of impartiality, that all the judges were drawn from the ranks of the allies and that none from neutral countries were involved. The Bishop concluded:
"I do not want the guilty to go scot-free, but I maintain that a time limit should be fixed for dealing with war criminals of every category".
As the noble Lord, Lord Mayhew, has so helpfully explained, his was not a lone voice. Few wanted war trials to continue and many argued loudly for their cessation. Enough was enough.
In giving those two quotations, I should like to make it clear, especially to those who are always looking for evidence that the Church is split down the middle, that York and Chichester were not at odds in the late 1940s. Both were giving due prominence to the principle of justice: Garbett in relation to the victims of man's brutality and Bell in relation to the proper rights of the accused to a fair trail. The same absolutes apply today.
The Government have every moral right to follow the example of Australia and Canada and introduce legislation to ensure that those who, however long ago, committed crimes of unparalleled awfulness are given their just deserts. However, the same justice must be accorded to the accused.
I wonder where the justice is in making special laws to permit changes in the law of evidence for only these cases. I wonder whether juries, after all the publicity surrounding the promotion through Parliament of the necessary enabling legislation, will be able to discount the time, energy and expense that the state will have put into the exercise, and come to an entirely impartial verdict. Will the result of such an extensive operation in the end add up, not to feelings of just retribution for long-past misdeeds but to feeling of sympathy for sad old men who may have spent the last 40 years not priding themselves on having avoided capture but trying to make silent reparation for their sins —for even criminals have consciences? Their memories of those far-off days may have been erased so completely from their guilty minds that they are no longer capable of producing the evidence that can show themselves to be perhaps less guilty than public opinion or the public prosecutor may judge them to be.
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I fear for the Jewish community in our midst. As far as any Gentile can, I think that I can understand and feel their justified sense of outrage at the unspeakable sufferings that they have endured at our Gentile hands.
One of the few distinctions that I have enjoyed in my life was the privilege of being a research fellow of the Hebrew University in Jerusalem. I cannot thank my Israeli friends enough for the poignant memorial to the Holocaust in the Yad Vashem memorial, which should be compulsory visiting for every Gentile, man, woman and child. Whenever I visit that memorial, it leaves me numb and in tears of shame at being a member of such a depraved human race. The Jewish memory can still be the conscience of the Gentile world.
However, I am becoming conscious of a revival of anti-Semitism in this country. I have seen it in my diocese. A school chaplain spoke of it to me a few days ago. It makes me fearful, and I pledge myself to do all that I can to stamp it out. However, I fear lest the proposal to pursue the last remaining war criminals may be turned by the enemies of Judaism into yet more hostility, not against the criminals but against the victims and those who seek justice on their behalf. They may be seen to be the driving force behind this legislation. I believe that they are not.
I speak only for myself—we are all ambivalent —but I wonder whether our righteous concern for justice and that of the War Crimes Inquiry may not turn out to be injustice for the very people whose sympathies engage us and whose rights we are all so anxious to uphold —not injustice in the courts but injustice at the very fickle bar of public opinion.
Are we then to do nothing? No. I am not advocating whether to prosecute or not to prosecute. I am thankful that the decision is not mine. I am merely contributing to the debate. I offer, as an alternative, the suggestion that the Government should look a little harder at the possibility of extradition, which was considered by the inquiry but dismissed perhaps a little too summarily. It would need cast-iron guarantees that trials would be fair and that the death penalty was not an option, but it could be preferable and more just than doing it ourselves, far from the scene of the crime and availability of witnesses. I hope that that point can be looked at again.
If the end result is that nothing satisfactory can be done, that nothing truly just can be achieved and that no attempt to right wrongs can now be made, we cannot be unmindful that these aging criminals will before long stand, as most of them have stood already, before a judge who is justice personified and whose far-seeing eye no one can avoid. We can safely leave the issue in His hands. As we read in our opening prayers, the ungodly shall not be able to stand in that judgment.
4.39 p.m.
Lord Home of the Hirsel: My Lords, I should like to echo the words of the right reverend Prelate when he expressed his gratitude to my noble friend Lord

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Ferrers for the understanding way in which he opened this debate. His speech was of the greatest help to us all. Further, I should like to say how grateful I was for the objectivity of the noble Lord, Lord Mishcon. We have been given a good start to this testing and difficult debate.
It is of course right that we should recall the horrible crimes committed by the Nazis, which the noble Lord, Lord Jakobovits, rightly described as nothing less than degrading of humanity. However, I should like to follow the right reverend Prelate in saying that this debate has everything to do with the question of justice. That is what really matters.
My noble friend Lord Campbell of Alloway is peculiarly qualified to speak on this matter. As your Lordships will know, he was a prisoner in Colditz and is therefore very well able to understand the emotions involved for many people, particularly the Jews, in this matter which we are debating. My noble friend always speaks from a background of profound knowledge of the law, on which no doubt my noble and learned friend Lord Hailsham and others will comment later. I am rather relieved therefore that although by a different route I arrived at the same conclusion as my noble friend.
My concern is solely —and therefore I shall be very brief—whether after this lapse of time justice is likely to be done or can be seen to be done.
Your Lordships will recall reading in the admirable Hetherington Chalmers analysis of the problem that we are debating and history of this matter the War Cabinet decision of October 1942. It was decided, first, that justice must be rapid (as page 17 of the report refers); and, secondly, that trials should not be so long delayed as to injure the process of healing the political differences in Europe. Those conditions seem to me to have been sensible and wise.
Had such a Bill as that proposed been introduced when witnesses could have been asked to testify to events which had taken place some 10 or 12 years previously, I could probably have voted for it. However, today witnesses will be asked to testify to events which took place 40 and more years ago. Old men forget.
During the past few years there have been a number of anniversaries. I have often been asked publicly to give my opinion of what took place. I have been constantly reminded that old men do forget. It is dangerous to rely upon their memory of events of so long ago. Therefore I ask myself whether after so long an interval justice is likely to be done and to be seen to be done.
I take the point that those who interpret the evidence will be very able people. But I have very grave doubts as to whether the evidence can be adequate for even such people to judge. Therefore I am inclined to agree with the noble Lord who spoke from the Liberal Benches, Lord Mayhew, that it is too late to reopen these issues. I say so with some regret, but that is my conclusion. Therefore I must record my vote against the proposed Bill.
4.44 p.m.
Lord Walston: My Lords, perhaps I may start with an apology to your Lordships for taking part in the debate at all. I have no qualifications whatsoever for doing so, and I have very great difficulty in coming to a decision as to what the right course should be. Therefore, my main reasons for addressing your Lordships have been the hope that it would force me to clarify my own thinking and to listen to the wisdom and view expressed by your Lordships in the course of the debate.
Having said that, I should like to add my thanks to the authors of the remarkable report not only for the clarity with which they have expressed their views, but above all for the enormously valuable historical background to the events. The report is well written, concise and, if I may say so in the presence of so many distinguished lawyers, in no way redolent of the normal verbiage which one has come to expect from legal documents. I should also like to thank the noble Earl, Lord Ferrers, for the clear and objective manner in which he introduced this serious problem for debate. I still do not know on which side he has or will come down, which is a tribute to his objectivity.
As I have thought about the matter for some considerable time I have come to the conclusion that the main arguments in favour of proceeding with some form of legal process against those who might be accused of complicity in those appalling crimes fall under four main headings. The first is the appalling nature of the crimes themselves.
Perhaps I may add a personal recollection. In October 1946 I was in Poland. I was taken to the extermination camp at Majdanek where I do not know how many hundreds of thousands of Jews, and also gypsies and others, were sent for extermination. I agree with the noble Lord, Lord Home, that old men forget; but that visit is something I remember now as clearly as the night after I had visited that place.
I remember the extermination gas chambers and the gruesome detail that by raising the body temperature less gas was needed and therefore those to be exterminated were made to march through hot showers before going into the gas chambers because it was more economical; the pits which had been dug by the people before they were shot to save others the trouble of burying them, the orderly arrangements of the shoes, which could be used for some other people in due course —the little childrens' slippers, the high-heeled dancing shoes, the workers' heavy-soled shoes —all arranged with true Teutonic method. Those remain now clearly in my mind. I met, in prison, some of those who had been responsible for that. They were hardly human beings, but they were human beings.
The impact of those appalling crimes is as great today as it was 45 years ago. That is obviously one strong argument in favour of proceeding against people suspected of such crimes if that is at all possible.
There is then the subsidiary, but not unimportant, argument of the impact on world opinion. We do not want to appear to be a country which shelters

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criminals, however long ago their crimes were committed. If we were to take no action now, we should undoubtedly appear to many countries to be sheltering those people. There is also the impact on future, potential perpetrators of such crimes, as has been mentioned by earlier speakers. However, I must say that there is great force in the letter in The Times today from my noble and learned friend Lord Shawcross, in which he suggests that such an argument is of no great significance.
Finally, on the "pro" side —if I may so describe it —there is the reminder that such trials would provide for a younger generation which has no conception of the bestialities that were committed long before they were born. That argument must carry some weight.
However, against that, there are other arguments. Surely it is inhumane to subject old men, whatever they may have done 50 years ago, to the long, arduous and painful ordeal of investigation and subsequent trial. There is also the problem already mentioned of the unreliability of witnesses after so many years. Can one remember the face of a man as he appeared in very different circumstances 50 years ago? Not only has he changed and one's memory changed and faded, but the circumstances today are so different that one must ask whether one can be certain of identification and of recollection of the true facts. Looking back 50 years, let us ask ourselves how much we can remember about the facts relating even to ordinary circumstances and particularly to extraordinary circumstances which have been coloured by so much emotion.
The third argument against taking any action concerns retrospective legislation. I cannot enter into the arguments of lawyers as to whether this is technically retrospective legislation. Sir Thomas and his colleagues concluded that it was not, but as a non-lawyer I cannot help thinking that, if legislation is needed to bring to trial people who without that legislation could not be brought to trial, there must be an element of retrospective legislation in it.
So those are the delicately balanced arguments —far too delicately balanced to be able to come to any positive conclusion. On the one hand, retribution cries out for trial; vengeance —and that should not be entirely ignored —cries out for trial; and, as the right reverend Prelate said, justice cries out for trial. Why should justice turn a blind eye simply because time has elapsed?
However, in spite of all that, humanity surely pleads to allow the past to bury the past and not to subject a handful of old men —who, so far as we know, have for the past 30 or 40 years led decent, respectable and perhaps useful and blameless lives —to suffer in the last years of their life the horrifying experience of investigation, of trial and very possibly of imprisonment. I shall listen to the other arguments and may well change my view, but at this stage, to my mind, humanity wins over justice.
4.55 p.m.
Lord Simon of Glaisdale: My Lords, like others of your Lordships I should like to express gratitude to the compilers of the report, who were notably sober
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even when they used strong, justified language stigmatising the crimes as monstrous, and who were always balanced. Nevertheless, I cannot go with them to their conclusion. I have a number of reasons for that, several of which are to my mind conclusive, but overriding all is the fact that I cannot find that what is proposed is consistent with the moral basis of our penal law.
I venture to agree with the noble Lord, Lord Walston. We cannot guarantee that there will be a satisfactory trial of those people. One has only to think of the recent trial in Israel of the man known as Ivan the Terrible. That aroused considerable criticism both in Israel and outside, but the witnesses there at least came face to face with the accused when identifying him. Identification will be a crucial issue in most of the proposed trials, if they take place. If they take place, the identification difficulties will be infinitely greater. It is proposed that satellite television and videos will be used. It is perfectly true that your Lordships agreed that those methods should be available in a criminal trial in this country, although there were some misgivings. However, what we all had in mind was the protection primarily of children and other victims of assault. No one had in mind the idea that those specifics might be used in the way that is now contemplated.
The second reason —the first being that I do not believe that we can guarantee a satisfactory trial even allowing for the discretion of the Director of Public Prosecutions or the Scottish equivalent —is the quite inordinate cost. The report states that:
"Financial constraints should not be allowed to obstruct the course of justice in relation to such serious charges".
Leaving aside the fact that "justice" there begs a number of the questions that are being canvassed before your Lordships today, can we disregard financial constraints? Naturally, as a lawyer, I put justice high on my list of social goods, but it is not the only social good and the others too will cost money.
Moreover, within the field of justice itself there are other things which require doing. Specific injustices have been identified. For example, in the Legal Aid Bill, my noble and learned friend the Lord Chancellor resisted on the grounds of expense that they should be tackled, but the expense would be infinitesimal compared with the expense of a trial such as is proposed. I do not know whether the noble Earl, when he speaks at the end of the debate, can give us any idea of the estimated cost of one of those trials. It must be very large indeed.
Before coming to my main consideration, I should like to say something about the issue of retrospective legislation. If I may say so, I can see the juridical arguments on each side, but, like the noble Lord, Lord Walston, it seems to me that the realities point in the direction of stigmatising as retrospective what is proposed. Surely the reality is that changing the law which can make an accused penally amenable for crimes committed before the change in the law must in essence be retrospective. That is the reality however much the juridical consideration may be canvassed.
In the end, what weighs with me most is, as I ventured to suggest, that it is incompatible with the

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moral foundation of our penal law. That was stated most effectively by a great moral theologian, the then Archbishop of York, who became the Archbishop of Canterbury, in a notable lecture which was subsequently published under the title The Ethics of Penal Action. He said that the only moral foundation of our penal law was that it should be retributive. It should be society's emphatic rejection of infringements of its legal code.
He did not stand alone. The late Lord Goddard and my noble and learned friend Lord Denning, in their evidence to the Royal Commission on Capital Punishment, took the same standpoint. It has recently been reiterated by the Select Committee of your Lordships' House which is considering the crime of murder and its punishment. That committee drew a clear distinction between what it called the penal element, retributive and deterrent, and the guarding against risk. So there is a consistent line that the prime object of penal action should be society's emphatic rejection of infringements of its legal code.
As the noble Lord, Lord Walston, said, to a great extent that depends on timing. In fact, in paragraph 9.6 of the report it is said:
"Justice delayed has the appearance of revenge".
Revenge has no place in our penal law. But that comment in the report was apropos what happened in 1948 to 1950. Since then there has been a further delay of 39 years. It seems to me to be impossible to say that action taken now will not have the appearance of revenge or be seen to be in fact an act of revenge.
Moreover, I venture to agree with the right reverend Prelate that there is a real danger here of backlash. We have already seen it in this connection. When a meeting was called just across the road in support of the report, a number of extremist mischief-makers were stirring up animosity and anti-Semitism. If that continues, not only will our penal procedure not be retributive but it will recoil on itself. It will do far more harm than good.
As did the right reverend Prelate, I ask myself whether that means that we should do nothing. Not so; there are certain things that we definitely can do and which it is our duty to do. The bitter fruit of Nazism would not have grown if there had not been a propitious seedbed for it, a seedbed of endemic even if subdued anti-Semitism. We should be far better employed in tackling that evil, to which the right reverend Prelate referred, than in undertaking what is recommended in this report.
5.5. p.m.
Lord Hailsham of Saint Marylebone: My Lords, I well remember coming back from the Middle East, undermined in health, at the end of 1942. I was then a Member of another place. At first, there were vague, uncorroborated rumours. There followed more detailed and circumstantial reports. Finally, there came upon us the horrible truth when the allied forces occupied the death factories which we are still discussing today. Last of all, we sent out a delegation to see them; I think it consisted of Members of
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both Houses but certainly Members of the House of Commons, including my cousin, Mavis Tate, and Archie Southby from my own party.
Nobody who underwent that experience was ever the same again. Some even died as a result of what they had seen there. Only the other day I was talking to a friend who had been over 200 miles in a coach as an ordinary tourist to visit one of those places which is now in the Soviet zone. He said that on the way out for the 200 miles in the coach they were ordinary tourist sightseers. They went over that place, which is beautifully kept. On the way back, for 200 miles, no one spoke a single word. Let no one therefore think that what I am about to say is due to any degree of want of sensitivity.
Sometimes, when I look at my Jewish friends, I wonder how they can possibly regard me, as a Christian and a Gentile, with other than detestation. From Amalek to Haman, from Haman to Torquemada, from Torquemada to the pogroms in Tsarist Russia and from the pogroms to Hitler, through history the appalling sufferings of the Jewish race at the hands of the Gentiles is something for which every Gentile must necessarily feel a sense of shame in their presence. We are not really discussing only that. In my book, the more horrible the crime with which people are charged the more we must give the criminal the benefit of the doubt and insist on not only a fair trial but proof beyond reasonable doubt of his guilt. When we are asked to trust British justice, I think we must remember that it is not British justice that we are asked to administer to those who may be suspected of this crime.
I pass shortly through the question of retrospectivity. I answer the question perfectly simply. If legislation is necessary to render these trials lawful, then there is retrospectivity, whatever anyone may say. If there is no retrospectivity, then we do not need to legislate at all.
It is not only on the question of jurisdiction that we are invited to legislate retrospectively; it is also on the question of evidence. The hearsay rule is being tampered with. The other day I received a letter from the Baltic Council. It states —and this is how I read the report —that it is proposed,
"to use recorded statements of persons now deceased (without any apparent regard for the possible duress under which the statements may have been made), and by making foreign video recordings admissible in court".
I am not a particular friend of the hearsay rule in its elaboration as every law student has to learn it. Indeed, we have done away with it almost altogether in civil justice. I feel that the time is probably ripe when we should look at it again in criminal justice. But what cannot be justified by the wildest stretch of the imagination is to mess about with the hearsay rule retrospectively in respect of a particular class of accused charged with a particular class of offence —and that among the most detestable of offences of which human beings can be guilty.
However, there then occurs to me the question of the lapse of time which has been raised more than once. I went along with the Nuremberg trials. I approved of them. I approve of them now. They were highly contentious at the time. They were attacked by many including, so far as I remember, Bishop Bell

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of Chichester (to whom reference has already been made) as being imposed by the victor on the vanquished, and their deterrent effect was thereby considerably diminished. But I went along with them because of the facts, which were already notorious, and because it seemed to me that the best way out of a very difficult situation was to stage an international trial arranged by an international court under an international statute to deal with something which had notoriously taken place. When applied to the notorious criminals, the leaders of the crimes which were committed, I felt no sense of shame that we should have inflicted penalties upon them commensurate at any rate with our detestation of what they had done.
In this report we are invited to do something wholly different. We are invited to make not an international court, not a statute of international validity, but a national piece of legislation to legislate retrospectively in respect of a selected group of accused persons. That seems to me to be wholly different and to be far more different because of the lapse of time that has taken place since the alleged offences are claimed to have been committed.
When I consider the report to which reference has been made more than once, I cannot help noting this. I refer to paragraph 9.10. There were 301 allegations which were relevant to the inquiry. Of those, it was only able to make detailed investigations in seven. Of those seven, four had a reasonable prospect of success. That is four out of 301 allegations. Of those four, one is dead and therefore cannot be tried in this world. One is either mad or ill and cannot stand his trial. One has every chance of getting off, so the report says. We are left with one criminal out of 301 cases. One is then left with 146 cases which the report says merit further investigation, whatever that may mean. That is what we are invited to legislate about.
I am bound to ask this question —and I have yet to hear an answer. Let us suppose that any one of us were charged with an offence alleged to have been committed 45 or 50 years ago. How could we charge our memories with sufficient detail to be able to put up a plausible defence, if this is the best that the investigators can do with all the resources of the Crown at their disposal? What about the criminal, or the accused person, who is supposed to make his defence and who is entitled to a fair trial? What possible chance does he have to collect witnesses from a far country to meet the case which would have been brought with the medium of the Soviet authorities where the crimes are alleged to have been committed? At the end of the day the matter has become a lottery, not a trial. It is not British justice that is being offered. It is a lottery in which out of 301 cases, it is doubtful whether one will achieve a fair trial. It seems to me that we are losing our sense of perspective when we talk about justice in this regard. It is a pure lottery.
There is this in common on which the Baltic Society makes a very strong point. It states that with the selection not merely of a particular type of crime but with a particular area of country from which the
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alleged criminals are alleged to have committed their offences, only those beaten in war can be deterred.
The moral is that if one wins the war, one is immune. Nobody suggests that the murderers of the Katyn massacres—which were every bit as bad in their own way because they were intended to destroy the Polish middle class—should be brought to justice. It is only those who happen to be on the losing side. I do not see how that can deter anybody from anything.
I find myself wholly in support of what the noble and learned Lord, Lord Shawcross, said in The Times today. The deterrent argument fails. The argument based on British justice fails. The argument based on retrospectivity is wholly one way. I would echo the words of the right reverend Prelate. I was very glad that the noble Lord the Chief Rabbi made such a powerful speech. He quoted from the Hebrew Scriptures and not from the New Testament, although it happens to be quoted by Paul of Tarsus. It is written,
"Vengeance is mine; I will repay, saith the Lord".
And you may bet your life that he will.
5.18 p.m.
Lord Houghton of Sowerby: My Lords, it is a great privilege to follow the noble and learned Lord who has just spoken. With great respect, I agree with everything that he has said. I feel a little exposed on these Benches this afternoon because, although my noble friend rightly said that it is not a party political matter, the decision of government on whether to follow the recommendations of this document will become a political matter. Anything that comes into the public domain for governments to decide clearly becomes a political matter.
On my reckoning I happen to be the only Back-Bencher to speak from the Labour Benches. I cannot accept any responsibility for representing a Labour Party point of view. However, I should have thought that the Government were hoping to get from the Labour Benches some representive opinion; and they will have none. Who will help the Government to carry this responsibillity which they place upon both Houses of Parliament unless there is a representative voice from the two Chambers?
I understand that the House of Commons may vote on the issue. It is probable that there are reasons why we should not do so. Constitutionally, the House of Lords is the final Court of Appeal and appeals in these cases may come here. Therefore, I can understand that the House of Lords may not be a suitable body to give an opinion on whether there should be prosecutions. That makes our position still less satisfactory. Nevertheless, like other noble Lords I can only venture to give my reaction to the issue.
I was disappointed with the conclusions of my noble friend who spoke earlier from the Front Bench. I was acutely disappointed with the speech of the noble Lord the Chief Rabbi. I thought that it was a dreadful speech; dreadful in its literal sense. It was the voice of the Old Testament as I was taught it, and Jehovah was not a kindly god —
The Earl of Halsbury: My Lords, does the noble Lord remember the quotation from St. Paul given by the noble and learned Lord, Lord Hailsham?
Lord Houghton of Sowerby: My Lords, I cannot help what other people may say and I do not always hear. I had hoped that a high moral line would be taken right from the beginning and a decision made as to whether, in all the circumstances, there was any justice to be gained. Justice is not a divine edict; it is man-made. Justice is within the law and the law is made by secular bodies; that is, by Parliament. Therefore, if we talk of bringing people to justice it is that conceived by Parliament to meet particular forms of crime and deliquency.
As yet no one has mentioned the kind of justice that these miserable people would receive. I thought that the noble Lord the Chief Rabbi made the kind of speech that one could expect to hear from the steps of the guillotine or the scaffold, except that he did not call for mercy upon their souls. But in these cases do we have to keep justice within the confines of our code of punishment? What can be metered out 50 years later to the remnants of an evil system that can be called justice? Is it execution? In that case are we not only to manipulate the law in order to bring them to trial but also in order to give them adequate punishment, which should be death? Do we go as far as that?
Has anyone asked whether juries will convict? We talk about a satisfactory trial but what about a satisfactory outcome? If there are acquittals, the outcome will not be satifactory to a great many people. Let us suppose, that members of juries find it extremely difficult to apply their minds to a crime committed before they were born. Surely most jury members will be of such an age that they do not recall the crimes and find them difficult to comprehend. The sheer wickedness and devilment of it all will scarcely register with them as they hear the evidence. Those considerations are of a practical nature.
I now turn to an issue which is more important. What about all the crimes of peace that have occurred during the past 40 years under the communist system? What about the Stalin regime? What about the liquidation of the kulaks? What about the genocide practised on smaller scales but with equal viciousness and effectiveness in certain parts of Asia?
No one has referred to the present situation. We are on the threshold of a new era, and reconciliation and forgiveness will be needed on a colossal scale if we are to have a new Europe and a new world in which people will feel able to go forward in harmony and peace. Let us suppose that we receive a demand from the new regimes in Czechoslovakia, Poland and Russia to bring their peace criminals to justice. What shall we do about that? I believe that many evil men will be pardoned if we are to make progress towards a peaceful settlement of a new Europe which is probably teetering already on the edge of collapse, chaos or active revolution. We should do nothing to aggravate a delicate situation.
Shall we not look ridiculous in the eyes of the world if we are pursuing a few miserable old men over the age of 70 who are probably hard of hearing, have failing sight and are ill? Shall we then send them to prison for life where they will go into hospital almost straightaway? Perhaps they will have to be
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released because it is impossible to keep them there, or they may be unfit to plead. Perhaps jurors between the ages of 30 and 45 will say, "What is all this? These are sham trials which have been erected for the sake of the reputation of Britain for pursuing Nazi criminals to its utmost". On occasions time alone justifies letting things pass which otherwise one would do something about.
Have not we all had our worries about the Nuremberg Trials? They were held at a time when there appeared to be no other way of dealing with world opinion of the Nazi war crimes. As the noble and learned Lord said, that was an international body. If today an international body was requiring us to deliver up for a trial by an international system those within our jurisdiction, that would be different. If we were being asked to extradite these people, that would be different. But I am not aware that applications for extradition lie against any of these people.
If punishment is for reform, penitance, ultimate salvation and it produces a better spirit and a person redeemed by undergoing punishment. what do we expect from the few people who will be subject to imprisonment? They may believe that a term of imprisonment will bring relief from the torture that they have suffered in their minds for the past 50 years. Is it supposed that in their later years these men are without feelings about the situation? When one is 70 and 80 years old one is a different person from when one was 20, then caught up in the excitement, emotions and evil intent of a desperately evil system. Let us not forget that we conquered a Nazi system.
The document referred to by the noble Lord, Lord Campbell of Alloway, asks why we should prosecute and states that criminal trials remind us that individuals commit crimes and not nations, and that individuals are responsible for their own actions. That provided the greatest worry about the trials of some people at Nuremberg all those years ago. Who was responsible and to what extent could responsibility to a higher authority be used as a shelter or explanation of conduct in individual cases?
There has recently been a long libel action during which the noble Lord, Lord Aldington, underwent a terrible experience. His honour was impugned because he was carrying out his duties as a brigadier in the forces in a certain part of the war zone. But the judge had to tell the jury that the honour of the United Kingdom was not before the court; it was the honour of the noble Lord, Lord Aldington. That was given mighty clearance by the jury and he succeeded in his case in no uncertain terms.
However, if the honour of the United Kingdom was before the court, the jury would still be out. We all have worries about that and about what happened in the fix-up between Winston Churchill and Stalin as regards the basis of the exchange of prisoners. It all sprang from that.
What about war crimes committed in the course of the war? After the war, I took a look at the two dams broken by the Dam Buster heroes. What were the consequences? Down went the water which engulfed the valleys. Without any warning villages,

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people, farms and cattle were washed away in the torrents. That was all part of the war effort and it was done on two occasions. We cannot feel proud of it.
The biggest war crime I know of was committed at Passchendaele. I was there at the age of 19 and I was lucky to escape. Forty thousand soldiers died in the mud and have no known grave. That was called war. What about the general who sent us there to relieve the pressure on the French? We were not engaged in an action of our own; we were relieving pressure on the French who, it was thought, were about to give way.
One becomes so confused about what is a crime and what is justified. War is the ultimate atrocity. And all acts committed in its name are atrocities. We decided years ago what to do with the principal criminals of the Nazi period. What can we do now which will replace the verdict of history on those dreadful war crimes?
It is trivial to pursue these miserable old men. One can imagine them going into the dock and trying to give evidence in their own defence. The public would become very fed up were millions of pounds to be spent mounting cases of this kind in different Crown Courts with the possibility of different juries returning different verdicts.
We should say that the crime with which we are asked to deal cannot be fitted into our judicial system. It concerns people at present in this country who committed no offence within our code of law at the time and who although part of an evil system responsible for dreadfully evil acts, committed no offence against the citizens of this country. We cannot feel satisfied about the possibility of manipulating our code of law, strict and honourable as it is, to accommodate trials which we feel have no real validity and provide no real satisfaction to anyone except to sustain our name with Australia, the United States and others. Surely we are a beacon of the perfectionist attitude towards the code of law. I sincerely hope that we shall not encourage the Government to accept the recommendations of this report.
5.33 p.m.
Lord Gridley: My Lords, in making my contribution in this debate to take note of whether it might be appropriate to institute a war criminal trial in this country, I do so with no pleasure since I suffered under the Japanese Kempetai in Singapore during the occupation. I do not take part in this debate this evening out of any sense of reflected glory to myself.
I have no reason to disbelieve that the German Gestapo and the Japanese Kempetai, whose officials in the war crimes trials were convicted of crimes against humanity, differed materially in the operation of their systems. The rule of law and justice previously enjoyed was to disappear and in its place was established, in the occupied territories of Singapore the imposition of terror, cruelty and torture. For four years I was incarcerated in Changi gaol in Singapore at the time of the Japanese occupation from 1941 to 1945.
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It would seem appropriate that we should be careful to accept what I state. As I have already said, it seems a relevant duty on my part to record my experience of Kempetai methods and their operation.
An event took place resulting in the death of many British internees and some of the local inhabitants of Malaysia of which they were totally innocent. I cannot now remember the exact date when I and others in Changi were to hear explosions which seemed to emanate from the port of Singapore, but it was either in late September or early October 1943. We were able to discover later that those explosions were due to the brave exploits of a Major Lyon, the leader of a small party of 10 Australians and four British who, hugging the coast and islands all the way, arrived in Singapore in a disguised ship, having travelled the 2,000 miles from Australia.
On arrival, which was I believe on a Sunday night (because I remember this rather vividly), the party saw a large tonnage of Japanese shipping at anchor. They brought with them collapsible rubber boats into which the men embarked with limpet mines. They attached those mines to 38,000 tonnes of Japanese shipping which they sunk to the bottom. Those brave men were never discovered or apprehended to the satisfaction of the Japanese because they managed safely to return to Australia. Major Lyon was lucky on that occasion although I regret to say that he and his companions died later in the war.
Of course, the Japanese could not understand what had happened as the people who had perpetrated the exploit had disappeared and could not be found in Singapore or any of the surrounding countries. Indeed they could not discover how all that had happened. So a Major Sumida, a commander of the Kempetai investigation in Singapore, decided to carry out a visit to the 3,000 inhabitants of Changi gaol, many of whom were former colonial civil servants of some standing who had rendered service to Malaysia in the days of peace.
It would take up too much time if I spoke in detail on an organisation which was set-up to make contact with the local people in Singapore. It was necessary for us to obtain financial assistance to alleviate the suffering and breakdown of health due to starvation and its attendant diseases. Through our outside contacts, we were able to construct three wireless sets in order to listen to the overseas broadcasts of the BBC. When Major Sumida paid his visit in 1943 he discovered those sets as well as sums of money which would be repaid at the end of the war to those who had raised the sums for us. For the information of your Lordships, that was done.
Major Sumida was therefore convinced that this must mean that we possessed wireless transmitters. His appetite was greatly whetted. He and his fellow interrogators were then convinced that an organisation within Changi had brought about the attack on Singapore and that the internees had alerted the allies to the presence of Japanese shipping in the port. That resulted in the explosions to which I have referred. He was therefore determined to carry out the investigation Kempetai style. It lasted

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between four to five months. We never possessed transmitters.
The system of interrogation Kempetai style was the following. One was guilty when seized or arrested, when one's admission of guilt was demanded. When a confession was not forthcoming, torture commenced until the suspect was bordering on the loss of life. For obvious reasons I shall not describe the tortures involved, but that basically was what happened.
The trials of German war criminals were fully reported in a book which can be obtained from the Royal Commonwealth Society. The events in Singapore have been described in various books which have been published in the past three to four years. After the war 135 Japanese officers and men were convicted as war criminals and executed in Changi gaol, including Major Sumida who had been a thorn in our side in Changi gaol and who was the head of the Japanese Kempetai. Seventy-nine other war criminals were put to death elsewhere in Malaysia for similar reasons. Of the 58 internees removed by Colonel Sumida from Changi gaol to the headquarters of his secret police in Singapore for investigation, 11 were to die of torture and interrogation, and one was executed.
In the fetid atmosphere which prevailed in Singapore and Malaysia during the presence of the Japanese Kempetai when freedom had gone and intimidation and victimisation were rife, no man or woman was safe from intimidation and false report when placed in the hands of the Japanese Kempetai. In those cases alone how on earth would it be possible to obtain any reliable evidence to secure a defence if such a person were charged of an alleged war crime in this country?
In spite of the horrible experience of the Japanese Kempetai in 1943, I am unable to agree that any further action should be taken against the alleged German war criminals in Britain. The action would arise from alleged crimes which cannot be dissimilar to the action taken by the Japanese Kempetai. I believe we would to some extent degrade ourselves if we went down that path.
5.44 p.m.
The Earl of Halsbury: My Lords, I am no lawyer, neither civil, criminal, domestic or international, and I shall not attempt to act as a one man do-it-yourself jury when noble and learned Lords practised in law are at loggerheads with one another as regards what constitutes retrospection. I read the report on its publication and I studied it again over the weekend. I am grateful to those men of distinction who worked so hard on it in order to provide us with a brief which we can study. I was particularly interested in the historical introduction. It is a historical pig's breakfast of man's inhumanity to man over long historical perspectives stretching back to the Middle Ages. Everyone was beastly to everyone else in turn with one exception, which is that the Jews were beastly to no one but everyone was beastly to them. It constitutes advice to the nation on what offences could be prosecuted now.
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If I understood the analysis of the noble and learned Lord, Lord Hailsham, correctly, it boils down to one elderly man and further investigations which would be a race against time before all those involved are dead. How shall we act? How should we act and from what motives? One can seek advice from whom one pleases, but the reponsibility for taking it is one's own. If wreaking revenge be the object, let us be sure we do it in hot blood when our anger is fully aroused. That may be an excuse for obtaining the Mosaic injunction referred to by the noble Lord the Chief Rabbi and for the quotation from the Gospel according to the Hebrews that the noble and learned Lord, Lord Hailsham, mentioned.
Lord Hailsham of Saint Marylebone: My Lords, it was the Romans.
The Earl of Halsbury: My Lords, it was the Gospel according to the Hebrews. I know that as I checked it last night. Vengeance in cold blood 50 years after the beginnings of these sorry events is another matter. Every day we meet, our proceedings begin with prayer. The Lord's Prayer exhorts God to forgive us as we forgive others. I interpret that as an appeal to God to forgive me as I forgive others. I have no authority to forgive a third party for his offences against a fourth. According to my faith, only a priest in the Apostolic succession has that authority, but it is only exercised after repentance. At Matins every Sunday I listen to the utterances which give pardon and absolution to those who truly repent and believe the Holy Gospel.
I shall sketch the curriculum of an old man who will be 70 years of age in 1990. That will simplyfy the arithmetic. He was born in 1920. At the age of 13 he entered his teenage years as Hitler took power. He joined the Hitlerjugend where he was brainwashed and indoctrinated in the belief that Jews, gypsies and Poles were subhuman. He was conscripted at the age of 19 and was footloose in the cauldron of Europe at the age of 25. Heaven knows what horrors he was a party to. Has he since acknowledged his sins and repented? Heaven alone knows that, but if heaven alone knows, let us leave it to heaven. The judgment on that man in earthly time cannot be long delayed.
I again echo the words of the noble and learned Lord, Lord Hailsham. I chose somewhat different illustrations from his because I did not have the advantage of seeing what he was going to say. But let us agree that the Jews will never forget their enslavement in Egypt, the captivity in Babylon, the destruction of Jerusalem and the diaspora, to which we must now add the Holocaust. I do not expect the Jews to forgive, as those who might manage forgiveness will all be dead very soon and there will be no one left to forgive. Vengeance cannot now be our duty. But let us remember when we contrast vengeance with justice that justice started as an attempt at a substitute for the blood feud illustrating vengeance. The two are inextricably intermixed.
In our nation anger has cooled off because we were the least sinned against. We were never occupied and the worst we had to put up with was some bombing. Anyone under the age of 60 or thereabouts

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cannot remember what it was all about. That represents the majority of our nation. Let us not consign them to vengeance in cold blood because men of law say it could be done. Even if it can be done, I am not prepared to say that it should be done. For my part I note the report and am content that it be left to lie on the table. I am not sure of the procedure in this case but if the report were to be the subject of a Division, I shall certainly follow the noble Lord, Lord Home.
5.50 p.m.
Lord Beloff: My Lords, I believe that everyone who speaks in this debate should declare an interest because all of us are moved one way or another by the interests that we have. I begin by declaring a double interest. I am a member of the Jewish community, but in no sense do I occupy any representative position. I am also a professional historian who has had a good deal to do with the study of the events that are now under discussion.
I believe the point I now raise is very relevant. It has been assumed by every speaker in this debate that there was a crime of immeasurable proportions to which we have given the name the Holocaust. It is not, as I believe one or two noble Lords have suggested, comparable in any way with the barbarous treatment of prisoners of war or political opponents, whether in Japan or Yugoslavia. It was, as the noble Lord, Lord Campbell of Alloway, said, a deliberate attempt to exterminate two races as a part of state policy.
Many people, particularly members of the younger generation, have read this moving report. As many speakers have said, one cannot pay too high a tribute to its objectivity and thoroughness whether or not we agree with its conclusions. But to many who read it I imagine that some of the material regarding what actually happened will have come as a shock. Many of us have read a series of much more detailed accounts because, despite what the noble Lord, Lord Mayhew, said, documentation is not what is lacking. Many people have read accounts culminating perhaps in the book The Holocaust by Winston Churchill's biographer, Martin Gilbert.
Those who have read that book will know that nothing here in this report is new. It is very important that it should not be thought to be new. I believe that people may make an occasional error because they assimilate the content of this report with what they already know. I have the greatest admiration for the noble Earl, Lord Halsbury; but his sketch of a member of the Hitlerjugend was totally irrelevant to what we are considering. The alleged criminals here were not German citizens or ethnic Germans; they were members of the populations of the occupied countries who, for one reason or another, threw in their lot with the Germans. Indeed, it is very hard to believe, whatever the difficulties of screening immigrants in the immediate post-war years were, that German war criminals could have got into this country undetected.
It was because there was immigration of people whose original status and ethnic identity might have been obscure, that it is possible, as the report
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suggests, that some people of this kind found their way here. It has been said that the Jewish community here might suffer if it was thought that its interest in this matter was due to a wish to revenge. I believe that point has been dealt with by the noble Lord, the Chief Rabbi, and I shall not refer to it, except to say that I found the word "retaliation" used by the noble Lord, Lord Mayhew, quite extraordinary. I do not see how one can retaliate on an individual for the murder of scores or thousands.
Lord Mayhew: My Lords, I am most grateful to the noble Lord for giving way. Since speaking it has occurred to me that I confused the word "retaliation" with "retribution". I hope the noble Lord will forgive me.
Lord Beloff: My Lords, I thank the noble Lord. I thought the speech of the right reverend Prelate was outstanding in our debate, but whether he was correct in worrying about the possible fuel which this issue might give to anti-Semitism, and whether it is true, in order to decide that we have to bring into account another factor which no one has mentioned. As I have said, I believe that everyone who has taken part in this debate —and no doubt those who will be taking part later —have assumed that the Holocaust is a fact. In particular, the noble and learned Lord, Lord Hailsham, has spoken about the impact that it has made on the Jewish mind.
But we have to face the fact that there is now in the world a very considerable movement which does not palliate the Holocaust but actively denies that it ever occurred. We have had propaganda that has been taken up by anti-Semitic groups in France and the United States. We are beginning to see this movement coming into our own British world.
The fact of the Holocaust was denied on BBC radio some 10 days ago by Lady Mosley. It is curious that the programme "Desert Island Discs" was thought of as an appropriate venue for an historical pronouncement. Perhaps one should not take the maunderings of an elderly female admirer of Adolf Hitler too seriously. But there are more serious issues at stake than what she may think. At one time Mr. David Irving had some claim to be a serious military historian. He has produced views —unsustained —that the Holocaust was not an act of state and that Hitler himself was entirely innocent of the matter. That view is possible because it does not affect what we now feel or think.
However, he has recently written a preface to an American publication in which he asserts in so many words that the extermination camps —Majdanek and Auschwitz which many people have visited including most recently Chancellor Kohl, to express the nation's regret —did not exist. David Irving has said that these camps never existed and that they were thought up by the British propaganda services. That publication has been printed in this country.
No doubt the impressionable young, and those for whom these events are as far off as the wars of Julius Caesar, may be disposed to believe it. There is another and perhaps more dangerous way in which the importance or the uniqueness of these events is being challenged. That is by comparison with other

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issues of human suffering which, though very important in themselves, are not comparable in magnitude.
The right reverend Prelate mentioned the enormous impression made on him by a visit to Yad Vashem which is the museum of the Holocaust in Jerusalem. A delegation from the British Council of Churches recently went to Israel and the occupied territories to look at the sufferings of the Palestinians under occupation, which I would not deny. No one regards me as Mr. Shamir's most zealous supporter. They said that Yad Vashem was all very well and it obviously meant that there had been a great deal of suffering. They also got the impression that, regarding similar suffering by other people—meaning in this case the Palestinians—sympathy was absent from their Jewish contacts.
I entirely agree. Much that has happened to the Palestinians during the five wars and since the occupation is regrettable and reprehensible. Nevertheless, most of them are alive. I do not know how many Palestinian civilians died during the course of those five wars or in the intafada since the occupation, but if one counted them in low thousands one would not be diminishing the number. That is simply not comparable to the wilful, direct and deliberate extermination of between 5 million and 6 million people. To make that comparison and to talk about similar suffering subtly downgrades the Holocaust.
Therefore we are faced with a very difficult moral problem as well as with the juridical problems that have been so fully ventilated. If the existence of possible war criminals had not been called to our attention in this way and a report written, perhaps we might all have been happier. The issue would not have arisen. We would have to regard the account as closed. But now that this has been brought to our attention, now that a report has been written which at least makes it likely that there is enough substance in these allegations for the Government to worry about, if we say that, for the various reasons outlined in the House, we cannot accept it —I know I speak in a minority on this point —we shall I fear, be playing into the hands of those who wish to downgrade the Holocaust in pursuit of their own anti-Semitic objectives and placing the Jewish community in the appalling position of believing that it is less rather than more likely to receive justice at the hands of the majority community.
I wish that this issue had never come before us. I have no feelings about the individuals concerned. I have no feelings of revenge, retribution or however one likes to style it. However, in the world in which we live, in which anti-Semitism —the right reverend Prelate was right about this —is still something which we feel and know about, to reject these proposals out of hand would perhaps be unwise and would almost certainly be cruel.
6.3 p.m.
Lady Saltoun of Abernethy: My Lords, like other noble Lords, I am most grateful to the noble Earl, Lord Ferrers, for such a fair and impartial
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introduction to this important debate and to the compilers of the report for its clarity and readability.
Paragraph 8 of the first chapter of the report shows that the original 17 names given to the committee by the Simon Wiesenthal Centre had been published. Who was responsible for that; and who gave a list of 34 names of suspects to Scottish Television? I hope that the noble Earl will be able to give me the answer to those important questions in his winding up speech. Was it the Simon Wiesenthal Centre or the Home Office? If it was neither of them, who did so? All those on those lists will, for the rest of their lives, whether or not they are prosecuted, and even if they are found to be totally innocent, be tarred with the brush of being suspected war criminals. As we all know perfectly well, the public and the neighbours will say, "There is no smoke without fire". In at least one case, long before the report was published, exactly that was happening.
I turn now to the question of what kind of justice there can be where the quality of the evidence must be very questionable. How will witnesses recognise suspects after so long, and not even face to face, if we allow evidence to be given through television links? People's appearances can change out of all recognition in the course of 45 or 50 years. Paragraph 8.64 of the report, referring to the witnesses interviewed, says:
"Many however, were able to help with circumstantial and hearsay evidence, and some were able to identify suspects from photographs".
Circumstantial evidence is always suspect; hearsay evidence is even more so. And as for identifying from a photograph a suspect one has not seen for more than 40 years, that is ludicrous. We are told that the camera cannot lie, but we all know that it can distort out of all recognition.
The noble Lords, Lord Home and Lord Walston, said that old men forget. Worse, they remember with advantages. Most of us have had the experience of comparing notes on some long past incident with someone else who was there at the time, and finding not that we had forgotten but that our recollections of events were totally different. We had both added things that had not happened. The same applies to the evidence for the defence, in addition to which all the witnesses for the defence may be dead or impossible to find. Who will pay for searching for them? Will the Russians, who will apparently be so helpful over the evidence for the prosecution, be equally helpful over the evidence for the defence? be equally helpful over the evidence for the defence? I am not very happy about that. While there may be enough evidence to prosecute a suspect, he may be quite unable to defend himself, even though he may be innocent. Although possibly in such a case a jury might not convict, the stigma would still remain.
Then there is the question of precisely for what crime or crimes the proposed legislation will enable suspects to be prosecuted. In paragraph 9.27, the report comes down on the side of prosecutions for,
"murder and manslaughter committed as violations of the laws and customs of war".
I fear lest that suggested definition includes the killing of an enemy soldier by a prisoner of war while attempting to escape, which it was his duty to do,

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and other killings not strictly allowed by the rules but which inevitably happen in war. If the Government were to receive requests from the West German Government to prosecute people who had killed German soldiers in such circumstances, they might find it very difficult to refuse to do so. Much more serious problems of definition are involved in the basis of the proposed changes, as the noble Lord, Lord Campbell of Alloway, has already pointed out. The possible effect on future prisoners of war also needs to be considered. They could well be at risk of being killed lest they should testify against their captors, or for retaliation.
The suspects, even if guilty, must have been quite young at the time, and therefore under the orders of their superiors who may well have ordered them to commit the crimes for which they are now, in their old age, under threat of prosecution. The penalty for refusing to obey an order was a heavy one. It is important to realise the pressure that young soldiers on all sides may have been under to do things which they later regretted. Young soldiers in ill-disciplined units did things which they should not have done. Young people in crowds often behave in ways in which they would not dream of behaving on their own. These are the hazards of war. To many people now, who have no experience of war, situations of this kind are unimaginable.
In chapter 9, paragraph 18, the report says that in neither the German nor the British military code are superior orders accepted as a defence against war crimes. That may be so, but circumstances which obtained in Nazi Germany at that time must be taken into account. If any of the suspects is tried in a court of law and is found guilty, what is it proposed to do with him? I am assuming that it is not proposed to reintroduce the death penalty, so I presume that the idea is to imprison him for the rest of his life at the taxpayers' expense. But is that an adequate punishment for the crimes that he is supposed to have committed? Is any penalty which civilised people can inflict anything but farcical in the circumstances? If such people are imprisoned, there is a very real danger of their turning into martyrs in the eyes of the public, as did the late Rudolf Hess—although he was as nasty a bit of work as many others. The British are sympathetic to old and possibly sick men who have been imprisoned for long periods.
Since, in all probability, the suspects will have wives, children and even grandchildren, the vengeance wreaked on them will cause at least as much, if not more, suffering to their innocent relatives who may well have been totally ignorant of their husband's, father's or grandfather's past and who will then, in addition, be at risk of persecution by their neighbours.
While I realise that consideration for the feelings of their nearest and dearest is not a good reason for failing to prosecute criminals, when such time has elapsed the damage will be much greater than in any normal case. Moreover, if one of the suspects has led an exemplary life in this country for the past 40 years and become a respected citizen, or possibly even worked for MI6 —it was alleged in an article
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which appeared in The Times in October that some had —will it not look rather ungrateful and be rather embarrassing to cast such a person into prison for the rest of his life for what he did in, as it were, a previous incarnation? Such matters need consideration if the Government are not to risk looking very foolish.
However much the report tries to play down the retrospective element of the proposed legislation, it admits in Chapter 9.27 that there is an element of retrospectivity in the course it recommends. That element certainly exists in the proposed changes to the laws of evidence, and that is not all, as the noble Lord, Lord Campbell of Alloway, explained.
We have a body of criminal law in England, built up over centuries, which is second to none, except Scots law. The quality of British justice has long been the envy of most of the world, and many other countries' legal systems are based on English law. We have always regarded retrospective legislation in any form as deeply undesirable and Parliament has always taken a dim view of any government who tried to introduce it. But now we are being asked to support retrospective legislation in order to bring to trial only two suspects —although, the noble and learned Lord, Lord Hailsham, says that there may only be one —who may well not be convicted by the jury on account of the quality of the evidence. In short, we are to take a step which may well have effects we have not foreseen and which will create a precedent which may have effects we cannot foresee.
The Jews were not the only people to suffer during World War II; nor were the Nazis the only ones to inflict suffering or to murder people in contravention of the rules of war. What about the Katyn massacre, now known to have been the work of the Russians who are to help us try the Nazis? Moreover, what about the mass murders perpetrated by the Russians in Latvia and Lithuania? I should point out here that many Latvians and Lithuanians joined the Nazis for protection from the Russians because they had suffered so badly at the hands of the Russians.
What about the sufferings of our own prisoners of war at the hands of the Japanese? Most of them are Christians and prefer to try to forgive and forget. Some of the victims, Christian or otherwise, might have preferred to do so, but Wiesenthal did not take that fact into account when he appointed himself as their vindicator. He made this plain during an interview with Terry Wogan in October when he said that he could not forgive injuries to others. Under those circumstances, is it decent and fitting that we should take such a step in order to enable aliens to be revenged on other aliens for something done in a foreign country nearly half a century ago? In chapter 9.6 the committee says:
"Justice delayed has the appearance of revenge".
In this case it would not just have the appearance of revenge; it would be revenge.
I am sorry that I cannot accept the definition of vengeance put forward by the noble Lord, Lord Jakobovits. I think that the law can also be vindictive. All in all your Lordships may well think that the proposed changes to the criminal law of this

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country are not justified. For my part, as I do not sail under flags of convenience, I shall oppose such alterations in the law if the Government decide to introduce a Bill.
6.15 p.m.
Lord Havers: My Lords, this has been a most interesting debate and I suspect that little more can be said on the subject. Therefore I shall be brief. I should like first to congratulate the two Front Bench speakers on their restraint and on the lucidity of their arguments. I know that the noble Lord, Lord Mishcon, will appreciate that I do not agree with his conclusions. However, I very much agree with what has been said by my noble friend Lord Campbell of Alloway and by my noble and learned friend Lord Hailsham.
Of course, this is retrospection. I do not for a moment accept the report—although it is a very good one —when it casts doubt over whether the anticipated legislation is retrospective. Retrospection is the nightmare of lawyers, and especially of Law Officers. However, it usually applies when today you do something which is legal but which subsequent legislation makes illegal even at the time you did it. That is bad enough. What is suggested today is far worse and has not been clearly pointed out during the course of the debate. What is suggested would involve giving jurisdiction to courts in respect of people over whom they previously had no jurisdiction. It is not a case of making something which is presently not a crime into a criminal offence. It is introducing an entirely new class of defendant. It is a major step of which I disapprove and therefore cannot support.
The need for this special jurisdiction is that now British subjects cannot be charged or tried for offences such as murder committed overseas. That is a provision under the Offences Against the Person Act 1861. The majority of the allegations concern persons who were not British at the time and thus fall outside the purview of the British courts.
The Geneva Conventions Act 1957 allows the prosecution in this country of any person for grave breaches of the 1949 Geneva conventions committed anywhere in the world. This would of course include murder and manslaughter. However, it is worth noticing that there is no provision in the Act for retrospective application, whatever paragraph 5.38 of the report says.
I shall not speak about extradition or evidence save to say that the difficulties about evidence have already been underlined very properly and most clearly by many Members of your Lordships' House. As stated in the report it will be most difficult to extradite. The difficulties over evidence will be absolutely insurmountable. Further, as my noble and learned friend Lord Simon of Glaisdale said, the process will prove hugely expensive.
Even if one is more optimistic about the number of suspects exceeding the single possibility mentioned by my noble and learned friend Lord Hailsham—for example, if we reached 20—the game is simply not worth the candle. We must add the fact that we would be going against decisions taken
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in 1948, as pointed out by the noble Lord, Lord Mayhew. The information he provided filled a gap in my knowledge. Further in 1990 or 1991 young jurors—many of them aged under 25—will be told of offences they have never heard about previously unless they have read about them by choice. Indeed, they will probably not have been taught about them at school. And they were certainly not alive when such things happened. However, they will be asked to convict these sick and tired old men of offences which would lock them up for the rest of their lives. For me that prospect is simply not on.
6.18 p.m.
Lord Henderson of Brompton: My Lords, I should first like to apologise to the noble Earl, Lord Ferrers, for having missed the beginning of his remarks. However, I was present in the Chamber in time to hear the greater part of his speech. I thank him for the tone and temper of what he said. It is a tone and temper which has informed the debate ever since.
I must say that on this subject my mind is deeply coloured by the works of Primo Levi, who in my view has more right to be heard and read on this subject than anyone else, except the dead, who are, according to him, the only ones in possession of the truth. They cannot speak or be heard. Primo Levi is entitled to be heard, and he approximates to the dead. He has been through the whole process of the Holocaust. He suffered and survived Auschwitz and made himself write about his experiences. I found his last work on the subject, The Drowned and the Saved, which he wrote 40 years after the event in 1986, more relevant to the debate than his earlier works, marvellous though they are: Is this a man? The Truth and The Periodic Table.
What has already been said reduces the length of my speech. I gladly adopt everything said by the distinguished lawyers about the evident injustice of the trials proposed in the review. I thank the authors for so clearly expounding the difficulties.I found paragraph 6.8 of the report, which was entitled Difficulties, most persuasive, and I cannot understand why the report's authors were not persuaded by the difficulties that they enumerated in that paragraph. I was impressed by their categorical view of the impropriety, or illegality, of proceedings in regard to crimes against humanity. I quote their words:
"To legislate now for offences of genocide committed during the second world war, in our view, constitute retrospective legislation".
That is unthinkable.
I was most impressed by what the noble Lord, Lord Home, said. He encapsulated in three words what so many other speakers said: "Old men forget". There is a most moving passage in Primo Levi's last book about just that thing: how distorted and unconsciously forgotten —although no doubt there are a few who tell deliberate lies —the facts are. Most of the forgetting is not of their own making; it is part of the ageing process. I very much agree with what the noble Lord, Lord Home, said.
I agree with the view that those show trials could not and would not have a deterrent effect.

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I am appalled by what appears to be, and would appear to the country to be, unremitting vengeance, although I heard well what the noble Lord, Lord Jakobovits, said on that subject. I have always been appalled by the behaviour of the Dominican Order when it was founded and the way in which the Dominican hounded the heretic. The Dominican was rightly called, "The hound of the Lord" (Domini canis), but the Lord said, as we have heard in the debate, "Vengeance is mine" not that of a self-appointed hound.
Any prosecution of so-called war crimes would be bound to be a show trial. It would be a trial that would trivialise the Holocaust. I say that because it would be bound to concentrate on one man, or a few men, to the neglect of the total horror committed by humanity, when we should be asking much more relevant questions for this day. We should be asking ourselves how we should have behaved if we had been in the position of the majority of the perpetrators. The majority of the perpetrators were not the monsters at the top, fearful though their crimes were. They were not the "henchmen" of the noble Lord, Lord Jakobovits, who committed the "fiendish crimes" mentioned by the noble Lord, Lord Mishcon. They were not the "arch criminals".
If one reads Primo Levi one will find that he is most deeply shocked, not by the crimes of the monsters —miserable, horrific and dreadful as they were—but by the ghastly brutality of those whom one might reasonably expect to be one's friends in prison: those unhappy prisoners who were forced, for a multitude of different reasons, to collaborate with their captors. The horrors committed by them are no less, and perhaps more, terrible than those committed by the monsters.
Prosecutions should be undertaken only in the public interest. I have a strong feeling that it is not in the public interest to pursue those few war criminals in trials which would bring the judicial process into contempt. Instead, we should concentrate on how it was that so many people of all races—including the Jews—were swept up into committing so many horrors. That can best be done by giving children in school works such as those by Primo Levi instead of, as they now are given, The Lord of the Flies, which purports to explain the dark side of humanity through the perspective of prep school boys. It would be far better for them and the nation to read the tracts for the times, by Primo Levi, and indeed for all time, written by someone who underwent every indignity but death in Auschwitz and who amazingly kept his eyes open and had the courage to write about his experiences with, as near as possible, dispassion and compassion. That is where we should be directing our attention, not to a show trial.
6.28 p.m.
Lord Wolfson: My Lords, I acknowledge being in a minority, but the debate is concerned with one of the most monstrous crimes against humanity in history, and for the survivors time cannot heal the pain. In his moving opening address my noble friend the Minister referred to that sad aspect of the subject. Being a member of the Jewish faith, although Sir
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Thomas Hetherington and Mr. William Chalmers are not. I feel emotionally involved, but I take as my theme the report's conclusions and the word "justice" —not vengeance —because I believe that that is what the vast majority, the millions of innocent victims, in their agony would have wanted to see done.
The learned and objective report of the War Crimes Inquiry recognised that feeling in the recommendations made in Chapter 9. The enormity of the crime that forms the background of the report was kept largely secret at the time and given the chilling code name "The final solution": the decision by Hitler and his Nazi clique to liquidate in cold blood millions of human beings, not just Jews, as has been pointed out. In that they were aided by a variety of willing and enthusiastic supporters, some of whom are referred to in Chapter 2 of the report. It was that participation, with such a diabolical cruelty, which made the programme so deadly in its effect and such an indispensable part of the mass murder machine.
The manner in which Hitler and the Nazis turned Germany into a criminal state from 1933, when the first concentration camps were inaugurated, is a matter of history, as is the reign of terror which was extended to the conquered countries.
The infamous Wannsee Conference in January 1942 lasted less than 90 minutes. That was the length of time needed to sentence the Jewish communities and other minority groups in Nazi occupied Europe to their terrible fate. For the next three tragic years millions of innocent people of all ages were murdered, or illegally experimented on in the most vile and cowardly manner. No refinement of cruelty was spared. Delivered to the charnel houses in sealed cattle trucks, the fortunate ones arrived dead, the half alive consumed by an inferno that even Dante could not have conceived.
Before this report was published, we knew all too well about the horrors of the Nazi extermination programme. We also knew that some 200,000 worthy and unfortunate men and women from Eastern Europe, displaced from their homes by the ravages of conflict, were admitted to this country soon after the war's end. But we did not know that the listing and screening processes employed when they arrived here were, to use the inquiry's description, defective and ineffectual. We had no idea that this situation might have enabled a small number of evil men to secrete themselves among those who sought refuge in the United Kingdom. The United States, Canada and Australia have all discovered, in common with ourselves, that war criminals could have entered their countries after the Second World War. They have responded by setting up legal machinery to investigate the allegations, as the inquiry recommends in its report.
The members of the inquiry are naturally concerned with the issue of retrospection. I am not a lawyer, but I quote them. They refer to international human rights conventions in paragraph 5.45. They point out that genocide was not defined by international law as a crime until 1948 and they therefore do not recommend its inclusion in any legislation presented to Parliament.

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They explain in paragraph 9.27 of the report —which of course should be read in full —the legislation they envisage which would allow an offence to be tried in a British court. The inquiry report reminds us that the decision whether or not to proceed, the health of those concerned and the conduct of the proceedings will be for the appropriate legal authorities in England and Scotland.
Powerful and highly respected advocates —indeed, most of those speaking today —say, "These events occurred nearly 50 years ago. Let us forget the past and get on with the future". As a general proposition, particularly in the light of the current events in Eastern Europe, this must be right. However, should this apply in the case of alleged crimes against humanity? As Robert Kennedy put it:
"moral duties have no terms".
No country did more than Great Britain to exorcise the vile creed of Nazism —an overpowering evil that threatened to poison the very soul of mankind. We all realise that the dead cannot be brought back to life, their unborn children created or the permanently scarred returned to normal health. But we must never forget the commandment, "Thou shalt not kill". It is a cornerstone of our civilisation. For that reason —while respecting the experienced opinions on war crimes expressed to the contrary —I support the findings and recommendations contained in the moving report presented by Sir Thomas Hetherington and Mr. William Chalmers.
6.33 p.m.
Lord Monson: My Lords, I am glad to leave it to the noble and learned Lords —notably Lord Campbell of Alloway, Lord Hailsham and Lord Havers —to deal tellingly, as they have done, with the question of retrospection and the proposal to bend our legal system so as to achieve specific short-term objectives, with all the alarming precedents that this could set.
Perhaps I may venture to suggest that to act in the selective fashion which this report proposes—would result in this country adopting double standards which could not be justified.
Suppose that one could prove, as one probably can, that the Axis powers—Germany, Italy, Japan and their hangers-on in the Balkans and elsewhere—committed a hundred times as many atrocities as the allied powers, excluding the Soviet Union, and 10 times as many as the allied powers, including the Soviet Union. That would not alter the fact that we are not considering collective guilt but individual guilt. We are not considering a conspiracy to commit genocide.
If I may say so, many of those who support the recommendations of the committee seem to be talking with hindsight. It seems obvious to us today and probably to most of the public today that the Nazis engaged at a certain point in a massive conspiracy to commit genocide. But it was not obvious to anyone early in the Second World War, mainly because the idea of the "final solution" had not even been conceived then. It was not obvious to
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anybody in the middle of that war and it was not obvious to anyone, other than the most highly informed people, as late as the autumn of 1944. It certainly would not have been obvious to semi-educated Ukrainians and others in 1941 and 1942. Most of them would have looked completely blank if one had mentioned words like "genocide" to them.
One individual war crime of a given magnitude is as bad as any other individual crime of a similar magnitude, no matter where in the world it was committed, in what decade it was committed, in what conflict it was committed and on which side of any given conflict it was committed.
So it would seem self-evident that if, after an interval of almost 50 years, we are going to resuscitate some mass murders and other atrocities and initiate prosecutions against those believed to be responsible, in logic and equity one must do the same in respect of all the massacres and atrocities perpetrated over the past 50 or 60 years, wherever in the world they may have occurred.
Let us consider some of the atrocities committed in this blood-soaked 20th century, concentrating upon the last 60 years and so skimming over the massacre of the 100,000 Hereros in what is now Namibia by the Imperial German Army in 1904 to 1905; the massacre of 1.5 million Armenians in 1915, and the Lenin terror, which is only insignificant when compared with the very much greater Stalinist terror that followed.
It was the 1930s —the beginning of the period which we are considering —that brought Stalin's terror, in which between 8 million and 10 million are said to have died, many of them Ukrainians some of whom were the subject of these inquiries. Most of them were deliberately starved to death but large numbers also were shot and buried in mass graves. The year 1936 brought the Spanish Civil War in which both sides indulged in frightful barbarities although, it has to be said, children as opposed to women were not in general deliberately killed in that conflict. Late autumn 1937 saw the rape of Nanking in which about 20,000 Chinese, both military prisoners and civilians of both sexes, were decapitated, bayoneted, shot and drowned by Japanese troops, an action sanctioned at the highest levels.
Earlier in that year the Italians had massacred thousands of Abyssinians, following a revolt, having previously used poison gas against Abyssinian forces.
Then of course came World War II. We think we know all about the horrors and atrocities committed in that war, but we almost certainly do not. I shall return to that point in a moment. Immediately after the end of the war in Europe, 30,000 Yugoslav royalists were murdered by Tito, as a recent court case has reminded us. About 46,000 Cossacks and some of their women-folk were murdered by Stalin.
The Indian partition massacres should not perhaps be included in this tally in so far as they appear to have been spontaneous outbreaks, not organised from above. However, I am open to correction from historians of the period. In 1947 the French —the Free French, incidentally, not the Vichy

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French —put down a revolt in Madagascar with enormous loss of life among the indigenous population. I believe that something like 27,000 were killed. I am just taking random examples here. On a very much smaller scale, more than 200 inhabitants of the Arab village of Deir Yassin —mainly old men and women —were murdered by the Stern gang.
Numerous atrocities from 1954 onwards were perpetrated by both sides in the Algerian War and later by both sides in the war in Vietnam. Of course Western television cameras and news photographers were not present to witness the much greater number of murders perpetrated by the Viet Cong and North Vietnamese. Nor did the Chinese Communists, who were busy throughout this period murdering up to 20 million people both at home and in Tibet, allow the Western media to be present at these events.
Most Westerners know a good deal about the horrors of Uganda, Cambodia and the Lebanon. However, not as many as should be are aware of the near extinction of the Bahai's by the Iranians, the attempted genocide of the Kurds by the Iraqis by the use of poison gas, the repression of the Christian and pagan negroid tribes of the southern Sudan by the northern Moslems and the cruel oppression of almost everybody, not only minorities, by the Ethiopian Marxists.
I should like to return to the subject of the Indian sub-continent. Noble Lords may remember how the West Pakistani general in charge of trying to defeat the revolt in what was then East Pakistan, exhorted his men not only to kill men and women, but also children, on the highly practical grounds that if the children's lives were spared, there was a danger that they would grow up and seek to take revenge upon West Pakistanis.
The beautiful island of Sri Lanka is a by word for death squads at the moment, as most of Latin America has been for decades. Only last week, according to the Daily Telegraph, Amnesty International complained that the Peruvian armed forces,
"killed or tortured hundreds of babies and children".
Large-scale killings over the past 40 years have also occurred in Burma, Indonesia and above all Syria, generally speaking away from the gaze of the Western media. Even in little Cyprus children have been deliberately murdered by people on both sides.
I should like to revert briefly to World War II. Some of your Lordships may recently have seen an excellent "Timewatch" programme on BBC2 which revealed the terrible Italian atrocities committed in Yugoslavia during that war and how all the generals responsible escaped prosecution by the allies for reasons of realpolitick. Brigadier Fitzroy MacLean in his famous account of the war in the Balkans entitled Eastern Approaches published in 1949, described seeing hundreds of German prisoners shot by Russians —doubtless in retaliation for earlier killings of Russian prisoners by the Germans. Objectively speaking, that was a war crime nevertheless.
With rather less provocation the Americans also shot prisoners, not always in the heat of battle and
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not always members of the Waffen SS. Some, from photographs I have seen were bewildered-looking youths of 16 or 17. A recent book published in Canada alleges that after the end of hostilities the Americans deliberately allowed hundreds of thousands of German prisoners of war to die of starvation, exposure and, above all, thirst. I should like to think that Britain's hands were spotless, but am aware of a couple of incidents, one in the European theatre of war and one in the Far East, which I hope are very rare exceptions to the rule.
What are the common threads that run through this unpleasant litany? They are two-fold. First, nearly all the incidents were organised, encouraged, or tolerated by people in authority. Very few were spontaneous. The second common thread is that practically nobody has been tried for such crimes, or is ever likely to be tried, as little as five years after the event, let alone 50 years afterwards. On the contrary, some of those directly or indirectly responsible have been received as honoured guests in other Western democracies —more often than not, once again, for reasons of realpolitik.
It is sometimes supposed that Stalin strangled his 8 million to 10 million victims with his bare hands. He was clearly not capable of doing so: tens of thousands of Russians assisted him in this task and many of them, after his death, remained in positions of power in the Soviet Union, and many travelled throughout the world.
I should like to enlarge the point about realpolitik. The "Timewatch" programme described how the Italian generals who were guilty of massacre in Yugoslavia and Ethiopia escaped prosecution. It also revealed that by an ironic twist of fate the only Italian general to be executed happened to be an anti-Fascist noted for his humanity, and in particular his humanity towards captured allied prisoners. However, British public opinion at the time demanded a scapegoat, so poor General Bellomo was executed on what in this instance appeared to be an almost trumped-up charge.
In a similar fashion Emperor Hirohito escaped prosecution for reasons of realpolitik—and one certainly cannot quarrel with General MacArthur's reasons for that. However, in compensation as it were, a fair number of Japanese officers were executed for war crimes. Some of them were undoubtedly guilty; others, with hindsight, were borderline cases. However, public opinion in Britain, Australia, Holland and the United States would not be content with a mere handful of executions.
Therein lies the danger of seeking to throw a sop to public opinion. It is often easier to go for the small fry and the hangers-on, particularly as the latter are unlikely to be able to afford clever defence lawyers who can root out the skeletons in other people's cupboards. Nor, in the case of the Ukrainians and the people from the Baltic states, will they have benefited from the German Nazi mafia, flush with the proceeds of looted art treasures which enabled genuine German and Austrian Nazis to lead comfortable new lives in South America.
One must ask oneself, as other noble Lords have, whether a fair trial will be possible. It has already

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been declared in a very popular television programme, watched by millions, that the suspected war criminals living in Britain, first, conducted terrible medical experiments upon prisoners in concentration camps and, secondly, that they individually murdered hundreds of thousands of people. If that were really the case, my attitude to this matter might be different. As far as I know, it is absolute nonsense. However, the impression that these people were guilty of conspiracy to commit large-scale genocide will have been etched indelibly upon the subconscious minds of television viewers and hence potential jurors all over Britain.
This is not to argue that involvement in the killing of whole categories of people and their families merely because you have been led to believe that some of them may be sympathetic to, or partly responsible for, the communism from which you and your families may earlier have suffered, is in any way excusable. It is not excusable. But I should like to put things into perspective. The crimes that we are talking about are not unique in the history of the past one hundred years. They are comparable to many other equally horrible but equally unpunished crimes committed in various parts of the world.
Moreover, I do not think that one can overlook the fact that most of these crimes will be 50 years old by the time that cases would come to trial, if ever they do. As the noble Lord, Lord Houghton of Sowerby, and my noble friend Lady Saltoun have asked, can we be certain that a man of 68 is the same person in any real sense as the callow and brutal youth of 18 that he once was? Can we be certain that a senile man of 80 is the same as the ruthless fanatic of 30 that he once was? I do not know the answer to that question, but I suspect that they are essentially not the same people.
Let us consider two final points. Would the statesmen of 40 years ago —for example, Winston Churchill, Clement Attlee, the Labour Cabinet of 1949 and the Conservation Opposition Front Bench of 1949, were they still all alive today —be in favour of these men being brought to trial? On the evidence given in paragraphs 3.71 to 3.81 in the report, and the evidence given by the noble Lord, Lord Mayhew, one suspects that they would not.
About a year ago the newspapers told a story of a Japanese ex-serviceman: I cannot remember whether he had been a private soldier or NCO. He had played a minor role in the horrible rape of Nanking in November and December 1937, and had had that on his conscience ever since. At long last he felt compelled to apologise publicly to the Chinese people for his part in the massacre, to the annoyance of some of his right-wing compatriots. In so far as such an atrocious business can have a satisfactory ending at this distance in time, surely a satisfactory ending took place. Equilibrium, in a curious way, was restored. Justice was done, in a way in which it almost certainly would not have been done if this old man had been put on trial 51 years after the terrible events in which he took part.
6.50 p.m.
Lord Blake: My Lords, I should like to pay tribute to the lucidity and clarity of the report. It is
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admirably written and refutes the notion that a semi-legal report of this kind from government quarters has to be written in Whitehall or Inns of Court jargon. It is a cut above that and I commend it to your Lordships.
However, I differ from its recommendations. I go along with my noble friend Lord Campbell of Alloway, my noble and learned friends Lord Hailsham and Lord Havers, and my noble friend Lord Home of the Hirsel who, among many other noble Lords, with their great authority, are against the recommendations.
I propose to be very brief, your Lordships will be glad to hear. I should not have spoken at all, since at this stage of the evening nearly every argument that can be put has been used, were it not for the fact that no vote is to be taken on the matter. I believe that a vote should be taken and that it is wrong not to do so. However, it is too late to do so now. If there is not to be a vote, the only way in which your Lordships' House can indicate its opinion is in terms of the number of noble Lords who speak on the subject on one side or the other. That is my reason for speaking; and that is why I shall be brief.
Whether or not one calls it retrospective, it seems to me that to introduce legislation to make liable for prosecution people who would not be liable under the present law would create a very dangerous precedent. It is unjust and it is wrong. For that reason I am against the report's recommendations.
I have listened with interest to the very moving speeches of some of those who are in favour of taking action. I was very impressed by the speeches of the noble Lord the Chief Rabbi, the noble Lord, Lord Beloff, and my noble friend Lord Wolfson, who made a very moving speech. Nonetheless, I believe that that is the wrong way to proceed. Of course we are agreed on the horrors that occurred; they were appalling. Those of us who are against taking steps to change the law in order to prosecute people who might have had some responsibility for those horrors must be given credit for sharing the revulsion and disgust which every Member of this House feels.
I am concerned primarily with the proposal to change the law and to do so retrospectively.
I am no less worried by the recommendation to change the laws of evidence in order to make it easier to convict people who can only be prosecuted as a result of a change in the existing law. I believe that to be a totally indefensible proposal. I am very much against it and I hope that your Lordships will share that view. Recent Acts dealing with criminal justice have changed the rules of evidence, and this question ought to have been considered when that legislation was introduced. It is quite wrong to change the rules now, when the whole question of evidence has so recently been the subject of legislation, and to apply the changes to a particular and limited class of people who might be prosecuted if the law is changed. I find that suggestion very repugnant indeed.
There is one further matter which 11 should also like to mention. I should like to pay tribute to the letter from the noble and learned Lord, Lord Shawcross, which is in The Times today. He referred to the argument that the action proposed by the

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report would have a deterrent effect on possible future war crimes. The noble Lord, Lord Monson, listed —at very great length —various atrocities, evils and crimes which have been committed, many of them since the Nuremberg Trials and since those offenders were hanged for what they had done. What degree of deterrence has that had? Very little, as the noble and learned Lord, Lord Shawcross said. What degree of deterrence would condemning a few miserable old men in their seventies to life imprisonment have on anyone in the future? I very much hope that your Lordships will reject the report.
6.55 p.m.
Lord Macaulay of Bragar: My Lords, I rise to make my contribution, which will be considerably shorter than it might have been earlier in the day, to this interesting debate. Perhaps I may express my own thanks to the noble Earl, Lord Ferrers, for calling attention to the report and giving your Lordships' House an opportunity to consider this very important topic.
At the outset, perhaps I may try to put the matter into some form of historical perspective. I should like first to refer to paragraph 3.1, which deals with the reasons why the war trials faded out. It reads:
"Consequently, as had been predicted, for a variety of reasons, public and political opinion turned against the continuation of trials and Britain's activities in this field in occupied Europe had come to an end by 1950, by which time responsibility had been handed to the emerging Federal Republic".
Then we come to a very interesting sentence in the report:
"Very little thought was given to war criminals in the United Kingdom as this was believed to be unlikely to arise".
Therefore, over a period of more than 40 years no serious thought has been given to the possibility that there might be war criminals in this country. It is only as recently as 1986 that moves towards discovering whether or not there are criminals in this country were started. They have been followed through with this report.
Perhaps I may draw your Lordships' attention to paragraph 3.6 of the report, which is important in the context of what we are considering. It deals with Cabinet policy in 1942 and reads:
"The Cabinet also approved in general terms a policy on war criminals, the general principles of which were outlined in a note sent on 6 August 1942 to Allied Governments. This stated that policy and procedures, including the nature of judicial tribunals, should be agreed between the Allied Governments. It also proposed that the punishment of war criminals should be disposed of as soon as possible after the war, in order:
(a) to secure rapid justice".
However one looks upon the terms of the report, and whatever is done to follow it through in the form of prosecutions, there can certainly be no rapid justice for the individuals involved.
The paragraph continues:
"to prevent so far as possible wronged individuals from taking the law into their own hands".
The likelihood of that happening is now perhaps more remote than it was in the 1940s.
The final reason was:
"to prevent trials from dragging on for years and so delaying the return to a peaceful atmosphere in Europe".
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Other Members of your Lordships' House have already raised the issue of the effect of setting out on what was described as a show trial on a return to a peaceful atmosphere in Europe, which is now gathering pace with recent events. The theory of retribution and summary execution on identification has no part in modern Europe, whatever part it played in history.
The third part of the report to which I wish to draw your Lordships' attention is the concluding paragraph, 9.56. That paragraph sets the parameters for action and sets out the difficulties in which the Government is placed, and indeed which we all face. It reads:
"Given the ages of the suspects and witnesses we consider that any proposed legislation should be introduced and brought into force as quickly as possible".
Hasty law has a habit of being bad law. If we are pressurised into making bad law we shall pay for it in the future.
The report, compiled by an inquiry team which was obviously working under great pressure, is a fascinating and comprehensive review of the sad events of many years ago which are still with us. They will remain with us for as long as people who were and are affected by those terrible events and who were responsible for them survive. The emotion evoked by phrases such as "war crimes", "crimes against humanity" and "genocide" is such that to deal with the issues involved requires a considerable degree of objectivity. It requires objectivity in facing the reality of obtaining a conviction, or perhaps not proceeding, against the alleged perpetrators of war crimes and balancing that against the natural and continued desire of those affected by the crimes to ensure that justice is done not only to the living but to the dead. In one way, the living may be called the lucky ones —the survivors of the conflict —while the families of the dead are the continuing victims of the brutality that war breeds and the resentment that goes with it for all time. However, those humane considerations must not allow us to twist our normal standards of prosecution to achieve a result. Once the laws of evidence are changed, they will be incorporated into the law of the country for all time or at least until they are further changed.
The inquiry has faced those problems with a realistic approach and, subject to the restraints under which it worked, has produced a report which is of considerable importance even if no one is convicted of any war crime at the end of the day. The historical analysis contained in the report is a cogent reminder to today's generations of how things can go so badly wrong in the heat of conflict when reason and judgment are left behind and acts are committed, purportedly on behalf of the nation state, which leave the mind numbed and chilled in the retrospective review of it all and in the calmer and cooler time of peace.
That being the case, we must treat the matter very calmly. I was somewhat perturbed at the composition of the inquiry team. It had the look —I say this with great respect to the two members of the team —of a prosecution oriented inquiry. On the face of it, it lacked any lay or judicial balance of

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input. That has been sharply focused by our interesting discussion about whether the legislation is retrospective. Time is against us, but perhaps the report should be submitted to a panel of judges for a considered judicial view as to whether it is retrospective legislation. As the noble and learned Lord, Lord Hailsham, said, if it is not retrospective legislation, why not get on with the trials if that is what is wanted?
In fairness to the members of the team, both are distinguished members of the prosecuting systems of Scotland and England. It may be for the very reason that I indicated —the haste with which this is being done —that they were chosen as experienced prosecutors so that a report could be produced as quickly as possible. Like other noble Lords, I pay tribute to the report for the balance which it has tried to maintain in the difficult matters that were investigated. It deals with all the difficulties for prosecution and defence of an investigation into events of considerable antiquity in relation to which the evidence, where not recorded accurately and fairly at the time or closely after the event, must be looked at with considerable care to prevent any injustice being done to anyone against whom proceedings may be taken. It is plain that it has faced up to those difficulties. It is now up to Parliament to decide what, if anything, is to be done about those cases referred to in the report.
In reading the report and taking opinions from others —most of whom, although having heard about it, have had no opportunity to read the report —I must confess that I have swithered and changed my mind one way and another from time to time. The arguments are well set out in the report and I do not intend to rehearse them in detail. They have been gone over more than once. The basic question is whether we, as a country, should pursue persons reaching the end of their lives about events which happened 50 years ago, or whether, with the new Europe on the scene in 1992 and with the extraordinary events now happening throughout Europe, particularly in Russia and East Germany, we should adopt a charitable view that no good purpose will be served by any such prosecution and, indeed, considerable harm might be done. The report is not a political document in any way, but it would be interesting to know what the team view would have been in the light of the political developments in Europe. It may well have been the same.
It is plain that those who dealt in death and destruction of other human beings deserve to be punished severely, and the earlier the better, but that objective can no longer be achieved 50 years on. We are therefore dealing with a unique matter, historically, legally and evidentially. We are being forced into corners and are cutting corners about evidence with the hope that perhaps two people will be brought not to justice, but to trial.
There are great problems —I do not want to rehearse them again —about video taping, taking statements from people abroad and so on. Perhaps I may put it briefly. The essential feature of trials in Britain —I do not distinguish between north and south of the border—is the presence of the accused. The system being suggested here means that the
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accused will be further and further away from the evidence and will therefore not be in a position to instruct his counsel or solicitor, assuming that they are present when the evidence is taken. Common sense dictates that, if some of the accused were brought before the court here and there were any truth in the allegations against them, they would probably not dare to enter the country where the evidence was being taken for fear of reprisal. There is a danger in going in for artificial evidence. That is what is being created here. We must move with the times and make use of cameras and all the rest of it in the proper circumstances, but not with the sole objective of obtaining a desired result.
There have been varying reactions in various places as to how to deal with that problem. And we are now faced with our problem. One difficulty is that we do not know from the report what the weight of evidence is. We are told that it is sufficient evidence, but we are not told its sufficiency. When the report refers in paragraph 9.50 to horrific mass murder in the cases that have been investigated, it does not tie this down to the three cases that it wishes to see carried through. I do not know—perhaps noble Lords know better than I do from reading it —whether the observation, namely, that there are three cases of horrific mass murder almost ready to be set in motion, is true.
For obvious reasons, we cannot see the evidence. That raises a difficult problem because, as was said earlier, we must test the quality of the evidence. On the face of it, there may be a legal sufficiency of it according to a variety of sources, some unreliable and some perhaps reliable. But we must have quality of evidence before we start out on this road which will cause a furore whichever way it goes. If we do nothing, there will be a furore in some quarters; if we do something, there will be a furore in other quarters. We do not know what sufficiency means. I do not make a nationalistic point. Is it sufficiency by the standard of Scottish law with corroboration which has figured so sharply in the recent events concerning the Guildford Four? Or is there a different standard of sufficiency? Until Parliament knows the weight and quality of the evidence and what is meant by sufficiency, how on earth can Parliament launch the country into the prosecutions, if indeed any are to take place?
Perhaps I may demonstrate the new problem in this case about evidence. Paragraph 9.41 deals with Scotland and with taking evidence about a person who is proved now to be dead. It deals with the matter in some detail and then recommends that statements taken from such persons should be admitted. However, it does not give that admission the qualifications which it has in our law. Certain conditions must be fulfilled to make sure that it is a genuine statement from the person. Perhaps the most revealing evidential sentence in the report is the last one in that paragraph. It refers to statements given by witnesses and states:
"Questions might be raised regarding the impartiality of the Soviet investigators".
Let us take an instance where the person who has since died was interrogated in whatever year —1942, 1945 or 1950 —by investigators with certain

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objectives in mind, and that part and parcel of the statement is a reported indentification. How can the defence test whether it is a genuine identification? The problem is that it is that statement which will have brought the person into court. Even if the judge excludes it at that point and no prosecution succeeds, terrible damage is done to a person who may well be innocent in the whole matter.
There are many other interesting elements in this debate but I shall not take up the time of your Lordships' House any further at this hour of night. There are other speakers who no doubt have much to say. Having changed my mind first one way and then the other, I have still not made it up completely. I have found this debate very interesting as part of a learning process. My initial reaction was to say that we should forget it and let bygones be bygones; we should look to the new Europe, be that constructive or otherwise. In fairness to generations of sufferers, I am no longer entirely convinced that that is the correct approach. I want to read what has been said in this debate before I come to a final conclusion. Whatever happens, something must be done quickly before any more harm is done to the nation's morale in this very emotive area of public life.
7.10 p.m.
Viscount Tonypandy: My Lords, once again I apologise to the noble Lord, Lord Macaulay, for having interrupted his speech. I am very glad that I listened to him, though he ended up in the same state as the Government —not knowing quite what to do and seeking the advice of the House.
Throughout the whole of this debate I have been deeply moved. There has not been one dissenting voice to the horror of what happened in those terrible years. I was particularly moved by the words of the former Lord Chancellor, the noble and learned Lord, Lord Hailsham. I usually find myself expressing similar views on the horrors of that time because in the autumn of 1945 I visited Auschwitz. I saw rooms full of human hair that had been shaved off before people went to the gas chamber. I saw a room full of false teeth and another room full of shoes, including those of little children.
It is easy to stir emotions on this subject but it seems to me that there is a generation that does not know how low humankind can sink, as it did at that time. At Nuremberg I sat and listened to a great deal of debate. In my heart I am sorry not only that my good friend the noble and learned Lord, Lord Elwyn-Jones, is ill but that he is not able to stand here now. We know his views. They were expressed clearly by the noble Lord, Lord Mishcon, in his opening address tonight. We know also the views of the learned Sir Thomas Hetherington and William Chalmers, who are very distinguished lawyers. I am sure that no one in this House would dispute that fact. We find that the lawyers themselves do not agree upon the course that should be pursued. If their legal voices had been here to strengthen the argument advanced by others in this House in favour of the proposals, there might now be a different feeling in this Chamber.
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By chance, I am the first Gentile to speak in support of these proposals. It is purely a matter of chance because of my place in the list. There may well be other noble Lords who will follow my lead. I listened to some of the arguments that we did not know the evidence; but how can we know the evidence? That is for the court to examine. The principle remains: are we to stand out as different from all the other nations in Europe, different from Canada, different from Australia and different from the USA in saying that it is too late, however great the horror?
Lord Hailsham of Saint Marylebone: My Lords, I hope that the noble Viscount will forgive me for interrupting, but it has been said more than once that the USA is pursuing a course similar to these proposals. It is not; it is against the bill of rights. It is deporting those who are charged.
Viscount Tonypandy: My Lords, I stand corrected by the noble and learned Lord. However, in stripping of their Ameican citizenship those who are charged, the USA is taking very serious steps against the people concerned. If they are then sent back to the country whence they came, they may well be put on trial. So the United States is not taking the line which says, "Send for the bowl of water. We shall wash our hands and say that this is not for us. We are above it. We shall forget what happened".
I know very well that we are not asked to decide whether the individuals are guilty. Sir Thomas Hetherington, the former public prosecutor, and Mr. Chalmers are satisfied, having seen the evidence that we have not seen, that there is a case for a charge. I am a Christian believer, and when people say to me, "Vengeance is mine saith the Lord" I reply —and not only in this instance—"In that case you can close down the law courts". If one says in any difficult case, "Vengeance is mine saith the Lord", one must do that.
Man's inhumanity to man is accepted by all. However, tonight we and Her Majesty's Government should remember that France, Holland and West Germany continue to mount both investigations and prosecutions. Added to that, we should remember Canada and Australia. To think that the little United Kingdom, which played such a part in the name of the dignity of man and the freedom of the human race, should say, "Not me; leave them alone" and say it only because they succeeded in bamboozling the Home Office into letting them have British citizenship, which they would never have enjoyed had that evidence been available; it is only because their dishonesty has been successful!
If Sir Thomas Hetherington is right, are we now to say, "Let us have pity on them. They are old"? I am old. I am old enough to know that if we close our eyes to an issue of this kind we shall not be in harmony with the heritage of our people. I believe that we shall be side-stepping a difficult and painful issue because it is easier for us to turn our back on it. We have been told that the good name of Britain is at stake. I believe that it is. The good name of this land is at stake among free men everywhere. Are they to learn that the people of Britain who had such

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a different spirit when the terror rained down upon us now say, "Well, it is a long time ago"?
We are not going to have an army on trial. We say, in the words of Sir Thomas Hetherington, that if there is sufficient evidence that murder has been committed then they shall be charged. As the whole House knows, I am not a lawyer. But I understand that today in this land, if evidence emerges of a murder committed many years ago, there will be a prosecution and the person involved will be charged. In this case the only difference is that these people were not British citizens when it happened but have become so since.
The debate has been conducted in a wonderful way, with restraint, dignity and compassion on both sides. But I agree with the recommendation in the report. I hope that Her Majesty's Government will realise that in this land of ours there are millions who share my opinion.
Lady Saltoun of Abernethy: My Lords, before the noble Viscount sits down, how can we deport people who have not been convicted of a crime in a court of law?
Viscount Tonypandy: My Lords, we are not asked to do that, as I understand it. All that we are asked to do when there is sufficient evidence is to ensure that there is a prosecution. As I understand it, that is all that we are asked to do. I thought that above all this House stood for law and order.
7.21 p.m.
Lord Belhaven and Stenton: My Lords, we have just listened to a very impressive and moving speech of the highest standard of debate in your Lordships' House. My only regret is that while I normally wholeheartedly agree with the noble Viscount, Lord Tonypandy, I cannot entirely agree with him on this occasion.
When the noble Lord, Lord Walston, opened his very excellent speech, he apologised for addressing your Lordships. I feel therefore that it might be necessary for me to do the same and to give a reason for taking part in the debate, apart from the fact that I am a Member of your Lordships' House and a human being.
My wife is a Polish lady whose father, mother and family suffered in the terrible times of the Second World War. They suffered not only from the German occupation but, in the case of my wife's mother, equally from the Soviets when she was driven from her home and had to take refuge in the German occupied area. Therefore what I say to your Lordships is coloured and informed to a considerable extent by the views that I have heard expressed to me by these very good Polish people, and through an interpreter.
In paying tribute to those who drew up the report, I should like to compliment them on their very clear and fair setting out of the historical background in Chapter 2. Indeed, the report so far as I could understand it —although some of the legal arguments are a little beyond a layman —is very well put together. I am therefore left a little puzzled by the recommendations with which I cannot agree.
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The historical background in its essence has not been very much dealt with this evening. It is well known. It is one of the great tragedies of our time. It originated with the infamous Ribbentrop-Molotov pact which is only now being mentioned in the popular press in Eastern Europe although the people knew about it long before. This signalled the start of the Second World War.
Briefly, to sum up what happened, as a result of this pact, Poland —which was desperately defending itself, as those of us who were alive at that time remember, and which was also an ally of this country —was treacherously attacked without warning or pretext on 17th September 1939 by the Soviet Union. Furthermore, as an integral part of the Ribbentrop-Molotov pact the three Baltic republics of Latvia, Lithuania and Estonia were occupied by Soviet troops. As I read the report, by July 1940 those countries ceased to be independent.
Those to whom I have spoken who directly experienced these times nearly all agree that the Soviet regime in Eastern Poland and the Baltic Republics was every bit as brutal and oppressive as the Nazi regime in Western Poland.
The report is quite clear on these facts. But I think it is true to say that we usually have only one side of the story: the German atrocities, concentration camps, death camps and so on. God knows, that is bad enough. But I believe that even now our Foreign Office does not accept that Soviet troops carried out the murder of Polish officers at Katyn, although this is well known to everyone else, so far as I know. Perhaps the Minister might care to comment on what the Foreign Office view is now of the Katyn massacre, because I believe that any day now the Soviet Union will admit that it was responsible. I therefore think that it is about time our Foreign Office did so. At that time on both sides of the dividing line in Poland and in the Baltic states, deportations, imprisonment, torture and murder were the order of the day in the Soviet occupied areas just as much as they were in the German occupied areas.
We have heard a lot from very eminent and honourable Jewish noble Lords in the debate. I hope that they will take what I say in good part. It is not supposed to be in any way an attack on Jewish people for whom I have the very greatest respect, although it might be an attack on a very few of them.
I understand that the pressure behind the drawing up of this report and it recommendations was, and still is, the Weisenthal Centre. It is natural that the Jewish people should concentrate almost wholly on crimes against Jewish people and thus to them the only villain is Nazi Germany. Atrocities against other nationalities are possibly not in their province. That is to a large extent understandable, particularly in view of the appalling atrocities that were committed against them. However, as the report also makes clear, there was another side to the story. Not only gentiles sinned in those days. I draw your Lordships' attention to page 9 of the report, paragraphs 2.17 and 2.18, where it is made clear that Jews were prominent if not dominant in the Soviet repression of the Baltic republics that preceded the

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German invasion. No one has yet suggested that those who were engaged in the Soviet repression, whether Jew or gentile, should be hunted down and brought to justice. Yet the one was as bad as the other. So what is this all about? As one noble Lord asked: are atrocities all right so long as they are committed by the winning side?
I agree with the people who have spoken in favour of the report, that these people should have been brought to justice. But the noble Lord, Lord Mayhew, in an excellent speech, pointed out to us the difficulties of doing it at the time. However, if we are dealing with humanity, the Soviet criminals should have been brought to justice as well, but they were supposed to be our allies, so I do not know what we do about that.
It should all have happened 40 years ago. The trail is cold and most of the witnesses are dead. These people who are being pursued now have been living so far as we know blameless lives in this country for many years. They have families, children and grandchildren, none of whom is in any way to blame for what happened, but all of whom will suffer if this matter is taken any further.
We know how the families and close friends of people in these circumstances suffer very often more than the people who are accused, in particular when the people who are accused are old men at the end of their lives. I do not think that we ought to visit the sins of the fathers on the children who will suffer most at this stage. So far as I have heard, there is only one father involved. The father is now so old and the process of law so slow that he might be dead before any conclusion is brought to this matter. But the children will remember it. They are British citizens. They will live, and the bitterness will go forward through the generations.
Other noble Lords have dealt with the difficulty of procuring witnesses. I cannot believe that it is part of the duty of a British Government to hound innocent old men to their graves. But if we continue with this business, it is probable that we shall. I say "innocent" emphatically because we do not yet know whether or not they are guilty. It is quite possible that even this one man may be proved to be completely innocent.
In spite of certain comments that have been made in your Lordships' House today, I do not believe that such action will stop those incidents from happening again. I believe that the contrary may be the case because hatred breeds hatred and revenge breeds revenge. In monetary terms the cost of bringing such cases ought to put us off. However, the cost in moral terms and the perpetuation of hatred best forgotten may be incalculable. I beg Her Majesty's Government not to proceed further in the matter.
The terrible emotions felt during the 1930s and '40s are still just beneath the surface in Eastern and Central Europe. I know that from my experience of speaking to those people. I ask the Simon Wiesenthal Centre, "Do you really want to stir it all up again?" because that is what you would be doing. An outbreak of anti-Jewish feeling across half of Europe would be a tragedy in this otherwise hopeful era.
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I say to your Lordships, and particularly to those noble Lords who have spoken in favour of the report, let God judge the wicked. The past is beyond recall and nothing that happened can be changed. We have our children and our children's children to think of. We must not go back to those evil times. I hope that the report will signal the end of the matter.
7.30 p.m.
Lord Wilberforce: My Lords, I am not sure that after 23 speakers your Lordships wish to hear another lawyer's speech so I shall be brief. Most of what I wanted to say has already been said, and said better than I could have done, by my noble and learned friends, Lord Simon of Glaisdale and Lord Hailsham of Saint Marylebone, and by the noble Lord, Lord Campbell of Alloway. The non-legal aspects have been put by the noble Lords, Lord Mayhew and Lord Home, and the right reverend Prelate the Bishop of St. Albans.
I thought that I should join in the debate and trespass for a few minutes on your Lordships' time only because more than any Member of your Lordships' House —except for the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Shawcross, who unfortunately are not present —I was closely associated with the process of bringing the war criminals to justice at the end of the war. I was the senior legal officer on the British side in occupied Germany. I was first with the supreme allied headquarters and then the allied control commission. We were responsible for passing the necessary legislation, among which was the Allied Control Council Law No. 10 mentioned in the report. Part of that law was directed towards the administration of setting up the war crimes trials. Therefore, to some extent I was involved with the international military tribunal at Nuremberg and with tribunals set up in the various zones in Germany.
I visited, but did not take part in, the trial at Nuremberg. I also visited the trial of the managers of the Belsen concentration camp. Therefore, I came close to the appalling facts revealed at those trials. I was directly concerned in setting up the new purified Germany courts after the war to which it was British policy to transfer war criminal trials. I was also concerned with the preparation of the registers —the CROWCASS —of which mention is made in the report. When I was part of the Civil Service I was also concerned not only in Germany but later in this country with the policy as regards the hundreds of thousands of people from the Baltic states —the Ukraine, Poland and White Russia —who were then leaving Europe in order to start new lives in the West, either in North America or this country. That is a situation which is liable to be forgotten in this debate.
When that huge movement was occurring, it was perfectly plain to everyone that among those people there may be some who had participated to some degree in war crimes. There was no doubt about that. Some elementary screening was carried out but obviously not much. I believe that in full consciousness the decision was taken not to embark on a policy which would have been quite

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impracticable; that of screening each person to see whether they had been involved in war crime activities.
To some extent I was involved in the formation of the policy of the British Government, although not so directly as was the noble Lord, Lord Mayhew. It is set out most clearly in the report. Indeed, it is set out so clearly and convincingly that I find it difficult to understand how the inquiry arrived at its conclusion. Notwithstanding the policy of the British Government clearly stated and followed, it decided that we should now embark on a different course. The argument appears at paragraph 9.6 of the report. I am a great admirer of the report. It is splendid, well-researched and argued and most fair. However, some of its conclusions are a little weak. I believe that that conclusion does not begin to follow from the presentation which is made in Chapter 3 regarding the policy of the British Government.
We have heard described Mr. Churchill's policy of quick, direct action —that of shoot the criminals —through to the War Cabinet deciding that there must be trials on the basis of existing law. We acted on that in our zone and in the Government of Germany with complete willingness. The British Government played a full part in the international military tribunal in Nuremberg. Perhaps it is fair to say that we played a leading part. We played a full part in the trials in our zone in the military courts and in the military government courts.
The report makes a comparison between what we did at Belsen and what the Americans were able to do at Dachau and it is unfavourable towards us. However, it must be remembered that we had not one-tenth of the resources that the Americans had at that time. We had to make do with a number of military lawyers and a few who could be persuaded to come from this country. On the other hand, the Americans were equipped with full teams of splendid lawyers, many who were Jewish refugees from Germany. They were also fully equipped with logistics and secretarial assistance. It is not to be surprised or regretted and no apology should be made for the fact that we were unable to do so much.
I am sure that our part in those activities was honourable and complete, and one for which we need offer no apology. In view of that considerable justification and argument is required to persuade us that we should take a different course from that clearly decided. Namely, it was decided in 1949–50 to carry out no more war crimes trials. Noble Lords may remember that the noble Lord, Lord Shawcross, wanted to terminate them in 1946. He was overruled by Mr. Attlee and Mr.Bevin. Nevertheless, the policy was carried out and completed by 1950. It was supported by public opinion in the country, by both Houses of Parliament and by the 1949 debate in which not a single dissentient speech was made.
What has happened since then to justify a reversal and a reverter to the policy of war crimes trials? Have there been any changes of fact and situation? Has new information been revealed? At the most it can be said that we were in a sense of security and not paying as much attention as we could have paid
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to everyone living in the country. However, 40 years later no great revelation has been made which would justify the reversal of a thoroughly well-considered and just policy. On the whole, the British are not vengeful. It is in accordance with the British spirit that we should be severe when necessary but not pursue matters beyond what is best in the interests of peace and peaceful living together.
I turn to the decision urged upon us by the report —now to pass legislation —and I shall deal with the retrospective issue. The matter has been well argued on both sides. I shall not do so but one could develop a subtle legal argument about whether or not it is retrospective.
However, there are two points which I believe noble Lords might like to bear in mind which have not been fully put. The first point has just been referred to in another context by the noble and learned Lord, Lord Hailsham of Saint Marylebone. He raised the matter of what the Americans did. It was suggested to them that they should pass legislation enabling trials to take place in their country. They said that that was contrary to Article 9 of the constitution which says that no ex post facto legislation may be passed. That was made absolutely clear. Therefore, the Americans have not passed legislation, which we are now asked to pass, making it possible to try war criminals resident in America in American courts. They have taken a different line. Should we depart from that? Are we wiser than that? Surely we should pay considerable attention to that.
The other point worth bearing in mind is the existence of two important Acts which have been passed since the Second World War which might have covered this case. The Geneva Conventions Act 1957 enables trials to take place in this country of severe war crimes contrary to the Geneva Conventions 1949. The Genocide Act 1969 enables trials to take place in this country of acts of genocide contrary to the Genocide Convention. However, in paragraphs which your Lordships have seen, the report says that those Acts cannot be used because to use them would be retrospective. They cannot be used retrospectively. Therefore, what does the report do? It suggests achieving the same result by the back door and passing legislation on the basis of murder, manslaughter and, most extraordinarily, on the basis of residence in this country which has never been a basis in criminal law.
I believe that one should not rely on legal technicalities but on the deeply felt sense, not only among lawers but among ordinary people, that what looks like retrospective legislation should not be adopted. That is based on a moral feeling, as referred to by the noble and learned Lord, Lord Simon of Glaisale, that that is wrong and also on the consciousness that when there is retrospective legislation, there are liable to be very great difficulties as regards the method of trial and evidence.
That brings me very briefly to the third aspect of the case; namely, the preparation of the trial. It is no good thinking here in terms of a short quick trial of one person, whether or not it is a show trial. Once the process is started, it must be completed. Legislation must be passed in the first place. That is

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not very easy. One must also cater for the situation of evidence in Scotland. The process may well take a year. That having been passed and the decision to prosecute having been made, some of these wretched people will have to be arrested, held in custody and added to the 1,200 people in remand prisons awaiting trial. There will be a preparation for trial which I would guess could not take less than two years having regard to the material which has to be gone through.
Let us just consider the material which the report discloses to us. There are three separate sets of archives in Berlin alone and archives in Bonn, Munich, Ludwigsburg, Coblenz, Potsdam, Vienna and Jerusalem. Anyone who has been through the Yad Vashem can only be conscious of the very great difference in the quality of evidence lying there. There is masses of it but how much of it would be useful in a legal case is very much open to doubt. Washington has a great amount of evidence and there is a great deal in Soviet hands. Much of that has not been gone through at all. The report tells us that the Soviet authorities are quite incapable of coping with the mass of evidence there in such a way as to meet Western demands. All of the archive evidence would have to be sifted. I know much has been done already but the defence would need an opportunity to go through that evidence if the defence is to be properly conducted.
There is then the problem of witnesses. We are told that 40 witnesses have been interviewed by the Commission in relation to one case. Again, some may be useful and some not, but the defence would have to have an opportunity of looking at them, interviewing them and finding witnesses of their own.
We then come to the evidence. I am not so troubled about the problem of a TV link and changing the law of evidence, as perhaps some of your Lordships are, although I agree that one must not change the rules to meet this particular case. I believe that the use of modern methods is quite impracticable in relation to this type of trial. It just is not on. A trial cannot be conducted with 40 people scattered all over Europe speaking different languages with interpreters and so on, and being cross-examined through a video link. That is simply not possible. I do not believe we should worry very much about that, although, I would dislike it if it were recommended to your Lordships, because for the purposes of a trial the witnesses must be here and the accused must have a proper opportunity of being confronted by the witnesses.
There is then the trial itself. The trial of Demjenjuk in Israel took 14 months. Perhaps we can be a bit quicker than that, but let nobody suppose that it will be an easy trial. It will be a prolonged and painful trial. It will not give satisfaction to the public and will cause a great deal of distress to the people involved. It will cost a lot of money.
If one links that with the retrospective argument —and one really follows from the other —it seems to me that we should not go down that path.
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I should like to answer the point on the position of other countries. The noble Viscount, Lord Tonypandy, urged on us that we should not stand alone and that we should be conscious of what is being done in other countries. I agree with that up to a point but it should not be overstated. The report gives the evidence as to what other countries are doing and they are acting differently. I believe that I am right in saying that no one has embarked on the path of retrospective legislation. Indeed, in the Federal Republic, the Basic Law prohibits it as does the American Constitution so that that door has not been opened.
Belgium is not trying anybody. Sweden has been asked to pass retrospective legislation and has not done so. America has refused to pass retrospective legislation and is deporting or depriving people of citizenship. Therefore, one is left with Canada and Australia. I agree that those are important countries with which we should very much like to be in line. However, they do not give us a very useful precedent. Canada passed an Act in 1987 which gives a very wide definition of what can be tried there —a trial to be based on presence in Canada and not citizenship or residence. The definition given is as wide as the Nuremberg definition of crimes against humanity. In any event, we are not going to go down that path. It is only recommended that we should try murder or manslaughter amounting to a war crime. Therefore, we shall not follow Canada.
Australia passed an Act in 1989. Again, that is a very wide test based in that case on residence but that has not been tested in the courts. That is a very wide definition which includes wounding, rape and a whole lot of other offences. Again, we are not going down that path. In any case, no prosecution has yet been launched in Australia and I do not believe that one has been launched either in Canada. There is no valuable precedent.
We should take our own course based on our own convictions and record. Our record is perfectly honourable. I cannot believe that the name of this country would be in any way in jeopardy if we adhered to our policy which was carefully thought out and adopted by the British people and both Houses of Parliament in 1949. I very much hope that we shall not go down the road advocated by the report.
7.49 p.m.
Baroness Elliot of Harwood: My Lords, this has been a very interesting debate. I believe that I have listened to every speech. I shall be brief because so much has been said and I am not a lawyer and cannot compete with the noble and learned Lord, Lord Wilberforce, whose speech I found absolutely fascinating. I learnt an enormous amount from it.
At the outset I should like to say how sorry I am that the noble and learned Lord, Lord Elwyn-Jones, is not with us this evening. He is the one person who would have been able to tell us so much from his own experience and I hope that messages will be sent to him to say how much we regret his absence.
I agree with the noble Lords, Lord Mishcon, Lord Jakobovits, Lord Wolfson, and my noble friend Lord Beloff. I am on that side because I have spent a great

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deal of my adult life working with the Israelis and I have friends in the Israeli world. We should do anything we can to justify and protect the Israelis. We in the United Kingdom have always supported the principles which are involved in the report. Crime should be reported, trials should be just and fair and the people to be tried should be British citizens. In the cases described in the Hetherington Report, the people concerned were not born in Britain but have been granted British nationality. If the crimes they committed are of the appalling nature of the Nazi Holocaust, they should be tried despite the length of time which has elapsed since the end of the war. At the trial they should be allowed all the defence they ask for. Every fairness should be allotted to them.
The crimes that have been committed are recognised by several European countries. The noble and learned Lord, Lord Wilberforce, described them to us just now. In our country all the rights of the accused will be recognised. The verdict on any person brought to trial will be decided by the jury, as it is today in all criminal trials. I understand that the principles covering all trials will be allowed to all the accused. The Hetherington Report stresses that if the accused are British citizens by birth there will be no question that they should stand trial. I am concerned, as we all are, with the matter of the age of the accused. That is of great importance, but according to the report the jury will judge whether the accused is too old or frail to be brought to trial. That is another safeguard.
According to the report, the United Kingdom is the last of the great powers involved in the last war to bring war criminals to justice. On principle alone our law should cover these criminals as it does all other criminal offences. I am no lawyer, but I have been associated with the Jewish community and the state of Israel for all my adult life. I feel that in spite of the problems and the changes that would need to be brought about, justice should be done. I support the report.
Lord Campbell of Alloway: My Lords, before my noble friend sits down, I hope I may be allowed to put the record straight. With the greatest respect, the report does not put it in the charge of the jury to decide whether the accused is too old or too sick to stand trial. That is always a matter for the High Court judge.
Baroness Elliot of Harwood: My Lords, I apologise if I made that mistake.
7.52 p.m
Lord Hankey: My Lords, this is a remarkably well written and instructive report and I have learnt a lot from it. However, I disagree with its conclusions. I think the time really has passed for starting more prosecutions for war crimes. I agree with my noble friend Lord Mayhew, who was Minister of State in the Foreign Office at the time, that we consciously and deliberately stopped prosecutions in 1948 or 1949. I think it was 1949. I was head of the northern department in the Foreign Office at the time. I dealt with Russia and Eastern Europe and I agreed with
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the decision. I honestly think it is too late to go back on that.
I do not want to be misunderstood. I stress that I am not soft about the Nazis. I propose to explain why that is. When I went back to Poland in July 1945, the city of Warsaw was largely destroyed. One heard appalling stories of its destruction, especially of the ghetto where several dearly loved Jewish friends of mine perished. I found it hard to believe how a nation like Germany with a thousand years of Christian civilisation behind it could conceivably have committed such crimes. I went to two extermination camps in September 1945 —Maidanek and Auschwitz —to see whether there was really proof of the awful stories one heard. I warmly support what the noble Lord, Lord Beloff, said. We should never believe what the neo-Fascists say about the stories being fabrications by vengeful allies. That is total bunkum. The real facts are ghastly. At Maidanek I went first to the gas chamber. The Nazis were punctilious. A receipt was given with a general breakdown by a prisoner every time he or she filled a gas chamber. I handled personally a huge file of receipts and was able to analyse their contents. The language was no problem to me. I knew German well as I had attended a German university. A typical receipt would state, for example:
"Received at the gas chamber at Maidanek at 11.20 a.m. on 3rd February 1942".
Then a list of about 35 people would follow. The following list would be fairly typical:
"12 Polish Jews with 3 children, 5 Poles, 2 Austrian Jews, 7 Ukrainian women with 3 children, 6 Belorussians, 1 Norwegian".
That is the kind of thing one saw. There was a huge pile of receipts. About 40 per cent. of those executed were Jews. There were plenty of others, especially people from Eastern Europe and Western Russia. Two of my polish friends who had been deported to Western Russia told me that the local populations, Belorussian and Ukrainian, were at first quite prepared to be liberated by the Germans. This can be seen in the report. However, much against the wishes of the German army officers, who were generally speaking respectable people, the SS men insisted on carrying out the Nazi policy to exterminate the races of Eastern Europe. This of course turned the population against the Germans. I certainly saw strong evidence of this at Maidanek.
We should never forget the old Latin tag:
"Quos Deus vult perdere prius dementat" —
he whom the gods wish to destroy, they first make crazy. If that does not apply to Hitler and those of his ilk, I do not know what does.
The bodies from the gas chamber, which was refilled with prisoners approximately every 20 minutes or half hour for about two years, were put into a row of ovens and burnt. The people in Lublin told me they always knew when a new batch of prisoners came in because the smoke went up very black. When the poor wretches who had been starved for months were fed into the ovens, apparently there was not very much smoke. The final white powder was distributed for use as bone meal. Everything was used. The prisoners were shaved before they entered the gas chambers. I saw a receipt for a consignment

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of 1,200 kilograms of human hair. That is about one and a quarter tonnes. There must have been a lot of people to generate that.
I saw tins of gas labelled:
"Zyklon, poison gas, danger to life, only to be opened by trained personnel".
It was made by a firm in Hamburg. The highly coloured tins were marked, red, white and black.
I have also seen the shoes of the dead in a truly vast collection piled up on two sides of an army type hut. The shoes were piled four feet deep. There were smart shoes, workers' shoes, agricultural shoes, the kinds of shoes old French women wear when they go shopping, tiny children's shoes, Austrian shoes, Norwegian shoes and Polish shoes in quantity. There was every kind of shoe imaginable. There were said to be 800 pairs in the hut I saw and I was told it was the last of a number of collections.
The gas chambers could not always cope with the numbers involved. The SS men forced prisoners to push carts of bodies up a long hill and tip them into huge mass graves. That of course exhausted the prisoners further. Later, live prisoners were machine-gunned into the graves. The wounded were buried with the others. That was less trouble. I saw the huge pits.
At Auschwitz the gas chamber operation was mechanised, but I shall not weary your Lordships with more horrors. One has to try consciously not to let such memories poison one's thinking and ruin one's life. But noble Lords will easily see why I have never been soft about the Nazis, especially the SS. I swore never to shake hands with another SS man. I hope that I have not done so.
All the same, I cannot accept the conclusions of this otherwise excellent report that we should now, nearly half a century after the terrible events of the 1940s, change our law in order to start prosecuting alleged war criminals from those awful times. I have many reasons for saying that. First, it is much too long after the events to start again to prosecute, especially in the case of people who have become British subjects and who have lived among us respectably for so many years. I think it would greatly upset our people if we did that. We do not want our people to sympathise with those who are alleged to have committed atrocities, even 45 years ago or more. The noble Lord, Lord Houghton of Sowerby, made a magnificent case about that.
Secondly, this most interesting report shows clearly that most countries have stopped prosecutions of this sort partly because of valid statutes of limitation. I do not think that we are going to suffer from doing nothing. In fact, I believe it will be the other way about. Thirdly, I do not quite know why, but I did not at all enjoy the BBC accounts of the Barbie trial in Lyon or that equally famous trial in Israel which went on for months and months. I did not sympathise with Barbie, but, for good or ill, it left rather a bad taste in my mouth.
Fourthly, I understand only too well, after what I saw in Poland, the "eye for an eye and a tooth for a tooth" philosophy behind such prosecutions. The
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same idea arises instinctively in one's breast when one thinks about what one has seen, but for good or ill I instinctively recoil from it. I do not think that our countrymen enjoy that approach. It is entirely against our good Christian upbringing and philosophy.
Fifthly, no one can think that we have been soft with the Nazis. German cities have been laid waste in a terrible way. I think of Dresden, Hamburg and Berlin. They were really incredible just after the war. The Nazis and their whole philosophy with them have been trodden into the ground and rejected world-wide. Their leaders have all died or been tried at Nuremberg or elsewhere, and they have been punished. Nazism is dead and we should do nothing to tempt some people to sympathise with it.
Sixthly, and very important, is this. It really is time to think forward and to generate positive support for the new Europe we absolutely must create. Not for half a century have we had such a magnificent opportunity to create a continent of co-operation, prosperity and peace. This is no time to waste brain power, resources or parliamentary and judicial time and genius digging up sterile cases from the past. For God's sake let us look around; let us look up and forward and not back. We have some formidable problems to solve —real, current human problems —and the whole world is in flux.
Finally, I wish to remind noble Lords of a very old, very wise, very British and very Christian motto: the noblest vengeance is to forgive.
8.3 p.m.
Lord Irvine of Lairg: My Lords, I rise to wind up from these Benches, but on on my own behalf. I echo my noble friend Lord Mishcon, who opened up from these Benches. This is a subject for individual judgment and not for party line. That is the position of my party and I wind up on that basis.
The issue we have been debating is whether Parliament should pass legislation to enable the prosecution of a very few people—probably of great age —for war crimes, the mass murder of Jews, allegedly committed in what are now parts of Soviet Russia nearly half a century ago. My generation, which grew up in the war and whose fathers fought in it, knows that it was a just war. The Hetherington-Chalmers report describes psychopathic evil on a vast scale. Having just heard the horrors that the noble Lord, Lord Hankey, described, I have to say that the report is about the atrocities that are at the sinus of man's inhumanity to man.
I too have respect both for the detailed quality of the report and the good conscience of its authors. But as I read it not once but twice, and as I listened with care to views on all sides of this debate, I became more convinced that there is, in its reasoning, a central gap; a gap that cannot be filled and one which tells compellingly against the legislation proposed. Certainly the authors of this report, as former heads of criminal prosecution respectively in England and in Scotland, not unnaturally asked themselves the question which a responsible prosecutor must ask himself: is there evidence to give a realistic prospect of conviction? They conclude that in some cases there is.

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That would be a sufficient question if this was an ordinary domestic case, but that is precisely what these cases are not. They concern events 40 or 50 years ago in unique conditions and largely in the Baltic states where most of the witnesses, whether for the prosecution or for the defence —I emphasise "for the defence" —are old or very old and now live in the Soviet Union. To my mind the question that this report poses is incomplete. It is not sufficient in these very special circumstances to ask only whether there is sufficient evidence available to the prosecution in some cases to give a realistic prospect of conviction. That is the only question that the report asks.
It is also necessary to ask: will the defendants to these charges in practice enjoy the same facilities as the prosecution from within the Soviet Union to enable them to bring evidence in their defence before British juries? If the answer to that question is that we cannot be satisfied that they will, then for my part what is proposed is a legislative adventure with which I would want nothing to do. One of the values for which we fought and for which so many died during the last war was freedom under the law. I would not devalue our standards for fair prosecution and trial to prosecute alleged war criminals, however horrific the crimes alleged.
I would not be so much deterred as other noble Lords by concerns about passing legislation which would give us a jurisdiction retrospectively over these offences. I would not, to prosecute alleged war criminals, permit our system of criminal prosecution and trial to apply standards of justice lower than those which we traditionally apply. These standards are not for compromise even where the allegation is that the defendant was a butcher in a death camp. We must remember that what is proposed is the assumption of an exorbitant jurisdiction over war crimes said to have been committed nearly half a century ago in Eastern Europe by persons who only subsequently became citizens of this country.
Therefore it is necessary to consider all the inherent and inescapable circumstances of these cases to decide whether prosecutions for which there is sufficient evidence could be brought, after the passage of legislation, in a way that would not compromise the standards of justice that we invariably apply in the conduct of criminal prosecutions and trials. If it cannot be done without compromising these standards, I submit that it should not be done at all.
I do not say that the delay of nearly half a century necessarily means that our standards of justice cannot be met. Delay is for me a potent factor, but not the most potent. Delay has a general tendency to turn justice sour; it always tends to prejudice the fairness of the trial of any issue. Delay means witnesses who cannot be traced, who die or disappear, forget or imagine. As the noble Lord, Lord Home of the Hirsel, so wisely observed, old men forget. The greater the delay the greater the risk that justice cannot be done. The promise of Magna Carta was that to no one will we deny or delay right or justice.
Delay is by no means at an end. If legislation were to be decided upon it would take time to pass. The
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report recommends further investigation into no fewer than 75 cases by the prosecuting authorities. That would take place after the legislation. Defendants would be well entitled to ask the judge at trial for a substantial adjournment to enable investigations to be made in Russia to prove innocence. The reality is that years of further delay lie ahead on top of the inordinate delay already.
I would say to the noble Viscount, Lord Tonypandy, that there is more to the case against this report than the fact of delay, which, as he rightly says, would not necessarily prevent a prosecution for murder committed in this country many years ago. It is not just the fact of delay that should influence us. It is the fact of delay in conjunction with the nature of the defence, which realistically will be the defence of the great majority, if not all, of these cases if they materialise. The defence will not be that the alleged butcher in the death camp did not exist; it will be that he did, but that the defendant was not the butcher. So the issue will be one of identification or of alibi nearly half a century after the events. The noble and learned Lord, Lord Simon of Glaisdale, drew attention to that point.
The typical direction by the judge to the jury in this country where the issue is identification is along the lines, "I must warn you of the special need for caution before convicting in reliance on the correctness of the identification. The reason for this is that it is quite possible for an honest witness to make a mistaken identification, and notorious miscarriages of justice have occurred as a result. A mistaken witness can be a convincing one, and even a number of apparently convincing witnesses can all be mistaken." Of course that warning would be given to juries if the prosecution, which the authors of the report contemplate, were to take place. The noble Lord, Lord Jakobovits, expressed his confidence in our system of justice —the judge and the jury. But I ask myself whether justice is capable of being done. That question is not answered by applauding a system which has never before been asked to work and seek to do justice in such extraordinary circumstances. So the question I ask myself is whether we can be satisfied that the defendants would have any reasonable opportunity to track down in Russia and call at trial the evidence of witnesses they might require to support the defence that they were not the persons alleged.
The report itself concluded that at least one of the 17 names provided by the Simon Wiesenthal Centre was plainly a case of mistaken identity. It also recorded that another name on the centre's list was withdrawn because the person said to have come to the United Kingdom was merely the namesake of a war criminal who had actually been tried in the Soviet Union. The report explains that, given the length of time that has passed since the crimes were allegedly committed, the difficulties of transliteration of names and the scanty information about the present whereabouts of these criminals, even the tracing of suspects was not an easy task. Elsewhere it recorded that, as more than 40 years have elapsed since the alleged crimes were committed, both eye witness testimony and documentary evidence have proved difficult to obtain. Some allegations were found to be completely

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unsubstantiated or to be grounded on personal animosity rather than on fact. Manifestly, after almost half a century, the problem of the quality of identification evidence is acute.
Perhaps I may now draw the attention of the House to a key feature of our system of prosecution and trial —the duty of the prosecution to assist the defence. The prosecutor in this country, if he knows of a credible witness who can speak to material facts which tend to show the prisoner to be innocent, must either call that witness himself or make his statement available to the defence. The same rule is reflected in the Attorney-General's guidelines on the disclosure of information to the defence. I ask myself, as the noble and learned Lord, Lord Hailsham, asked himself in his speech, how these standards can be made to apply to prosecutions where most of the relevant evidence from individuals and documents, or a great deal of it, will be within the Soviet Union and concerns events which occurred nearly half a century ago.
The Government and the authors of the report have come down decisively against extradition of the suspects to stand their trials in Russia. The report puts it in rather less diplomatic language when it says:
"We could not be confident that a person extradited to the Soviet Union would necessarily receive the fair trial to which we consider he is entitled, and we consider that this view would be shared by the great majority of the British public".
The further question which this opinion prompts concerns the fairness of the trials that we are capable of securing when the principal evidence must come from the Soviet Union, to which we are unwilling to assign these suspects for trial. What assistance will defendants here be given to find evidence to assist them in the Soviet Union? I noted from the acknowledgements written by the authors of the report that on all their evidence-gathering visits they were accompanied by representatives of the Office of the Procurator General in Moscow, that it was not possible to visit the Soviet archives and that such material as was obtained was requested on the inquiry's behalf by representatives of the Moscow office. I noted that the Soviet authorities appeared to have insufficient resources —the noble and learned Lord, Lord Wilberforce, mentioned this point —to cope with the renewed interest in war criminals in the West. The report says:
"As a result, we were not always able to travel to the Soviet Union when we wished, nor did we receive promised materials as quickly as we might have liked".
The pressure on the United Kingdom from the Soviet Union was made very explicit. Both the Soviet Union and Soviet public opinion consider it important that the United Kingdom should be seen at last to be bringing war criminals to justice.
The inquiry, as the noble Earl indicated in opening the debate, found that in the cases of four individuals —one has since died and another two may be medically unfit to stand trial —there was a realistic prospect of conviction for murder. There are therefore two cases that are fit apparently for prosecution. The inquiry has already recommended further investigations into as many as 75 other cases.
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The political background is that many of the possible defendants will have been anti-communist: whether they were fascist will be in issue. Many of them, as the report records, will have fought for the Germans against the Russians. Whether out of choice or necessity will be imponderable. Certainly they will have been classed as collaborators or traitors by the Soviet Union which would have regarded them as Soviet citizens because of the two-year Soviet occupation of those territories.
Against that background the true question is not merely the question put in the report:
"Is there sufficient evidence out of Russia to justify a prosecution against anyone in this country?".
It is also: can we be satisfied that a defendant would now have a reasonable opportunity to obtain out of Russia evidence to support a defence of mistaken identity? The noble Earl, Lord Ferrers, who opened the debate in so eminently balanced a way, pointed out several relevant questions. I recall what the noble Earl said. Can one expect witnesses accurately to identify offenders 50 years later? Will the prosecution evidence be open to fair challenge by the defence? Will it be possible for the defence to gather evidence? Because of the long passage of time and the inherent and inescapable circumstances, I would answer "no" to all these questions. Therefore we should say "no" to this legislative adventure, not so much for the reason given by Mr. Churchill at Zurich in 1946, which was quoted by the noble Lord, Lord Mayhew,
"There must be an end to retribution. We must turn our backs upon the horrors of the past and we must look to the future",
as for reasons connected with justice.
The noble Lord, Lord Jakobovits, asserted that there was all the difference between justice and vengeance. The right reverend Prelate the Bishop of St. Albans, correctly said that the issue concerned the nature of justice in these very special circumstances. Perfect justice would require the punishment of war criminals, however belated. But perfect justice cannot be secured in an imperfect world. If the inherent and inescapable circumstances are such that we cannot accord justice by our standards in our courts, I say that we do not embark on this legislative adventure. Justice, in a different sense from politics, is the art of the possible. If it cannot, after nearly 50 years, with confidence be secured, I would say enough is enough, and we should look with hope to the Europe of tomorrow.
8.19 p.m.
Earl Ferrers: My Lords, we have had a debate on a most sombre subject. If I may say so, the concluding words of the noble Lord, Lord Irvine of Lairg, are most important: when considering all these difficulties, we must look to the future. It is a fact that every speaker has spoken for himself in the matter. Moreover, as one may expect, the conclusions have not been unanimous. However, in my view it is a good thing that it has been so because there is a substantial diversity —a perfectly justified one —as to what is the right course of action to take, if there is such a thing.

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At the outset I should like to say how sorry I am, as indeed are all noble Lords, that the noble and learned Lord, Lord Elwyn-Jones, is not here in his place. Not only are his contributions to our debates always an asset, but in this subject above all he is a great expert and his contribution would have been most valuable to your Lordships. I trust that the noble Lord, Lord Mishcon, will be able to convey to the noble and learned Lord not only how sorry we are that he could not be with us evening, but also that we hope he will enjoy a speedy recovery.
I think that the debate has been characterised, in the words of the noble Viscount, Lord Tonypandy, by restraint, dignity and compassion. Those words sum the matter up very well. The only word I would add is respect —that is, respect for the views which are held, quite justifiably and understandably, by those who take a different view from the one which any other noble Lord may take. That is a difficult situation when we are talking about the degredation of humanity, as the noble Lord, Lord Jakobovits, said. We have had to discuss some terrible happenings. Many awful deeds were carried out. Somehow we must try to ascertain the best way to deal with the problem.
We have had the advantage of a quiet and what one may call a sober debate, especially as it concerns such a difficult subject. It is the kind of debate which your Lordships undertake very well. Further, the debate has been void of the enhanced eagerness and the increased tensions which inevitably arise if there is to be a vote at the end of the proceedings. That fact has enabled your Lordships to discuss the matter in a much more relaxed way. I am grateful to noble Lords for the remarks which have been made. I can assure all speakers that Her Majesty's Government will study all that has been said with great care. As I explained, we have not yet made up our minds what to do in the matter, and we are glad to have had the opportunity of hearing your Lordships' views before any action is taken.
If I may, I shall refrain from answering the debate in the way which one normally answers such a debate; namely, to try to encapsulate all that every speaker has said. Frankly, I think that that would be an exceedingly dangerous course of action. It would almost certainly end up by causing irritations to everyone because one would probably get the emphasis wrong. Moreover, I do not propose to determine the slant of the debate. Noble Lords will be able to come to their own conclusions as to which way the discussions have gone and what emphasis should be placed thereon. If I refer to any noble Lord, it should not be interpreted that I, still less the Government, give more weight to his views that to those of any other speaker.
We have had to wrestle with history, justice, compassion, the law, the past and, indeed, the future. We have also had to consider the passage of time and the enormity of the offences. The whole purpose of the debate was to have the benefit of your Lordships' views on the matter.
The noble Viscount, Lord Tonypandy, said at the beginning of his remarks that he found it somewhat
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difficult to come to a conclusion when the lawyers themselves could not arrive at a unanimous view. I did not find that that was a particularly novel aspect. Indeed, it always seems to me that when you have three lawyers speaking together you often receive four views. But brevity is of course the most telling of points. My noble friend Lord Home made the remark which has been referred to on more than one occasion. It consists of three words, "old men forget". I think that that phrase encapsulates many of the problems which would affect anyone who takes a decision as to what should be done in the future. However, if it is any consolation to my noble friend, I should tell him that you do not have to be old to forget; this also happens to those who have not yet reached such a ripe age.
I was also grateful to the noble Lord, Lord Mayhew, for his most interesting speech about his own experiences when he was Minister of State at the Foreign Office in 1948. He had the awesome responsibility of deciding which Yugoslays should be returned and which of them should remain, together with the awful accompanying decisions.
The noble and learned Lord, Lord Simon of Glaisdale, asked what a war crimes trial would cost. I think it would be quite wrong to allow the consideration of costs to be an overriding or determining factor in deciding whether the recommendations of the inquiry should be implemented. I can only tell him that the experience of those carrying out the investigations in Australia and Canada has shown that it would be a mistake if we failed to acknowledge the fact that the cost of such investigation and prosecution of war criminals is significant. I think that that is an important point.
I was especially grateful to the right reverend Prelate the Bishop of St. Albans when he said that we should remember that the defendants must also have justice. He is quite right in that respect. He brought to our attention the fact that some people may have been making silent reparation for their sins for the past 40 years. I think that that factor was of great help to our deliberations.
The noble Lady, Lady Saltoun, mentioned the fact that we should not forget the effect that such prosecutions could have on children, grandchildren and wives. There is also the risk of what the neighbours may say. If they are brought about, none of these prosecutions are prosecutions which refer to just one person. They spread out and the effect spreads to other people in the vicinity. That does not mean to say that it is not right that such prosecutions should be brought; it means that we must remember that other people are affected by them
The noble Lady also asked who gave the names of the people mentioned in the report. As the report says at the beginning, Rabbi Marvin of the Simon Wiesenthal Centre in Los Angeles wrote to the Prime Minister enclosing a list of 17 alleged war criminals who were said to be living in Britain. This list was leaked, but apparently not from government sources. It was then published in a number of national newspapers. As a result, a photocopy of the list came into the possession of Scottish Television and it was decided to make a programme about

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one of the people named. When approached by the programme makers for assistance, the embassy of the Soviet Union in London gave them a further list of 34 suspects. It is that list with those names that has become known as "the Scottish Television list".
When the noble Viscount, Lord Tonypandy, said that those who came here must have come here as a result of bamboozling the Home Office in order to obtain citizenship, I felt an overwhelming desire to leap to the defence of my department. I am sure that they did not bamboozle the Home Office. However, in any event, I was not there at the time to defend the Home Office or to prevent the department from being bamboozled. All I can say to the noble Viscount is that if the department was bamboozled, then it was not the only department to be so affected.
My noble friend Lord Belhaven and Stenton referred to the Katyn massacre. The recommendations of the inquiry are confined to crimes which occurred in Germany or German occupied territory. It was not relevant to the issues of this debate to discuss responsibility for that matter, nor am I aware of allegations that perpetrators of the Katyn massacre are living in this country.
The point which has concerned many of your Lordships is that of retrospective legislaton. It is the spectre which has haunted the Chamber and has worried your Lordships. At the beginning of my opening remarks I put the report's view and what the authors felt about retrospective legislation. Many of your Lordships have taken a contrary view. We shall consider those views most carefully. I am glad that your Lordships' views today were not unanimous, because had they been they might not have reflected the genuine views of people throughout the country.
The subject is one which does not have the benefit of unanimity. I only hope that if it does anything, the continuing agonising over this awful problem will help us to ensure that everyone realises the awfulness of what happened in such a way that it might never happen again. I shall conclude by repeating, if I may, the words of the noble Lord, Lord Irvine of Lairg, when he said just before he sat down that it is difficult to obtain justice because perfect justice will never be obtained in an imperfect world. The noble Lord was right, but we just have to do our best.
On Question, Motion agreed to.

Electricity Industry: Privatisation
8.32 p.m.
Lord Ezra Lord Ezra rose to call attention to the changed situation in the electricity industry following on the Government's decision to retain nuclear power generation in the public sector, and the implications of this on the proposed structure for the privatised sector; and to move for Papers.
The noble Lord said: My Lords, in introducing the debate I should like to give your Lordships some of the reasons for it. Many of us spent a long time on the passage of the Electricity Bill. Since that Bill
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was enacted, a number of major changes have been introduced, the most important of which was the announcement in a Statement which was read to the House by the noble Lord the Leader of the House on 9th November that the nuclear power stations would be withdrawn from the privatisation process and retained in the public sector.
We were able to have only a limited amount of time to consider that announcement. I therefore went to see the noble Lord the Leader of the House to ask whether further time for debate could be made available before too long. He was sympathetic to that request, and I am glad to say that time has been made available this evening. I am obliged to those noble Lords who have stayed until this late hour to debate the issue.
Before I proceed further, I should like to repeat a declaration of interest which I made during the passage of the Electricity Bill: I am involved in energy companies which aim to develop electricity generating systems mainly on the basis of combined heat and power, and am also interested in the distribution and usage of various forms of energy, including electricity.
I should like to draw attention to three issues. The first is a matter of principle: the extent of the changes which have been made since the Bill was passed; secondly, I should like to consider the structural implications of the changes made; and, thirdly, I want to consider the method of operation which is now apparently emerging but about which there is still a good deal of uncertainty.
I shall turn first to the principle. The withdrawal of the nuclear plants and their retention in the public sector was something for which a number of us pressed strongly in Committee and which was at that stage resisted by the Government. In particular, there was the amendment moved by the noble Earl, Lord Halsbury, which was supported by a number of us on all sides of the House. The Government's subsequent intention to make that change after the Bill's passage prevented us from considering the further implications of the move. Furthermore, there had been a number of other substantial changes, and so the matter of principle that I should like to raise is as follows. Is it entirely desirable that through the normal legislative process both Houses should spend a great deal of time going through measures which are subsequently changed through government action?
When the noble Lord the Leader of the House read the Statement, I asked whether a constitutional issue was involved. He said that there was not, and on looking at the Bill I agree. What the Government have done is strictly in accordance with the letter of the legislation; but it goes wide of what was the apparent intent at the time we were considering the legislation. That is the issue of principle that I wish to raise. It would be an unfortunate precedent if that were to be done too often. It would mean that we could be debating on the basis of certain principles and a proposed structure, and find that after all the legislative deliberations had been concluded an entirely new situation had arisen.
Having stated that point, I should like to move on to the structural implications. The structure which the Government proposed in the White Paper, and which was subsequently carried through in the Bill, was to divide the CEGB into two parts: National Power and Power Gen, the one having 70 per cent. of the capacity and the other 30 per cent. The reason for that was clear. It was that National Power was meant to accommodate the nuclear element, and therefore it had to be sufficiently large to do that. Those of us who disagreed with the nuclear element being in the privatisation process, of course spoke against that proposal; but at least there was some logic behind it.
The question that is now raised, however, having retained nuclear power in the public sector is: is that structure still valid? I should like to quote from our debate on 18th July when we had reached the stage that the Bill do now pass when I said:
"Had there been a more rational restructuring, with at least four generating companies being the descendants of the CEGB: a separately owned nuclear company, with all its attendant problems; an independently owned grid company, and then the 12 distribution companies, I think that we would have had a basis on which real competition could have developed".—[Official Report, 18/7/89; col. 739.]
That was said sometime before the Government decided upon the changes which they made.
As regards the Act, it would be all right for the Government now to rethink the structure. Under Section 6(1), the CEGB's property can be divided into three or more companies so there is a provision for having a review. Furthermore, there was a hint, if I understood him aright, of a possible modification in the Government's attitude contained in a phrase used in another place on 9th November by the Secretary of State for Energy when he said:
"We have no intention of changing the allocation of assets at this stage". —[Offical Report, Commons, 9/11/89; col. 1178].
Does "at this stage" mean that it might be considered at some future stage or not at all? If it means at some future stage, would it not be wiser to do it now? There is a strong case for reconsidering the structure of the privatised sector of the industry.
The Government should bear in mind what happened in the gas industry where, within a relatively short period of its privatisation, as it stood, it was referred to the MMC and various major changes had to be made. That was an unsatisfactory state of affairs and should be avoided in any future legislation.
One of the consequences of the duopoly which the splitting of the CEGB into two parts has created is the introduction of what are known as contracting limits. These are limits which the Government have agreed should be introduced in competition. As your Lordships well know, for the first four years of privatisation there will be a limit on the amount of competition to those companies taking one megawatt or more. As far as the two generating companies are concerned, they are limited to 15 per cent. of the market. Those proportions are then altered in the next four years and finally removed after eight years. I suggest that these contracting limits, which will impinge on the amount of competition, would not have been necessary had
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there been a larger number of generating companies from the start.
Finally, I wish to come to the question of how the system is to operate. We have a grid company which will be owned by the 12 distribution companies, itself a bit of an anomaly. I agreed with the removal of the grid company from the generating companies, but on the same grounds I disagreed with it being passed over to the distribution companies. During the Committee stage, after much questioning the Government made it clear that, although it was technically owned by the distribution companies, the grid company would operate pretty independently. If so, perhaps that could have been recognised from the start.
However, I wish to ask how the use of the grid will function under the latest proposals. There have been many ideas about various "pools", as they are called, into which the electricity supplied would fall and then be redistributed. The present arrangement is that there should be what is known as a "unified pool". According to that, the generators will sell at one price and the suppliers will buy at another. It seems to be complex set of arrangements in order to come to the prices. There will also be a factor known as "LOLP", which stands for loss of low probability. As I understand it, that could involve substantial penalties for generators who fail to provide all they offer at periods of strong demand.
I think it is important that we all understand the proposed system. I hope that the noble Viscount will be able to tell us about it. This is not only important for everybody who uses electricity, but it is particularly important for those who want to enter the market. I have already declared my interest; I am one of those who would like to come in to the market. But unless we know how the system will operate, that will be difficult.
In this context when the noble Viscount tells us how the pool arrangement will work, perhaps he will say how the pricing under the pool arrangements can be reconciled with any contracts which are made between generators and their customers. Will there have to be a settling up after the end of each month of the discrepancy between the payments made under the pool system and the contract system or will they be linked together in some other way? To what extent will there be scope for smaller generating companies to set up under the system? Will there not be a temptation on the part of the distribution companies to chance their arm on the pool system and just hope that they can get the best deal on a short-term basis, without any forward contractual obligation? I think that these questions need to be answered.
As regards contracts, I wish to inject a positive note which I feel pleased about in view of my past association with the coal industry. It is that I understand that British Coal has just announced that it has made a three-year supply contract with National Power and Power Gen. That is a desirable situation and I am pleased that it has been achieved even though so much else seems to remain a bit uncertain.
Under the heading of operational functioning of the system I turn to the question of where the obligation to supply will rest. At present it rests with the CEGB. We were told in the White Paper that this obligation to supply would be transferred to the distribution companies. But there have been reports in the technical press to the effect that that has now been modified. I presume it has been modified because, as the market is opened up, the distribution companies would well ask how they can be made responsible for supplying electricity to people who are no longer their customers. If that is the position, I think that we ought to know where we stand on that important issue.
I wish to summarise my remarks and say that much has changed since we debated the Bill. Unfortunately much still remains unclear, or perhaps it is just that it is imperfectly understood. I hope that the noble Viscount will feel that this debate will give him the opportunity of clarifying a number of issues. The electricity industry is one of the most important and basic in the country. It is vital that we should all be clear how it will operate under the new circumstances. My Lords, I beg to move for Papers.
8.46 p.m.
Lord Peyton of Yeovil: My Lords, I feel sure that your Lordships will be grateful to the noble Lord, Lord Ezra, for having given us the opportunity to look again at the problems of this important industry. I find it impossible to disagree in any way with his concluding comment that much has changed since we debated the Bill and much still remains unclear. I hope that my noble friend will consult his right honourable friend after this debate and ponder over what has been said.
The new Secretary of State is heir to a measure of which the benefits seem exceedingly uncertain and the hazards very real. At one stage during our debates, his predecessor referred to one of the amendments passed by your Lordships' House as "a bit of a dog's breakfast". I very much doubt whether any dog —however keen on its food —would descend to making a meal of the Bill which my right honourable friend the former Secretary of State wished upon the industry.
My right honourable friend the new Secretary of State has —I think wisely—followed the advice contained in the amendment moved from the Cross Benches by the noble Earl, Lord Halsbury, and supported by many of us, as the noble Lord said, on both sides of the House. It made no sense and it was not practical politics in any way to include the nuclear stations in the measure. At the time the Government refused to listen to that argument. Since then, however, my right honourable friend has decided that it is right.
I understand that the measure has left the noble Lord, Lord Marshall of Goring, somewhat disturbed and unhappy. I do not wish to make too much of the point, but I cannot help feeling sad that at no stage did your Lordships have the advantage of the counsel of the noble Lord, Lord Marshall, whose
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knowledge of the industry is consummate and possibly unrivalled. I am very sorry that the noble Lord, Lord Marshall, did not stick to the opposition which he expressed to the measure. He did not oppose the principle of privatisation but the way in which it was done. If he had opposed it it would have been very difficult, if not impossible, for the Government to proceed.
As the noble Lord, Lord Ezra, said, my right honourable friend has dealt one very sharp blow to the rickety structure set up by the Act. That gives my right honourable friend a very real chance to take another long and serious look at what remains.
There are two principal concerns which I should like to bring to your Lordships' attention. The first is that of cheaper electricity and the second concerns security of supply. The impact of the new entrants from whom competition will flow is likely to be delayed for many years. When those new entrants appear, they will most surely demand an assured return upon their investment. That will involve a share in the base load. I am of the opinion that they are likely to resile from the costs of building very large stations. Therefore, they will forfeit possible economies of scale. If they succeed in achieving cost reductions, then I cannot see any incentive for them to pass on the benefit of those reductions to the consumer. For those reasons I believe that it is wrong to hope for too much from the impact of new arrivals into the industry for many years ahead.
I also believe that the severance of generation and transmission will carry with it very serious risks. Some time ago the Central Electricity Generating Board estimated the cost to be between £500 million and £1 billion. The then Secretary of State would have nothing of that. However, no serious attempt has yet been made by the Government to assess the additional cost which would arise. This is a serious point on which I hope that in due course my noble friend will be able to help.
It is certain that in the new arrangement complexity of regulation, of contract and of relationships will replace the simplicity of the present system. As if that was not enough, the Act lays down that the Secretary of State and the director general of the supply industry will have many shared duties. It would have been sensible to have placed those duties upon the shoulders of the director general and made him answerable to the Secretary of State for their proper performance. However, for these duties to be performed jointly between the two makes no sense at all.
I turn briefly to the question of security of supply, which is all important. The effects on severance, the complexity of the new arrangements and the shared duties to which I have referred are additional hazards in the way of security of supply. There are other powerful arguments. In the past when there has been a crisis, due to weather or some other cause, the present system has afforded the advantage that all resources have been under one central control. They have been mustered and used in the best possible way at times of great pressure. It is difficult to imagine that being repeated under the new system.

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I have been discussing the short-term situation. In the long term one must be concerned about the adequacy of capacity. Who will be able to plan and ensure that it happens? With the present system there has always been the danger of the need for more capacity being forgotten until the arrival of a very cold winter when everyone becomes conscious of the need to increase capacity. This has been done, as is our way in this country, after the need has passed. I hope that the Government will give their attention to the question of whether the new system, which has been wished upon the industry, is able to ensure a margin of capacity sufficient to meet the needs of emergencies as well as expanding use.
I turn to the duty of supply. I have always thought it very strange to impose a duty of supply upon those who have no capacity to produce and who are unlikely in the indefinite future to possess such a capacity. The Act places the duty upon the distributing companies. I am not sure where that duty lies now. I am not sure that it has any real meaning. I hope that the Government will in due course be able to give us some guidance upon that matter.
The national grid is in a central position. Like the noble Lord, Lord Ezra, I do not understand how the unified pool system will work; nor do I understand how the system of payment will work with promptness or efficiency, or how anybody can rely upon it, I have no confidence, despite the assurances which we have received, that the merit order will survive. I fear that it could degenerate into a system not much higher than Buggin's turn.
The Government are fortunate to have available at this turn the people who are currently serving on the board of the national grid company, particularly Mr. David Jeffries. I am sure that such people will do their utmost to make the system work. However, I still believe that it is incumbent upon the Government to avoid putting any unnecessary obstacles in their way.
I turn now briefly to the position of the Director General of Electricity Supply, who has been appointed to shoulder very heavy responsibilities. I very much doubt whether either his knowledge of the industry or his powers will match up to his responsibilities and duties.
There will inevitably be those involved with the industry or in the Government who will consider that it is now their duty to make the best of a bad job and to make the present arrangement work somehow. My plea to my right honourable friend and my noble friend on the Front Bench, as well as to those engaged in the industry, is to take a careful look now, while there is time and before irreparable damage has been done, to see whether in their judgment the system can really be made to work. If, after that reflection, they conclude that the risks are too great, I hope that they will face that fact now and not leave it and hope for the best. I hope that they will take effective and courageous action now, as they did over the nuclear content of the industry, and make sure that other defects are cured in a similar way while there is time.
9.1 p.m.
Lord Stoddart of Swindon: My Lords, I too should like to thank the noble Lord, Lord Ezra, for bringing forward this matter tonight. When a spokesman from the Liberal Benches, a spokesman for the Conservative Benches and a spokesman for the Labour Benches are in broad agreement on a matter, then it is incumbent upon the Government to take very serious notice of what is said.
We are all saying that the industry is a hotchpotch; it is a mess and cannot work effectively and efficiently in its present form. That is why we want the Government to take further action and have another look at the way in which the industry has been privatised to ensure that it operates to the good of the customer.
It is incumbent upon the Government to do so bearing in mind that they have broken up an integrated electricity supply industry which has served this country well for 38 or 39 years, which has given the country security of supply, a generating capacity and a secure system which is the envy of the whole world. In those circumstances the Government should consider very seriously whether the organisation which they have now imposed upon the industry will work.
None of the components of the industry believes that it will. Indeed many of the components do not understand what they are to do. We have just heard that the new grid organisation does not know what it has to do. We have heard that it will be difficult for it to operate in the same efficient way as previously when the merit order list was used to give the consumer the cheapest possible electricity at any given time. Therefore it is incumbent upon the Government to reconsider their attitude. Our charge from these Benches is that if the Government had only thought about the matter, if they had only considered all the implications and if they had only studied the costings in the first place they probably would not have embarked upon privatisation at all.
Let us consider the nuclear problem. It is the removal of the nuclear component from the privatisation programme which has given rise to this debate tonight. If the Government had listened not only to this House but also to experts in the nuclear and generating fields, they would have known that there would be great difficulty in privatising the industry with its nuclear component. They only had to look across the water to the United. States to see what has happened to the nuclear industry in that country to realise that no private organisation could possibly undertake a nuclear programme and make it profitable. If they have not been able to do so in the United States over the past 10 years it is certain that we could not do so in this country. That was experience that the Government chose to ignore.
At a late hour, after ignoring the advice of this House, after the Bill had become an Act, the Government decided that they had to take the advice of this House after all. Having listened to the arguments of the nuclear lobby over a long period or time, having listened in the Select Committee on Energy in another place to the justification for providing even more nuclear energy based on figures

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which could at best be described as unrealistic, having in this House on numerous occasions been told that nuclear energy is competitive with energy from fossil fuels and in particular coal, I feel rather aggrieved. I feel aggrieved that the country and people in this House and in another place —the electricity consumer —have been misled over a long period of time as to the beneficial effects of nuclear energy which are now proved to be so illusory.
When the Secretary of State made his announcement in the House of Commons on 9th November, he told the House:
"the state-owned nuclear power company's successor for the nuclear element of the CEGB will be a cash-positive company and will earn profits, not make losses. As both sides of the House must recognise, we have made a substantial investment in nuclear power. It is producing returns, and it should finance the cost of the Sizewell B project, with which we wish to continue because we believe it to be an essential part of maintaining the nuclear option". —[Official Report, Commons; 9/11/89, col 1181.]
So, even at that stage, when private industry had said, "We do not want any of this because it will not make profits", the Secretary of State was still telling the House of Commons and the nation that the nuclear industry would be profitable. Yet we know from a leaked report that the cost of nuclear generation will be between 6.25p and 7p per unit as compared with 2.8p per unit for coal-generated power. We are still being told that nuclear power is competitive. It will be competitive only because of the fossil fuel levy. In other words, the coal-producing stations will subsidise the nuclear power stations and the electricity consumer will pay for those extra costs. I hope that the noble Viscount will confirm that point when he replies tonight.
However, the position is even worse than that. We now know that the nuclear industry has misled this House, the House of Commons and the nation and has not been under the proper control of the department or of Ministers. We know all that, yet, in spite of what has happened, the Hinkley Point inquiry is still to go ahead. We learn from Mr. Collier, who is chairman of the new nuclear board, that he wants even more of this nuclear power which is so inefficient and has not served the country well. An article in The Times of 1st December stated:
"Mr. Collier in effect rejected the arguments about the financial risks of nuclear power that led the Government to withdraw the Magnox and AGR reactors from privatisation when the Central Electricity Generating Board is split into National Power and PowerGen".
Mr. Collier rejects the arguments. He does not agree with anything that the Government have said. He went on to say that:
"He regretted the government action to defer a decision for five years on the possibility of building the second PWR-type pressurised water reactor at Hinkley Point, Somerset. He said he was determined that the construction and commissioning of the first PWR, at Sizewell B, in Suffolk, would be completed on schedule and at its present cost estimates".
I should like to know what the present cost estimates are. Are they the original £1,200 million or the £2,000 million as reported in the press? Mr. Collier went on to say:
"Make no mistake about it, it is my ambition to build more nuclear stations".
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In spite of all that has been said, Mr. Collier is determined to build more and more nuclear power stations at whatever cost to the consumer.
We are entitled to know exactly what the Government's attitude is on this matter. It is unthinkable that electricity consumers should be even more burdened with the costs of generating electricity by nuclear power which is wasteful of manpower resources and not competitive with coal. I think we are entitled to hear from the Government exactly who will be in charge of this nuclear component. Will it be those who have so misled the nation in the past or will it be the Government themselves who will ensure that no further nuclear power stations are built until it can be shown in hard commercial terms —I repeat, in hard commercial terms —that they will be beneficial to the community and will provide electricity at at least the same cost or, even better, at a lower cost than coal produced from fossil fuels.
9.14 p.m.
Viscount Hanworth: My Lords, the time is now past when we can usefully attack the Government's folly over the privatisation of this great industry. In previous speeches I have mentioned the undeclared reasons why they decided on that policy. I shall now say only that cheaper electricity for the consumer is nothing more than a smokescreen and is almost certainly unachievable.
When the Government decided on the privatisation policy they swept aside all difficulties and disadvantages by saying that they would be resolved. Consequently there have been many areas in which problems were not faced at all and where compromises and last-minute changes have had to be made. This is particularly obvious in the nuclear field where sincere warnings from many responsible quarters went unheeded. For years it was said that nuclear generation was cheaper than coal and until very recently the economics of PWRs looked very promising.
What has happened to upset that rosy picture is largely because of the increased cost estimates for decommissioning reactors at the end of their life. Partly it is due to the use of different accounting methods. But the major reason is British Nuclear Fuels' increased cost for processing the fuel elements. That has been caused by expensive measures required to improve radioactive discharges at Sellafield. When a Magnox reactor is decommissioned, roughly eight times as many fuel elements have to be processed as is the annual requirement for a working reactor. Thus, the charges for doing so become very significant. Maybe all that should have been foreseen earlier, but the failure to realise it is not quite as bad as may appear at first sight. Taking our nuclear generation programme as a whole, it should have been clear that any group of private investors would be unwilling to put up a large amount of capital involved in a new nuclear station and to accept the political risks of nuclear power.
What should the Government now do? I have always been a supporter of nuclear power as at least

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an alternative method of generation which does not have carbon dioxide emissions; but frankly I do not know. I have a very real fear that our generating capacity may be insufficient and that the lights will go out before private generation can meet the demand. When one looks into our past experience in this field I am doubtful whether it is wise to think about the allegedly smaller, safer, new designs of PWR —SIR being one of them. Perhaps after all the debate on cost and performance we might even go back to the proved design of the AGR, which is so successful in Torness in Scotland. But if there is to be a change of government in the next two or three years, we do not want to see again any reversal of policy leaving idle possibly half-built reactors, as happened in America.
With those considerations in mind I think that we should not at present go beyond building the new PWR reactor at Sizewell and the proposed one at Hinkley Point. Instead, the Government should put the capital that they would otherwise have to spend into energy conservation. Of this, although Friends of the Earth may say that more than 50 per cent. is theoretically possible, at least 20 per cent. is practicable, given government help and encouragement.
I do not think that in this debate I should state the ways in which the saving is possible, but, believe me, it does not lie in just improving the thermal insulation of existing houses. Such a policy would have the most potent effect on the carbon dioxide problem. I cannot understand why the civil servants in the Ministry are so half-hearted and apparently antagonistic to this approach, saying, as they did recently, that all gains resulting from better insulation of houses will be taken for increased comfort. Some would be taken in this way, but a vast gain is possible.
Returning now to some of the areas of privatisation that seem to deserve comment, few of us can accept —as has already been said in this debate —that the merit order of bringing power stations into use will work out as well as the old CEGB system. For one thing, there is the added complication of agreed contracts to supply. It must be recognised that shipping large quantities of power any appreciable distance—perhaps as far as 100 miles —is uneconomic because of the losses and destabilisation of the grid. Competition in generation in any big way is largely a chimera, put about as one of the justifications of privatisation.
Finally, we must not forget the all-important effect of these changes upon staff and the need for retention of our trained and skilled people working in the nuclear field. They are far more important than bricks and mortar, both now and in the future. Once again the Government have pressed ahead without considering this aspect. Marchwood may be the tip of the iceberg.
9.22 p.m.
The Earl of Lauderdale: My Lords, like other noble Lords who have spoken, I should like to thank the noble Lord, Lord Ezra, for initiating this debate. We ought also to say a word of welcome to my noble
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friend Lord Ullswater, who sits on the Front Bench to take a barrage of questions, and in effect attacks, on matters of which he is not guilty and to which he comes as a neophyte. Having said that, I am quite sure that we should congratulate the Government on at least seeing the light and agreeing at last that the nuclear element must be kept in the public sector. However, the statements that we have had explaining the decision are not altogether clear. I hope at the end of the debate to be able to do more than congratulate my noble friend on the clarity of the Governments' evasions.
For example, there is a puzzling piece of evasion about the CEGB which has to be cleared up. The Secretary of State is on record as saying:
"It was only on 11th October that I finally managed to obtain the figures that I needed to make this decision, having pressed very hard from the moment that I took up office". —[Official Report, Commons; 9/11/89, col. 1181.]
That was after all more than two months earlier. He had to press very hard indeed to obtain the figures which enabled him to take that decision. How is it that he had to treat the CEGB like a dentist, extracting a wisdom tooth without an anaesthetic?
More than 10 parliamentary days after the disclosure that all the reactors are now to be kept together in the public sector, one is entitled to ask certain questions. And it simply will not do to say, as was said in a Written Answer in another place:
"Costs of electricity generation are a matter for the CEGB".
The CEGB is going out of business and this whole matter turns on the costs and prices.
It is even more important to be frank and clear about that when we read, also in a Written Answer in another place, on 1st December at col. 451 of Hansard:
"The Government seek to ensure that the UK has adequate, diverse and secure supplies of energy in the forms that people want at the lowest realistic prices. They aim to achieve this wherever possible by ensuring that energy prices reflect their true economic costs".
It goes on to deal with competition.
What are the relevant figures that caused the Government to take the decision? What were the figures that were grave enough to cause the Government to take the Magnox stations back into the public sector and to do so almost before the Royal Assent was dry on the parchment? We have not been given the figures but we have been faced with a gigantic U-turn. We must also know what the corresponding levy will amount to, which we have always been promised will take care of the extra cost of nuclear.
In July we understood that the reason for keeping the Magnox stations in the private sector was the early incidence of decommissioning costs. We now understand that they can last longer. What has happened? How is it that in July the decommissioning costs were a death blow and now decommissioning can be postponed? We do not know what has been changed, and we are entitled to know. How much longer will the Magnox stations be kept in being? What provision is now being made for their decommissioning costs?

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We are entitled to ask, what is the Government's nuclear policy? We are told that there is concern about the price of nuclear power because the capital charges and return on investment have emerged as a serious factor. We are told that provision for future decommissioning is a serious factor. We are told that as a result there will be a five-year pause before the commissioning of new stations. At the same time we are told that we are to keep the nuclear option open. Those are mere phrases. The nuclear option is not kept open simply by having a pause of five years and having one new station. Many other issues are involved in a nuclear policy, not merely keeping one station going.
If, as we are told, nuclear power is uneconomic —for that is the implication —at what price would it be economic? For example, what do the Government say to figures that would not commend themselves to the noble Lord, Lord Stoddart, but are produced by the OECD Nuclear Energy Agency in collaboration with the International Energy Agency and UNIPGDE, the International Organisation of Producers and Distributors? They put the base load nuclear power cost for Western Europe as a whole at about 2.3p per kilowatt hour as against 2.4p for electricity from coal.
One must ask whether, in regarding nuclear power as uneconomic, the Government are counting decommissioning costs. If they are counting the costs, what are they? If they are not, why do they say that they are uneconomic? What about the provision of capacity? Is private enterprise expected to keep the lights on? At the moment it does not look like that. Over the past six years noble Lords from all parts of the House have issued warning after warning that we are heading for a shortage of generating capacity at the end of the century. That has been said a dozen times from all parts of the House.
Those warnings were scoffed at, ridiculed and laughed out of court by the Government. What happened when the last Secretary of State took
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office? The first thing that he did was to tell Members in another place that, unless we do something about it quickly, there will indeed be a shortage of 13 gigawatts by the year 2000.
My Lords, is that still so? If that is so, why suspend the project for another three nuclear power stations? That will make the situation worse. Are we to rely still further on electricity imports from France? If so, at what price? Are we really expected to buy electricity from France cheaper than we can make it ourselves? The French will have us over a barrel and we shall not be in a position to do other than pay whatever price that the French ask.
Another obscurity has emerged regarding the merit order. The privatisation plan was to switch the grid merit order from cost to price. My noble friend the Leader of the House told us on 9th November:
"The stations with the lowest operating costs will be run first".—[Official Report, 9/11/89; col. 972].
That may have been a slip, and if it was, we shall let that go. However, I wonder, as has been the implication of other speeches this evening, whether the merit order may not now come to be based on some new combination of price and cost. For example, will the electricity from nuclear stations be taken by the grid at price or at cost? We are entitled to know.
I sincerely wish my noble friend Lord Ullswater an enjoyable and useful tenure in his exposed office. It is an exposed office. His head is above the parapet and will be so for a long time. All of us have been impressed by his performance at Question Time and wish him the best of British luck. However, one thing is absolutely clear —and he must have learnt this himself, although he is perhaps not in a position to admit it —the project to privatise the electricity industry is already in a perfectly hopeless mess. We really need the Government to stand back and take a very serious look at the whole question before going any further.
9.32 p.m.
Lord Hatch of Lusby: My Lords, like other speakers, I thank the noble Lord, Lord Ezra, for his pertinacity in pursuing this debate. He and other noble Lords on this side of the House fought many battles side by side during the course of the Electricity Bill. I do not accept all that he has said this evening because, like my noble friend Lord Stoddart of Swindon, I am diametrically opposed to the privatisation of the electricity industry. I am not concerned about the question of how competition can be promoted within it.
There is another issue which the noble Lord raised with which I am in at least partial disagreement. When he looked into the constitutional side of what has happened to the Act, he said that the Government had kept to the letter of the law and Constitution but he at least suggested that they had broken the spirit. I am not so sure that they have kept to the letter and it seems to me that there is at least a case to answer as to whether or not this has now become a hybrid Act as a result of the removal of the nuclear element from the Act as we debated it in this House and as it was debated in another place.
I refer briefly to the point raised by the noble Earl, Lord Lauderdale. I believe that the Government should make their position on this absolutely clear this evening. The noble Earl seemed to wonder whether nuclear generated electricity would be accepted or rejected according to its cost. My understanding of the legislation is that nuclear generated electricity will have to be accepted in any case, whatever its cost. That is written into the 20 per cent. allocated to nuclear-produced electricity. If that is the case, it is quite obvious from all the figures that have been given that the cost of electricity will go up severely under privatisation. We are entitled to an answer from the Government as to whether or not that is the case.
The Government's whole philosophy of privatisation has surely been totally shattered by their experience of the past few months and the U-turns that they were forced to make by their own standards of market forces. They talk about privatisation in order to increase competition and yet in the legislation, as it was originally debated here, the Government fenced off nuclear energy and drew an economic ring fence around it. What kind of competition is it in which one protects one part of an industry, the most expensive part, and then adds on to that a provision that non-fossil fuel energy shall have the right to provide 20 per cent. of generating power, and that in addition there will then be a levy on fossil fuel? Is that competition, market forces and the free play of the market that the Government believe in? In fact it is taxing one part of the industry and the consumer in order to subsidise nuclear-generated electricity. That is surely quite contrary to any normal business practice in this or any other country. It was therefore quite naturally and inevitably rejected by the City investors. Now I understand that this practice is about to be investigated by the EC as breaching its regulations on competition. Are the Government
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happy to be at least accused of breaching the EC regulations on competition?
The whole of this story is one of pig-headed protection of the nuclear industry while ignoring the facts. Ministers have said that they only obtained the figures on 11th October. In fact they had the figures in this Chamber and in another place long before 11th October but they just brushed them aside and refused to consider them. If they had paid attention to the figures then, they would have known that what they were arguing for was economic fantasy.
Further, after abandoning three of their proposed PWRs, the Government declared that they would continue with Sizewell B. Why is that? Is it the case, as has been widely reported, that the costs of Sizewell B had by last September risen by 10 per cent? I do not state these figures; I am asking the Minister to give us the figures. What is the present Government estimate or the present CEGB estimate of the increased cost of the building of Sizewell B? It has been estimated that the continuation of Sizewell B will cost £1 million a day for each of its planned 35 years of life. Those are not just idle figures. Are those figures correct and, if not, what are they? As the noble Earl has said, we are entitled to know.
During the course of the debates on the Bill we were told that the figures we were giving were not accepted by the Government. They have now had new costings done. We are entitled to know what they are. This debate affords the Government the opportunity to tell noble Lords and the country the figures on which they base the future of their energy policy and in particular the future of their nuclear energy policy.
As regards Hinkley Point C, what on earth is the purpose of continuing the inquiry? Is it not clear from the Government's own Statement that nothing should be done at Hinkley Point until 1994? Why are they continuing to spend public money on a public inquiry? As a result they are greatly undermining the confidence of the local people, particularly in the village of Combwich and its surrounding area.
It is widely believed in that area that already installations are being prepared for Hinkley Point C; that there is generating machinery on the high seas at this moment. I wish to know from the Government whether or not that is correct. A great deal of anxiety has been expressed at the public inquiry, which has cost a great deal of money. Will the Government pay the costs of the objectors as the Hinkley Point C inquiry continues?
It is quite obvious to anyone with common sense that the nuclear option is closed. Is it not time to cut our losses rather than to go on adding more rising costs, exponentially and not just arithmetically? Above all, is it not more than time that the Government reassessed their whole attitude to energy efficiency? Increasing numbers of scientists are trying to tell the Government and the public that the only safe way of producing energy without increasing the greenhouse effect is by energy efficiency.

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This is the third time that I have faced the noble Viscount on this issue. I have sympathy for him. As the noble Earl said, he has inherited an impossible task. But it is not good enough to say that the budget of the Energy Efficiency Office has been cut because it has been successful. Has it been successful? Who thinks it has been successful? It has not been successful. There is a great deal more work to be done in energy efficiency over many years and yet the Government are cutting its budget.
Why do the Government ignore or repudiate the Select Committee on Energy of another place when it says that market forces will never reduce those gases that are creating the greenhouse effect and that pollution can be stopped only by a mixture of incentives and penalties? Why do the Government reject that philosophy, and what do they have to put in its place? Surely they know from their experience in the electricity industry that market forces do not work. Market mechanisms will not work. The profit motive will not clean up the atmosphere.
I should like to ask the Minister another direct question. I told him last week that, according to our understanding of government figures, if emissions of carbon dioxide continue at the present rate, they will increase by 73 per cent. over the next 30 years. If that figure is wrong, will the noble Viscount give the House and the country the Government's estimate of the increase in emissions of carbon dioxide over the next 30 years, both from coal-fired power stations and from the automobile? Will they desulphurise; and if so what will be the cost?
Finally, what is the Government's attitude, having learned a bitter lesson from nuclear energy, to renewable forms of energy? Did the noble Viscount read the letter in yesterday's Sunday Correspondent by Mr. Sharpe from the Department of Aeronautical Engineering at Queen Mary and Westfield College, University of London? He stated categorically that energy from wind and wave power could be enough to supply all current United Kingdom electricity needs, and much more than enough if energy conservation were pursued seriously. He said that it would produce cheap electricity —electricity at about 2·5p to 3p per unit. Can the Minister confirm or deny Mr. Sharpe's estimate? What resources are the Government now planning to put into the development of renewable forms of energy? Can the Government not see that if they decided to put into the research and development of renewable energy the same resources as they have put into nuclear energy, and if in addition they gave the resources to energy efficiency, they would be doing something constructive both for safe and cheap electricity generation in this country and for the preservation of global cleanliness on which our planet depends.
9.49 p.m.
Lord Nelson of Stafford: My Lords, I add my thanks to those already expressed to the noble Lord, Lord Ezra, for initiating this extremely timely debate. Many important issues have been raised by previous speakers. I shall confine myself to one,
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which has already been touched upon by my noble friend Lord Lauderdale. My question is this: does the decision to retain nuclear power stations in the public sector mean a change of government policy towards nuclear power? If that is so, it has very serious implications for the long term security of supply. It also affects not only the supply industry but also the nuclear construction industry and the many thousands of people employed therein.
As noble Lords will be aware, on many occasions the Government have made it clear that they support the maintenance of the nuclear option as an alternative source of energy for future generations against all eventualities and also as a possible defence against excessive contamination by CO2 —in other words, the greenhouse effect —maintaining what is now becoming known as the no regrets policy.
As recently as 8th November, at the United Nations General Assembly, my right honourable friend the Prime Minister referred to the fact that nuclear power was the most environmentally safe form of energy.
Government policy in this respect was supported first by an ongoing programme of nuclear stations beginning with Sizewell B, to which reference has been made, with subsequent stations to follow thus ensuring the advantages of replication and a move towards the type of cheap nuclear power which is now readily available from France. Government policy also reserved 25 per cent. of the generating capacity to non-fossil fuel and that was supported by a long term collaboration agreement with our friends on the continent in support of work going ahead on fast reactor technology.
However, it now seems that all this may be changing. Well, is it? That is the question which is in my mind. As I understand it, there are now no ongoing power stations beyond Sizewell B; in other words, no replication, no continuing work for people there employed. Moreover, there are reservations about the amount of non-fossil fuel sources which will be reserved in the power programme —that is a doubtful element. The head of the AEA, the research centre of our nuclear power programme, has been transferred to a new post where he will run the nuclear power stations. So far as I am aware, no new appointment has yet been announced in this respect.
I ask my noble friend on the Front Bench whether the Government are aware that a feeling is spreading throughout the nuclear power industry that government policy has changed and that the long term commitment to nuclear power has been abandoned. This is a very unhealthy state of affairs. Is my noble friend also aware that there is a growing feeling of uncertainty in the industry that there is no future therein? Again, this is a most disturbing factor in an industry which employs many very highly qualified and skilled people, most of whom are essential for the maintenance of the existing stations, not to mention the construction of future stations.
If the Government have changed their policy, they should say so. Then we shall all know where we stand in the matter. All can then make their investments accordingly, plan their careers and make

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adjustments to suit their particular interests whatever they may be. If, on the other hand, the policy has not changed —I hope that that is the case, because I do not agree with the noble Lord, Lord Stoddart, that we should abandon nuclear power; I agree with the noble Viscount, Lord Hanworth, that we should retain the nuclear option —let us be clear about what we are doing. Are we in or are we out? I hope that we are in. The Government should say so as quickly, loudly and as clearly as possible so that everyone knows where they stand.
I should like to ask my noble friend on the Front Bench to convey that message to my right honourable friend the Secretary of State, and even to my right honourable friend the Prime Minister, because the matter is so important that the country should know where it stands. Only in that way can irreparable damage be avoided to one of the most technically advanced industries of our country.
9.55 p.m.
Lord Diamond: My Lords, the common theme running through every speech so far, and I have listened to every one, from all sides of the House, has been the anxiety and uncertainty which speakers, all of them extremely well informed have expressed not just about nuclear generation but about the electricity industry as a whole. In particular, however, they have expressed concern about what is going to happen as a result of the Government's change of plan with regard to nuclear generation.
I wish to make my position clear, in case anything I say should be slightly critical of the Government. I warmly welcome their change of heart in accepting what was the basis of my speech on Second Reading of the Electricity Bill —the exclusion of nuclear generation from the scope of the Bill. As a result of recent statements and the debate, I was compelled to read once more what I had said. Perhaps I may confide to your Lordships that I found the arguments there expressed persuasive.
The point is that the Government did not. They rejected, on that and every subsequent occasion, proposals for the exclusion of nuclear generation. They did not want to accept the validity of the arguments. What they have done is to accept the fact that they cannot get rid of that part of the industry in the ordinary way of privatisation, and for that reason it is to be excluded from the privatisation proposals. It was only when faced with the alternatives of financial guarantees or the withdrawal of nuclear generation that they chose the latter.
It is clear that had the Bill excluded the privatisation of nuclear generation from the word go every clause would have been considered by both Houses on that basis. But that was not the situation. The Bill provided for the privatisation of the whole of the electricity industry, not part of it. Moreover, the Government—I believe it was the Prime Minister herself—have recently made clear that nuclear generation is here to stay, for a variety of good reasons. So it follows that for the foreseeable future the structure of the electricity industry is to be substantially different from that on the statute book.
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The new proposals have enormous implications for the running of the privatised sector. My first reaction when the Statement was made on 9th November concerned pricing and consumer protection. The noble Lord, Lord Ezra —to whom I repeat my gratitude for making this debate possible —has described many more implications this evening. The noble Lord, Lord Williams of Elvel, has put down a series of Questions for Written Answer, again asking a good deal more about what is to happen to the industry by virtue of these changes.
Then there is Schedule 12. If the Government examine it, it makes virtual nonsense in the light of the new circumstances. There are other parts of the Act which an amateur like myself, merely glancing at it, finds impossible to construe in the light of the new circumstances. Therefore, we have to examine the matter all over again. The Economist makes its view doubly clear. I should like to read two short quotations from a relevant issue of that journal. First, it says:
"The privatisation plans should now go back to the drawing board".
Later it says:
"the privatisation plans now need a complete rethink".
I agree entirely. What method do the Government propose for putting forward amendments to the existing legislation consequent upon these new proposals and obtaining parliamentary approval? Apparently they do not propose to consult Parliament at all. I do not call this evening's debate a consultation; I call it a listening by the Government to the anxieties expressed all around. But they will dismiss them and carry on just the same with their proposals. They have made that absolutely clear. This is not an opportunity where issues can be thoroughly debated on all sides of the House and, if necessary, each issue decided upon the votes in this House. Parliament is not to be consulted at all.
Instead the Government will rely on what I call the pure technicality that, by accident, in their view no primary legislation is required. That must be quite fortuitous, must it not? If asked the Government when they introduced this Bill to privatise the whole of the electrical industry, did they instruct Parliamentary Counsel and say to them, "Would you please draw this Bill to enable us to do that very thing or to change our minds if we want to?" When the noble Baroness, Lady Hooper, introduced the Bill on Second Reading, did she mean what she said about this being a Bill to privatise the whole of the electricity industry? Or did she mean that we might do something different later on?
When the Government spoke —as presumably they did —to Her Majesty's secretary and asked him whether he would be good enough to obtain Royal Assent to the Bill, did they say, "Of course, this is a Bill which looks as though it is a Bill for privatising the whole of the electrical industry, but between you and me it is not. We have something else in mind"? Of course not. Such duplicity and dishonesty in misleading people would not be contemplated by this or any other government. So I repeat that it was not the Government's intention that there should be

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the power in the Act to do what they are now doing or purporting to do. It was pure accident. The Government cannot rely upon pure accident to avoid the duties of a democratic government in a democratic parliament.
The Government, as usual, have been rushing to realise yet a further chunk of the family silver. In the course of so doing they have achieved the unprecedented marvel of piloting the wrong Bill through Parliament. Had they given themselves the time to examine thoroughly the costs of nuclear generation and nuclear decommissioning, as the City subsequently did, that cock up could have been avoided. The plain fact is that the Government did not do their homework, whereas the professionals in the City did.
If I may say so, with due modesty, it is no use trying to tell a chartered accountant like myself that the basic material from which these professionals extracted the answers that they needed was not available earlier when the Government decided first to privatise the whole of nuclear generation and later to privatise only part of it.
I am concerned about the opportunity that will be given to Parliament to consider, and revise if necessary, every relevant clause of the Act which is affected by the new proposals of the Government.
To makes matters worse, the Government are proposing this affront to Parliament in their panic to complete privatisation during the lifetime of this Parliament. I wonder why that is. I wonder why the Government are so anxious about the next general election. Can the Government say hand on heart that had they intended to privatise only part of the industry, they would have introduced a Bill word for word the same as the present Act, which provides for a different purpose? Of course they cannot.
There is not much doubt about the question of hybridity to which the noble Lord has referred and about which I spoke at some little length when the Statement was made. I raised the matter then and the Leader of the House was good enough to say that he would consider the matter. He has written to me about it and I accept what he says completely. He concludes that nobody can say whether or not the Public Bill Office—which is the way in which this thing is triggered off—would have referred the Electricity Bill to the Examiners who would have decided whether or not it is a hybrid Bill. That is the position regarding hybridity. One cannot discuss it in abstract and say what would have happened had a Bill to provide for the privatisation of part of the industry been put before the Public Bill Office.
However, one can say what the attitude of the official Tory Party is on this issue. If my recollection is correct, there was a time when the Labour Government wished to carry through this House a Bill which had passed the other place. It comprised a series of proposals affecting shipbuilding or ship repairing which the Conservatives regarded as appropriate for treatment as a hybrid Bill. What did the Tory Opposition do, on the advice of its leadership? It decided to deny that Bill to the Labour Government on those grounds. I suggest that there
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is a good deal more in the point of hybridity than the Government have so far been willing to accept.
Lord Harmar-Nicholls: My Lords, perhaps I may suggest to the noble Lord that the Tory Opposition did its duty in pointing out that the Bill was hybrid so that it was possible to remain within the rules of order and terms of reference.
Lord Diamond: My Lords, I am very grateful to the noble Lord. I hope that he will accept that I have been carrying out my duty on a very similar strain.
Lord Dean of Beswick: My Lords, I am grateful to the noble Lord, Lord Diamond, for giving way. Further to the intervention by the noble Lord on the Government Bench, is it not also a fact that in another place the Speaker had already ruled that the Bill was not hybrid and that it was this House which overturned that ruling?
Lord Diamond: My Lords, I am sure that the witness of the noble Lord, who was in the other place at that time, is more reliable than mine. I do not recollect whether that was so. But I know that the Public Bill Office had not put the matter to the examiners, who in turn had not said that the ship repair Bill was a hybrid Bill; otherwise it would not have started its passage through the other place before reaching this House.
I remind the Government of the attitude taken by the leadership of the Tory Opposition in this House with regard to Bills which it might have seemed appropriate to treat as hybrid Bills. I go further and remind the Government of what they have done previously when new proposals have come forward which affect a privatisation proposal. It happened in the case of water, when the Government decided that certain functions were no longer appropriate for privatisation. What did they do? They took back all their proposals and came forward with a new Bill. That is what the Government did on that occasion, and I invite them to do the same on this occasion.
10.13 p.m.
Lord Dean of Beswick: My Lords, perhaps I may also express my appreciation to the noble Lord, Lord Ezra, for bringing the subject before the House. It is a very important subject and goes beyond the privatisation of electricity.
I speak as an engineer who used to work on the shop floor manufacturing parts for the first atomic power station in this country. The noble Lord, Lord Nelson, spoke of employment within the nuclear industry. My figures, which are nearly two years old, show that more than 137,000 people are now employed directly and indirectly in the nuclear industry—more than are employed in the mines in this country. I may be wrong, but the figure certainly equates or is even greater. That is the type of dimension about which we are talking.
Noble Lords will forgive me if I relate my remarks to what I think is first for the future. I talk not only about the 130,000-plus, which are mainly a workforce, but also about the design teams involved in an advanced and valuable technology. I do not

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talk in terms of market cost. I talk in terms of a valued commodity and of expertise that will serve us well in the future. Some of the finest nuclear technicians and scientists in the world are employed in this country. If we take a retrograde step and disband those teams, they may never come together again. All the expertise that has been gathered will be lost for all time.
I take issue with some of my colleagues on these Benches on their approach to the matter. I accept that the costs indicate that, as a commercial entity, nuclear energy in this country fares badly at present. My noble friend Lord Stoddart of Swindon used a factor of about six to two against nuclear energy at the present time, but I do not know where the costs start and end in both the nuclear and the coal industries which we are discussing as the two major alternatives before us.
I have heard noble Lords cavil tonight at the massive government investment in the nuclear industry. From my experience in the last Labour Government, I know that they invested billions of pounds in the coal industry, as have done the present Conservative Government, with all their faults. What is taken into account in the costs? Are the costs of early retirement in the mining industry included? Are the total costs of subsidies with regard to coal included in the costs? I do not know. It may be so, but I do not have sufficient knowledge to understand what a tonne of coal costs. We know what it costs at the pithead, but is that the real cost? If the total costs were loaded on, I suspect that one might find a much higher factor than we are talking about.
I should like to return to some remarks made by my noble friend Lord Hatch during the debate on the environment. He repeated the same argument tonight. Commenting on the Prime Minister's speech at the United Nations, he said:
"I do not believe that the nuclear option is an option at all".
He implied tonight that there is a report which states that the whole of our present power requirements could be met by wind and water. I believe that that is what he said, though perhaps I misheard him. To my knowledge, no one else in the world has made any such claim. However, in his speech the other evening he said that the population of the world has trebled within the century. He said:
"The world's population has trebled during this century, but will double again in the next 30 years with all the consequences for energy use and all the dangers from the use and the burning of fossil fuels".—[Official Report, 27/11/89; col. 278–9.]
If we do not have nuclear energy or fossil fuels and if the population of the world doubles, surely demand for energy will also double. One does not need to be a genius to assume that people will need energy. Are we all to die of hypothermia during a cold winter with no energy provided by coal or nuclear means? At least we would be pure in our going.
The whole idea is complete nonsense. If my information is correct, over half the world has little or no fuels of its own on which to count. For instance, Japan, which is the most bustling and thriving industrial unit in the world, has very little
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fossil energy of its own. What will happen there if no nuclear power is available? We know why they went to Pearl Harbour. It was for the oil and coal in the South Pacific. That happened when America started the blockade. I predict that one of the most valuable commodities in the near future—not the distant future but the not so far future—will be energy, its availability and all that that entails.
Lord Hatch of Lusby: My Lords, if the noble Lord will give way —
Lord Dean of Beswick: I shall, my Lords, although I am reluctant to do so. The noble Lord spoke for a long time the other night—about 20 minutes—and has spoken at length tonight. I shall give way provided his intervention is short.
Lord Hatch of Lusby: My Lords, I am reluctant to interrupt the noble Lord's flow, but as he addressed the specific conclusion from the speech that I made last week, I should like just to point out that the fact that the world's population doubles does not necessarily mean that the demand for energy doubles. That is exactly the case for the conservation of energy—to use less energy than is used today.
Lord Dean of Beswick: My Lords, if the noble Lord is trying to convince me that when the population of the world doubles in the next 30 years, wind and water will solve all the energy problems., he is talking of cloud-cuckoo-land because there is no possibility of that happening. I have to remind the noble Lord—and I am assured of the thoroughness with which he goes into these things—that there was a report published last week by a Select Committee of your Lordships' House on the greenhouse effect. In that report there is a brief paragraph on this point. However, I read the evidence submitted to the Committee and there were 66 or 67 organisations dealing in depth with the greenhouse problem, what causes it and what may eliminate it. On page 62, paragraph 13.44 the report states that:
"Nuclear power is the only proven adequate alternative to fossil fuel energy generation. Abandonment of research into the fast reactor technology is short sighted. Under section 3 of the Electricity Act the Secretary of State should exercise his duty to promote R&D into new techniques for generation and reconsider the future of…Dounreay".
I agree with that statement. It is the part that is worrying me. Britain is an island but we cannot live as one. We talk about helping the third world which has no resources. Who will help them if we adopt a Luddite approach and an almost inward-looking policy of saying, "We shall not export anything"?
Let me make it quite clear. There are areas of the world which want power and power stations but where there is no coal—and that is what we are talking about now. If substantial amounts of fuel cannot be brought quickly to where those power stations are, then that is a non-starter. There is no way in which those countries will be able to opt for coal-fired power stations, even with all the desulphurisation plans. There is no way in which they can do that. I take the view that if there is the technology, there is no question but that the French will continue to use it. I do not know whether their

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costs are any different from ours because I do not have the French figures, but they must think that it is a success. It may have to be subsidised but we must think of the rate at which the population of the world is increasing. We have to deal with that situation and consider the rate of extraction that would be necessary. The noble Lord, Lord Hatch, also mentioned that the Chinese want to double their coal extraction in the next 10 years. If we talk in terms of a country of nearly 1,000 million people intending to double its coal extraction in 10 years, then, by God!, the finite deposits of coal throughout the world will certainly become exhausted more quickly than was thought possible even 10 years ago.
What shall we turn to? I take the view that the Government have handled the privatisation of electricity badly. They should have left the matter completely alone. If, as my noble friend Lord Stoddart, says—and I accept his case—the electricity consumer (and I am one like anyone else) is paying for research and development in the nuclear energy field, perhaps that should have been considered. The Government would have been wise to be more frank than they were. However, I am of the opinion that the nuclear energy programme, and research into it, must continue.
I have no doubt that the noble Lord, Lord Ezra, is more familiar than I am with an expanding programme of increasing our coal production dramatically by sinking new pits. There is no question of opening old ones, as I understand it. Once a pit is declared redundant and is closed, it is finished, unless there are very exceptional circumstances. If one therefore talks of a programme of sinking new pits, what is the cost of the coal? Is it the cost at the pithead or the cost of the investment before one starts to sink the pit? Many questions have to be asked.
I come from an area of Manchester known as Bradford which had the only large pit in the area. I have no doubt that the noble Lord, Lord Diamond, knows the area. Just after the war the Labour Government spent £4 million —a large sum of money in those days—improving and modernising that pit. It contained high quality coal but, like other pits in Lancashire, it was a deep pit. It was overtaken by the availability of cheap oil. The pit closed with the loss of nearly 4,000 jobs. The area started to die. It is now an industrial desert. Much of Lancashire is the same.
I am asking colleagues in this Chamber to be a little careful before accepting evidence that wind and water will cater for our energy resources. That is little more than wishful thinking. The noble Lord keeps nodding his head. No one can produce any reason why that facility for providing energy is a substitute for present needs. It may be supplementary, but there is no way that such a facility can be a total substitute and can cater for our future needs. When speaking of our needs, I am talking globally. As I said in the debate on the environment, no man is an island; and no country is an island.
I conclude on the basis of what I have said before. If we now let our nuclear know-how and research
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knowledge that we have acquired over the years on nuclear energy go by the board, I am convinced that our grandchildren and their children will look back on us with extreme disfavour as having let them down very badly.
10.29 p.m.
Lord Jenkin of Roding: My Lords, it would be tempting to follow the dispute that has arisen on the other side of the House by saying that noble Lords on the Labour Benches are entitled to their domestic arguments. But I am immensely grateful to the noble Lord, Lord Hatch of Lusby, his noble friend Lord Stoddart of Swindon, and the noble Lord, Lord Dean of Beswick, for having thrown up one of the major questions that has to be asked and answered as a result of the Statement that was made by the Government on 9th November.
Much of the attention in the debate has been directed to one part of that Statement: namely, taking the nuclear stations out of the privatisation programme. But the other part of the Statement, to which a number of noble Lords have referred, is the decision not to proceed with the second, third and fourth pressurised water reactor power stations. It is to that issue that I should like to address my remarks and take a little further the questions which were pertinently asked by my noble friends Lord Lauderdale and Lord Nelson of Stafford.
For seven brief but inglorious weeks in 1974 I held the position of the country's first Minister for Energy. More significantly, I then became my party's spokesman on energy; I was Shadow spokesman from 1974 to 1976. During that period I faced debates on some interesting and pertinent issues which had come to a head. What was to be the next generation of nuclear power stations? There were many contenders. What was to be the future of the fast breeder reactor to which several noble Lords have referred? Would we take part and act as host to the Joint European Torus? I had already been primed in respect of the first question because I remembered the 1965 debate in another place as perhaps does the noble Lord, Lord Diamond. It launched Dungeness B and the AGR programme. Perhaps I am not the right person to say that in that debate in the other place only one speaker thought that the decision was wrong and backed the American light water reactors instead. However, modesty forbids me to say who that was.
However, by then the evidence was already clear: light water reactors would be more economic and simpler to operate and erect than what has been described as the "watchmaking on a giant scale" which has been the programme of AGRs. Most of them have never come to within miles of their design capacity. I always agreed with the late Sir Arthur Hawkins in saying that it was a disaster of the first magnitude.
I advise noble Lords to read the article which appeared on Saturday in the Financial Times written by David Fishlock. It gave the disturbing history of our nuclear industry over the past 20 or 30 years. It explained how we in this country appear to have managed to make mistake after mistake. The result is that we have now been left behind in this area by

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the United States, France, Germany, Japan and other countries. It is most salutory and I hope Ministers will read the article. Why have we managed to make so many wrong decisions and are we in danger of making more —
Lord Stoddart of Swindon: My Lords, will the noble Lord —
Lord Jenkin of Roding: My Lords, it is late and I must be allowed to continue with my speech. As a number of speakers have recognised, the irony is that we may have to fill our energy gap by importing the product of nuclear energy from France. One must ask the question: why is it economic for the French to build nuclear power stations? Why can private industry in Germany build nuclear power stations? Why can it do so in Finland, which I visited recently? Why do we now argue that it is not possible to privatise here when those countries have done so? Why must we remove it from the programme or, more important, stop building?
We are now told that there can be no reappraisal of the policy until 1994. I understand the reasons why it is 1994. However, I beg the Government to recognise just what they are saying by stipulating that there can be no reappraisal of our nuclear strategy until 1994. As was said by my noble friend Lord Nelson of Stafford and the noble Lord, Lord Dean of Beswick, what will happen to the industry between now and then? We know about the awful problems which were thrown up by the energy crisis during which there was a long period of no ordering. We shall not have any nuclear capacity left by that time unless there is a prospect of building. Perhaps I may say to my noble friend on the Front Bench that that is a very formidable consequence of the decision which the Government have announced and I believe that we should be told more about it.
I turn to what I saw 15 years ago as the second issue; namely, the fast breeder reactor. Does the decision announced on 9th November lead the Government to look again at their decision to slow down the research on fast breeders? I believe that the prototype fast reactor, the PFR at Dounreay, is due to be closed down in 1994. That decision was justified in the Government's reply to the Select Committee, presided over by my noble friend Lord Nelson, by saying that fast breeders will not be needed for 30 or 40 years. However, if we cannot now afford PWRs because they are not economical, will that not call into question whether we need the breeder technology rather sooner than we might otherwise need it? Is it not rather shortsighted now to be seeking to reduce the research at Dounreay?
Of course the Government will rightly claim that they can be an effective partner in a European programme, and I very much welcome the agreement signed earlier this year. However, the Select Committee to which I have referred recommended maintaining the PFR at paragraph 3.53 which states:
"PFR is the only reactor in Europe capable of taking fuel elements of the size required for a conventional reactor".
It seems to me that if we are to preserve for the nation that part of the nuclear option, we do not do that by more or less halting research.
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Again, France and Japan will certainly press ahead with research on fast breeders. Will that be yet another area where we built the first, but in the end we are importing the technology from other countries?
Finally, there is nuclear fusion. My noble friend Lord Ullswater answered a Question on that subject last Tuesday and some of his answers as to the Government's commitment to fusion research were not very reassuring. I have always been led to believe that in the long term fusion represents, although with enormous technological problems still to be overcome, the only credible long-term source of energy. If we are to have any hope of preserving the kind of industrial civilisation which the world has created, that must provide a substantial part of our energy resources although perhaps not until the middle of the next century.
From my noble friend's replies the other day, it seems quite unclear as to whether the United Kingdom will support the extension of the JET —the Joint European Torus —to 1996 or whether they will support what the present Secretary of State referred to in correspondence to me as the "next step device", which I understood to mean the New European Torus —the NET.
It is not as if that research has by any means run its course. Experiments have not yet started on the combination of deuterium and tritium which offers substantially longer "shots" so as to gain a great deal more experience of generating the kind of temperatures necessary to produce the action nor have experiments begun on designing in the so-called warm superconductors, which I am assured will make a very considerable difference to the economics and energy efficiency of a fusion reactor if one is ever built. Therefore, research on fusion still has new vistas to explore. This is not the time for this country to pull out from that.
The decision announced on 9th November to halt work on the PWRs has huge implications going far beyond that particular decision —implications for the nation's future energy policy running well into the next century. Combined with the earlier decision to scale down fast reactor research, to close the PFR in 1994 and a reluctance apparently to give any commitment on long-term fusion research, I have to say to my noble friend that the announcement raises all kinds of questions about the future of the United Kingdom's civil nuclear policy. Therefore, I urge my noble friend to convince his right honourable friend that the Government now owe it to Parliament and to the country to produce a definitive statement of what the Government's nuclear policy really is.
Until now the main lines of the strategy have on the whole been clear. We rely on fossil fuels but with an increasing amount of our electricity produced by nuclear energy as it is environmentally more benign, as the Prime Minister rightly told the United Nations. When uranium becomes too expensive, we shall move to fast breeder reactors and then as fusion reaction becomes feasible we shall see that as the long-term power from sea water, or, as it is sometimes called, the power from the sea. Is that still the policy of the Government? Do the Government still believe that one cannot have an

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effective energy policy without a substantial nuclear component, as they said in their reply to the report of the Select Committee? The reply stated that there was,
"no adequate large-scale alternative to fossil fuels other than nuclear energy".
That was said only last April. I agree with that view. I should like to be reassured that the Government still hold that view and, more importantly, if that is the case, that they will do what is necessary to make that policy a reality.
10.41 p.m.
Lord Tordoff: My Lords, we now come to the wind-up period of this debate. I wish to comment on two of the items that have been mentioned, although I shall come to one or two others later. I was amused to hear a rather inadvertent slip by the noble Lord, Lord Nelson of Stafford, when he referred to the Prime Minister as his noble friend. I wonder whether he knows something about events in another place tomorrow that we do not know, and if so perhaps he would like to communicate that to Sir Anthony Meyer who might be quite pleased to hear it.
The subject of hybridity has been raised twice this evening and by the noble Lords, Lord Diamond and Lord Hatch of Lusby, on other occasions. I go along very much with what the noble Lord, Lord Diamond, said. It seems a curious situation when the Government can come forward with a Bill which is clearly not hybrid, change it after it has become an Act to something that one suspects could be hybrid and then say, "It is too late, we have done it". That seems to me a device that governments should not be encouraged to use. One wonders perhaps whether a judicial review may not be the way of tackling the problem. Perhaps the Government should consider that they may be faced with that if they continue down this track.
Like all other noble Lords who have spoken, I certainly wish to thank my noble friend Lord Ezra for initiating this debate. It will be no secret to most people that the Government were somewhat reluctant to have the debate on the agenda tonight. I am glad that he persisted with the proposed Motion. It always struck me that an Unstarred Question was less than adequate to deal with what is a major problem. I understand the Government's difficulty in bringing forward a debate themselves as it would be frightfully difficult for them to word a Motion stating that they had made a mess of the electricity industry and asking what should be done about it. I am particularly grateful to my noble friend for doing what he has done.
Like the noble Lord, Lord Peyton of Yeovil, I am in no way critical of the Secretary of State. If he were here, which of course he is not, I would tell him that I think he has been courageous and decisive in what he has done. However, I have to say that those of us who deal with transport in this House are somewhat worried about the impact of the former Secretary of State for Energy on transport. We fear that perhaps he may do for British Rail what he has already done for the electricity industry.
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The truth is that the new Secretary of State did not have a lot of choice. The supposedly seamless garment was already becoming unzipped by the time the Hinkley C inquiry got under way. It is greatly to the credit of the inspector, Mr. Michael Barnes, that he took the decision that he was going to listen to economic arguments in relation to Hinkley C.
I believe that the country as well as your Lordships owe a debt to the consortium of opposing local authorities which put an awful lot of time, effort and money into the opposition to Hinkley C. My friend, county councillor Humphrey Temperley, has done a remarkably good job in persisting in the objections to Hinkley C. The fact is that if that had not happened we would have reached precisely the point that we are at now, but much further down the track. These figures would have become apparent eventually, but it is doubtful whether the Government would have been aware of what the figures were at that stage while it was still possible to do something about the situation.
So the country has been saved hundreds of millions of pounds by the persistence of COLA in its opposition to Hinkley C. I echo the question that has been asked as to whether the Secretary of State is prepared to make some refund for the cost of that opposition. I declare an interest here as a ratepayer in Somerset, which is carrying about £500,000 of that cost. In justice, the Government should make some recompense to COLA.
The basic question which has come from all sides of the House tonight is: what happens next? The Government cannot pretend that nothing has happened. We cannot have some anodyne statement from the Front Bench tonight saying that all is well in all possible worlds. We do not believe that the amendments that were tabled from all sides when the Bill was going through the House were wrecking amendments. It is true that some noble Lords on the other side of the Chamber thought so, but I note that they are not here tonight.
I wish to quote one or two points in that connection. The noble Lord, Lord Erroll of Hale, said on 19th June, at col. 21 of the Official Report:
"My noble friend Lord Peyton referred to a 'vast number of unknowns'. That is going a little far. There are a certain number of unknowns but I believe that they are containable. I believe that previous speakers tended to over-emphasise the difference between nuclear and conventional power stations. ֵ Separation of the two forms would result in two separate cultures: the still nationalised nuclear sector and the much larger private sector. I believe that would be particularly harmful".
Doubtless, he is due an explanation from the Government in the present circumstances.
The noble Baroness, Lady Gardner of Parkes, said at col. 26:
"I know that the motives of the noble Earl, Lord Halsbury, in moving this amendment are that he has a high regard for nuclear energy and for its future. I do not feel the same in relation to the noble Lord, Lord Williams of Elvel. I think his motives are purely that he thinks that these amendments would be effective in wrecking the Bill. I believe that they would wreck the Bill and for that reason I strongly oppose them".
There is a large number of quotes coming from loyal government supporters on 19th June saying that we were putting forward wrecking amendments from this side of the Chamber if we sought to retain

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nuclear power in a separate company. I believe that those noble Lords deserve an answer from the Government. Do they believe that the industry is wrecked because of what happened recently?
The other question that has come out clearly tonight is: how far do the Government consider that they can plug the gap, as it were? Clearly, if PWRs are at a standstill for five years, which has been mentioned on a number of occasions, there must be a gap somewhere in the Government's calculations or those that they were offering the House beforehand. I wish to quote from a letter from the Department of Energy to the Hinkley inquiry secretariat because it sets out the situation in slightly starker terms than have been referred to tonight. It states:
"The Secretary of State for Energy said inter alio in his statement" —
and we have heard that —
"that the Non Fossil Obligation would be set at a level which could be satisfied without the construction of the new nuclear stations beyond Sizewell B. The proposed Hinkley Point C station is such a station".
The letter goes on to say:
"It follows from the policy announced by the Secretary of State on 9th November that capital investment approval would not be given for new nuclear power stations beyond Sizewell B".
That seems to be fairly definitive.
"That will remain the case at least until the review of the prospects for nuclear power in 1994 announced by the Secretary of State on 9th November".
What will fill the gap? The Government have said on many occasions that nuclear power will help to reduce the amount of CO2 and will consequently reduce the greenhouse effect. We need a massive investment in renewable resources, which, I tend to agree with noble Lords, cannot fill the gap in the short term. I disagree with the noble Lord, Lord Hatch of Lusby, on the potential of renewables to meet the enormous gap. Nevertheless, we must surely increase our investment to make sure that these things come forward as fast as possible. I see that the noble Lord, Lord Dean of Beswick, agrees with that point. I am sure that there is wide agreement on these issues.
There must also be investment in conservation. We must start with the more efficient use of the energy we have. The analogy was once put to me of somebody taking a bath without using the plug. There are two ways of filling the bath. The first is to turn on the tap more and more or find another source of water to go into the bath. The other is to put in the plug. The Government singularly fail to encourage people to put in the plug. They try all the time to meet the demand by increasing the supply. That has to change.
The Government cannot pull up the ladder and say "Business as usual". Questions from all sides of the House and from outside deserve an answer. I hope that the Minister will be able to provide us with some genuine answers and will be able to give better ones than those he has given recently to the noble Lord, Lord Williams of Elvel. I was especially struck by one Written Answer. I do not want to poach too much on the noble Lord's preserve, but he asked the Government why it took the Secretary
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of State for Energy until 11th October to obtain the figures that he needed to make the decision. The Government replied:
"The figures in question were supplied by National Power. This information, which was of great importance to the future commercial position of that company, was not made available by them until 1lth October".—[Official Report, 30/11/89; col. 594.]
If the answer had been "Because it was the birthday of the noble Lord, Lord Tordoff, on 11th October", that would have been equally factually correct but of as little use in response to the question that had been asked.
It is clear from what has been said tonight that there is a gaping hole in the Government's policy on electricity privatisation and on the future of the electricity industry. A variety of people from the whole spectrum of politics in this House have pointed clearly to the same point that the Government have to stand up and explain what they intend to do now. It is now a month since the Statement was made. The country cannot go on waiting for ever. I thought that the final remark of the noble Lord, Lord Jenkin of Roding, that the Government owe it to Parliament and to the country to explain themselves, both in terms of how they will fill the supposed energy gap and what they intend to do about the future of the nuclear industry, was perhaps one of the most cogent comments made tonight. I look forward to hearing the Minister's answers.
10.54 p.m.
Lord Williams of Elvel: My Lords, it is rare that a spokesman from this Front Bench rises at 10.54 p.m. to wind up a debate for the Opposition. It is very late. I do not intend to keep the House very long because other noble Lords have made the points that I intended to make. However, I cannot resist reminding the Government that the timetable for the passage of the Electricity Bill was set firmly for the end of July —the Summer Recess. On these Benches we moved a Motion at the end of the proceedings asking the Government to think again. The Government refused to do so. They have landed themselves in a mess because the Bill was not thought out properly at the outset.
We are now in a position of uncertainty such as that mentioned by the noble Lord, Lord Diamond. Privatisation started off on one track, it then went onto a further track and now it has gone onto yet another track. If the assurances given by the noble Baroness, Lady Hooper, when the legislation was before us in the form of a Bill are right —that is, in response to our amendment excluding nuclear power from the privatisation procedure —then the Act, as the noble Lord, Lord Tordoff, said, has been wrecked.
Further, the public image of nuclear power as a result of what the Government have said has suffered. Indeed, this point was made by the noble Lord, Lord Stafford, and also by my noble friend Lord Dean of Beswick. We are in a position where we have no clear statement of government policy about nuclear power. Are we, therefore, to assume that we are now in a United States-type of situation where no nuclear station has been commissioned in

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the past 10 years, or are we to assume that we are in a different situation and that we can move ahead in some manner which I do not quite understand? No doubt the noble Viscount will be able to give us the answer.
Moreover, we have no idea how the grid will operate. As the noble Lord, Lord Peyton, the noble Earl, Lord Lauderdale, and other noble Lords remarked, the grid, although complicated to operate, has a very simple merit cost order system. It then goes on to a merit price system, as was explained to us during the passage of the Bill. However, we now find that a company called Nuclear Electric plc is providing what must be the base load because you cannot shut down nuclear stations just like that. But we do not know upon what basis the grid will operate. We do not know whether it will operate on a base load from Nuclear Electric plc with a merit price system from the rest or with a merit cost system from the rest. We simply have no idea. That is one of the reasons the people in Bankside are wholly confused about the way they are to operate.
As many noble Lords remarked, we have no idea about the security of supply. I think that the noble Lord, Lord Peyton, mentioned that he very much regretted the fact that we had not received advice from the noble Lord, Lord Marshall of Goring, during our debates. In fact, only a week ago he said:
"For well over a year the electricity industry has sought an answer which would preserve both competition and the security of supply, but for the fundamental reasons I have outlined we have finally come to the conclusion that no workable compromise is possible. This issue, which has hung over the privatisation process for the best part of 18 months, was finally put beyond further debate by Mr. John Wakeham at this meeting with the Electricity Industry in September, where he confirmed that competition was to be the guiding principle of the new arrangements. Since that was incompatible with the obligation to supply, then after an interim period the Distribution Companies would have no obligation to supply in the traditional sense used worldwide".
Therefore there is no obligation to supply, whatever the Act may say.
Many noble Lords commented upon the position as regards Nuclear Electric plc and whether, as the chairman Mr. John Collier said, the basic objective will be to regain the confidence of the public in nuclear power by demonstrating that it is not only safe and environmentally clean but that it is also economic in the UK, as it is elsewhere in the world. We have no idea what the Government's policy on that is.
The noble Lord the Leader of the House on 9th November said that he wished to preserve the PWR option. I never understood what the PWR option was. It seemed to me that it meant that we will build Sizewell B, because we have invested £1 billion in Sizewell B, and it is better to invest another £1 billion, and then scrap the rest. In the meantime we know that the Hinkley Point inquiry has continued. If after the 22,000 groups have given evidence and the CEGB has spent £10 million, the Hinkley Point inquiry says that Hinkley Point C is desirable what do we then do? Do we wait until 1994 or do we then have another inquiry? The report of the Hinkley Point inquiry is going to the Secretary of State for Energy in the spring of next year. It is not going to
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the Secretary of State in the spring of 1994. Next year is only 1990 and so four years will elapse. We must ask the Government what they will do in the interim.
The noble Lord, Lord Marshall of Goring, has spoken in forthright terms about the CEGB's responsibility for, as has been alleged, concealing some of the back-end costs of nuclear power stations (the decommissioning costs). He has said that fuel service charges and decommissioning costs were not their reason for the abandonment of the PWR programme. The factors which really pushed up the estimates of what prices might have to be were the realities of satisfying the financial market.
A letter from Mr. John Baker, the managing director of National Power, to Mr. John Wakeham brought about the final U-turn with the famous llth October figures. He said that the nuclear cost figures, which had been good enough for the annual reports of a public industry and for public inquiries, simply would not survive the scrutiny of accountants advising prospective private investors.
I understand that private investors may be more rigorous than governments in their scrutiny of figures, but nevertheless there are strategic options, as I am sure the noble Lord, Lord Jenkin, will recognise, because that was the object of his intervention. There are strategic options, and either we are going in for a nuclear programme, with all the long-run costs, fusion and the other things that the noble Lord mentioned, or we shall say that those things must be viable in the short term and can be sold on the market. That is where the Government's dilemma lies. It is a dilemma that we have pointed out many times. I hate to quote myself but on Second Reading of the Electricity Bill I remember saying that I was looking forward to seeing the prospectus for National Power, including the nuclear element, all the Schedule 12 decommissioning costs, provisions and all the rest of it. The noble Viscount will remember my speech. Under Section 47 of the Financial Services Act I thought that that was an impossible prospectus to write.
Do the Government accept the criticism of the noble Lord, Lord Marshall of Goring, that the nuclear programme has been dropped because electricity privatisation forced a short-term view on nuclear power rather than a long-term view? I should like the answer to that from the noble Viscount.
Also in the last few days the question of unfair subsidies has arisen. I refer to the Rover Statement. It is perfectly clear that the Community is unlikely to ratify any further state aid agreements with Britain until Ministers explain their actions over what is known as the "sweetener" payments. Are we going to have further support for Nuclear Electric or will we allow it to compete in the market place as normal? If we allow it to compete in the market place, on what basis will its assets be valued and on what return on investment will the Government sell electricity into the grid? These are questions to which we need the answers.
Finally, we need to know what on earth the Government will now produce out of the hat. Where

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is the energy policy? The noble Lords, Lord Nelson of Stafford, Lord Jenkin of Roding and some of my noble friends wish to know where is the energy policy that the Government have in mind for the coming years. We know that nuclear power is not saleable. We know that on normal accounting costings, both on the capital cost and the back end cost, nuclear power is not profitable. What will the Government do? Where will the Government look for the energy that is required for the next 10, 20, 30 years? We very much hope that the Government will look to energy savings, energy efficiency, energy conservation. After all, in this House we passed an amendment to that effect and we hope very much that the Government will take it seriously. We also hope that, although the contribution may not be more than marginal in the short term, alternative energy sources will have a much greater emphasis from the Government.
I can only say at the moment that the privatisation started off like the Grand Old Duke of York. He had 10,000 men and he marched them up to the top of the hill. He is gradually marching them down again. He has not yet got down to the bottom of the hill, but he is halfway down. I very much hope that the noble Viscount will tell us that the Government have got to the bottom of the hill. Together with the noble Lord, Lord Peyton, I urge him to look at the whole matter again and start from scratch.
11.8 p.m.
Viscount Ullswater: My Lords, I listened very carefully to the speech made by the noble Lord, Lord Ezra, in moving the Motion and to other speeches made by noble Lords. In preparing for the debate I also looked again at the points made by the noble Lord, Lord Ezra, at the time of the Statement by the Secretary of State on nuclear power. There were three points that he made, then and now, to which I should like to respond in my speech. I shall also try to respond to many of the questions put to me during the course of the debate.
The points put to me by the noble Lord, Lord Ezra, were that the decision to keep nuclear power in the public sector undermines the principle of the Electricity Act; that the CEGB should be divided into a larger number of successor generating companies now that National Power will no longer own the nuclear stations; and a description of the contractual regime.
On the first point, the noble Lord said on 9th November (at col. 966 of Hansard):
"The principle of the Bill was that the whole electricity industry would be sold to the private sector."
I must say to him with some respect that the Bill went a great deal further than that. Out of a Bill of some 113 clauses, and 18 schedules, no more than three clauses dealt specifically with flotation matters. The rest of the Bill was concerned with the establishment of a new, customer-driven regulatory framework for the electricity industry based on competition, the reorganisation of the electricity industry into a structure where competition could develop and flourish, and special provisions relating
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to nuclear and other non-fossil generation. The entire Act continues to be relevant and necessary and it will be implemented.
The Government hold firm to the principles underlying the privatisation White Paper. Decisions will continue to be driven by the needs of customers. There will be full and open competition which will provide downward pressure on prices. There will be regulation of natural monopolies. Security and safety of supply will be maintained. Customers will gain new rights.
Lord Williams of Elvel: My Lords, is the noble Viscount making a Second Reading speech about the Electricity Bill?
Viscount Ullswater: No, my Lords. I am replying to this debate.
Those who work in the part of the industry that is to be privatised will be offered a direct stake in their future. Those who work for the nuclear company will be able to benefit from the sale of the rest of the industry. This situation is provided for in the Electricity Act. We have no intention of throwing away all of these benefits. Indeed, we are well on course to meet our aim of vesting the new structure of industry at the end of March 1990.
In this context, I am glad that the noble Lord is pleased with the news announced earlier today that National Power and PowerGen have reached agreement with British Coal on the supply of coal, following vesting. However, this is clearly not the end of the story. While vesting will introduce the new structure of the industry and a competitive contractual regime, the process will not be complete until the competitive elements have been privatised. Only when the electricity companies have shareholders to answer to will the full benefits of the reorganisation come about. While the companies remain in the public sector, they are only partially exposed to commercial reality; they do not face the scrutiny of analysts and the need to justify their performance at annual general meetings.
We cannot therefore rest on our laurels once vesting has taken place, but must press ahead as quickly as possible with the flotations. That is the reason underlying my right honourable friend the Secretary of State for Energy's opening remarks in his Statement on 9th November at col. 1175 of Commons Hansard:
"The Government remain determined to complete electricity privatisation, with all the benefits it will bring, in the lifetime of this Parliament".
That brings me to the second point raised by the noble Lord, Lord Ezra: that we should reconsider the decision to split the generating assets of the CEGB between a larger company and a smaller company.
In the time since the privatisation White Paper was published, the CEGB has accomplished a major reorganisation of its activities between its National Power and PowerGen divisions. National Power has also divided its activities between conventional and nuclear generation. Because of this latter split, the amount of further reorganisation needed to take

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account of the nuclear decision can be kept to a minimum. However, if we were to return to the drawing board at this stage, the amount of disruption would be immense. It would jeopardise our objective of completing privatisation this Pariament. The Government are not prepared to put this objective at risk.
I should like to ask the noble Lord what this would achieve. While there is plenty of evidence that there will be intense competition between them, National Power and PowerGen will not be the only generators. The Bill provides for competition in generation, and there are a considerable number of independent proposals for new generating projects. One, between Lakeland Power and NORWEB, has already been signed.
The Electricity Act and the licences to be issued to National Power and PowerGen will ensure that the two major companies will not be able to exploit their dominant position. Thus, fair competition will be ensured and our proposals will enable that competition to be introduced soon. So far as we are all concerned, consumers and taxpayers alike, that is very good news.
The noble Lord, Lord Ezra, also said that the Secretary of State had said that there was no intention to change the structure at this stage and asked whether that meant that it could be changed at a later stage. The answer to that question is that the Secretary of State meant that no change could be contemplated at this late stage: it is a question of emphasis on the word "this". I have already explained the reason.
On the question of hybridity, which was mentioned by the noble Lords, Lord Hatch, Lord Diamond and Lord Tordoff, the Electricity Bill, which became the Electricity Act 1989, was not hybrid. It was alleged in another place when the then Secretary of State announced the withdrawal of Magnox stations from the privatisation programme that the decision made the Bill hybrid. That allegation was not correct. The Bill, and now the Act, provides in Part II for the reorganisation of the electricity supply industry from statutory corporations into Companies Act companies. The form of the reorganisation will change. The CEGB will be divided into four rather than three companies as a result of the decisions on nuclear power, but those decisions did not require any change in the terms of the Bill or the Act.
The Electricity Bill was not hybrid before the Magnox decision and that decision did not require any amendment to the Bill. It follows that the Bill did not become hybrid as a result of that decision.
The noble Lord, Lord Ezra, asked for a description of how the contractual and pooling regime will work. It will be appreciated that detailed discussions are still going on, but noble Lords may find this explanation helpful.
The pool which will be run by the National Grid Company will enable suppliers and generators to buy and sell electrical energy efficiently. It will be a short term or "spot market" for electrical energy based on once daily offer prices for energy from each
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generating unit. The details of how the pooling and subsequent settlement system will operate are currently under discussion with the industry. Once those discussions are completed, a description of the pooling arrangements will be made available to independent generators and other interest parties.
In the meantime, I can explain that alongside their pool trading, pool members will be able to enter into financial contracts with each other in order to obtain terms and prices for energy which are applicable over the longer term. The bulk of electrical energy supplies are expected to be covered by such contractual arrangements.
One contractual mechanism under consideration is an "options" contract which will reduce the parties' exposure to fluctuations in pool prices and hence provide longer term stability in prices.
The new contractual and operating regime the Government have recently agreed with the industry will involve no permanent restrictions on competition but will ensure that there is an orderly transition to a completely competitive market.
Competition between public electricity suppliers, independent supply companies and generators to supply customers direct will be limited to sites taking more than 1mW for four years, and then sites taking more than 100kW for a further four years. After eight years all restrictions disappear. Sites above 1mW account for about one-third of total electricity supplied while sites above 100kW account for about half of supply.
There will also be temporary limits on the number of customers a public electricity supplier could lose to National Power and PowerGen so as to prevent those two large generators developing local monopolies.
For the first four years, National Power and PowerGen will, in aggregate, be limited to supplying no more than 15 per cent. of demand in any one area supplied by a public electricity supplier. That limit will then be raised to 25 per cent. and removed altogether after eight years. Thus, there will be no restrictions on competition between generators to supply public electricity suppliers. Suppliers will be free to contract with independent generators immediately and those contracts will be implemented through the pool.
Furthermore, independent generators already selling to customers below 1mW will be able to obtain a licence to continue that supply from the Secretary of State. The Secretary of State will also have discretion to consider applications for licences to supply customers below 1MW and 100kW limits. Those proposals will ensure that the benefits of the national merit order, in making sure that power is obtained from the cheapest sources, will be maintained. It will also provide for effective competition for generation from the outset, on equal terms between the existing generators and new independent generators. That will ensure downward pressure on electricity prices.
The noble Lord, Lord Ezra, also asked how prices, in the pool will be reconciled with contracts. Payments in the pool will be settled on a detailed

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basis between buyers and sellers. Contract payments will be settled initially at least on a bilateral basis and it is hoped that in time a clearing house will be established for the settlement of contract payments. It is not essential to the operation of the new system.
The noble Lord also asked how the obligation to supply will be maintained, as did other noble Lords.
Lord Williams of Elvel: My Lords, before the noble Viscount leaves the question of price with regard to the grid, will he tell us how nuclear electricity will bid into the grid? Will it be on marginal cost or will there be some price mechanism? If so, will he explain what price mechanism that will be?
Viscount Ullswater: My Lords, that is a detailed question to which I do not have the answer at the moment. I shall undertake to discover the answer and write to the noble Lord.
I was in the middle of explaining to the noble Lord, Lord Ezra, how the obligation to supply will be maintained. The obligation to supply will rest on the public electricity suppliers. They will have an obligation to supply those entitled to a tariff supply. Those customers who choose to take a contract supply will be free to contract with their local public electricity supplier or direct with a generator.
My noble friend Lord Peyton asked me the cost of taking the grid from the CEGB. The CEGB estimated the cost of taking the grid away at up to £1 billion. That was widely recognised as an alarmist figure released prior to the Government's decision. The grid company has now been established as a separate division of the CEGB and a new method for running the system is being established in detail.
Lord Peyton of Yeovil: My Lords, perhaps my noble friend will forgive me for intervening. It is all very well to dismiss those allegations as alarmist. That is exactly what the previous Secretary of State did. We are entitled to ask that, if the Government dismiss those figures as eyewash or rubbish, they should put forward a definite figure as an alternative. There must be some costs involved, although the Government are at liberty to say that there will be no cost. Let us have a clear assessment.
Viscount Ullswater: My Lords, I was about to tell my noble friend that there is no evidence that the CEGB's cost estimate was correct. Separating the grid is central to bringing forward competition and so to reducing costs.
Lord Williams of Elvel: My Lords, I am sorry to interrupt the noble Viscount yet again. Will he respond to his noble friend and produce the figure that the Government believe is the cost of separating the grid from the present system of the CEGB?
Viscount Ullswater: My Lords, that is another detailed question to which I do not have the answer. I shall have to undertake to write to my noble friend. Of course I shall send a copy to the noble Lord, Lord Williams.
Lord Peyton of Yeovil: My Lords, perhaps my noble friend will forgive me for interrupting him. It
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is not in any way my purpose to attribute blame to him, but I hope that he will communicate to his right honourable friend how profoundly disturbed are some of those who sit behind him to find that many months after the CEGB put forward that very serious figure the Government still say, "That is an alarmist figure" but are quite unable to put forward one of their own. I ask my noble friend to communicate to his right honourable friend the very profound sense of unease that exists behind him because of that kind of treatment.
Viscount Ullswater: My Lords, I shall indeed take away from this debate everything that noble Lords have said. I undertake to talk to my right honourable friend and explain to him the concerns that come not only from behind me but from opposite sides of the House. I think that, as the one replying to this debate, it is my duty to do so.
My noble friend Lord Peyton also asked about the way to ensure security of supply and should it be done by central control. The responsibility for security of supply will rest on the public electricity suppliers, as I have said. It is they who are in touch with customers' needs and can contract for new generating capacity. There is no more logic in putting the obligation on the generating companies than in putting it on British Coal which supplies fuel to the generators. Indeed, large parts of Europe are now coming to the view that central control of key resources is not the best way of meeting customers' needs. Therefore my noble friend is recommending a retrograde step.
The noble Lord, Lord Stoddart, asked whether the CEGB had a good record of security of supply. I have to say yes. It has served the country well in maintaining security of supply. It has done that too well, at significant cost to the consumer. It has not planned accurately the need for new stations and in the main it has provided too much capacity at too great a cost because it is not in direct touch with the consumer.
Turning to nuclear power, this House has always been a firm advocate of nuclear power and a supporter of this Government's policy —
Lord Tordoff: My Lords, I am sorry to interrupt the noble Viscount, but it does not seem to answer the question on security of supply, if I may say so. Questions are being asked on all sides as to when the lights are going to go out. Are the Government assured that in the new circumstances there will not be, as we accept, over-capacity but that there may well be under-capacity? What mechanism is there for ensuring that that happens in the new situation? That point was made by the noble Lords, Lord Peyton of Yeovil and Lord Stoddart of Swindon.
Viscount Ullswater: My Lords, I think that I shall be dealing with that notion in my speech. The nuclear industry has provided a lifeline to this country three times in the past 15 years.
Twice when the miners attempted to hold us to ransom, and during the oil crisis of 1973–74, the nuclear industry played a key role in keeping the lights on. We have not forgotten those events. We

719
have all learned the need for diversity in fuel supply and I can assure my noble friend Lord Nelson of Stafford and your Lordships tonight that the Government remain firmly committed to maintaining nuclear power in this country.
Much has been said about the costs of nuclear power in recent weeks and there have been attempts to show that nuclear is an economic disaster.
That is not the Government's view and it is not why we decided to remove the nuclear stations from the privatisation programme. The economics of nuclear power remain much the same today as they have over recent years.
The reasons for keeping the AGR and PWR stations in the public sector were different from those that had earlier led the Government to keep the Magnox stations in the public sector.
So far as the Magnox stations were concerned, our preparations for privatisation showed that earlier estimates of reprocessing and decommissioning costs were not high enough. For that reason we were unable to privatise the Magnox stations. But while those increases were important for the Magnox stations, the reprocessing and decommissioning costs per unit of output for AGRs and PWRs remain substantially lower than those for Magnox.
The simple reason the AGR and PWR stations could not be privatised was that it had become apparent that private sector institutions and the investing public have a different perception of the financial risks associated with the industry than that which can be taken by the Government. The fall in the price of oil and the increase in the cost of capital which have occurred in recent years made the cost comparison less favourable than it was earlier.
These factors mean that investors would require a much higher return from existing AGR stations than the rate currently required. They also mean that the financial institutions would not lend for the future PWR stations except at interest rates which include a high risk premium. They also required loans to be repaid over much shorter periods than in the public sector.
These requirements, placed on a highly capital-intensive industry, would have necessitated substantial increases in electricity prices. We were not prepared to accept that.
The solution proposed by National Power was for the Government to give unprecedented guarantees, which would have required taxpayers and consumers to take almost all the commercial risks associated both with output from the stations and with possible future costs increases. The Government, on behalf of the taxpayer, were not prepared to underwrite the private sector in that way. Our solution was the only one which was fair to both the consumer and the taxpayer.
Lord Williams of Elvel: My Lords, before the noble Viscount leaves the question, could he kindly tell us this? Now that AGRs and future PWRs, if there are any, are in the public sector, will the Government continue the process of lending at low interest rates
720
and not requiring what the institution investor in the City of London would regard as a short-term proper return?
Viscount Ullswater: My Lords, the private sector and the public sector require different rates of return. It is therefore quite right to think that the nuclear power stations in the public sector will not have to stand the full rigours of the interest rates required by the private sector.
Lord Stoddart of Swindon: My Lords, will the noble Viscount give way?
Viscount Ullswater: My Lords, I feel that I have dealt with many of these problems. I have tried to help the noble Lord whenever possible, but I should like to continue with my speech.
Lord Stoddart of Swindon: My Lords, the noble Viscount is raising great doubts in the minds of Members opposite; I do not know about his noble friends. Surely the whole objective of the Government in privatising the industry was to induce competition and to reduce costs. I thought that that was what it was all about. Now he is telling us that that is not so, certainly in relation to the nuclear industry. But as I pointed out in my speech, the matters that he has just raised were very well known. In the United States they have known for 10 years that nuclear power through light water reactors is not viable. That is what we cannot understand and that is what we should like him to explain to us.
Viscount Ullswater: My Lords, I think that I have dealt with the reasons the AGRs and the PWRs have not been left in the hands of the public. I should now like to continue with my speech.
My noble friend Lord Lauderdale drew specific attention to OECD figures which suggest that in many countries nuclear power is either cheaper than coal-fired generation or roughly on a par with it. I certainly take some cautious encouragement from these figures. The basic economics of nuclear have not changed. However, it must be remembered that these figures are not, and do not claim to be, commercial market prices for supplies of nuclear power in the private sector. For example, it uses a 5 per cent. discount rate as its base case and at a 10 per cent. discount rate the picture looks far less rosy for nuclear. As I said, at the rates being sought by financial institutions to fund nuclear power in the private sector, it was clear that the price of nuclear electricity woud have been unacceptably high.
The OECD report is an interesting contribution to the nuclear debate but it does not reflect the commercial factors which my right honourable friend had to take into account.
My noble friend also pressed me to publish the figures provided by National Power which underlay the Government's decisions. The figures cannot be considered independently of the nature of the guarantees pressed hard for by National Power. I have already indicated the extensive nature of those guarantees. If we had been prepared to give such guarantees we would have sought an appropriate

721
reduction in National Power's prices. I cannot tell the noble Lord what would have been the outcome of this negotiation, except to say that it was clear from our knowledge of generating costs that the prices would have remained substantially higher than fossil prices.
The figures for actual supplies —as distinct from negotiating offers in respect of a situation which is now no longer relevant —will, of course, be known in due course when the accounts of the nuclear company are published and when the rate of the fossil fuel levy is announced. I hope that my noble friend will accept that that is as much as I can say.
Many noble Lords have questioned the Government's decision not to include the proposed PWR stations beyond Sizewell B in the non-fossil fuel obligation. I emphasise that we have not said that these stations or others should never be built. We have merely deferred consideration of the prospects for nuclear power until 1994. Meanwhile, these proposed stations will not be within the non-fossil obligation. The Government recognise that the obligation is a distortion of the market.
The noble Lord, Lord Stoddart, asked whether the electorate will have to pay for electrcity from Hinkley Point C PWR station. The Government have stated that they intend to set the non-fossil fuel obligation at a level that can be met without the construction of further capacity beyond Sizewell B. If a forecast cost of Hinkley Point C turns out to be higher than that of fossil fuel plant, it would be necessary to set a new obligation which would have to be laid before Parliament and could be debated.
The non-fossil fuel obligation is rightly justified by the need to maintain diversity. I have already referred to the dangers of ignoring diversity but the obligation must be kept to a minimum consistent with the strategic need. My right honourable friend has therefore had to take into account the many recent changes in the energy scene affecting the need for three more PWRs on diversity grounds.
The noble Lord, Lord Stoddart, suggested that the Secretary of State is still saying that nuclear power is competitive. My right honourable friend did not say that nuclear power is competitive now but that the existing stations and Sizewell B remain necessary for reasons of diversity.
Privatisation is already enhancing diversity of supply. The creation of two major generating companies has an immediate impact. As I have said, the fact that we have devised a structure to promote the growth of new independent generation is of crucial importance. The two main generators and the independents are planning to make use of the latest combined cycle gas turbine stations and the abundance of gas in the North Sea.
The noble Lord, Lord Hatch, asked whether market forces could play a part in reducing pollution. Market forces, in the guise of independent entrants to the generation sector, are already helping the environment. Independents —for example, Lakeland Power—intend to burn gas at higher thermal efficiency than coal and with less
722
environmentally damaging emissions. Competition will encourage more diverse and varied fuel in generation.
The United Kingdom has oil plants which could also make a greater contribution to generation. We also believe that it should be possible, subject to the requirements of the Nuclear Installations Inspectorate, to extend the lifetime of some of the Magnox stations.
All that I have said indicates that the Government are well aware of the energy needs in the short and medium term and that it would be wrong to criticise them for not providing the sources of supply. My noble friend Lord Lauderdale mentioned that we were told that the costs of decommissioning were the reason for the Magnox decision. He asked whether that has changed, as life extensions have been indicated. Nothing has changed since that time. Life extensions of the Magnox stations should have a negligible impact on costs and would still not have allowed it to be privatised. The impact on the company's balance sheet of providing for the liabilities would remain serious.
The Earl of Lauderdale: My Lords, can my noble friend tell us what provision will be made for the decommissioning costs?
Viscount Ullswater: My Lords, again I do not have that figure at my fingertips but I shall make inquiries and write to my noble friend.
The Magnox stations are a valuable national asset. We must use them to the full. I know that many noble Lords are strong and eloquent supporters of renewable forms of power. We are also taking very positive steps to encourage development of renewable technology which promises to make an important contribution to our energy needs in the future. That is why my noble friend Lady Hooper announced that the non-fossil fuel obligation would be extended by 600 megawatts during the 1990s, specifically for renewable projects, and the Government stand by that commitment.
The noble Viscount, Lord Hanworth, pointed to the promotion of energy efficiency, as did the noble Lord, Lord Hatch. The Electricity Act places a duty of the Secretary of State and the Director General of Electricity Supply to promote energy efficiency and economy on the part of persons licensed to supply electricity and to promote the efficient use of electricity supplied by them.
The noble Lord, Lord Hatch, asked me what the Government are doing to support renewables. They are committed to development of economic renewable energy in addition to the sizeable budget for renewable R&D. The non-fossil fuel obligation is designed to support non-fossil fuel generation.
My noble friend Lady Hooper announced the 600 megawatt tranche and we believe that that will give a specific boost to renewable projects. It is already clear that a significant number of renewable projects are in preparation to meet that non-fossil fuel obligation.
Taken together, those factors mean that the case for extending the non-fossil fuel obligation to cover

723
early construction of three further PWRs on diversity grounds is no longer established. Therefore, we shall review the position in 1994.
My noble friend Lord Lauderdale also asked what reasons we have to expect nuclear power to become economic in the longer term. In recent years fossil fuel prices have been at relatively low levels. No one expects them to stay at those levels indefinitely. All around the world people are waking up to the effect which burning fossil fuels has on the environment.
It would be a brave man who would assert today that fossil fuel prices will continue to exclude the indirect costs that are imposed on all of us. What is clear is that our understanding of the environment is improving rapidly at the moment. When the Government review the situation in 1994, as Sizewell B nears completion, we will know a great deal more about the relative economics of fossil and nuclear generation. That will be the time to take a firmer view about the future of the nuclear programme. We shall also take the opportunity of the review to look again at the longer term prospects for renewables in the light of all the factors at the time. I am sure noble Lords agree that it is sensible to look at future prospects for all non-fossil sources together.
I have been asked why we are proceeding with Sizewell B. The station is needed to counterbalance the closure of the Magnox stations in the mid-1990s. We shall also learn from its construction and keep open the option to build further stations after we have completed our review in five years' time. The PWR option must be kept open not only on diversity grounds but also so that we can call on the nuclear industry if it proves the best solution for dealing with our growing environmental problems. For these reasons we must complete Sizewell B on time and ensure that it operates successfully.
The new chairman and directors of Nuclear Electric have made clear their determination to ensure that nuclear power is established as an economic option for base load electricity and that the nuclear industry builds for itself a bright future. They have the full support of the Government in these objectives.
In conclusion I should say that I welcome the opportunity this debate has provided to explain in a little more detail the Government's privatisation proposals following the recent nuclear Statement. I have set out why the Electricity Act remains central to our proposals and have explained why we do not propose to revisit the split between National Power and PowerGen. I have explained how we shall ensure effective competition in generation. I have reiterated the Government's commitment to the nuclear option and have explained the role of the new nuclear company.
Our proposals provide the best means of providing a future for nuclear power and for ensuring the completion of electricity privatisation this Parliament. I regret that I have taken so long to explain all these points and to answer some of the many questions that have been put to me. However, I realise that I have not answered them all. I commend the Government's proposals to the House.
11.47 p.m.
Lord Ezra: My Lords, we have had a well-informed and vigorous debate on an important issue. I wish to thank those noble Lords who have taken part and also the noble Viscount for the detail in which he dealt with the questions raised. However, I wish simply to identify two issues which I believe have emerged from our lengthy discussion on this subject tonight.
In the short term I believe there is still concern about how effectively the new arrangements will work. Anything the Government can do to explain those and allay any doubts there may be would obviously be to the good. In the longer term there is the question of capacity. There is a great deal of uncertainty about what the requirements are likely to be. The 13,000 MW which was an original estimate has been mentioned. How will this extra capacity be met? What will be the role of nuclear, of renewables and indeed of increased energy efficiency in the future? These are questions to which I have no doubt we shall return many times in the future. I beg leave to withdraw the Motion.
Motion for Papers, by leave, withdrawn.
House adjourned at eleven minutes before midnight.

Written Answers

  CYCLING ON PAVEMENTS
  Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
  Whether it is unlawful for cyclists to ride on the pavement.
  Viscount Davidson: Cycling on a footway is illegal, and is an offence under Section 72 of the Highway Act 1835, as amended by Section 85(1) of the Local Government Act 1888. It carries a maximum penalty of £100. Enforcement is a matter for the police.

  SPECTACLES: ALLEGED OVER-PRESCRIBING
  Lord Northfield Lord Northfield asked Her Majesty's Government:
  Whether they will ask the General Optical Council to investigate and report on unnecessary prescribing of spectacles, particularly for young people, as alleged in television programmes and press articles.
  The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper): We are aware of press articles and TV coverage earlier this year about alleged over-prescribing. No complaints of any substance have been received by the department and, therefore, we have no plans to ask the General Optical Council to investigate this matter. It is, of course, open to anyone who is dissatisfied following a sight test to complain to the General Optical Council or to the Consumer Complaints Section of the Association of Optometrists at Bridge House, 233/234 Blackfriars Road, London SE1 8NW.

  GENERAL OPTICAL COUNCIL: MEMBERSHIP
  Lord Northfield Lord Northfield asked Her Majesty's Government:
  Whether they will change the membership of the General Optical Council to give greater weight to the interests of consumers; and
  What is the present balance of membership of the General Optical Council as between professional and allied interests on the one hand and lay members on the other hand; and how long each of the existing members has served.
  Baroness Hooper: The General Optical Council consists of 28 members; six lay members and 22 members representing professional and allied interests. The interests represented are as follows:—

  (a) Five persons appointed by the Privy Council;

  (b) Seven persons chosen to represent registered ophthalmic opticians;

  (c) Three persons chosen to represent registered dispensing opticians;

  (d) Six persons nominated by the examining bodies;

  (e) Six medical practitioners;

  (f) One person nominated by the Privy Council to represent Northern Ireland.

  All members serve a term of five years. A breakdown of members' appointment and retirement dates is given in the table.
  We have no plans to amend the Opticians Act to alter either the constitution of the Council or the composition of its membership.

  Name

  Appointment Date

  Retirement Date

  Lay Members Appointed by the Privy Council:

  Mr David Burt (Chairman)

  1st January 1989

  31st December 1993

  Mrs Elizabeth Stanton

  1st January 1989

  31st December 1993

  Dr E. S. Page

  1st January 1989

  31st December 1993

  Miss Diana Rookledge

  1st January 1989

  31st December 1993

  Mr Douglas Boyd

  1st January 1989

  31st December 1993

  GENERAL OPTICAL COUNCIL: REVIEW OF OPTICAL SERVICES
  Lord Northfield Lord Northfield asked Her Majesty's Government:
  Whether the committee of the General Optical Council that is at present reviewing the optical services has been asked to report on the use of the autorefractor for the testing of eyesight; and
  Whether the committee of the General Optical Council that is at present reviewing the optical services is being asked to report on the pricing of spectacles by opticians and, in particular, on the practice of retailing with the reported 300 per cent. or more mark-up on the price paid to the wholesaler; and
  Whether the committee of the General Optical Council that is at present reviewing the optical services has been, or will be, asked to take evidence from the public.
  Baroness Hooper: The review of the optical services is the responsibility of the General Optical Council. Any questions in connection with the scope of the review or individual subjects under consideration are matters which need to be discussed with them. The General Optical Council issued a press statement in July 1989 explaining the aim of the Optical Services Review and invited people to submit any comments or views they may have on the optical services. I understand that to date there have been no replies from members of the public.

  GENERAL OPTICAL COUNCIL: STANDARDS OF PROFESSIONAL CONDUCT
  Lord Northfield Lord Northfield asked Her Majesty's Government:
  What are the terms of reference of the disciplinary committee of the General Optical Council and what is meant by "high standards of professional conduct" in the Opticians Act when this is applied to the pricing and selling of spectacles.
  Baroness Hooper: It is up to the General Optical Council to ensure that high professional standards are maintained by its members. There are no formal terms of reference for the council's disciplinary committee, but the standards it applies are based on past precedent and peer group expectations. Responsibility for the standard of professional service provided to the public, however, rests with the British College of Optometrists for ophthalmic opticians and the Association of Dispensing Opticians for dispensing opticians.

  727
  As the sale of spectacles is a private transaction it is up to individual opticians to use their commercial judgment and set their prices accordingly. This is normal business practice. The legislation covering their commercial activity is the consumer protection law. Provided opticians comply with this legislation, they are not in breach of the standards of professional conduct required under the terms of the Opticians Act 1958.

  GENERAL OPTICAL COUNCIL: INVESTIGATIVE RESPONSIBILITIES
  Lord Northfield Lord Northfield asked Her Majesty's Government:
  Whether they will ask the General Optical Council to give publicity to their role of investigating complaints against opticians for unnecessary prescribing and over-pricing in the selling of spectacles.
  Baroness Hooper: The General Optical Council is responsible for ensuring the professional standing and integrity of the ophthalmic profession. Any instances of unnecessary prescribing would be considered as a disciplinary offence and subject to investigation under the terms of the General Optical Council rules. Disciplinary hearings are open to the public and the press. A press statement is issued by the General Optical Council on the outcome of any hearing.
  The sale of spectacles is a private transaction. Allegations of over-pricing would therefore need to be made to the local trading standards officer, who would be responsible for taking action if appropriate.

  SIGHT TESTS: CONSUMER CHOICE
  Lord Northfield Lord Northfield asked Her Majesty's Government:
  When they plan to reconsider their proposal to introduce freedom for the consumer to choose a simple refraction test as an alternative to the present sight tests by opticians.
  Baroness Hooper: The option for a refraction only sight test was considered carefully earlier this year prior to the laying of the Sight Testing (Prescription and Examination) Regulations 1989. It was concluded that it was right that all sight tests should include an eye examination. The General Optical Council are currently undertaking a wide ranging review of optical services and we shall consider any recommendations which relate to sight tests.

  SIGHT TEST CHARGES: INCIDENCE AND LEVELS
  Lord Northfield Lord Northfield asked Her Majesty's Government:
  To what extent, as they expected, opticians are now making a charge for testing of eyesight; and what is the average charge being made.
  Baroness Hooper: The amount charged for a private sight test is a matter between the patient and the optician. It is up to individual opticians to use their commercial judgment and set their prices accordingly. As private sight tests fall outside the remit of the general ophthalmic services we do not collect information on the level of charges currently being set.

  SPECTACLES: COSTS TO SUPPLIER
  Lord Northfield Lord Northfield asked Her Majesty's Government:
  What is the cost to the optician of a simple spectacle lens of up to four dioptres correction; and what action they propose to take against opticians who charge £30 for supply to the customer of a pair of such lenses.
  Baroness Hooper: The cost to the optician of a pair of uncut ophthalmic spherical lenses of power up to plus 4.00 dioptres manufactured within the UK to British Standards is between £4 and £22 depending upon the power of the lenses and the size of the uncut lens required. To this must be added the cost of glazing, which is between £1 and £14 depending upon the glazing requirements of the spectacle frame. This does not include the price of the spectacle frame or any dispensing fees. Cheaper lenses are available from less developed countries and other sources but these are not always manufactured to a recognised British or International Standard. We would not wish to interfere in the sale of spectacles, which is a private transaction.

  SIGHT TESTS: ENFORCEMENT OF LEGAL DEFINITIONS
  Lord Rugby Lord Rugby asked Her Majesty's Government:
  Whether they will now enforce the terms "refraction", "defects of refraction" and "refractionist" in the place of "sight", "defects of sight" (neither of which is defined in the Opticians Act 1989) and "optometrist", "ophthalmic optician" or "optician" respectively.
  Baroness Hooper: Regulations specify that when undertaking a sight test an optician should carry out an eye examination to look for signs of injury, disease or abnormality and apply other tests appropriate to the patient. This is in addition to determining the optical prescription through refraction. The terms "sight", and "defects of sight", although not specifically defined in the Act, are well understood by those using them and convey the full meaning of sight testing and the obligations of opticians. The terms "refraction", "defects of refraction" and "refractionist" only convey part of their obligation and are therefore considered inappropriate.

  SPECTACLES: DEFINITION IN EUROPEAN LAW
  Lord Rugby Lord Rugby asked Her Majesty's Government:
  Whether they intend to introduce legislation to amend the Optician's Act 1989 to delete references to spectacles as being "medical appliances" now that EC rulings have confirmed that they should not be so described; and
  What were the costs to the taxpayer in the European Court case regarding the description of spectacles as "medical appliances" and whether they are seeking reimbursement of these costs from the opticians.
  Baroness Hooper: The judgment given by the European Court is confined exclusively to the interpretation of Article 13A(1)(C) of the sixth (VAT) directive and does not range wider than the VAT field. We therefore do not intend to introduce legislation to amend the Opticians Act 1989.
  Disbursements from public funds, including Counsel's fees, amounted to £6,707·75p. Work carried out by Government officials was in the course of their ordinary duties at no extra cost to public funds. It is not practicable to attribute the cost of employment of officials concerned with such cases to particular cases. We will not be seeking reimbursement of the disbursements from the opticians.

  GENERAL OPTICAL COUNCIL: CONSTITUTION
  Lord Rugby Lord Rugby asked Her Majesty's Government:
  What proposals they have for reducing the size of the General Optical Council and its committees now that regulation of opticians is increasingly within the power of Ministers under recent legislation.
  Baroness Hooper: We have no current plans to amend the terms of the Opticians Act 1958 to alter the constitution or duties of the General Optical Council.

  SPECTACLES: PRESCRIBING PRACTICE
  Lord Rugby Lord Rugby asked Her Majesty's Government:
  What guidance is given to opticians regarding fractional tolerance in sight testing, so that customers are not dissuaded from purchasing the new "reading glasses" by unnecessary insistence on a very small difference of correction between two lenses in a pair of spectacles.
  Baroness Hooper: None. The writing of a prescription from the results of a sight test is a matter
  730
  for the professional judgment of the registered practitioner, who may be either a doctor or an ophthalmic optician (optometrist). Where unnecessary prescribing is reported, it is a matter for the General Medical Council or the General Optical Council to take such action deemed necessary by the severity of the offence.

  ELECTRICITY PRIVATISATION: FINANCIAL ADVISERS AND ACCOUNTING PRINCIPLES
  Lord Williams of Elvel Lord Williams of Elvel asked Her Majesty's Government:
  Who were their financial advisers on the electricity privatisation programme, and what accounting principles were used to establish the costs of nuclear power for the purpose of a prospectus.
  Viscount Ullswater: The Government's financial advisers on the electricity privatisation programme are Kleinwort Benson; Touche Ross advise on general accounting matters. Prospectuses for the flotation of the electricity supply industry will be produced nearer the flotation dates. Nuclear stations have been withdrawn from the privatisation programme and so will no longer appear as assets being sold. The accounting principles followed by the CEGB are matters for the board.

  MILK LEVY: CONTAMINATED SUPPLIES
  Lord Carter Lord Carter asked Her Majesty's Government:
  Whether milk which is unsold because of lead contamination will be deducted from the figure for national milk production when calculating production against quota to arrive at the figure for super-levy for the year to 31st March 1990.
  The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington): EC Regulations require all milk delivered to a purchaser to be taken into account in assessing liability for supplementary levy. Milk which has been separately collected by the Milk Marketing Board under the Food and Environment Protection Act restrictions cannot be ignored for levy calculation purposes.

  ANIMAL WELFARE: PROJECTED LEGISLATION
  Lord Northfield Lord Northfield asked Her Majesty's Government:
  Whether they plan to introduce any animal welfare legislation during the present Session.
  Baroness Trumpington: The Government plan to introduce orders on the welfare of farm livestock and horses at markets and an amendment of the transport legislation in respect of casualty animals. We are also planning new regulations on the protection of livestock on farms and at the point of slaughter in this Session.

  MINISTERIAL SALARIES
  Lord Fanshawe of Richmond Lord Fanshawe of Richmond asked Her Majesty's Government:
  When they will announce their decision on Ministers' pay.
  The Lord Privy Seal (Lord Belstead): The salaries of Members of Parliament will increase by £2,594

  MINISTERS AND OTHER PAID OFFICE HOLDERS

  Current official salary £

  January 1990 Official salary £

  Percentage increase%

  Current total salary (including reduced Parliamentary salary of £18,148)

  Total January 1990 salary (including reduced Parliamentary Salary of£20,101

  Percentage increase %

  Prime Minister1

  46,109

  46,750

  1·39

  64.257

  66,851

  4·04

  Cabinet Minister (C)

  34,479

  35,120

  1·86

  52,627

  55,221

  4·93

  Cabinet Minister (L)

  41,997

  44,591

  6·18

  Minister of State (C)

  24,209

  24,850

  2·65

  42,357

  44,951

  6·12

  Minister of State (L)

  37,047

  39,641

  7·00

  Parliamentary Secretary (C)

  18,219

  18,860

  3·52

  36,367

  38,961

  7·13

  Parliamentary Secretary (L)

  30,647

  33,241

  8·46

  Attorney General

  36,679

  37,320

  1·75

  54,827

  57,421

  4·73

  Solicitor General

  29,959

  30,600

  2·14

  48,107

  50,701

  5·39

  Lord Advocate

  42,067

  44,661

  6·17

  Solicitor-General for Scotland

  36,515

  39,109

  7·10

  House of Commons

  Mr Speaker(1)

  36,209

  36,850

  1·77

  54,557

  56,951

  4·77

  Leader of the Opposition

  31,559

  32,200

  2·03

  49,707

  32,301

  5·22

  Chief Whip

  28,589

  29,230

  2·24

  46,737

  49,331

  5·55

  Deputy Chief Whip

  24,209

  24,850

  2·65

  42,357

  44,951

  6·12

  Opposition Chief Whip

  24,209

  24,850

  2·65

  42,357

  44,951

  6·12

  Government Whips +

  Assistant Govt Whips

  15,349

  15,990

  4·18

  33,497

  36,091

  7·74

  Assistant Opposition Whip

  15,349

  15,990

  418

  33,497

  36,091

  7·74

  Chairman of Ways and Means

  24,209

  24,850

  2·65

  42,357

  44,951

  6·12

  Deputy Chairman of Ways and means

  21,199

  21,840

  3·02

  39,347

  41,941

  6·59

  House of Lords

  Chief Whip

  37,047

  39,641

  7·00

  Deputy Chief Whip

  30,647

  33,241

  8·46

  Government Whips

  27,377

  29,971

  9·48

  Opposition Leader

  30,647

  33,241

  8·46

  Opposition Chief Whip

  27,377

  29,971

  9·48

  Chairman of Committees

  37,047

  39,641

  7·00

  Principal Deputy Chairman of Committees

  33,537

  36,131

  7·73

  Members of Parliament

  24,107

  26,701

  10·76

  (1) The Prime Minister and Mr Speaker have elected to receive the same salary as a Cabinet Minister in the House of Commons.

  Note: The Lord Chancellor's salary is governed by the Lord Chancellor's Salary Order 1988 and is not affected by this order. (He receives £91,500 effective from 18th April 1989).
  from 1st January 1990 in accordance with the terms of the resolution on 21st July 1987. In the light of this, the Government propose that ministerial salaries should be increased by the same cash amount, which will mean an increase in the ministerial pay bill of 6·5 per cent. The details are set out in the following table and I have today laid the draft Ministerial and Other Salaries Order 1989 to implement these changes.