§ 3.3 p.m.
§ 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.605
§ 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 606 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.607
§ 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?608
§ 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 609 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.
610 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 611 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 612 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.
613 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 614 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, 615 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 616 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 617 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 618 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 619 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 620 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 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 621 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 622 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 623 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.
624 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 625 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 627 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 628 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 629 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 630 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 631 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 632 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 634 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, 635 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.
636 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 637 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.
638 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.
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 639 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 640 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 641 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 642 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, 643 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 644 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 645 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 646 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.
647 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 648 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.
649 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 650 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 651 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 652 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 653 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 654 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 655 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".656 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 657 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 658 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 659 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.
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.
660 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.
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 661 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?
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.
662 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 663 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.
664 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 665 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 666 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 667 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.
668 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 669 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.
§ 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 670 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 671 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 672 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.
673 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 674 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 675 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.
676 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.
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.
677 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 678 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 679 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.