HL Deb 24 July 1989 vol 510 cc1141-8

3.54 p.m.

Earl Ferrers

My Lords, with the leave of the House, I shall now repeat a Statement about the report of the War Crimes Inquiry which is being made in another place by my right honourable friend the Home Secretary. The Statement is as follows:

"I set up the inquiry in February 1988 to consider allegations that persons who are now British citizens or resident in the United Kingdom committed war crimes during the Second World War; and to advise whether the law of the United Kingdom should be amended in order to enable prosecutions for war crimes to take place in this country.

"The report as submitted to me was in two parts. The main report contains the inquiry team's analysis and conclusions. The second part contains detailed material on individual cases. The inquiry team intended that the main report should be published. I am today publishing it in full and without amendment. I also accept the expert view of the inquiry team that publishing the material in the second part about individual cases would risk prejudicing any proceedings which might be instituted. The House will see the wisdom of that distinction and understand why I cannot comment on individual cases.

"I believe the House will find the main report a full and impressive document. It lakes a broad view of the historical context affecting the territories and people involved in eastern Europe, of the conduct of successive British Governments during and after the last war, and of the legal and other issues. The team visited the Soviet Union and interviewed a large number of possible witnesses. I am most grateful to Sir Thomas Hetherington, formerly Director of Public Prosecutions, and Mr. William Chalmers, formerly Crown Agent, for their authoritative analysis.

"The inquiry deals with allegations of horrific killings on a very large scale—crimes which would constitute violations of the internationally agreed laws and customs of war. The allegations are not about actions committed in the heat of war. They concern individuals allegedly holding quite senior positions in paramilitary units operating in territories occupied by the German forces, whose task was the systematic murder of civilians.

"The inquiry examined in detail seven cases. They concluded in respect of four that there was sufficient evidence to mount a criminal prosecution (one of the individuals concerned has since died). The inquiry went on to recommend that further investigations should take place in respect of the other three cases; in addition, of the nearly 300 further cases drawn to the attention of the inquiry, they recommend further investigation of 75 and that attempts should be made to trace a further 46.

"The inquiry recommends that there should be a change in the law to permit the prosecution in this country of acts of murder and manslaughter committed as war crimes in Germany or German-occupied territory during the period of the Second World War, by persons who are now British citizens or who are resident in the United Kingdom. Additionally, certain procedural changes (including the taking of evidence by live television link from persons outside the United Kingdom) are proposed to facilitate the trial of such cases.

"The inquiry was conscious of the danger of creating retrospective legislation and have sought to meet that objection. They are addressing actions which they are satisfied constituted at the time clear breaches of international law, and which would constitute offences triable in British courts now, had the persons concerned been British citizens at that stage.

"The inquiry reached their recommendation on legislation and prosecution in this country after examining and rejecting other courses of action. In particular, they discussed but did not recommend extradition of the individuals concerned to stand trial in the Soviet Union. They set out the arguments for and against extradition. The Government find the arguments against extradition to the Soviet Union convincing.

"The inquiry's recommendations raise important issues of principle and practicality. It can be argued that it is no service to the memory of the victims of these crimes to resurrect, after so many years, the horror of what they endured. One can question what will be achieved by prosecuting very old men so long after the events. The practical difficulties of conducting trials include the age and frailty of witnesses; the problems of assembling evidence which is available, if at all, in the Soviet Union in a form in which it can be convincingly presented to a jury in Britain; and the problem of establishing identity and other key elements beyond reasonable doubt when witnesses' memories are more than 40 years old. The report deals with all these matters.

"On the other hand, it will be argued that, in the words of the report: The crimes committed are so monstrous that they cannot be condoned … To take no action would taint the UK with the slur of being a haven for war criminals. "Other countries which have uncovered similar evidence have acted to enable the alleged offenders to be brought to trial, sometimes making broader changes in the law than recommended in this report. Despite the practical problems of conducting a trial, the experienced inquiry team, a former Director of Public Prosecutions and Crown Agent, reached the view that there would be sufficient evidence in three cases to mount a prosecution if there were jurisdiction.

"If and when the time comes for assessing the evidence, the prosecuting authorities of the day will need to make their own assessment of particular cases.

"We are impressed by the force of argument which led the inquiry to their clear conclusion that legislation was required. But we want to hear the views of Parliament before taking a final view on the principle of legislation.

"This is a matter on which the views of Parliament will be decisive. The Government will provide an opportunity for each House to debate the implications of the report and the action which should be taken in response to it. This will take place in the autumn once there has been a proper opportunity to study the report and reflect upon it. In the light of the views expressed in that debate, the Government will take a final decision on whether to bring forward a Bill on the lines proposed by the inquiry".

My Lords, that concludes the text of the Statement.

4.2 p.m.

Lord Elwyn-Jones

My Lords, the House will be grateful to the noble Earl for repeating the Home Secretary's Statement and for making available the report of the War Crimes Inquiry conducted by two experts, who are men of great integrity and experience in this field; namely, Sir Thomas Hetherington and Mr. William Chalmers.

The recommendation of that inquiry was in the following terms: Some action should be taken in respect of alleged war criminals who are now British citizens or are resident in this country where the evidence is sufficient to justify such action". It then goes on to say: Legislation to allow prosecution in this country is preferable to extradition. Other courses, such as deprivation of citizenship and deportation, and prosecution under the terms of the Royal Warrant of 1945, would not be satisfactory". Then there is the conclusion: Legislation should be introduced to give British courts jurisdiction over acts of murder and manslaughter committed as war crimes (violations of the laws and customs of war) in Germany or German occupied territory during the period of the Second World War by persons who are now British citizens or resident in the United Kingdom". There follow significant words which I venture to underline: Such legislation should be brought into force as quickly as possible". A great deal of time has elapsed and I am quite sure that in advising the House that there was need for a further and final investigation and for a view to be taken by Parliament, the noble Earl took the view that the lapse of time will not be permitted once more to add to the problem that already exists. We have not yet had an opportunity of examining in any detail the commissioners' report but we are grateful to the Government for having made it immediately available for the House to consider.

As a democratic country, we shall not be unique if it is decided to introduce this legislation. It has already been done by both Australia and Canada, which your Lordships may indeed think are two splendid precedents. Recently, a case was brought to trial before the Canadian Supreme Court which tested the constitutionality of the Canadian legislation in this field. The court decided that there was no infringement of constitutional or other law in what was proposed. So there is a good deal of ground already available for examination of these matters.

The noble Earl indicated that we shall revert to these matters. Can he give an indication to the House at this stage of when it is proposed that that will take place? There will be an overlap period at the end of the present Session, which would seem to be an admirable time for dealing with this matter. I greatly hope that the Government will treat it as a matter of urgency. The more delay, the more difficult is the situation, for reasons that have been indicated. I hope therefore that we shall be given some indication at this stage of the Government's intention that Parliament should properly and rightly have an opportunity to deal with this grave chapter in human history and to dispose of it at any rate so far as concerns legislation.

The memories of Nuremberg are still vivid in my memory. There were millions who were deliberately put to death. That cannot be passed over as a mere aberration, forgotten in the mere tide of history.

Lord Hooson

My Lords, from these Benches I, too, should like to thank the noble Earl for repeating the Statement in this House. Perhaps I may say immediately that I entirely agree with the Government's view that there should be a debate in Parliament before legislation is introduced. I also agree with the remarks that fell from the lips of the noble and learned Lord, Lord Elwyn-Jones, at the conclusion of his remarks. Nevertheless, the report highlights the many difficulties that face this country should we decide to change the law.

We should be seeking to change the law 44 years after the end of the War. We are faced in a sense, with the possibility of trial by live television. Some of the witnesses are described in the report as old and infirm and some of them may be witnesses as to identity. In fact, they would have to give their evidence by means of a live television link, which would cause difficulties in obtaining a conviction under our law with a jury.

Therefore there are many difficulties facing the Government. I agree with the course that they suggest. Mature reflection over the Recess should enable us to have a debate in the next Session so as to come to a conclusion.

In the meantime I should like to ask whether in this respect there have been any trials in Australia and Canada. My understanding is that those countries have changed the law but that in fact no trials have taken place. Because I have only been able to scan it, perhaps I may also ask whether any indication has been given in the report of how long it would take from the time that the legislation was passed until a case came to trial.

Earl Ferrers

My Lords, I am grateful to both the noble and learned Lord and the noble Lord, Lord Hooson, for the cautious welcome that they have given to this Statement. I realise, as will your Lordships, that this is a very controversial Statement. I suspect that feelings will run fairly strongly in all directions on the matters considered by the report. I am grateful to both speakers for saying that they are happy that we shall be able to have a debate in this House as well as in another place in order to gauge parliamentary opinion before the Government have to make up their mind on what, I repeat, is not an easy matter.

The noble and learned Lord, Lord Elwyn-Jones, asked when we would be able to have a debate on this matter. All I can tell him at this instance is that it is the Government's intention to have a debate in the autumn. He would not wish me to be more precise than that at the moment. However, it is our intention to have the debate as soon as possible for the very obvious reason that when the Government make up their mind, if they do so in the way that the report indicates, the sooner the better.

The noble and learned Lord said that if we were to take action in this direction we would not be unique because Australia and Canada have done so. Of course different countries have reacted in different ways. It is perfectly true that ***Australia and Canada have legislated in a way that is more extensive than the report suggests that we should do. The noble Lord, Lord Hooson, asked whether there have been prosecutions. I understand that Australia and Canada have both established major investigative units and that they have legislated. I would have to seek confirmation; I am not aware that there have been prosecutions. The noble Lord, Lord Hooson, also asked how long it would take before the passing of legislation and the institution of prosecutions. Perhaps I may point out to the noble Lord that if Parliament were to pass such legislation it would then be legislation on the statute book. Whether prosecutions took place, and how many and in what respect they took place would be a matter for the Director of Public Prosecutions. One cannot tell at this stage whether there would be any, or how many there would be.

Lord Hailsham of Saint Marylebone

My Lords, I shall of course read this report with the greatest care. However, I must at this stage express very considerable misgivings about what is now proposed. It is proposed to take jurisdiction retrospectively to try crimes, the horror of which no one can obliterate and no one will attempt to mitigate, which were triable at the time of commission, and at the time of the Nuremberg trial, only under either the Nuremberg statute itself or under the municipal law of the countries where they were committed. That is a very serious step to take. It is not proposed to stop there. It is proposed to alter the laws of evidence which would be inadmissible in any other criminal case tried in this country especially for the purpose of trying these classes of cases, limited to two offences, and limited to the cases to which they would otherwise apply. If it is right to change the law of evidence, it is something that ought to be done for all offences. To do that retrospectively after 45 years is a very serious step to take.

There is another factor that I hope other people will take into account. My noble friend Lord Ferrers referred to the difficulty of establishing a case according to the ordinary rules of prosecution evidence here. That is a formidable difficulty. It will probably take years to mount a prosecution and to bring it to trial under any of these cases.

How about the defence? A man is entitled to a fair trial, and a fair trial includes the right of putting forward a defence. If there are any defendants, how will they be affected by the lapse of 45 years? I venture to say that the answer is that we have not the slightest idea. I venture to doubt the wisdom of this. With the promise that I have given that I shall read the report and try to digest its reasoning, I think it right at this stage that I should express my misgivings.

Earl Ferrers

My Lords, I am grateful to my noble and learned friend for what he has said because he expresses a view for which I have no doubt many people have a great deal of sympathy. He said that we would be altering the method by which evidence was taken. I assume that when he said that he was referring to the possibility of using live television. I point out to him that Section 32 of the Criminal Justice Act 1988 allows evidence to be given by people from abroad via live television. There is therefore the ability for such use on the statute book at the moment.

My noble and learned friend referred to the aspect of retrospective legislation. That is very important indeed. The report addresses the argument because it is one of great importance. It states: It can be argued that enactment of legislation in this country to allow the prosecution of 'war crimes' in British courts would not be retrospective: it would merely empower British courts to utilise a jurisdiction already available to them under international law since before 1939, over crimes which had been internationally recognised as such since before 1939 by nations including both the United Kingdom and Germany". I would not wish to argue with my noble and learned friend. He has made a totally valid point. I merely refer him to the way in which the report has addressed the argument. I have no doubt that we shall be able to return to that very important point later.

Lord Mason of Barnsley

My Lords, are Her Majesty's Government taking any steps to stop the three persons most strongly suspected of war crimes from leaving this country until legislation has been determined?

Earl Ferrers

My Lords, anyone has the right and freedom to leave this country if he so wishes. These people, as well as any other people, are not deterred in that way.

The Earl of Lauderdale

My Lords, will my noble friend make one matter clear? He has referred to German occupied territory. Does the report take account of the fact that the Italians occupied territory, first, in Italy, and, secondly, in Dalmatia under German tutelage? Does the report deal with events that may have happened in those areas?

Earl Ferrers

My Lords, those areas were outside the scope of the report.

The Earl of Halsbury

My Lords, perhaps I may add a word in support of what the noble and learned Lord, Lord Hailsham, has said. All the difficulties to which the noble Earl has referred in relation to the report will become worse by effluxion of time. Therefore in the words of Macbeth: If it were done when 'tis done, then 'twere well it were done quickly". There must be a limitation on it.

Earl Ferrers

My Lords, the noble Earl, Lord Halsbury, is perfectly correct. Obviously, bearing in mind the age of these people, if action is to be taken it must be taken fairly quickly.

The Earl of Halsbury

My age, my Lords!

Earl Ferrers

The noble Earl says "his age". That is the only similarity between the noble Earl and the matter that we are considering. I accept his point.