§ 2.58 p.m.
My Lords, I beg to move that the War Crimes Bill be read a second time.
Your Lordships will recall the background to this Bill. We discussed it fully in our debate on 4th December last year. The Bill is, in fact, the culmination of a process which began in 1986, when Rabbi Marvin Hier of the Simon Wiesenthal Centre in Los Angeles wrote to my right honourable friend the Prime Minister enclosing a list of 17 alleged war criminals who were said to be living in Britain. Subsequently, a further list of another 34 alleged war criminals was supplied by the Soviet Embassy to Scottish Television.
The Home office carried out an initial internal study of the lists and, on 8th February 1988, my right honourable friend the then Home Secretary announced the setting up of an inquiry by Sir Thomas Hetherington, a previous Director of Public Prosecutions, and Mr. William Chalmers, a previous Crown Agent in Scotland—both of whom are distinguished lawyers—to look into the allegations further and to advise on whether there was a need for a change in the law in order to make it possible for those against whom firm evidence existed to be brought to trial.
The inquiry's report was published in July last year. By that time the number of allegations which had been considered by the inquiry had grown to 301. The inquiry was able to look at only a very few of these allegations in depth but it found evidence to show that among those who had come here to settle from Eastern Europe after the war were a few who had committed dreadful murders in the most appalling of circumstances. The report indeed reveals a story of almost incomprehensible depravity.
The inquiry recommended—in the words of Section 3 of Chapter 10 of its report—that: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.That is the background to this Bill and indeed the cause of it.
Your Lordships had a full and thorough debate on the report of the inquiry on 4th December last year, and it was debated in another place on 12th 1081 December. Your Lordships' debate was on a "take note" Motion. There was no vote. The outcome of the debate in another place was a very clear and decisive vote in favour of legislation to implement the inquiry's recommendation.
The Government then had to consider carefully what was the correct course of action to take. We all realised that this is a subject of the deepest sensitivities on all sides. There are no party politics in this at all. It is a subject which most of us believed had by now been relegated to the history books and to the masts of time. To resurrect it and, with it, all the passions, agonies, memories and animosities which that entails is something which I think that none of us, whatever our views of the matter may be, would have chosen to have happen.
But life does not always throw up easy options. And the fact is, whether we like it or not, these terrible facts are before us. The responsibility for these crimes can be disputed, but the fact that they happened cannot be denied.
The report has appeared, and its quite clear recommendations have been made. We cannot pretend that that has not happened. Another place, on a free vote on the report, decided quite clearly that legislation ought to be introduced. Your Lordships may not all agree with that decision, but it cannot be ignored.
So the Government had to decide what to do. With all these considerations to be taken into account, the Government's view was that it was right to introduce the Bill and to accede to the overwhelming opinion which was expressed by another place. In so doing, the Government recognised that people—whether in another place or in your Lordships' House; whatever party to which they belong or none; whether within Government or without—hold very personal and deeply sensitive views on a matter of fundamental and indeed philosophical intuition.
That is why, during the whole of the Bill's passage in another place, the Bill was open to a free expression of views unfettered by Whips or by party allegiance. On both occasions, when the opinion of the Members of another place was tested, the Members of another place endorsed this Bill. And so the Bill now comes before your Lordships. Like another place, your Lordships will be unfettered by Party Whips—as if indeed some of your Lordships ever find yourselves fettered by Party Whips!
The Bill was introduced in another place on 8th March. It is a short Bill and it contains only two main provisions. Clause I gives effect to the central recommendation which was contained in the inquiry's report and upon which everything else depends; namely, that the courts in this country should have jurisdiction to try of fences of murder or manslaughter—or in Scotland, of culpable homicide—which were committed as war crimes in Germany or in German-occupied territory, during the period of the Second World War.
The Schedule provides for the use in war crimes trials of the procedure for transfer to the Crown Court without committal proceedings, which is already available in respect of serious fraud cases. The heart—indeed the cause—of the Bill is the 1082 suspicion that there are, living in this country now, people who have knowingly and deliberately committed dreadful murders and the belief that we cannot simply ignore such a suspicion.
I know that many of your Lordships are deeply concerned about the question whether, in making it possible for such people to be brought before the courts, we will be creating retrospective legislation. This concern is of course reflected in the terms of the Reasoned Amendment which my noble friend Lord Campbell of Alloway has tabled. I have the greatest respect for this view, but I would like to give your Lordships this aspect for consideration.
The real evil of retrospective legislation is when the law is changed in order to make someone liable to prosecution and to punishment for an act which, at the time when he committed it, he had no reason to believe was wrong or, in this case, criminal. But that is not the case in the actions with which this Bill is concerned. Those who committed these acts must have known perfectly well that they were committing crimes under the laws of every civilised nation and that they were committing the fearful crime of murder.
There can be no way in which those who committed such acts can have done so with a clear conscience. Murder is murder in any language and in any country. Those who committed these murders knew at the time when they committed them that what they were doing was wrong.
It of fended against the laws and customs of war. If they had been British citizens at the time when they committed these murders, they would have been punishable under our law. But anyone who committed these crimes during the war, and then settled here later and became a British citizen, cannot at the moment be prosecuted.
The essential difference and indeed the purpose of this Bill is that they cannot be prosecuted for murder, not because it was not wrong, but simply because they now reside in this country instead of the country in which they committed it. We are not the first country to address the dilemma which has given rise to the Bill. Similar dilemmas have been confronted in recent years by Australia, Canada and the United States. They have all responded in different ways according to their own circumstances, but they have all legislated in one form or another. None has decided that this is a matter which can conveniently be disregarded.
In proposing a solution to the dilemma which is right for this country, the Bill which is before your Lordships today follows very closely the terms of the main recommendation which was made by the war crimes inquiry. That recommendation was framed with great care by two eminent and experienced prosecutors who were very much alive to the need to avoid the creation of retrospective of fences. Sir Thomas Hetherington and Mr. Chalmers took great care to ensure that their recommendation fell fully within the bounds of customary international law as it stood at the time of the Second World War.
In paragraph 27 of Chapter 9 of their report they said:—In our view, to enact legislation in this country to give the British courts jurisdiction over murder and manslaughter 1083 committed as violations of the laws and customs of war would not be to create an of fence retrospectively. It would be making an of fence triable in British courts to an extent which international law had recognised and permitted at a time before the alleged of fences in question had been committed.They also noted in paragraph 38 of Chapter 5 of their report that, with the question of retrospection in mind, Article 7(2) of the European Convention on Human Rights explicitly permits:the trial and punishment of any person for any act or omission which at the time it was committed, was criminal according to the general principles of law recognised by civilised nations".These are telling expositions on the matter of retrospection.
There are some other points in connection with the Bill on which there has been some concern or confusion, and I think that I would be wrong if I did not offer to your Lordships a few brief comments on them. Your Lordships will recall that the inquiry made a number of recommendations with regard to evidence and procedure concerning the holding of war crimes trials. The Government looked very carefully at these in order to decide how far they should be implemented and what action would be needed in order for this to happen. In doing so, our guiding principle has been the need to avoid creating a special regime for war crimes trials, and not to distort our normal rules of evidence or procedure for such trials.
Whatever differences there may be between your Lordships on the principle of the Bill, I am sure that your Lordships will agree that, if alleged war criminals are to face trial in this country, nothing is more important than that their trial should be fair and that it should accord with the highest standards of British justice. None of your Lordships would support a Bill which sought to change our procedures in ways which denied justice to the accused, or which swayed the process to the advantage of the prosecutors. Neither the Bill, nor any of the other actions which the Government have taken or are proposing to take in response to the Hetherington/ Chalmers Report, does that.
In making their recommendations, Sir Thomas Hetherington and Mr. Chalmers were not advocating a new process. In most instances they simply recommended that the procedures which in one way or another have already been approved by Parliament for use in the courts should also be used in war crimes trials. The one exception to this concerned the admissibility in evidence of documents which are held in archives if they are authenticated by the archivist.
Although it is a relatively minor matter, the Government have decided not to act upon that recommendation, precisely because it would be a new departure and because it would mean changing our law in order to accommodate war crimes trials. This is something which we are not prepared to do and on which I know that your Lordships would have very strong views. In every other case, the recommendations which were made in the inquiry's report involve procedures which have already in principle been accepted by Parliament and which are embodied in our existing law.
1084 The Bill now before your Lordships contains only one procedural element, and, as I have said, that relates to committal proceedings in England and Wales. This is not a new principle. The Criminal Justice Act 1987 already allows for committal to be bypassed in the case of serious fraud trials, where the complexity of the case would make it difficult to conduct a full committal hearing. The Government take the view that war crimes trials are likely to be every bit as complex as fraud cases and that it would be right to follow this precedent. Parliament has already accepted the principle, and there is no reason why this should represent a diminution of the rights of suspects, since the present Bill copies the 1987 Act procedure by allowing a defendant in a war crimes case to apply to the Crown Court to have the case against him dismissed before it comes to trial on the basis that there is insufficient evidence on which to base a conviction.
There is a point on which there has been some misunderstanding, and that is that the Bill does not apply to crimes against humanity. The concept of crimes against humanity was only developed at Nuremberg, and the Hetherington/Chalmers Inquiry considered that to legislate on such a basis could be seen to be retrospective legislation. For that reason the Bill seeks to give the courts jurisdiction only over of fences of homicide which were committed in,violation of the laws and customs of war".That was what the inquiry proposed on the basis that this was a concept which was already well established in customary international law by the time of the Second World War.
I know that there are many of your Lordships who are far better qualified than ever I can hope to be to assess the merits of the inquiry's interpretation of the legal position, but I am sure that there will be none of your Lordships who would deny the need to take very seriously the views of such responsible and eminent public servants.
I know that there are some of your Lordships who feel that, in bringing forward this Bill, we may be reopening issues which the post-war government decided should be closed, and that that government took a firm decision to discontinue war crimes trials both in the British zone of Germany and in Britain itself. But that was not the conclusion which was reached by the war crimes inquiry. The inquiry considered this in some depth and studied carefully the relevant papers from the time. It also had the benefit of being able to interview some of the key surviving participants in the decisions which were taken by the government of the day, including the noble and learned Lord, Lord Shawcross, and the noble Lord, Lord Mayhew.
The inquiry, however, concluded that the decisions which were taken in the post-war years were not addressed to the possibility of war crimes trials in this country—but they were addressed to war crimes proceedings abroad. As the inquiry said,Little or no consideration was given to the question of what might be done with war criminals in this country: it was simply thought that there were none here".But, whatever view one takes on the question of what the post-war government thought they were 1085 deciding, there is no immutable reason why decisions which may have been taken in 1948 should necessarily be regarded as binding now. Our obligation today is to decide on a course of action which appears right now.
The position is that certain crimes are alleged to have been committed years ago, crimes which were terrible crimes and which were crimes when they were committed. What this Bill seeks to do is to allow those who committed them, and who now live in this country, to face trial for them. We are not concerned with revenge. We are not concerned with retribution. We are concerned with justice—with enabling justice to be done in the face of terrible crimes. These people will be subjected to the full panoply and fairness of the British judicial system.
The amendment which is tabled in the name of my noble friend Lord Campbell of Alloway refers to,there being no reasonable assumption of a fair trial".I would only remind him of this: under the law as it stands, it is possible for the defence to apply to have a charge dismissed on the ground that the length of time which has elapsed since the of fence occurred has made it impossible for the accused to be able to gather together the evidence which he needs for his defence and thereby be sure of obtaining a fair trial. There is nothing in the Bill which alters that position in any way. It will remain open to the judge to prevent a case from proceeding if he believes that a fair trial will be impossible.
If the Bill eventually passes into law, I cannot say whether the outcome will be prosecutions, trials or convictions. That will be the responsibility of the police, the prosecution authorities, and, ultimately, the courts. Cases will only come to trial with the consent of my right honourable and learned friend the Attorney General or, in Scotland, of my noble and learned friend the Lord Advocate. It will then be for the prosecution to lay the evidence before the court so that the jury can decide whether the case has been proven beyond reasonable doubt. Only if the jury is so satisfied will there be a conviction.
I know that many of your Lordships feel very strongly about this Bill in all sorts of different ways. It is essential, as I know your Lordships will agree, that whatever views we as individuals may hold on this subject, we should respect the opinions of those who hold the opposite view and their right to express it.
The very subject matter of the Bill is distasteful and unpleasant and it opens up issues which no one would have chosen to address so long after the event. But, given the facts which the war crimes inquiry unearthed and given the strength of view in another place upon the report of the inquiry—a view which was expressed without the constraints or obligations of party Whips, but as a free vote—the Government judged that it was right to bring in this Bill. So it is before your Lordships.
The fact is that terrible crimes were committed. The Government believe that we cannot shut our eyes to this, or act as though the mere passage of time is of itself a justification for taking no action. Other countries that were faced with the evidence 1086 which now confronts us have changed their law. It would be unfortunate if the United Kingdom—with all its international reputation for justice and integrity—should, in the words of the inquiry,be tainted with the slur of being a haven for war criminals".That is the reason why the Bill is before your Lordships. I commend it to the House.
Moved, That the Bill be now read a second time.—(Earl Ferrers.)
§ 3.19 p.m.
§ Lord Campbell of Alloway rose to move, as an amendment to the Motion that the Bill be now read a second time, to leave out all the words after ("that") and to insert ("this House declines to give the Bill a Second Reading because the Bill would afford retrospective legislation under which criminal charges could be brought in respect of war crimes committed over 40 years ago outside the United Kingdom by persons who owed no allegiance to the Crown; there being no reasonable asssumption of a fair trial and no appropriate punishment on conviction.").
§ The noble Lord said: My Lords, the object of this amendment is merely to allow a little time in which public opinion may form upon the question as to whether these trials should now ensue in any circumstances. It is a question which was not canvassed in any election manifesto or in the gracious Speech. The principle of the Bill, rejected by your Lordships both before and after its introduction, is that, in accordance with the recommendations or findings of the report, these men should stand trial in order to determine whether they participated in mass killings of civilians I perpetrated under the policy of extermination practised and enforced by the German Third Reich during the last war.
§ As to retrospective legislation, the claim to jurisdiction, to impede, to try and to punish acts committed between 1939 and 1945 on foreign soil by those who owed us no allegiance is contrary to international usage and custom and is unjust.
§ Of course, as my noble friend the Minister said, murder is murder in any country; but jurisdiction to try is sovereign and domestic, and therein lies the injustice, or part of it, of what is proposed by the Bill. To what end are we to judge in the name of justice if injustice has to be done to make that possible? As the noble Lord, Lord Mayhew, explained to your Lordships, and as I think my noble friend the Minister accepts, that file was closed in 1948, and your Lordships may think that it is immaterial that some commission thinks it should, so to speak, be reopened. It was closed as an act of government.
§ There is then the assumption—a fallacious assumption that runs through the thinking—that those acts were in violation of the laws and customs of law under a convention then applicable. They were not, as the noble and learned Lord, Lord Hailsham, explained on a previous occasion, and they are not therefore triable in law as war crimes. They are acts of genocide: crimes against humanity, albeit committed in times of war. They were not 1087 defined by convention until 1948, and about 10 years later the Genocide Act was passed in this country.
§ As to a fair trial, day by day assumed guilt is proclaimed to the potential jurors in defiance of the presumption of innocence. Furthermore, those who have heard or read the speeches on the two previous occasions of noble and learned Lords, of noble Lords who practised as advocates or still practise as advocates, and the reactions of noble Lords to those speeches, may conclude as the noble Lord, Lord Callaghan, concluded that a fair trial is just not on. If that conclusion, supported by the body of opinion of the Law Lords, is right, it is idle for anyone, even my noble friend the Minister, to talk in terms of justice. If justice cannot be done, there is no justice.
§ There is the other aspect. Although my noble friend the Minister says that the Bill does not inhibit quashing an indictment for abuse of delay, all one can say is that in any other circumstances a delay running from 1948, when that file was closed by government decision, would have led to the quashing of an indictment. If that is so, what are we doing contemplating resurrecting a situation such as this in the name of justice?
§ I do not intend to deal with the questions of procedure, because noble and learned Lords have their names on the list of speakers. As to there being no appropriate punishment, condign punishment is an intrinsic ingredient of the whole system of criminal justice. On conviction of crimes of such enormity, a few years' deprivation of liberty in the relatively humane regime of our penal system is but derisory. So are we then to have the semblance of a type of state show trial for the sake of recording historical truth and individual guilt?
§ I conclude with the answer that was given in a letter sent to me out of the blue by a friend at the Bar who prosecuted in the Nuremberg trials. He prosecuted in five of those trials, including Belsen, Auschwitz, and Ravensbruck, the women's camp. Those trials were conducted some 40 weeks after those terrible events. He has written to say that after 40 years any trial now would be seriously flawed and might cast a shadow over our treatment of war crimes generally when they come to be assessed by history. I beg to move.
§ Moved, as an amendment to the Motion that the Bill be now read a second time, to leave out all the words after ("that") and to insert ("this House declines to give the Bill a Second Reading because the Bill would afford retrospective legislation under which criminal charges could be brought in respect of war crimes committed over 40 years ago outside the United Kingdom by persons who owed no allegiance to the Crown; there being no reasonable assumption of a fair trial and no appropriate punishment on conviction").—(Lord Campbell of Alloway.)
§ 3.27 p.m.
§ Lord Irvine of Lairg
My Lords, we are grateful to the noble Earl the Deputy Leader of the House for his clear explanation of the Government's thinking 1088 in bringing forward the Bill. I am sure that that was helpful to us all. When the issue was before your Lordships' House in December last year, I wound up from these Benches. I spoke on that occasion for myself only. On this sensitive issue there is of course no party position. I then spoke against the legislation proposed. The dominant opinion of those who spoke in your Lordships' House on that occasion was against the principle of such legislation. There was, however, no vote.
Since then there have been three overwhelming votes in favour in the other place, and it is a Government Bill, supported by those votes, that comes before us today. I was gratified that the majority of your Lordships who in December spoke on the issue spoke in the same sense as I had determined to speak. My satisfaction did not survive an appreciation that the overwhelmingly dominant position of the other place favours legislation. That brings a constitutional dimension to the question that your Lordships' House faces on the amendment upon which I shall touch later.
The Holocaust happened. The crimes were of an unimaginable scale and character. In principle, they cry out for punishment. They consisted of the wilful mass murder of innocent and unarmed men, women and children, reflecting a policy of genocide against the entire Jewish race. The passage of time alone can afford no absolution.
When I spoke in December, I sought to make one central point. It was that the enormity of the crimes alleged should not lead us into debasing our system of justice if the best judgment was that the inherent and inescapable circumstances of those cases today made a fair trial by our existing standards not practically feasible.
Our standards of justice should not be a further casualty today of these awful events nearly half a century ago. I confess that I was speaking from my experience as a practising lawyer. Many in the other place have thought that our discussions that day were over-dominated by lawyers. They may well think that after today as well. I accept that lawyers have no monopoly of wisdom on this or on any other subject.
However, it is well to bear in mind that it is the reverse of empire building for lawyers who cannot accept the reasoning of the Hetherington-Chalmers Report to say so. They are saying that there are some tasks that a legal system cannot accommodate without debasing its own standards; that it is too glib to say, "Trust the judges" or "Trust the juries". It is not a matter of trust; it is a question of whether the task of doing justice between victim and accused is one that ought to be imposed upon a jury when accompanied by an insistence on both sides of the argument that our standards of criminal justice must not be debased in the process.
I am not so troubled as others of your Lordships are by the retrospective nature of this legislation. Of course it is retrospective. There would be no need for it if there were no restrospectivity. What is retrospective, however—and in this I agree with the noble Earl, Lord Ferrers—is to confer jurisdiction on the courts. There is no change to substantive law.
1089 I am not so troubled by this because I think, in common with the noble Earl, that there can be no doubt that what was done was criminal and was known by the perpetrators at the time to be criminal, both against the domestic law where these things happened and according to the general principles of law recognised by all civilised nations.
My concern is that the authors of the report—both former senior public prosecutors of great distinction—addressed to themselves an exclusively prosecutors' and insufficient question: is there sufficient evidence to give a realistic prospect of conviction? Also, they failed to ask themselves, in respect of crimes alleged to have been committed almost half a century ago in the Baltic states, a question which they should have addressed: whether the defendants to these charges can in practice enjoy the same facilities as the prosecution from within the Soviet Union to bring evidence in their defence before a British jury.
We may well have lost the will to prosecute war criminals far too early in 1947 to 1948. However, whether that be right or wrong, there has been inordinate delay in going about changing that decision Delay does not absolve, but it should be a powerful element in deciding whether to legislate now. More years' delay will probably lie ahead for the detailed investigation of cases. Trials may have to be postponed to enable the defence to have the opportunity to carry out investigations with the Soviet Union. The defence in many of these cases will not be that the butcher in the death camp did not exist The defence will be that the defendant was not that person. So the issue will of ten be identification, after nearly half a century has passed.
The report acknowledged that because of the passage of time eye-witness testimony and documentary evidence have proved difficult to obtain. Some allegations were foundto be completely unsubstantiated or to be grounded on personal animosity rather than on fact".For myself, I found these the two most chilling sentences in the report.
Because of the sickening efficiency of the mass killings we found few Jewish eye witnesses of the actual crimes: those who had witnessed the atrocities were usually themselves killed. Many, however, were able to help with circumstantial and hearsay evidence, and some were able to identify suspects from photographs".So at trial it will be all about the quality of identification evidence nearly half a century after the events.
When the Crown investigates crimes committed in this country it does so for two reasons: both to evaluate the true strength of the case and subject to a duty to assist the defence by providing the defence with any evidence that it—the prosecution—would not itself use at trial.
When our police investigate an allegation of crime, say, in France, which has been committed by a British subject, they apply the same standards with the assistance of the French authorities. But what the report contemplates will be dependent upon what the Soviet Union chooses to give. In arguing against extradition to the Soviet Union for trial there—and 1090 I think on all sides it is thought that that should not happen—the report said, with some understatement:The Second World War is still a very emotive issue in the Soviet Union and there would be great pressure—public and political—for the Courts to secure convictions".The political background to the defendants seeking evidence in the Soviet Union is that they may well have been anti-communist themselves; whether they were fascists will be in issue. Many of them, as the report records, will have fought for the Germans against the Russians and whether out of choice or necessity will be imponderable. 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 occupation by the Soviet Union of these territories. I remind myself that under Article 6(3) of the European Convention on Human Rights anyone charged with a criminal of fence has,The right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".It is because I find it difficult to be satisfied that a defendant would now have a reasonable opportunity to obtain out of the Soviet Union evidence to support a defence of mistaken identity, and because of the combination of a huge passage of time and circumstances making any reliable identification impossible, that I concluded that the legislation would unavoidably debase our traditional standards of justice in trials for the gravest crime—murder.
That concern is not diminished by an appreciation that evidence may be given in these cases through a live television link or through video recordings of evidence made abroad. I predict that these options will mean that in practice British juries will see few witnesses from the Soviet Union appear before them. That will further diminish the quality of identification evidence when it is already inherently inadequate. Those, in summary, were my reasons for concluding that it is not only politics, but also justice, which is the art of the possible and that what was proposed was a task incompatible with the standards of our system of justice. I think it right to put that on record again.
What I now wish to do in opening from these Benches is to touch on the constitutional dimension with the strength, I hope, of having made plain that I yield to none of your Lordships in the strength of my personal overall judgment that this legislation is ill-advised. I not only appreciate the arguments against this legislation; I also share most of them. It is one thing, however, to express grave and, I hope, mature disquiet at the wisdom of the measure. It is quite another to deny a Second Reading to a government Bill backed by overwhelming majorities in the other place on a free vote.
The Salisbury convention—the doctrine of the mandate—as I understand it, can be put to one side. It applies only where the Government have a manifesto commitment for a Bill. They do not in this case. So the question is not whether this House can, but whether it should, in this case reject a Bill which has received such overwhelming support across party lines, unwhipped, in the other place. As 1091 I see it, this is not a question of the powers of your Lordships' House; it is a question of the collective judgment of your Lordships' House.
So far as I am aware, if the amendment is accepted, it will be the first time since the 1949 Parliament Act that this Chamber had rejected outright a government measure which had received a Second and Third Reading in the other elected place. What is proposed by the amendment may therefore be thought to be a novel use of the delaying powers of this House. Another place had the benefit of the dominant opinion of this House, though unsupported by a vote, and all the arguments expressed here, when it voted overwhelmingly for the Bill. As I read the debates in another place, every argument that was made in your Lordships' House was considered. This is not a case therefore of the other place legislating in undue haste, as if there were some emergency, without full and mature debate and ignoring relevant and key considerations.
The position that faces us today is different from last December, for this House is invited not merely to express its opinion but to reject the Bill outright. With respect for the collective judgment of another place, I believe its judgment was wrong. However, I cannot think that it was perversely wrong. The proposal is not to lock up old men without trial, which would be perverse. The issue for me has always been whether the standard of justice that will apply to protect the interests of defendants in these cases will be sufficient. My view, on balance, is that it is not. However, I could not say of the overwhelming collective opinion of another place that its contrary view, after mature debate, could not reasonably be entertained. Your Lordships will have to decide whether that could be thought to be an important consideration perhaps telling against the outright rejection of this Bill. Not only have all the issues been considered in another place but there was also a free vote. There was no party whip to inhibit the free expression of opinion and judgment. Therefore there can be no doubt about the collective opinion of the elected Chamber after consideration of all the arguments.
I cannot think that delay from denying a Second Reading would give an opportunity for the parties to reassess their positions on this issue because there are no party positions on this issue. Nor is there any reason to suppose that the free views of the individual Members of another place will be altered by the repetition today of arguments that are well known and were fully rehearsed there. Nor is this a subject on which, realistically, a general public opinion might emerge to influence parliamentary decision afresh. If there is any public opinion, it is that this is a decision for Parliament.
Your Lordships are well aware of my serious reservations about this Bill. If your Lordships were to give it a Second Reading, we would have to make major efforts in Committee to make the Bill more consonant with our standards of justice. Your Lordships are only too well aware of the constitutional implications of voting for the amendment and against the Second Reading; of the powers of this House to do so; and of the severely 1092 practical questions whether there are any serious grounds for the belief that enforced delay will change the minds of anyone, whether another place will in time and for a certainty insist on having its way and whether, in your Lordships' judgment, further delay, if the deed is to be done, could do further damage to justice. It is your Lordships' judgment on the principle of the Bill and that mix of considerations which, it appears to me, will determine the outcome of our important deliberations today.
§ 3.43 p.m.
§ Lord Mayhew
My Lords, I found the speech of the noble Lord, Lord Irvine, a little puzzling and a little disappointing. In the first half he explained with the greatest wealth of detail that, in his view, it would not be possible under this Bill to give a fair trial to suspects. In the second part of his speech he argued that because a different view was taken in the House of Commons he himself felt that we should respect the views of another place rather than the view that a fair trial was not possible under the Bill. If we sincerely believe that a fair trial is not possible under the Bill, surely no power on earth should persuade us to support the Bill, no matter what the opinion in another place may be. It must be a priority that the man charged with these dreadful of fences is fairly charged. No considerations of politics should stand in the way of that.
There are other noble Lords who are far better qualified than I to answer the constitutional points and the legal points. However, there is an objection to the Bill which is neither legal nor constitutional. It would be wrong to resume retribution now, 42 years after it had been abandoned with the support of both Houses of Parliament, and up to 50 years after the alleged of fences were committed. As I explained in our previous debate, I shared some responsibility in a very junior position for the 1948 decisions. I wish to try to explain why it was thought that those decisions were right and why it is now too late to change them. For three years after the war the Government obtained the imprisonment and execution of war criminals through the Nuremberg trials, through British trials in Germany and by extradition. By 1948 a strong and widespread feeling had emerged that we had now made a satisfactory example and that the process of retribution should be stopped. At that time Winston Churchill stated:Retributive persecution is of all policies the most pernicious. Our policy should henceforward be to draw the sponge across the crimes and horrors of the past… and to look, for the sake of all our salvations, to the future".That was the general view in 1948. As a result the inquiries, investigations, extraditions and trials were stopped. The Commonwealth Secretary at the time, Mr. Noel-Baker, wrote to each of the Commonwealth governments recommending that no trial should be begun after 31st August, 1948. He added,In our view the punishment of war criminals is more a matter of discouraging future generations than of meting out retribution to every guilty individual".The fact that this Bill reverses that policy seems to me a strong argument against it. Ministers appear to be trying to argue that the Bill does not reverse those policies. I noted that the noble Earl, Lord Ferrers, 1093 said we had not addressed ourselves to the question of the prosecution of war criminals in this country.
The point was made at greater length and more strongly by Mr. John Patten, the Minister of State at the Home office, in his winding-up speech in another place. In subsequent correspondences with me, Mr. Patten retracted two mistakes of fact in his speech—I am afraid there were some others—but maintained a principal point when he stated:But my main point was and remains that I have seen no evidence that the Government collectively took a conscious decision not to prosecute war criminals in this country".I think that was the point the noble Earl was making. However, it is a false point.
When it is sufficiently evident to everyone concerned that a particular course of action is undesirable and impracticable, one does not obtain a collective decision not to do it. One does not even obtain a decision not to do it, one just does not do it. That is precisely what happened in this case. If anyone had suggested that we should make provision for trying war criminals in this country, he would have been told that the Government policy was, on the contrary, to end retribution and that that policy was agreed by Parliament, which would not pass legislation to do otherwise.
The truth is that this Bill is a direct negative to the decisions that were taken in 1948. What has happened since then to cause the revival of the demand for retribution? Sir Thomas Hetherington was asked that question recently at a meeting with peers. He replied to it in a single sentence by stating that it had been the all-party war crimes group in Parliament, the Simon Wiesenthal Centre in Los Angeles and the Prime Minister's visit to Israel. Those are all perfectly proper forms of persuasion and pressure. Undoubtedly they have made more people aware of what was always the case: that there are still suspects at liberty, some of them in the United Kingdom. However, that is simply an increase in awareness. It is not a change of fact or of substance such as might undermine the decisions taken in 1948. It has to be said that on this issue it is the merits which count. No matter how legitimate the pressure may be, it is the merits which should decide the issue and not the pressure of the whips or the lobbies or any other pressure.
What then are we who oppose the Bill to say to those of our colleagues in this House and in another place who have spoken so movingly and persuasively about the appalling fate that their families suffered at the hands of war criminals? They are entitled to ask how we would feel about the Bill in their position. We should try to answer that question, but only for ourselves as individuals.
During the war, as a soldier, I entered Belsen concentration camp early after its liberation. At that time our medical teams were gently separating the living skeletons from the dead skeletons and then bulldozing the dead skeletons into pits. If I had lost my family in Belsen there would be no end to my anger and sense of outrage. Yet I do not believe that I should want to see those horrors resurrected today in public trials in Britain. I should not want to see them exploited in the tabloid press. I should not want noble Lords to think that in opposing the Bill 1094 they were somehow lacking in compassion for my family and myself.
Two years after seeing Belsen I listened at Nuremberg to the man most directly responsible—Kaltenbrunner—being cross-examined. I thought then and I think now that it was right that he should be hanged. As I explained in the last debate, I have no regrets about having extradited suspects, after very careful screening, to their almost certain death, probably without trial, in Communist countries. However, at that time it was plain behond any doubt that the grim process of retribution should not go on for ever. That was plain to all of us.
Supporters of the Bill will disagree. Supporters of the Bill must say that it should have gone on and on. Indeed, if this Bill is passed, when will it end? Those who were in their 20s in the war will only be in their 80s at the turn of the century.
If the supporters of the Bill are right, Churchill was wrong. So was Attlee and so was Ernest Bevin. Yet where could you find three men with greater experience or with finer judgment on major issues of what was right and what was wrong? If supporters of the Bill are right our predecessors in this place were wrong, and also our predecessors in the other place. Yet they were far closer to the realities of war crimes and retribution than we are.
Suppose they were wrong. Were they so grossly mistaken that it can be right now, 42 years later, to change course when most of the suspects and witnesses are dead, when memories have become unreliable, when defence witnesses will be virtually unprocurable and when the law and court procedures have to be changed retrospectively? The Bill of fends against good sense and justice and we should reject it.
§ 3.54 p.m.
§ The Lord Bishop of Southwark
My Lords, I must begin with an apology to the House and to the Minister. I have to leave during the debate to take tonight a service which I cannot delegate to someone else or cancel at short notice. I have never before had to leave during a debate, but that is a recurring problem for us as bishops, and I wanted to speak as the most reverend Primate the Archbishop of Canterbury cannot be here and he was particularly anxious that one of his colleagues should take part in the debate. I hope that your Lordships will forgive me on this occasion.
With such a long list of speakers and with last December's debate still fresh in the minds of many of us, I realise the importance of being brief and trying to advance the arguments in certain ways.
As I read the very fine speeches made earlier in this House and some of the debate in another place, and as I listened to the fine speeches that we have already heard this afternoon, certain questions struck me again and again about the way in which this extremely important and difficult issue has been ! argued so far. I asked myself, as the noble Lord, Lord Mayhew, clearly asked himself with much more reason, why it is that the question has come up at all in this way after more than 40 years have elapsed since it was decided to end war crime trials in 1948.
1095 I do not want, and there is no need, to go again in to the arguments as to why that decision was reached and the grounds on which it was reached. Those have already been rehearsed. The question with which I am concerned is why now we appear suddenly to find ourselves considering the issue.
That is not a question which is much touched upon in the report. The noble Lord, Lord Mayhew, has given a hint of an answer in suggesting that it has much to do with matters such as the work of the Simon Wiesenthal Centre or even our Prime Minister's visit to the state of Israel. Certainly, in reading the debate in this House last December I did not find many answers to that question, although it was repeated by the noble and learned Lord, Lord Wilberforce. Instead, speakers concentrated to some extent either on the moral nature of justice and its relation to mercy or the dangers of introducing any legislation which has retrospective effect and, as we have already heard again, the extreme difficulty of securing a fair trial after so many years have elapsed.
On the face of it, therefore, there has seemed to be little support for the proposal to reopen a few cases relating to those who came to this country just after the war. Yet now we have a Bill and a substantial majority in favour in another place. Why? Is it because the unpublished evidence in this handful of cases suggests crimes so terrible, so gross—to use the Minister's word—that they would never have been abandoned in 1947 or 1948 if those responsible could have been identified then and charged on the basis of adequate evidence? Is it because in 1948 we were all so weary of war and suffering that we could bear no more but now perceptions are different—and it has been suggested that they may be—and a new generation has grown up which wants action taken for reasons which perhaps relate to how things are in the world now? If that is so it may reflect a difference in average age between Members of your Lordships' House and those in another place. That seems to be a question which it is important to explore further.
As I reflected on that question I found myself asking a further question, one which the report raises, but indirectly. We are discussing war crimes—crimes against humanity, mass murder. Why was it that so few people so far seem to have challenged the fact that a murderer can and should always be brought to trial for a single murder, no matter how long ago it was committed, if sufficient evidence is thought to be available; but many people seem to be saying that for mass murder different criteria apply?
If someone is charged with murder 40 years after the event took place and is nearing the end of his or her life, there are great problems relating to evidence, and if there is a subsequent conviction there may be clemency in the sentence. However, for the sake of justice—that is, for the vindication of right against wrong—the crime should be acknowledged and punished. Hitherto that has been the general moral understanding of the nature of the justice with which we have to do.
For that reason I have found it difficult to accept fully the words of the late Bishop Bell, quoted last 1096 December by my colleague the right reverend Prelate the Bishop of St. Albans. Bishop Bell said:A time-limit should be fixed for dealing with war criminals of every category".If such war criminals are cold blooded murderers carrying out the slaughter of whole populations and groups why should they be treated differently from the domestic murderer who has no protection through the lapse of time? If we are concerned with the morality of justice and if we for the moment leave aside the considerable technical difficulties in setting up a fair trial in this country after so many years, the balance of the argument comes down in favour of bringing a prosecution. But that does not necessarily mean in the form proposed in the Bill.
That brings me to my final question. At paragraph 9.53 of their report, Sir Thomas Hetherington and William Chalmers come close to stating a preference for extradition. They say:This would accord with the principle that wherever possible a person should be punished by the courts of the country in which the of fence was committed. Most of the witnesses in cases we have investigated are resident in the Soviet Union, and therefore many of the difficulties described in the preceding paragraph would be minimised … there do not now appear to be any insuperable obstacles to following this course, and it deserves consideration".However, that apparent preference is rejected without further consideration. As regards extradition on all sides the noble Lord, Lord Irvine, said, "It is thought this should not be".
The public discussion about that does not appear to have been widespread. At paragraph 9.54 the report states: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".That is precisely the point made—and it is about to be made again today many times by your Lordships—when arguing against holding a trial in this country. It is that the difficulties involved in obtaining accurate evidence after 40 years, the cross-questioning of witnesses and so forth are too great to make a fair trial possible. Therefore, we are discussing two different kinds of fair trial. I recognise that what is meant when referring to a fair trial in the Soviet Union is different from what is meant when discussing a fair trial here.
However, in the present vastly changed climate would it not be possible for Her Majesty's Government to demand as part of an extradition process the right for a judge from this country to be present as an observer as well as facilities for the press to report the case freely? I am sure that there are other ways of dealing with the situation. It is hardly in the present interests of the USSR to hold a manifestly unjust trial. Presumably we could wait to see what happened after the first extradition before allowing others to take place.
In conclusion, I return to the fundamental question which was raised by the noble Lord, Lord Mayhew, and by the noble and learned Lord, Lord Wilberforce, in particular. What has happened since 1948 to justify a reversal of the policy on war crimes trials? I believe that to be a more fundamental question than those raised about retrospective 1097 legislation, the danger of relying on insufficient evidence, prejudiced juries, and even the danger of fanning into flame again the embers of anti-semitism, important as those issues are.
The morality of justice requires that evil be not condoned no matter how long ago it took place. How serious then and how evil were the of fences with which the Bill is concerned? Do they justify the enormous legal uncertainties, risks and costs which have already been so powerfully described? If they do—and perhaps only the Minister can help on this question—would it not be better to look again at the advantages of proceeding by way of extradition with such safeguards as are felt appropriate? A vote for the amendment might give time to allow us to study that way of proceeding and to give extradition more public consideration than it has had, now requires and, in the words of the report, now deserves. If that proposal is to be rejected on constitutional grounds—and I recognise the force of that point—I can only express the hope that it will be fully considered before it is too late.
§ 4.6 p.m.
§ Lord Shawcross
My Lords, I venture to address your Lordships simply because I happen to be one of the few survivors, possibly the only survivor, of those who were both members of Her Majesty's Administration immediately at the end of the war and, in one way or another, involved in the conduct and prosecution of war criminals. My part related only to the trial of the so-called "major" criminals at Nuremberg. In relation to the so-called "minor" criminals—although their crimes were by no means minor—the responsibility was not with me. I was asked by Mr. Attlee to keep a watching brief on what was happening and to advise him from time to time.
I have changed my opinion about the policies to which the Attlee Government adhered, and to which I adhered, during those years. I should be the last person to say that it is not open to the Government and to Parliament to depart from the policy of that government in 1948. The questions are; would it be wise? Would it be right?
From a personal point of view I wish to add only the following. It is probably agreed by all those who have written about these matters—and I think particularly of Mr. Bower's well-researched book, Blind Eye to Murder— that I was probably the most anxious and the most active in trying to ensure that a major number of war criminals were tried and that the trials were conducted with expedition. But I was not successful.
As time went on public opinion in this country changed. The trials became counter-productive. We have heard the quotation from a speech made by Winston Churchill in 1946 in Zurich. He said:There must be an end to retribution".Retribution, if I may say so to the noble Earl, does not cease to be retribution by posting a label called "justice" on top of it—
§ Lord Shawcross
My Lords, the view expressed by Winston Churchill in 1946 came to be shared by the whole of the British public. It was a generation which knew something about total war. We had been through total war and we knew the horrors of it. While of course nothing could compare with the genocide, the holocaust, perpetrated by the Nazis—an unforgiveable and unforgettable crime—we also knew that in that total war grave crimes had been committed on both sides. I am not now thinking of Katyn or Nagasaki or Hiroshima. Grave crimes were committed in Europe on both sides and the great British public was beginning to feel doubtful about the validity and propriety of victors' justice.
So it was decided in 1948 to cease these prosecutions and I think that there can be no doubt whatever that public opinion felt that that had to be done. Indeed, the efforts of those like myself, who wanted to do more to punish those who had slaughtered the Jews, were not helped by various things that had happened in the meantime, including the activities of the Stern gang and the bombing of the King David Hotel. In the atmosphere of those days I am quite sure that it would have been impossible to continue war crime trials wherever the criminals happened to be.
In referring to the question of the delay, perhaps I may just quote to your Lordships what was said by Lord Wright, a famous jurist and at that time probably the strongest exponent outside the Government of trying war criminals and traitors. He travelled to Germany and to Japan. He conducted quite a campaign. He was the chairman of the United Nations Commission on War Crimes. When the Government in 1948 decided to stop these trials, I felt that I had to go along with them because I agreed with him. He said:Once it is felt that the idea of an international rule of law has been established with the support of sufficient precedents, humanity is glad to be relieved of the horrors of the past. The majority of the war criminals will find safety in their numbers. It is physically impossible to punish more than a fraction. All that can be done is to make examples".A very different generation now has to consider these matters—younger people who had no experience of the war and who have perhaps more simplistic ideas of right or wrong. As a matter of curiosity I looked at the average age of the Members of another place who made very eloquent and sincere speeches in favour of this Bill. At the beginning of the war their average age was five years. Some of them were lucky enough to have had a childhood cosseted in Canada or North America.
We can now revive the policy of retribution but we cannot, in my view, do it without imposing an indelible blot on every principle of British law and justice. The authors of this report say that justice delayed has the appearance of revenge. There is no rule of law about it. There is no statute of limitations forbidding a prosecution to be brought. But in 1948, when Parliament was considering the prosecution of some German generals, both Lord Reading and Lord Simon felt strongly that four years after the event was too long. Lord Reading said:Justice has many attributes but in any classification of them speed must take a high place. Justice long delayed is no longer 1099 justice. We have been able to take pride in the fact that our administration of justice has that quality of swiftness. If these trials go ahead we shall no longer be able to do that".That was in 1948, four years after the alleged crimes. We are now talking about 45 years later. If any cases come to trial in the event of this Bill being passed into law—and by then these already aged men will have become more aged still, if indeed they remain alive—I cannot believe that justice will be seen to have been done. There are the changes in procedure which were referred to by the noble Earl, designed to assist the prosecution at the expense of the defence; the elimination of committal proceedings before magistrates (allowed in this country only recently in the case of long-term fraud). That is something which is of great value to the defence in many cases. It is able to assess the weight of the case against it and it is able if need be to cross-examine the witnesses for the prosecution.
Then there is the way in which evidence will be given. Naturally the witnesses from Russia, from the Baltic States—and I do not know now how far the Russian writ continues to run there—are old people. They will be reluctant to travel. Therefore their evidence is to be given, after being translated, by some form of video or television. The whole case is likely to turn on identification, which is always the most fallible kind of evidence. Even if one has evidence of identification of somebody seen four or five days ago, it of ten turns out to be unreliable and capricious. In this case it will concern someone who has been identified from photographs but not seen for 45 years. And that is to be done without any of the safeguards which usually attend evidence of identification, such as identification parades.
The jury will be denied the opportunity of witnessing face to face identification and of forming a judgment of the reliability of the witnesses making it. I have great respect for British juries. However, apart from the lapse of time, the short-circuiting of the procedures, the lobbying that has taken place and the publicity on radio and television and in all the newspapers, I find it difficult to think that any jury faced with the task of trying this handful of men, brought before it, if at all, after a vast expenditure of public money and with the whole force of the British Government and Parliament behind the prosecution on the assumption that these men are already guilty, would be able not only to do justice but enable justice to be seen to be done.
For what good? Cui bono? At the end of the day a few aged men may be sent to prison to die in the comparative comfort of the prison hospital. This report is badly flawed in that respect. The recommendation in favour of prosecution rests on the assertion that prosecution could act as a deterrent to others in future wars. In a debate on the same trial of war criminals in 1948, Lord Simon said:I believe there is nobody in this country who attaches more importance than I do to swift justice. I feel most deeply grave doubts as to whether the carrying on of this process is going to do anybody any good. If the Nuremberg trials and the magnificent pronouncement then made by that international tribunal are not going to impress the world with the resolve of free people to expose frightful, horrible cruelties, even though they may be perpetrated in time of war, when they are against every canon of proper conduct, you are not going to do it by trying these people".1100 After Nuremberg we had Idi Amin, Pol Pot and I could recite any number of names—people who do not seem to have been deterred for one minute by the publicity which attended the Nuremberg trial and the multiple hangings which followed it. I believe that it would be a grave error if, in order to satisfy perhaps quite understandable feelings of revenge, of retribution, we were to pass this Bill and conduct these prosecutions.
I agree with the words of Winston Churchill. They have already been quoted but they should be remembered and constantly brought to mind. He said:Revenge is of all satisfactions, the most costly and long drawn out; retributive persecution is of all policies the most pernicious … Our policy should henceforward be to draw the sponge across the crimes and horrors of the past—hard as that may be—and look for the sake of all our salvations, towards the future".I urge your Lordships to reject this Bill. Something has been said about the constitutional implications of rejecting a Bill that has been passed by a large majority in the House of Commons. It is said that it would give rise to a constitutional crisis. I regard that as great nonsense.
§ Lord Shawcross
Members of another place in voting upon this Bill were not voting to express the party political opinions which they had been elected to represent in another place. They were on a free vote expressing their individual personal point of view on an ethical matter. Members of both Houses are free to vote according to their background, philosophy and belief. We should not stultify ourselves by condemning the Bill in one breath and saying that we must accept the view of another place in spite of it. I urge your Lordships to vote in favour of the amendment.
§ 4.22 p.m.
§ Lord Beloff
My Lords, I recognise how difficult it is for a supporter of this Bill to address your Lordships after the powerful speech that we have just heard from the noble and learned Lord, Lord Shawcross, and others, and before the speeches that we are likely to hear. I also accept that those like myself who have lost family, friends or relations in these events, enter upon this debate with a certain degree of inevitable prejudice. That point was put very eloquently by the noble Lord, Lord Mayhew. However, what I dispute is the use made by the noble and learned Lord, Lord Shawcross, of the word "revenge". When John Milton said,Avenge, O Lord, they slaughtered saints",he was appealing to the only instrument there is for vengeance: the divine instrument.
Here we are not concerned with revenge. That would be absurd in relation to the magnitude of the crimes that we are discussing. We are debating whether the processes of justice should be followed in these cases. However, I feel that there must be, if not to an equal degree, a certain element of prejudice in the opposition which has been gathered towards this Bill. A great deal of activity has been expended on persuading noble Lords to attend the House, and 1101 on persuading noble Lords of the wisdom of the amendment that we are now discussing.
I cannot bring myself to believe that the questions of legal procedure that were put forward by the noble Lord, Lord Campbell of Alloway, and which were put forward in our last debate on this subject, are as conclusive in the minds of the supporters of the amendment as they would have your Lordships believe. They say that the magistrates' court hearing is the only one of any importance. With only relatively minor changes British justice cannot be done.
A few weeks ago many of the noble Lords who will be speaking today spoke in the debate on the Courts and Legal Services Bill. They constantly said that the British system of justice, with its independent counsel, judiciary and jury, is the best system that has been devised anywhere in the world for the protection of individual rights including the rights of the accused in criminal trials. Now the same noble Lords are saying that in one particular class of case none of this elaborate machinery which they have so consistently defended is applicable. I find that extraordinary. There are only two lots of people who do not believe in British justice: the supporters of this amendment and the IRA.
§ Lord Beloff
People may not like the company into which they fall, my Lords. I shall therefore attempt to answer a much more serious question. It was raised by the right reverend Prelate. Why should we consider this matter now? When we last debated it I said to your Lordships—and I now repeat it—that it would probably have been better for everyone if no one had been found as a result of these inquiries, if the matter had lapsed by time, and if divine vengeance alone was at stake. But we are living in the present. If I may say respectfully to noble Lords who have spoken, I believe that there is a certain Rip Van Winkle notion at large here. We are talking as though nothing has happened since.
§ Lord Beloff
My Lords, it would be nice if I were allowed to make my speech. I did not interrupt the speeches to which I am opposed.
We are talking as though nothing has happened in the world since the decision to which the noble Lord, Lord Mayhew, and the noble and learned Lord, Lord Shawcross, referred: the decision of the Government of 1948 not to proceed with war crime trials. I believe that the noble Lord, Lord Mayhew, said that it was a decision of Parliament. My understanding is that it was a decision of the government of the day, and that neither House was asked to give its opinion.
War crime trials have continued, although not in this country or in occupied areas while troops were still in occupation. There have been trials on and off, in other countries. Western Germany has tried, and admirably so, to purge itself of the stain which these events left upon its national reputation. There have 1102 been trials in France and elsewhere. Now we have been told that legislation has made it possible for trials to take place in Canada and Australia. A trial has been held in Canada; and Canadian justice being not far removed from our own, the defendant was acquitted, not on a question of identity but for other reasons. In New Zealand the Solicitor-General is examining the possibility of similar legislation.
We have to ask ourselves not only why we should pursue the matter but why, now that it has been forced upon us by the action of another place, we should constitute a dissenting voice in a general consensus. It is difficult to understand the motives of those who wish to place this House in that position. A degree of prejudice has crept into the matter that is very similar to that contained in some official documents of the wartime years when the first rumours of those appalling events reached this country and were largely dismissed. I do not argue that we in this country could have done much to prevent them. It was stated that the Jews were always complaining and were probably exaggerating. It is not only young people who support the Bill, as the noble and learned Lord, Lord Shawcross, seems to think; people who are old enough to remember those events must feel very strongly about them.
I agree with one comment made by the noble and learned Lord, Lord Shawcross. He stated that the arguments in favour of the report of Sir Thomas Hetherington and Mr. Chalmers, and the arguments in another place about the availability of witnesses for both sides, may have been rendered obsolete. One does not know whether one will be applying to the government of the Soviet Union or to the government of an independent Lithuania or Latvia, where the events may have occurred.
The right reverend Prelate put forward the appealing suggestion that we should follow the American example of extradition. There are perfectly good reasons why we would not wish to perform that task.
I ask your Lordships to consider what would happen if this House rejected the Bill. What would be said? Who would be encouraged? I do not attach a great deal of importance to the element of deterrence, and the noble and learned Lord, Lord Shawcross, was quite right to make that point. Nuremberg did not deter perpetrators of massacres that were on a slightly lesser scale. However, if we reject the Bill in the present temper of Europe, where anti-semitism is again rife, we would be giving encouragement to some of the least attractive elements on the European scene today. I do not imagine that that is the wish of the noble Lord, Lord Campbell of Alloway, or his supporters. There are those on the Continent and one or two in this country who deny the existence of the Holocaust and the responsibility of Hitler for what happened. We have seen from the desecration of Jewish cemeteries in France what that kind of propaganda can bring about. We saw the reaction of the Prime Minister and President of France. They walked in a procession to protest against those events. In the democratic countries of Western Europe there has been a general recoiling from the idea that things which were thought to be dead and gone were being revived, as 1103 the noble and learned Lord, Lord Shawcross, appears to think.
If the House declines to give the Bill a Second Reading I am not certain what the ultimate outcome will be. I am increasingly doubtful whether such prosecutions will take place or be successful. That is not the point. The Bill would enable this country to try alleged war criminals. For the House to reject the Bill would be to give a signal of which we might come to be very ashamed.
§ Lord Callaghan of Cardiff
My Lords, I should like to state my view of the constitutional position. I am a strong upholder of the supremacy of the Commons in our affairs. This House is unelected and unreformed—although I do not say that the position would be the same if my party were to reform it—and it must be very careful before it challenges what is done or said in the Commons.
On this occasion I believe that there is a difference. The matter was put extremely fairly by the noble Earl, Lord Ferrers. He stated that there is no question of party politics in regard to this issue. To my mind, that situation makes a difference in regard to your Lordships' behaviour if a Division is called tonight. I repeat: there is no question of party politics. Another place was given a free vote. Therefore, the Government in another place did not regard the issue as being one of confidence in the Treasury Bench and in Her Majesty's Ministers. They were prepared to leave the matter to the judgment of another place.
Members of the other place have expressed their opinions: they have had their bite at the cherry. I suggest that we should also have a bite at the cherry. In no way would that be a challenge to the supremacy of the other place. We should be expressing the deep convictions and experience of many noble Lords who have thought deeply about the matter and have reached their conclusion only with some difficulty, but who wish to place on record their view about the wisdom of the course that is proposed in the Bill. If another place were to be insistent, I should say: so be it. However, we have a right to say to another place that our experience leads us to a particular conclusion and to ask it to take that conclusion into account before it proceeds further.
On that basis I should like to say to the noble Earl, Lord Ferrers, that we are not challenging the constitutional position. I guess that this is the last time that I shall ever vote against the Second Reading of a Bill that comes from another place with the assent of another place, but this is a different matter.
We are expressing our deep convictions. One of the attractions of the noble Lord, Lord Beloff, is that because he speaks with such spontaneity, he brings life to our debates. However, I hope that on reflection he will regret having said that those of us who support the amendment are, with the IRA, the only group who do not believe in British justice. I do not think that he would have expressed that sentiment had he written notes beforehand. I hope that we shall ask another place to think again about the matter.
1104 Why has the matter been raised now? The answer is that some years ago a discovery was made which astonished most of us: that there were living in this country a number of people who had come here after the war and who, it was alleged, had committed hideous crimes abroad. That is a new factor. It is a factor which your Lordships should take into account in arriving at a decision on the Bill.
I do not in any way fault the Government for bringing the Bill before Parliament in order to secure its opinion in the light of the new factor that has resulted in the setting up of the Hetherington-Chalmers Commission and that has led us to reconsider the position. As I understand it, if this Bill is carried and the Hetherington-Chalmers Report is followed through, detailed investigations will be made into the cases of about 75 persons now living in this country who, it is alleged, committed of fences. If sufficient evidence exists, they will be brought to trial. I hope that it will be believed when I say that I can understand and that I have tried to enter into the sentiments and emotions of those who say that the hideous crimes committed in the Second World War must never go unpunished so long as those who committed them remain alive. Justice—and I leave out the word retribution—must take precedence over other considerations. That has been said before. I do not wish to argue with that, but I ask those who support the measure to consider the likely course of events if the Bill is passed. To me, that is as important as the principle of the Bill.
My doubts about the Bill are as to its practicability, timing and consequences. I know that there will be certain safeguards for the accused. Those have been set out today. However, I must point out that the Hetherington-Chalmers Report called attention to the fact that some 17 names have already been published. I should have thought that that was a matter of deep anxiety. It would have been some years ago. The noble and learned Lord, Lord Hailsham, will recall an occasion when I made a spontaneous answer from the Dispatch Box as Home Secretary. An outcry and uproar ensued because I used a certain phrase about a man who had been arrested with a smoking pistol in his hand. I was saved from the consequences of that outcry only by the generosity of the noble and learned Lord who did not take advantage of it. I am still waiting for the opportunity to be able to repay him for that kindness.
I say with all conviction to the noble Lord, Lord Beloff, that we shall be committing ourselves to a frustrating and embittering search for the truth with dubious prospects of finding it or doing justice to those who suffered or indeed, if that is wished, of exacting retribution from the wrongdoer.
The lengthy preparations which will be needed have already been outlined. Records exist in at least five overseas centres; that is, the United States, the Soviet Union, Germany, Israel and Austria. The report investigated seven of 82 cases. In one such case over 40 witnesses were examined. Four different states were visited in order to do so: the Ukraine, Poland, Canada and the United States. Exhaustive inquiries were made and the report maintained that there was a realistic prospect of conviction. The 1105 person concerned has subsequently died. I wonder how old he was. I wonder how old will be those others brought before a court if sufficient evidence is found. All of them are obviously ageing. The youngest must be in his early 70s if he were only 20 or 22 when the events took place. The oldest will be over 80.
I have no reason to doubt the report when it says that the greatest difficulty was the age of suspects and witnesses. Indeed, of the seven cases investigated, one person has died, one is probably unfit to plead and in three cases there is still insufficient evidence despite the utmost efforts having been made. Only two cases remain.
How much time will elapse before these and the other 75 cases can be brought to a conclusion and come to trial with the necessary investigations in several countries, with tracing witnesses and persuading them to travel to this country, laying charge; and giving the defence an equal opportunity to be prepared? It is quite likely that a full 50 years—half a century—will have elapsed since the events took place before some of those people can be brought to trial.
The report said that the verdicts will depend upon the jury's determination of credibility. As the noble Lord, Lord Shawcross, said in a most powerful speech, when a case comes to court identification may have to take place by live television link. Let us imagine for a moment an elderly witness sitting somewhere in Poland or Lithuania looking at a television screen and identifying someone in a court in this country who he has not seen for 50 years. Prospects of confusion and mistake are incredibly immense. Mistakes which are no doubt genuine will be mace by witnesses in matters of that kind.
We have been told—and we have been told again this afternoon by the noble Lord, Lord Beloff—that Canada and Australia (senior Commonwealth partners) have legislated and that we should not be left out, The noble Lord said that one case had been heard in Canada. That is true. However, we should look at what has happened in that case when we are considering this Bill and whether it is wise for us to proceed with it.
The accused was on trial on eight charges of shipping Jews to a death camp. The prosecution believed that there was sufficient evidence to convict him. He made no admission of guilt before he came to court and no defence witnesses were called. The prosecution made its case. The defence confined itself to rigorously challenging the recollection of elderly witnesses who the state brought forward. The result was an acquittal. Surely that tells us something about the way in which a jury may look at evidence which is tendered 50 years after the of fence has occurred.
It is not good enough to say that the acquittal justifies the Bill and all the effort which has been made. Who would be satisfied with a result of that kind? It would certainly not satisfy the victims. My experience of those who go to court—and that is only as a layman and as a Member of Parliament but I have had some experience of constituents going to the courts—is that those who lose a case are never satisfied with the quality of the verdict or the justice 1106 that has been received. I do not believe that those who have suffered, as the people of the Jewish faith have suffered, will be satisfied with a verdict returned on a basis such as that returned in the Canadian courts. Perhaps that will not even satisfy the defendants. I can say with all sincerity that in my worst moments I fear that it would be a supreme irony if public sympathy were to transfer itself from the victims who suffered so much during the Second World War to a defendant who is put in the dock. I simply do not believe that it is right that we should proceed on that basis.
The cry for justice and our emotion about these matters pulls in the direction of letting the Bill go through. I believe that a mark was left on those of us who discovered what had happened. That discovery was made shortly after the war because we did not know much about it during the war as we were busy doing other things. That mark was perhaps not as deep as that left on those of the Jewish faith but it certainly left a mark on all of us. Many of us in this House and outside have tried to make some recompense by associating ourselves with Jewish causes during the ensuing years in order that we might show that we share, as far as we can, in what happened at that stage.
Let me also emphasise that when emotion suggests that we should allow the Bill to go through, that is reinforced by the recent outbursts of anti-Jewish activity among certain small sections of the community. I emphasise as strongly as I can that such outbursts must and will be resisted. Never again can we allow the Jewish people to suffer as they did in the 1940s. That needs a conscious pledge by all of us, but this Bill will not assist to that end.
In 1945 there would have been a case for the Bill. The trail was hot; the evidence was at hand; memories were fresh. I should almost certainly have voted for it at that time. However, this Bill, as it stands, will not do. The consequences are too uncertain. They will not add to the ends sought by the promoters of the Bill. It is too late and I cannot support it.
§ 4.50 p.m.
§ Lord Goodman
My Lords, perhaps I may say at the outset how deeply grateful I am for the speech just made by the noble Lord, Lord Callaghan of Cardiff. It deals to some extent with the problem raised by the noble Lord, Lord Beloff, who showed a good deal of courage in expressing his suspicion regarding the motivation of some of the people opposing the Bill. I have no evidence to support that; I should like to think that there is no evidence to support it, but it would be closing one's eye to the reality not to believe that a certain amount of anti-Semitism is to be found in a number of them. However, it would be going too far to suggest that that is a reason for ignoring the other considerations against the character of the Bill.
I have not jumped on a recent bandwagon. My opposition to the Bill has been expressed over a very long period, from when I first heard of it. I remain unarguably convinced that it will be a mistake to pass the Bill into law. I can speak as a Jew. In 1107 this House we have the titular head of the Jewish community and most sections of the community accept his position as such. I belong to a small group that has expressed a number of doubts, although I have no persona! doubts.
It is undoubtedly the case that this issue will be to some extent bound up with suggestions of anti-Semitism. I am not especially worried about that. Anti-Semitism will never produce the kind of situation that developed in Germany in 1939. In this country that is extremely unlikely to happen. However, I do not think that that should be allowed to cloud our notions regarding the hideous shortcomings of the Bill.
As the noble Lord, Lord Callaghan, said, the real vice of the Bill relates to the question of time. It is perfectly true that according to British law there are no statutory limitations relating to international crimes. Although there is no statutory limitation, there is a limitation prescribed by the course of proceedings. I should be very surprised if a case that was 40 or 50 years old was not thrown out by the judge before it went to the jury. We therefore have a situation where we are legislating for something which would be contrary to British law.
My objection to the Bill is a simple one. The Bill damages a great institution and that institution is the rule of law in Britain. Anything that we do that damages that does appalling damage to all the minorities who seek to find their defence in the rule of law. I am convinced that it would not be sensible to pass the Bill.
There is another issue on which I am not particularly qualified to speak—the noble Lord, Lord Callaghan has a much greater qualification—and that is the issue of the constitutional position of this House in relation to the other place. I am persuaded by the arguments I have heard, particularly from the noble Lord, Lord Callaghan, that no real constitutional issue arises. If one does arise, we should face up to it. I do not believe that there is one.
As the noble Lord, Lord Callaghan said, the vote in the other place was a free vote. They are entitled to express their opinion as they please. It is not a political issue. I arrive at the embarrassing situation that there are two reasons why I regard my I self as being at risk concerning this Bill. One is that I shall be alienating and antagonising a great number of my own community. I confess that that leaves me cold. I have done it before. A more cogent reason is that it is said that if we have the effrontery to throw the Bill out we are threatened with extinction.
I shall be extremely upset if we extinguish ourselves by a vote on this Bill this afternoon. I find this a very pleasant place to attend. I should be here much more frequently if I were not so lame. Perhaps I may say that whoever made the threat did not realise how discreditable a threat it was. It sounds very much like blackmail, "Do not throw out the Bill or we will abolish you". If we are men and not mice we must resist any suggestion of that kind and vote without the slightest regard to the possibility that we may be extinguished, lose our allowances 1108 and lose our comfortable restaurants. Awful thoughts cross my mind at the prospect that would develop if we had the impudence and effrontery to challenge a Bill that was not political, that was passed on a free vote, and about which the gravest misgivings have already been expressed.
The noble Lords, Lord Irvine and Lord Callaghan, persuaded me that there are grave problems as regards the Bill. The noble Lord, Lord Beloff, made a courageous speech, but somehow seemed to have got it wrong. He said that it was ridiculous to say that one cannot rely on British justice. However, he omitted to mention the 40 or 50 year interval. One cannot rely on any system of justice that tries a man after 40 or 50 years. It would require an exceptionally perceptive court to sort out the problems that would arise.
There is also the problem of whether we should throw out the Bill now or listen to the arguments of the noble Lord, Lord Irvine, and permit it to go to a further stage. My own feeling is that we shall lose sympathy if we throw it out now. It should be argued through the various stages of this House and if it is defeated we shall have a formidable case for resisting its reintroduction. If we were to take a vote today and destroy the Bill in full sail, it would greatly weaken the case in the future when we come to resist its return. Although I am not a constitutional expert, I would decide for myself not to vote for the amendment.
I conclude with an apology. As the House will have observed from my strange garb I have to preside at a charity dinner tonight which will make it impossible for me to hear the remainder of the greatest part of the debate. I shall try to return for the vote, if it is sufficiently late, but I should like to inform the House—whether or not it influences noble Lords in the slightest way—that I shall vote firmly against the Bill and I shall have no compunction, no remorse and no regrets.
§ 4.48 p.m.
§ Lord Swaythling
My Lords, perhaps I may say I how privileged I am to be allowed to make my maiden speech on this important Bill.
The purpose of the Bill is very straightforward. It is to enable the prosecution in the United Kingdom of alleged Nazi war criminals for murder and manslaughter during the Second World War. The Bill does not seek to create a new of fence. The problem is that some people cannot be charged now because they did not come within the jurisdiction of our courts when the of fence was committed.
I share the concern of those who abhor retrospective legislation. However, I fail to see how that can apply to this Bill. The kernel of this legislation is to put people who came from overseas and who are now resident in or citizens of this country on exactly the same footing as everyone born here. It concerns the duties of citizenship. To that extent the Bill is a profoundly equalising measure.
However, the Bill is also about the rights of citizenship. It would allow the defendents the right to apply to the Crown Court to have the case against 1109 them dismissed before coming to trial. If the court believed there was insufficient evidence on which to base a conviction, the case—quite rightly—would not proceed. Despite those safeguards for a defendant, the noble Lord, Lord Campbell of Alloway, is worried that there could be,no appropriate punishment on conviction".Who could disagree with that? After all, what appropriate punishment could there be for the mass genocide of innocents? Even to ask the question is to misunderstand the nature of this Bill. It is a measure the character of which is no different from the title of Simon Wiesenthal's extraordinary autobiography, Justice, not Vengeance. I was saddened to read some of the remarks made in this House on this subject last December. Revenge, it was implied, is central to the Jewish faith. Vengeance, it was said, lies in the heart of the Old Testament. My Lords, the Jewish faith is centered on the idea of justice, not revenge. Those who believe that an eye for an eye means revenge have no knowledge or understanding of the basic tenets of Judaism. The phrase means only this: that justice demands equal treatment.
Britain has a long and proud tradition as a country of refuge. Many refugees have enjoyed enormous privileges in this country. Many of them have repaid those privileges by making significant contributions to the life of this country, whether in the economic, political or artistic fields. Those contributions have always been made against the background of a deep-rooted belief that British justice is the fairest in the free world. of course, there are still those who ask; why rake up the embers of the past; why revive memories of such horrors nearly half a century after the event?
We must not allow ourselves to think that these memories are dead and buried. As others have said, this debate is being conducted in unhappy times: the terrible desecration of graves in the French town of Carpentras; daubed and damaged headstones in Jewish burial grounds in London and elsewhere in Britain; fears of renewed anti-Semitism in Eastern Europe; violent disruptions of public Jewish meetings in the Soviet Union; and, most recently, the whispering of a word we all thought banished for ever from Europe—"pogrom".
I suggest to your Lordships that the trials of alleged war criminals will help to keep alive the awareness of the horrors of the past. That can be an effective insurance that such events will never reoccur. Those who wish to wipe the slate clean will surely be unaware of a pernicious document, the Leuchter Report, published in June of last year. This glossy publication purports to be,the first forensic examination of Auschwitz".Its author claims scientific proof for his conclusion that the existence of Nazi mass extermination camps is a myth. The report is prefaced by a statement from David Irving, a man who claims to be an historian. He writes:The infamous gas chambers of Auschwitz, Treblinka and Majdanek did not exist ever, except perhaps as a brainchild of Britain's brilliant wartime Psychological Warfare Executive".Both the Leuchter Report— the contemptible Leuchter Report— and its preface were sent to 1110 Parliamentarians, professional bodies and local libraries. Perhaps most chilling of all, the publisher of the report announced his intention to send copies to every secondary school in Britain. It is not a matter of reviving the memory; for in the worst possible ways the memory is being revived and reviled every day.
None of us could have wished Nazi murderers to come to Britain. Had we but known who they were and what they are alleged to have done, it is unthinkable that they would ever have been allowed in. However, it appears that they entered this country, as they entered Australia, Canada, France, Holland and the United States. In all those countries, once their presence was discovered—however belatedly—it was agreed that the due process of law should be applied.
Those countries acted out of a belief that democratic nations cannot be the protectors of Nazi war criminals. One month ago Argentina acted against former SS Captain Josef Schwammberger, accused of the murder of hundreds, perhaps thousands, of innocent people in wartime Poland. He now awaits trial in West Germany. The German Democratic Republic—a recent convert to democratic government—has pledged that it will continue to bring alleged war criminals to justice as part of what it describes as its,share of the responsibility for the humiliation, expulsion and murdercommitted in the name of the Nazi regime. Can anyone seriously believe that Britain should be the odd man out; that our Commonwealth allies Canada and Australia, whose systems of law are based on our own, have confronted the problem while we might choose to ignore it?
My Lords, I feel passionately about the fundamentals of British justice and about the tolerance of the British people. For those reasons, I support this Bill.
§ 5.5 p.m.
§ Lord Hutchinson of Lullington
My Lords, it falls to me to express to the noble Lord, Lord Swaythling, the congratulations, I am sure, of the whole House on his maiden speech. It was a speech of deep feeling and of great reason. I know he will forgive me, as there is such a shortage of time, if I do not expand further on his many qualities and achievements. I should dearly like to speak at length about two aspects of our civilisation for which he is well known—horses and the arts—but it is not appropriate at this time.
I know that the noble Lord will also forgive me I for taking a different view about this Bill from that which he expressed. The amendment refers to a "fair trial" and it is on that aspect that I wish to concentrate. I remind the noble Lords, Lord Irvine and Lord Goodman, of the words of the noble Earl in opening this debate. No-one in this House would support a Bill which would deny a fair trial to any accused; but it is my suggestion that that is precisely what it will do.
The Hetherington report says that the investigation into crimes 40 years old was "fraught 1111 with difficulty". The age of witnesses, the time that has elapsed, the falsity of so much of the information and the mistakes of identity were all mentioned. The report insists that any trial must take place according to the rules of British justice. However, in its 108 packed pages there is no mention in the report of the fact that the central tenet of our system of criminal justice is that every accused, at all levels, must be guaranteed a fair trial. Nowhere among the difficulties listed are those which will inevitably confront the defence of an accused person.
I find it remarkable that in making a considered recommendation as to whether to confer a new jurisdiction on our courts involving the arrest and prosecution of British subjects for acts done out of our jurisdiction—40 or 50 years ago—no consideration whatever has been given to the fundamental question: can we guarantee a fair trial other than the ordinary entitlement to legal aid?
The only consideration in the report was: will there be a realistic prospect of a conviction? of course, if we bring in retrospective legislation we abolish the opportunity to test the evidence on committal; allow evidence to be taken abroad without guarantee of cross-examination; allow witnesses to give evidence without being present before the jury; and spend 16 months at a cost of £500, 000 with a team of ex-police officers, linguists and researchers, combing through archives, appealing for and examining witnesses. One can find three cases out of the thousands that existed in 1948 where there may well be a realistic prospect of conviction—but in what circumstances and at what cost?
Does the Bill provide for a fair trial, or is Parliament being asked to legislate for injustice? That is the question which the noble Lord, Lord Beloff, should surely ask. There is no such guarantee. As the noble and learned Lord, Lord Shawcross, said, the Bill violates the basic principles of British justice.
Suppose the accused says to the legally-aided lawyers: "I am not the person; I was not at the place named; I was somewhere else"? Identification has been mentioned by a number of noble Lords and that will be a central issue to this particular accused and all the others, though the matter is not dealt with in the report.
I served, along with the noble Lord, Lord Knights, on the Devlin Committee. We examined many, many cases involving eye witness identification. We found that the horror and the heinousness of an of fence, when witnesses were sometimes faced with possible death or grievous injury, and who used phrases such as: "His face was imprinted on my mind forever" made no difference to the incidence of proved mistake. Indeed, the gallant police officer in the Virag case which caused the committee to be set up, was shot and wounded at point-blank range. He continued to observe his assailant for 30 minutes. He picked out Mr. Virag without hesitation saying: "His face is imprinted on my brain" yet he identified an innocent man as did seven other witnesses.
So we now have strict rules in our courts. Warnings must be given to juries. One of them is to consider 1112 how long has elapsed between the original observation and the later identification. These rules cannot be fulfilled, as the noble Lord, Lord Callaghan has said, on a television link nor, I suggest, when 40 or 50 years have elapsed. On legal aid, how can an accused duplicate and check up on the procedures followed in this report set out in Chapter 8 under the heading The Methodology of the Inquiry? There will be a need for widespread advertising for witnesses, press conferences, a long trawl through the vast archives in America, Austria, Russia, both Germanys, Israel and Canada with investigators, archivists and interpreters. How can a solicitor on legal aid cope with the enormous problems of the transliteration of names in Eastern Europe? These names will be written in the Cyrillic alphabet, translated of ten with German or Polish spelling conventions, and yet we are told in the report at Chapter 8 paragraph 26, that they are untranslatable into English sounds. These are difficulties, the overcoming of which, the report insists, is vital in the task of identifying suspects.
How can a suspect establish an alibi 40 years after the event and instruct his solicitor to track down, interview and then arrange for the transmission of the evidence of witnesses by satellite to the Central Criminal Court when the witnesses are scattered somewhere in the Soviet Union? The implications of the Bill are grotesque.
In a moving speech made in this House on 4th December at col. 616 of the official Report, the noble Lord, the Chief Rabbi said:I am less interested in securing criminal convictions than in demonstrating our moral convictions".Surely that can never be a judicial objective though it may well be a political one. To stretch the rules of justice to accommodate or proclaim deep feelings of revulsion and to bend the criminal process in order to condemn the most heinous of human behaviour is to undermine the very foundation of justice itself That way lies the false confession and the corrupt evidence that have produced miscarriages of justice which have been as harmful as the terrorist crimes themselves which gave rise to those procedures.
To name suspects first and then to proceed to build up the evidence against them is a procedure which has equally led directly to many miscarriages of justice. One is entitled to ask: what presumption of innocence will these three accused have on arraignment after publication of the report, the debates in Parliament, and the passing of the Bill, as the report says,as quickly as possible given the ages of the suspects"?What will the effect be if, after all this effort and publicity, the trial judge rules—as the noble Earl said in opening the debate that he will have the power to do—that there is insufficient evidence according to British law or that, in accordance with established principles, the delay is far too long? What if the jury reach verdicts on a majority verdict? Are we really to legislate for such circumstances to arise in our courts?
We are all eager to parade our credentials for speaking in this debate. I have close relations who are Jewish. I am proud to be a member of the Mayor of Jerusalem's Jerusalem Committee. Anti-Semitism 1113 is a scourge which is now raising its head again in Europe, as the noble Lord, Lord Beloff, has said. It is happening in France, significantly, after the trial of the Butcher of Lyon. A vote for this amendment is in no conceivable way an anti-Jewish vote. In my view to resurrect prosecutions in these few cases when 40 years ago there where thousands of cases which were brought to a close by Government, with the strong support of Winston Churchill and the noble and learned Lord, Lord Shawcross, may well do more harm than good to our Jewish friends here at home.
I suggest that it is important for British justice and therefore for society as a whole, that this House should vote resolutely for the amendment.
§ 5.17 p m.
§ Lord Jakobovits
My Lords, one of the delightful fringe benefits in speaking in this otherwise grave and what I am sure to all of us is a painful debate, is that I can wholeheartedly join the previous speaker in congratulating the noble Lord who bears such a distinguished name in the annals of our people and our community. He made a beautiful maiden speech. In it he gave so much heart as well as thought to a problem of utter perplexity. I have the added benefit which the noble Lord, Lord Hutchinson, who followed him, did not have: of being able to agree with him as well. Therefore, I thank him for the encouragement that he has given me. Perhaps I may say for the two of us that, belonging as we do to a people described in the Bible as the smallest of all peoples, we are not exactly unaccustomed to being in a minority. I appreciate the trend of view so powerfully and of ten logically expressed by speakers before me and no doubt will be again by many of those who are to come afterwards.
Frankly, I hesitated before adding my name to the list of speakers on this occasion. I had already spoken in an earlier debate and my views are known. I face a dilemma. I wear my uniform on my head and my vocation in the title of my office. Therefore, I cannot speak as anything but as a spokesman of my faith and my people. Yet I do not want this discussion to be regarded as a Jewish issue, which it is not.
I hope that a commitment to bring criminals to justice and to fight evil wherever and whenever—and I stress wherever and whenever—it is to be found unites all decent men and women irrespective of belief Conversely, I fully accept that opposing the proposed legislation need have nothing whatever to do with anti-semitism. I was deeply heartened by the truly noble words expressed by the noble Lord, Lord Callaghan, which were enforced by other noble Lords, in condemnation of this evil that has wrought such unspeakable suffering on my people and many others. In fact, I know that some opponents of the Bill—indeed, many who are speaking here today—are among the staunchest friends of the Jewish people. But I am bound to add that so were some of those who were appeasers of the Nazis in the 1930s.
Since our last debate took place some new circumstances have arisen and there are some new arguments. Our vote in this House will be carefully scrutinised throughout the world as an indicator of 1114 moral sensitivities in contemporary Britain. As we have been reminded by several speakers, quite recently the civilised world has been shaken by the hideous desecration of the dead in Carpentras and elsewhere in outrages of anti-semitic frenzy and vulgar inhumanity which were unknown even at the height of the worst medieval persecutions of our people.
But more important than these isolated acts of a few sick and sickening minds, was the quite unprecedented world reaction to what was seen as threatening a recrudescence of racism. In Paris alone some 200,000 demonstrators marched in protest, led by the President of the Republic and other national, political and religious leaders from every party, every faith and every segment of society. Indeed, the fear of new outbreaks of race hatred has lately swept Europe, both East and West.
A negative vote now in this House, preventing the prosecution of suspected arch-criminals who succeeded in our lifetime in turning foul teachings of racism into rivers and lakes of innocent blood would give a wrong signal to a world seeking reassurance that civilised governments and legislatures would never again allow such evil to triumph with impunity. After Carpentras we cannot afford a collective act of exoneration of the most monstrous acts of brutality, acts which, as we have also been reminded lately, are either being denied altogether or being belittled as not even worthy of deterrence.
It was argued in our last debate by my noble friend the right reverend Prelate the Bishop of St. Albans—and we heard it said again this afternoon—that it might be better for the Jewish people if the legislation were not introduced lest it intensify anti-semitism. Let me assure him, and others holding this view with every sincerity, that it is not shared by the great majority of my community.
Finally, I note with deep concern bordering on disbelief that in his amendment the noble Lord, Lord Campbell of Alloway—and, indeed, he is supported in this view by others—again doubts whether there is areasonable assumption of a fair trial".In Other words, he assumes that the trials will not or cannot be fair. That casts an unwarranted slur on our judiciary. It questions and prejudges the fairness of both our judicial system and of those appointed to adminster it. It also overlooks the fact that the legislation is only permissive or enabling and not mandatory.
To my mind there are three options before us. If we are reasonably confident that our Law officers and our courts will ensure fair trials or else dismiss the charge, we should vote for the legislation. If we are quite certain that the trials cannot and will not be fair, we should support the amendment. If we are in any doubt whether they will or can be fair, we should abstain.
Voting against the Bill forecloses even the possibility that the evidence might conceivably be conclusive. The amendment is therefore prejudicial to the outcome of any trial. It is tantamount to a dismissal of all charges before they have even been 1115 heard in court. An abstention reserves judgment; a vote for the amendment passes judgment: it denies the chance of the evidence ever being heard and tried.
The proposed legislation might at least make it possible for a few of history's most horrendous criminals to be brought to justice. A vote against the legislation will unfortunately make it certain that for millions of victims there can be and there will be no justice, not even in theory or symbolically. Should it be said that we cared more for mass murderers who were allowed to get old in peace than for their victims whose innocent lives were brutally cut short?
I quite agree, as has been argued, that the Bill is 40 years too late. But 40 years of moral negligence is no excuse for persisting in it after it has been brought to light. If it were discovered that some water supply is contaminated and that it has been contaminated for 40 years, does that justify not purifying the water after the discovery? Such an injustice surely cannot accord with the moral traditions of our country and the noble record of this venerable palace of justice and of humanity.
§ 5.28 p.m.
§ Lord Hailsham of Saint Marylebone
My Lords, like the noble and reverend Lord who has just spoken, I too spoke in the last debate. I have not changed my mind in the interval, but I shall try not to repeat myself. However, in one respect I shall repeat myself. I want to express again in the presence of the noble and reverend Lord my absolute horror of the crimes which were committed against his people in the so-called Holocaust and even more during the long history of persecutions to which they have been subjected over the centuries by persons of varying religions, varying faiths and from various geographical distributions. I should also like to express my absolute detestation of the most irrational and unlovable doctrine of anti-semitism which I simply cannot imagine a civilised or educated human being entertaining for one moment. I think it is right that I should begin what I have to say by expressing that view.
I want to deal with those points which did not arise during the last debate. The first of course is the constitutional point on which, I must say, the noble Lord, Lord Callaghan, has taken out of my mouth much of what I should otherwise have wished to say. We may not be a perfect second Chamber. I very much doubt that we are. I sometimes believe that the imperfections of our constitution are rather an advantage than otherwise, because they prevent us from becoming too uppity. But we are the only second Chamber that this Parliament has, and one of the constitutional safeguards against allowing another place to regard itself as an elective dictatorship.
Basically, our duty in this debate is to vote according to our consciences and not otherwise. We must not be afraid of what people think of us or of what people may say falsely about us. We must not be deceived by speciousness or sophistry. We must not necessarily follow the examples of others. They may be bad examples. We are not sheep to be penned 1116 in with others, and if we were I should hope that we would act as the bellwether to lead them out of the pen. We must do as we believe it our duty to do in the light of the merits of the case.
Where I believe that I differ from the noble Lord, Lord Jakobovits, about the new factors in the case is in his belief that British justice can be done in the present case, because what is offered in the Bill is not, in my judgment at least, British justice. It is admitted that there was, as the noble Lord, Lord Mayhew, has said, a definite line drawn under the Nuremberg trials. They were contentious at the time. It was said that they were trials of the vanquished by the victors. It was also said that they were retrospective in nature. Both charges had weight behind them. I supported the Nuremberg trials. I support them today; but a deliberate line was drawn below them, accepted by all the principal parties in the state and by their leading statesmen. Since when, 42 years have gone by.
What would happen under British justice has been shown again and again in recent cases in the Court of Appeal. The courts have a phrase for it—"inordinate delay". They have another phrase for the results of inordinate delay, and deliberate delay by successive governments of all political persuasions. The phrase is "an abuse of the process of the court", because of the inability of the defence, after an inordinate delay, to put together a fair case. The Bill is in fact an abuse of the process of the court by retrospective legislation by Act of Parliament. It is for that reason that I differ from the noble Lord, Lord Jakobovits.
It is worse than that in some ways. We have tampered retrospectively with the laws of evidence. We went into that issue at considerable length in the Scottish Bill when we threw out a proposal. The noble and learned Lord, Lord Wilberforce, and others dissected that situation as regards England. The situation is not identical because there is on the statute book a power within which some change in the law of evidence would be possible, as there was not in Scotland. However, as was demonstrated without a doubt, that provision was not intended to deal with cases like the present ones. As the noble Lord, Lord Hutchinson, has just reminded us, nearly all the known cases of miscarriages of justice by way of conviction have been cases of identification: from Adolf Beck down to Virag and Docherty. It was for that reason that the Devlin Committee came to the conclusion of which the noble Lord, Lord Hutchinson, has just reminded us.
We are messing about in the same way, and retrospectively, with the committal procedure which, as the noble and learned Lord, Lord Shawcross, reminded us, was designed for the protection of the defence. We are doing it retrospectively. Again, there is on the statute book a special provision, which has no application here, in relation to fraud trials, due to the complexity of the case and the nature of the difficulty in examining piles and piles of hundreds and hundreds of documents. I supported that change—I believe that I was in office when it was made—but if I had thought for a moment that it would have been introduced into cases of murder or homicide, I think that I would have resigned rather than have accepted it.
1117 We have retrospection. We have inordinate delay and an abuse of the process of the court and we also have selectivity. There is selectivity, because the very first clause of the Bill refers only to Germany and areas occupied by the Germans. of course the horrors committed by the Germans and in German occupied territory were abominable almost beyond belief; but there were other actions in the last war, although they were less extensive. What about the Katyn massacres? What about the abominable massacres and other crimes of murder and homicide committed by the Stalinist regime in the Baltic states? There is not a word about them in the Bill. There is no attempt to be fair.
When at the end of the day we look at what it is all about, what it comes to is that two experienced prosecutors—I agree with the noble and learned Lord, Lord Shawcross, when he said that they were possibly a little too contemptuous of the need to provide for the rights of the defendant owing to the natural bent of their minds as regards prosecution—tell us that by changing the law retrospectively we can, nonetheless, provide fair trials for the defendants. I can only say that I do not agree with them.
I agree with the noble Lord, Lord Jakobovits, that this is not a Jewish question; it is a question of justice. What is being offered is not the justice that this country expects. It is a manufactured justice. For what purpose? As the report tells us, there were 301 complaints. Only seven were carefully investigated and only four would even merit a trial. The subject of one is dead; one is too ill to stand trial; and one, we are told, would almost certainly get of f. That leaves one. I do not suppose that the inquiry investigated the most difficult cases or those least likely to be successful. There are 75 which are still uninvestigated. I wonder whether we shall obtain one more viable prosecution from them. For that, we are being invited to commit an act, as the noble and learned Lord, Lord Shawcross, put it, that would place an indelible stain on the standard of our system of justice.
We are not to be bullied in this House; we are not to be blackmailed; we are not to be intimidated; we are to do that which is right in the sight of the Lord, if we can see what is right in the sight of the Lord. I know where my conscience will lead me to vote.
§ 5.40 p.m.
§ Lord Mason of Barnsley
My Lords, I rise to support the Bill. I have tried throughout my public life never to bear malice and never to harbour a grudge. Therefore I recognise that in making comments on this question of war crimes and possible prosecution I shall be teetering on the brink.
I am an officer of the All-Party Lords and Commons War Crimes Group. I joined it because of my stark memories of a visit to Auschwitz. I was a member of the first Labour Party delegation to Poland in the early 1950s. It included the then Viscount Stansgate, Lord Silkin, and MPs George Brown, Desmond Donnelly and Hugh Delargy. Sad to say, all of them have passed on. I cannot rid my mind of the visit to the Auschwitz gas chambers, 1118 seeing the mountains of human hair and the mounds of false teeth, toothbrushes, shaving tackle, mirrors—the collection of necessities which these luckless and unfortunate victims of Nazism had hurriedly picked up and taken away to destinations unknown. I remember our walk to the wall of death where many had been murdered; our wreath-laying ceremony and the adjacent fields where we picked up bones that crumbled to dust in our hands—ashes of thousands of human beings. It all left an indelible mark on my memory that time will never erase.
I am not that old. I may well grow old, but i shall not forget. I found it hard to believe the callous inhumanity of man; the extent to which hatred of a race could lead to planned mass murder, the extermination of a race of people—genocide. However, the evidence was all too starkly clear. It led me into an interest in the problems of the Jews. I joined the Labour Friends of Israel and the all-party group which campaigned for the freedom of the Jewish refuseniks in the Soviet Union. I posed many questions in another place, had adjournment debates and led an all-party mission to meet refuseniks in the Moscow suburbs. I became involved, and, as is clear from this intervention, I still am.
The Hetherington-Chalmers war crimes inquiry found that there was sufficient evidence, not just suspicion, that within the United Kingdom there are individuals who, the inquiry felt, had been responsible for the most heinous of war crimes. We are talking, of course, of mass murder. It felt that legislation ought to be introduced to make it possible for those individuals to be called to account for their actions—"for crimes so monstrous that they cannot be condoned". There is no point at which crimes of this magnitude can be forgotten just because they took place a long time ago.
Those noble Lords who oppose this Bill on the basis of the age of the alleged criminals and witnesses should look around. Already we have seen that noble Lords in the age group of the alleged criminals and witnesses—the noble and learned Lord, Lord Hailsham, the noble Lord, Lord Callaghan, and the noble and learned Lord, Lord Shawcross—are bright and alert and have memories. So that part of the argument does not wash with me.
I believe in the name of justice that this Bill is right on three counts. First, I am concerned for all those millions of relatives and friends of the victims, no matter what their political or religious persuasion. Remember, over 6 million were murdered. I believe that we have a duty to those who have suffered and are still suffering, some physically and vast numbers mentally.
We shall never be forgiven if we now hide our heads in the sand and pretend that it never happened or that it has vanished into the mists of time. It would be so easy to wash our hands of this awful matter. Not only should the dead receive justice, but their loved ones too should receive it. I think that for their sakes—and there are so many of them—the law of the land should change so that justice can be seen to be done. I believe that we have a moral obligation, and in carrying it out we shall set a standard for the future.
1119 Secondly, why should the United Kingdom be seen as a haven for war criminals? In particular, why should it stand out in clear contrast to Canada, Australia, parts of the United Slates and other nations which have acted? The Soviet Union has prosecuted and is keen that its former allies should follow suit. It must be publicly recognised that if barbarous crimes are perpetrated by callous criminals they cannot escape the law by settling in Britain. I believe too that we have a duty to show the world that acts of genocide will not go unpunished if the perpetrators flee to Britain. If we do nothing, Britain will be seen and judged as a sanctuary for mass murderers. What then of Britain's name in the world thereafter?
Thirdly, the bringing of alleged criminals before a court of law will also be a reminder to the generations bom since the Second World War. The trials will no doubt be a grim reminder of the existence of the extermination camps and the atrocities committed in Belsen, Buchenwald, Dachau and Auschwitz. But to the many millions of younger people it will be a shocking revelation of the bestiality of man. It will be a lesson of history, but with the forewarning that this generation must never let it happen again. I believe that this history should be further revealed. Grim and horror-ridden it will be, but it will be in the courts of the land.
Finally, it is beyond dispute that Sir Thomas Hetherington and William Chalmers are a powerful pair of experienced lawyers. They have made firm recommendations of which this House should take notice. To ignore them would be unwise. The elected Chamber of Parliament has decreed, on a free vote on three occasions and by large majorities, to accept the war crimes inquiry recommendations and to bless this Bill. For your Lordships to ignore our elected representatives' views would also be unwise. This Bill seeks solely to allow the judicial process to proceed, I hope in keeping with the high standards of British justice. That is right and that is why I back the Bill.
§ 5.47 p.m.
§ Lord Carrington
My Lords, those of us who, like the noble Lord, Lord Mayhew, and myself, saw and liberated a concentration camp during 1944 and 1945, can never conceivably forgive or forget what we saw. The horror and the inhumanity are inexcusable. Yet I feel deep unease about the Bill for reasons given in various speeches over the past three hours. That is partly because I do not like retrospective legislation; partly because I do not believe that it is possible to obtain a fair trial; and partly because, 40 years later, people's memories are very odd indeed. My noble friend has had recent experience of that on a similar subject.
Those of us who have this worry have a problem as to whether or not it is proper that we in this House should exercise our right to vote according to our conscience. It so happens that as a Whip, as Leader of the House and as Leader of the Opposition, I have persuaded noble Lords on my side more of ten than anyone else not to vote against the Second Reading of a Bill which a government have brought forward. 1120 That was for one reason or another; sometimes for reasons purely of good sense and convenience.
It also happens that I am probably the only person sitting in the House at the moment who took his seat 45 years ago when the Labour Government of 1945 were elected. We, in this House, faced an enormous Labour majority following a landslide in the election of the House of Commons. As I recall there were something like 10 Labour Peers in this House and therefore an enormous Conservative majority. There had to be some modus vivendi whereby we could not frustrate the will of the House of Commons with its enormous majority yet at the same time were able to perform some useful function. The late Lord Salisbury and others devised a means through the manifesto agreement. In other words, if a Bill appeared in the manifesto we did not oppose its Second Reading. However, we felt absolutely entitled to amend the Bill although accepting the principle. We also agreed that we were entitled, as a House, to express our views when those of the public were not known so as to afford some kind of pause during which the views of the public might be made known leading perhaps to second thoughts by the government of the day.
Looking back over the years, the convention has worked well. Today, however on this Bill, we have to ask ourselves how those criteria stand. I do not believe they apply at all. The Bill was never in the manifesto. No one had thought of it at that time. There was a free vote in the House of Commons. If this had been a Bill that the Government wanted to get through, they could have put on the Whips. However, the Government allowed a free vote in the House of Commons. Why should we not have a free vote?
Let us suppose that we reject the Bill. If the Government so wish, they have an opportunity not only to reintroduce the Bill in another place but also to put on the Whips to ensure that it goes through another place. Your Lordships would then have to decide what in those circumstances we should do. I do not believe that the criteria apply. Speaking for myself, I do not think this House would be worth very much if we could not vote according to our consciences on an issue of this kind. I shall certainly go into the Lobby with my noble friend behind me.
§ 5.53 p.m.
§ Lord Morris of Kenwood
My Lords, I hope I may add a small, lonely voice to those who would like to see this Bill at least get a Second Reading. This morning I was handed a piece of paper which contained the editorial from the Mail on Sunday which sets out in human terms what this Bill is really all about. It states:The attempted extermination of the entire Jewish population of Europe by the Nazis during the Holocaust was the greatest crime in the history of the human race. It is not the fact that six million died that was awful; it is that they died for no reason other than that of race. These were not the victims of war. They were victims of a creed so horrible that it remains to this day incomprehensible".I hope that many of your Lordships will have an opportunity to read that opinion. I hope it will persuade noble Lords that this Bill is worthy of a Second Reading.
1121 There is nothing which has not been said about this Bill, I do not wish to repeat any of the arguments which have been put forward by those who have supported it. However, I wish to emphasise the following points. The investigations of the war crimes inquiry disclosed acts that the two independent commissioners described ashorrific instances of mass murder".The commissioners are both distinguished former prosecuting officers highly experienced in testing for sufficiency of evidence in criminal cases.
The Bill before us is an enabling Bill. It simply creates the machinery so that if there is sufficient evidence against an individual living in the United Kingdom, the Crown may prosecute. Those suspected of Nazi crimes are only immune from prosecution because they were not British citizens at the time of the Holocaust and the atrocities. They are now British citizens and it is that loophole which the Bill seeks to close.
There is no question of trying frail old men under the terms of the Bill. As in any other criminal case the Crown would only proceed if the defendant was fit to plead. I hesitate to disagree with noble and learned Lords who have spoken before me, but as a magistrate of some long standing I am confident that our legal system would ensure that a defendant would get a fair and just trial. A just society would deal justly with each and every case.
Noble Lords will know that only a few individuals have seen the detailed allegations in the unpublished annex to the Hetherington-Chalmers Report. Both the present and former Home Secretaries have done so and both are strongly committed to the Bill. Indeed when he introduced this measure in another place, the present Home Secretary concluded,nobody would have chosen to address these issues so long after the event It is so long since the war, and the instinctive wish of most of us is to get on with our lives in peace and not to rake over the past … but sometimes one is brought face to face with facts that cannot be buried, with deeds so terrible that they cannot be forgotten, and as long as one of those responsible survives, the world will cry out for justice".—[official Report, Commons, 19/3/90; col. 8940]I commend those words to the House and urge your Lordships' support for this important Bill.
§ 5.56 p.m.
§ Lord Ackner
My Lords, to some of us the retrospectivity of the Bill may be repugnant, but to others it is not so. To some of us the fact that Her Majesty's Government made a definite decision 42 years ago means that that should be finality. Others, however, do not take that view. To some of us the expenditure of money and resources on further investigation and bringing to trial is an unwise expenditure. But to others that is wholly justified.
There is, however, one matter upon which there is, doubtless, total unanimity. In the wholly justifiable and ardent desire, with which I have full sympathy, to convict and punish those guilty of premeditated acts of cold-blooded mass murder we must not compromise or diminish, devalue, or dilute or, in a word, debase, our standards of justice. As the noble Lord, Lord Mishcon, said last December,justice includes guaranteeing a fair trial for any accused".1122 What we are contemplating is giving our courts for the first time jurisdiction to try murder or manslaughter committed some 40 to 50 years ago in a part of the world that is now the territory of the Soviet Union by persons who at that time were not of British nationality. The report of the war crimes inquiry frankly concedes,the investigation of crimes well over forty years after the event is fraught with difficulty".The report, however, accepts in relation to the quality—I emphasise the word "quality"—of the available evidence that those who had witnessed the atrocities were usually themselves killed. Some of the witnesses who exist are unwilling to come to this country and some are clearly not fit enough to do so. Again, in the report it is conceded that there is no means of compelling the attendance of such witnesses.
Paragraph 9.40 of the report also concedes that although there exist statements from witnesses now dead which were taken shortly after the end of hostilities:it seems to us very questionable whether a Court would rule a statement of a dead witness of substance to be admissable".The report makes no recommendation for amending legislation, nor does the Bill.
Inevitably the report accepts that the transmission of evidence by live television link may in practice present very considerable difficulty. It instances one case; namely, where the witnesses are not fit to travel from their sometimes remote villages to one of the major centres in the USSR.
So much for the relevant concessions. The first matter which I should like to stress, which is of paramount importance is that the report accepts that identification is the crucial issue. Yet it concedes, in the manner which J have just described, the poor quality of the available evidence. The report does not concede that it is only in comparatively recent times that identification evidence has emerged as a distinct class on its own. That is because recent experience in the courts has shown that in a not insignificant number of cases erroneous identification evidence by apparently honest witnesses has led to wrong convictions. In the eleventh report of the Criminal Law Revision Committee published in 1972 the Committee stated that mistaken identification of the accused was:by far the greatest cause of actual or possible wrong convict ions".The committee highlighted the difficulty that identifying witnesses might be perfectly honest and clearly appear to be so, and their evidence therefore might seem to be entirely convincing.
As a result of two much publicised cases, to which the noble Lord, Lord Hutchinson of Lullington, referred; namely, the Virag case—the other was the Dougherty case—your Lordships may remember that the Home Secretary appointed the Devlin Committee to consider identification evidence. That committee recommended that where the evidence for the prosecution consisted wholly or mainly of evidence of visual identification the jury should be informed that it was not safe to convict upon such evidence unless the circumstances of the identification were exceptional or unless the 1123 identification was supported by substantial evidence of another kind.
Shortly after the publication of that report the Court of Appeal collected together a number of identification cases in order to lay down guidelines, the case being R. v. Turnbull in 1977. Those guidelines are now well known and consistently applied in England and in a number of Commonwealth countries. It is surprising that no mention is made in the report of that particular category of highly vulnerable evidence. The Lord Chief Justice, Lord Widgery, in giving the judgment of the court, said:When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example where it depends solely on a fleeting glance or on longer observation made in difficult conditions … the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification".I submit that where identification is the crucial issue in cases which are nearly 50 years old, such as these war crimes, those are par excellence cases which fall into that category.
Last July, in the case of R. v. Junior Reid and others the Privy Council considered a number of appeals from the Court of Appeal of Jamaica, in which convictions of murder had been upheld and in which visual identification evidence was the crux of the prosecution case. Despite the escalating violence which that country is sadly experiencing, fuelled by the intimidation, indeed the suspected murder, of potential witnesses causing very great difficulties in bringing murder cases to trial, we—the Judicial Committee of the Privy Council—insisted that the Turnbull guidelines be strictly applied. We accordingly advised Her Majesty that five out of six of those convictions should be quashed.
Are we to apply less stringent standards to war crimes? Surely not. Yet, to overcome the inevitable difficulties involved in deciding cases which occurred more than 40 years ago, we are to be dependent upon relaying evidence by television link with no confrontation between the accuser and the accused, by the use of video recording, by seeking to use statements made over 40 years ago by persons now deceased and by the use of photographs taken decades ago. I fear that that is debasing our standards of justice. It is a stark application of the philosophy that the end justifies the means, however questionable those means.
The second and final point has been made by the noble Lord, Lord Hutchinson of Lullington; namely, that nowhere does the report, which concedes the difficulty in sifting the potential evidence in order to identify the accused person, concede the extraordinary difficulty which will be faced by any defendant who has to answer the charges. What facilities can he expect to receive to enable him to make a fair challenge to the assembled evidence against him? The Committee was no doubt helped with funds from the Government, with assistance from Russia and assistance from other organisations keen that the prosecution should be brought.
In his outstandingly balanced and fair introduction to the debate last December the noble Earl, Lord Ferrers, said that some might argue that I 1124 it should be left to 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. If we were contemplating the trial of war crimes five or even 10 years after the alleged of fences were committed I should be prepared to subscribe to that view. However, some 50 years or so on I share the concern voiced by my noble and learned friend Lord Shawcross and by the right reverend Prelate the Bishop of St. Albans, who in the debate last December said that he very much doubted whether juries, after the publicity surrounding the passage through Parliament of the necessary enabling legislation, will be able to discount the time, energy and expense which the state will have put into the exercise, and thus be able to come to an entirely impartial verdict.
I submit that when, to put it at its lowest, there is serious doubt that an accused, whoever he may be, may not be accorded a fair trial, he must be accorded the benefit of the doubt. Accordingly I shall vote in favour of the amendment.
§ 6.10 p.m.
Lord Campbell of Croy
My Lords, I did not speak in our two previous debates on the subject. However, having read them in Hansard, I conclude that I might usefully contribute today mainly because I am in exactly that age group which was old enough to be in the armed forces throughout the war but has not yet reached the age of 70. During the previous debates the phrase "old men forget" was repeated on several occasions. With all modesty I claim not to have reached that stage quite yet.
The war started shortly after my 18th birthday and I was already in the army. In 1939 I and some others of my age believed that war was inevitable and that Hitler and his gang must be removed before a career and an ordinary life could be pursued. In April 1945, five-and-a-half years later, I was in the brigade of a Scottish Division which discovered Belsen. The concentration camp lay in the path of our advance across Germany and we were stunned with horror by what we found. For two years I had been commanding a unit in that division. The feelings of my officers and soldiers were of outrage and indignation. Some who had come through the whole of that campaign—that was from Normandy almost a year earlier—had seen devastating and chilling scenes; the results of the sheer weight of high explosives, shells and tanks. It was part of the war that had to be fought. Belsen was the deliberate and inhuman brutalisation of man's treatment of man. For me it reinforced the necessity—unfortunate though it was—to have fought to eliminate the regime responsible for such atrocities.
We found Belsen three weeks before I was wounded. Not until the day before Hitler committed suicide was I carted away in a stretcher and placed behind hospital walls for a year and a quarter. When I emerged from hospital, I still could not walk. However, I was successful in the Foreign office exam, after being classified medically as unfit for any military service. That is why I worked for three years in the Foreign office on Europe and again my life touched on the matters now before us. In 1125 particular I was involved in the screening of the Yugoslavs in 1948 which was explained in an earlier debate by the noble Lord, Lord Mayhew.
At Belsen and other concentration camps crimes were committed against humanity in wartime. The victims were mostly civilians. Belsen was not used by the Nazis for deliberate mass killings: for example, there were no gas chambers. Nonetheless, the prisoners died in hundreds from typhus, other diseases, and starvation. The treatment inflicted on them made it difficult for human life to be sustained. The survivors in April 1945 were skeletons hardly able to move their limbs.
Because it was in West Germany Belsen was among the first—if not the first—of the concentration camps to be discovered in the West. Within hours war correspondents arrived and in the following days the free-world's press was full of pictures and accounts of the horrors. Previously there had been rumours about death camps and barbaric treatment but here was the dreadful evidence which confirmed the worst suspicions. The identified perpetrators of acts in those concentration camps were duly tried as war criminals in the immediate post-war proceedings.
War crimes also include of fences in the conduct of warfare under The Hague Convention; the first codified crimes of war before concentration camps had been heard of Episodes of prisoners of war being executed out of hand fall into that category. Accusations were made and where evidence and identification supported them charges were brought. It is important that war crimes should not be limited to Jewish victims, as has been said by other speakers. I make clear the fact that from my experiences I have no personal complaints on that score; that is the conduct of warfare. In various actions against enemy military forces in which I took part, our prisoners of war were properly treated; and humane attitudes were adopted towards the wounded, where conditions permitted and any control was possible.
At times we were up against SS units, both tanks and infantry. They were the Waffen SS, part of the German army, and behaved no differently in those respects. I must add that they were among the best soldiers the crack units, consisting mostly of young men who were tough, well-trained and determined and who had served only in the field army and had not been engaged in sinister activities. They did not surrender easily. I clearly remember that on two occasions when taking prisoners and when the battle should have been over for them. The Waffen SS units had been treated as an elite in the German army and there was competition to be accepted in them.
I cannot refrain from pointing out to your Lordships the diabolical way in which Hitler manipulated the youth of his country by grouping those elite army regiments in the same umbrella organisation—that is the SS—as the squads which carried out evil work for the Gestapo and in the concentration camps.
Of course, there were grounds for accusations of military of fences in certain operations and theatres of war, especially in the Far East. In recalling my experiences, I must add that I am not influenced by 1126 the fact that my brother, an RAF Spitfire pilot, was shot and killed after successfully escaping as a prisoner of war. He was on his own and the case was investigated after the war. It is clear that he was correctly challenged in the dark and was not prepared to give up.
The war crimes trials which took place immediately after the war inquired into the actions of Hitler's accomplices and of commanders and officials accused of mass murder and of fences against the international conventions on the conduct of warfare. In the dock were the "big fish" most of whom could be traced and identified fairly easily. So far as the United Kingdom was concerned those trials were brought to an end in 1948. The file was closed for Britain but not completely because further prosecutions of accused people were left to the new democracy in Western Germany. I understand that they continued over a long period of time. Therefore, the trials did not stop in 1948 and I should be grateful if in winding up the debate my noble friend could confirm that they continued although we were no longer part of them.
A good reason for the change was that if the Germans took on the task it would help the building of new firm and friendly relations between the allies and the former enemy countries. Working in Europe for the Foreign office I was an enthusiastic supporter of the policy of constructing good British-German relations. I later continued to be so as a Member of Parliament. For example, two months ago I was glad to be invited to the 40th anniversary celebrations at Cambridge of the British/German Königswinter Conferences attended by my right honourable friend the Prime Minister and Chancellor Köhl. I was invited as an old hand. Some people were surprised to find that I had participated in the Königswinter Conference before the Berlin wall was built 30 years ago.
The net for rounding up war criminals existed in Germany after 1948. The situation described in the Hetherington-Chalmers Report has arisen from the large number of refugees allowed to leave continental Europe in the late 1940s and who originated in the Baltic States, Poland and the Ukraine. As was stated by the noble and learned Lord, Lord Wilberforce, during our debate on 4th December, only elementary screening was carried out in those cases. It was possible for someone who had been responsible for wartime atrocities to assume a disguise, invent a past and settle in another country.
I share the unease and the views of many noble Lords who today and in previous debates have doubted whether more than 45 years after the events, such a person could have a conclusive case brought against him or an opportunity for a full defence. I shall not go over the legal and other arguments that have been put forward by eminent legally-qualified Members of this House. Nevertheless, I understand the views of survivors or of families and friends of victims who question why, when two people had identical responsibilities for atrocious crimes, one should be punished and the other should escape through deception and chance by lying his way away from justice. I shall come to the matter of identification; but, where events are concerned, I am 1127 sure that survivors of concentration camps and other horrors still clearly remember situations of crisis and danger. If Anne Frank, known from her diary, were alive today she would be several years younger than I. After her family's hiding place was discovered, she died, I think of typhus, in a concentration camp.
Speaking for myself, I certainly remember wartime occasions more than 45 years ago of extreme danger, death and destruction as well as if they had happened last week. Times of high tension, for example when instant decisions have to be taken, indelibly mark themselves in one's memory. The Imperial War Museum has made use of that by persuading me to make recordings, as a result of which much tape has been filled. I should be surprised if the victims of Nazi persecution did not have the same experience of remembering without difficulty.
Identification is another matter. In the reports of the trial in Israel recently of the Ukrainian accused of being a mass executioner at Treblinka, the horrors were described at length; but what mattered most was whether he was the person in question. Events can be remembered clearly, but identification of persons is very difficult. I submit that no prosecution should be initiated in this country unless there is irrefutable proof of identity.
How should we now act in this House? That is the main question before us. A Bill has now been passed by a large majority on a free vote in another place. My noble friend's reasoned amendment, if passed, would stop the Bill now. The Government could reintroduce it in the next Session and this House could not repeat the action. The effect would be a delay of some months.
Noble Lords will take their own decisions and respect varying views held on this delicate issue. My own preference is not to use our right to stop or delay the Bill. That is where I differ from my noble friend, Lord Campbell of Alloway. My reason is not constitutional. We have every right to throw out at this stage a Bill of this kind, although this would be unusual. My question is: is it wise or prudent to do so?
The large majority of Members of Parliament have made their views clear, no doubt pressed in many cases by constituents who feel strongly. In those circumstances, I would let the Bill go through and make clear that there should be prosecutions only where there is a cast-iron case and firm evidence. In suggesting that course, I may be chided with the fact that I was the Peer most involved on the last occasion in 1976 when a government Bill was halted in your Lordships' House.
I should recall the different circumstances at that time. From the Opposition Front Bench I urged the House not to let the Aircraft and Shipbuilding Industries Bill go through with the ship repairing section in it. There were special reasons on that occasion which led to an agreed removal from the Bill of ship repairing and the complete vindication of our action. When the Bill was reintroduced in the following Session of Parliament, it went to the Examiners before being considered by either House. The Examiners—lawyers and officials—decided 1128 that the ship repairing section ought to be treated as private legislation and that the Bill was therefore hybrid. That is what we in this House had been pointing out. In the Commons, standing orders had been suspended by a government-led Division which prevented reference to the Examiners. Twelve ship repairing firms out of about 100 firms in the country had been selected for nationalisation by criteria which had been imperfectly applied. The vital point is that private legislation procedure would have allowed the aggrieved citizens with their lawyers to put their case in person to a committee of Parliament and that is not possible with a public Bill. That is what we had been pointing out in your Lordships' House, so protecting the constitutional rights of the individual.
Rather than lose the time which private legislation procedure would have consumed, the government of the day withdrew the Bill. They offered to the official Opposition a deal. The Government would drop the ship repairers' part of the Bill, accepting the amendment successfully moved by me in this House, if the Opposition would agree to the rest of the Bill going through. That is what happened. The ship repairing section was not a significant element while the building industries' nationalisation had been in the Party manifesto, which by convention this House does not frustrate.
The delaying power of the second Chamber on that occasion was 100 per cent. successful in protecting individuals' rights. In those days my noble friend Lord Campbell of Alloway was not in Parliament, although he will have followed the proceedings closely as an eminent barrister. We have a different situation with this Bill. I am greatly concerned about proposals to abolish this second Chamber. I have spent 15 years in the other place and 15 years here—half and half. I believe that it is essential to have a second Chamber, and that this one should not be dispensed with until a better one has been agreed and created. As in 1976 we can act successfully as a brake to make a revision or enable a government to think again.
In this case we should be challenging a government Bill which is also the freely expressed opinion of the elected Chamber. I fear that that would be used in future as ammunition by those who wish to abolish this House. I am not talking about threats but simply of what may happen in the future. Should we allow the Bill to go through and the proposed prosecution system is set up, I should not be surprised if only two or three cases were brought—they would have to be on the firmest and clearest evidence—and there may well be no cases at all. The situation has changed since our debate of 4th December. The Commons have sent the Bill to us with no reservations. Let us express our views, but I shall vote against the amendment if it is put to a Division.
§ 6.27 p.m.
§ Lord Houghton of Sowerby
My Lords, I am very fortunate. My general views were expressed in a leading article in this morning's Times and in a leading article in the Spectator magazine last week. I have also had an opportunity of giving my views directly to a somewhat wider audience on the radio at lunchtime.
1129 I accept the analysis of my noble friend Lord Callaghan on the constitutional position. Surely, we are a free House in a free Parliament. If we bend our will on a matter of this kind to the House of Commons we forsake one of the principal roles of this Chamber, which is to safeguard liberties and freedom and the constitutional position as we see it. Indeed, that is the one thing with which this House has not merely a responsibility but a duty. I hope that we shall all fulfil that duty.
If we had a bill of rights, as I think we should have, it would take at least the consent of both Houses of Parliament to bring in a Bill of this kind. Its effect would be an infringement of the basic principle which has long obtained in English law; namely, that we do not prosecute incomers into Britain for alleged crimes committed by them elsewhere. Although we altered the law to bring certain crimes within the jurisdiction of the British courts, we did so only from a current date and deliberately not retrospectively.
It seems to me that this is not the end of a chapter in the war crimes saga. It is the beginning of another. We are the last in line considering the extension of the right to prosecute retrospectively in this country for crimes committed elsewhere. Australia and Canada have done so. The United States has not adopted the trial basis for action; it has adopted deportation.
It is important that we consider the consequences of what we are asked to do. I ask the Minister to indicate whether he has yet had time to study the judgment in the case in Canada. It was the first brought under the new procedure. Judgment was delivered on 25th May, only a few days ago. It has pr of ound implications for our own consideration of the possible trend of events. Canada has extradited one person to the Netherlands, partly on the ground, presumably, that the accused would receive a fair trial there. Presumably, also, it selected a case as a model for those which might follow. It has had one case, and one case only so far. That case began last year.
The judge sat with the jury for six months. The jury took evidence from 22nd November until the summing up by the judge only a few weeks ago. It heard 4 3 witnesses for the prosecution brought from all corners to deal with the allegation against a man aged 77 who had been a captain in the gendarmerie of Hungary in 1944. He is accused of confinement, kidnapping, robbery and manslaughter in the rounding up and deportation of 8, 617 Hungarian civilians. The charge was manslaugher and additional of fences. As my noble friend Lord Callaghan has indicated, the accused did not choose to give evidence in his own defence. Numerous defences were put forward by his counsel. One was that he was obeying the orders of an accredited government in Hungary at the time; there were other such fine points. It is interesting to note that the judge took 21 days to sum up for the benefit of the jury. The jury took two days to consider its verdict. It acquitted the man of all charges.
Part of the charge—as it is called in Canada, I understand—was that although many of these unhappy people were boxed up in confinement for 1130 transport to a concentration camp, the judge directed the jury that it had heard no direct evidence of the cause of their deaths. There might be an assumption of asphyxiation; there might be various assumptions. But on arrival the cause of death was never established. There was a clear indication to the jury that a verdict of manslaughter would be unsafe without any evidence of how the victims had met their deaths.
What was the first reaction to the verdict? Jewish groups expressed shock. The Canadian Jewish Congress said that it would ask the government to appeal. That can happen under Canadian law. Following the judgment several survivors said that the jurors were too young to understand what had happened in Europe in World War Two.
An acquittal on the very first trial will have a pr of ound influence on future policy in Canada. The view I have held all along, which has been expressed so forcefully by my noble friends, is this. If we undertake legislation its purpose will fail. There can be no such thing as justice. There can be only conviction or acquittal and I believe that in most cases it will be acquittal. The evidence will be difficult to substantiate. As the noble and learned Lord, Lord Ackner, pointed out, identification will be crucial in most cases. There was no dispute about identification in the Canadian case. Numbers of people said that he was the man; and he did not deny it. He did not go into the witness box. He pleaded that he was innocent because he was acting in his official position as a captain in the police. Orders were given higher up and he had no intention of creating any hardship, still less death, in transit. It was on that basis that he was acquitted of all charges. There was apparently no proof that he was in charge of the operation.
Those are the problems that will be encountered in such cases. Let us suppose that we put forward our first case and it fails. What then, my Lords? Do we try another case? I fear that we are in for a fiasco, and that all the verbiage about British justice and the fastidiousness of counsel, the judges, and so on, is of little consequence. Juries will not have the stable and authentic material on which to arrive at a firm conclusion. In those circumstances they are almost bound to return a verdict such as I have described.
In the Canadian case, it was the unanimous verdict of eight men and four women. One cannot complain that they did not hear the evidence against the accused. Forty-three witnesses came to give evidence against him. But the proof of the charge of manslaughter, or of confinement and cruelty, was not there. I believe that in many cases the proof will not be there unless there is evidence of actual murder; some visible sign that a person committed a particular crime. It might not be mass murder; it might be individual murder. I believe that we are on a disaster course.
Australia conferred the same powers that we are asked to provide in the Bill. But it has not mounted any prosecution so far. In this latest phase of going for the criminals in the evening of their lives by amending the law, as the Bill requires us to do, the net result so far is this. No cases have been brought 1131 in Australia; we have not yet done so here. Canada has brought its first case and has come a cropper. That is not a very good beginning.
How long do we propose to pursue these people? Must death solve the problem? Shall we see the last war criminal, like the last aboriginal in Tasmania, ceremoniously dispatched as the last of the line? I believe that it is becoming a fantastic situation. Our dilemma now is that we are being pushed too far without having considered fully all the implications of what we are asked to do. Our procedure may be our difficulty. We may fall into a trap. But we have the duty to point out these matters to the public. It may be necessary to take a wider franchise on the matter before Parliament can proceed to a further stage. I doubt whether we have consulted, as we might have done, on a matter that will create such a serious division between the two Houses.
Finally, I congratulate my noble friend Lord Longford on being one of the few Peers to have mentioned forgiveness more than once—forgiveness that he brought before your Lordships' House during discussion on the Scottish legislation in a moving revelation of his own gentle and lovely character. I have not heard the word "amnesty". No one has said that there can be no peace until we love our enemies. There has been no philosophy. There has been little religion. The Bishops' Bench has not taken us very far. Peers who are local preachers have not taken us very far. In those circumstances, we have been lacking in the basic philosophy of life and attitude towards our fellow men which would see us through the problem.
I shall vote for the amendment. I hope that some means will be found of reconciling differences, or that the Government will change their minds or consult with others. For the time being, I say no to the Bill. I hope that other noble Lords will do the same.
§ 6.42 p.m.
§ Lord Windlesham
My Lords, we have listened to some powerful speeches, not least the most recent speech made by the noble Lord, Lord Houghton of Sowerby. He will hear no philosophy and no religion from me. I will do no more than add my voice to what has been said about the relationship between the two Houses of Parliament, were this Bill to be rejected on Second Reading. That issue may still be in the back of the minds of some noble Lords who have reservations about this Bill, and it is worth returning to and providing some further details.
We should be quite clear in our own minds that there is no question that it is competent for the House to take this step. If the reasoned amendment of my noble friend Lord Campbell of Alloway were to be accepted and the House declined to give the Bill a Second Reading for the reasons stated in the amendment, it would be open to the Government to re-introduce the Bill in the next Session of Parliament. They could then secure its enactment under the Parliament Acts, despite the opposition of the House of Lords, provided that a majority of Members in the other place still supported the Bill on its second introduction.
1132 A mechanism therefore, exists to ensure that where a clash occurs between the two Houses of Parliament, the will of the elected House will prevail, although there will be some delay in the legislative process. Beyond that point, we are in the realm of convention and of political judgment.
Reference has been made by more than one speaker to the Salisbury doctrine. That doctrine enunciated that the House of Lords should not oppose any mandated Bills which had been introduced by the Government in pursuance of an election manifesto commitment. We have heard an interesting contribution from the noble Lord, Lord Carrington, in which he rehearsed the origins of that doctrine. It is widely accepted as having continuing application. The War Crimes Bill, however, is not a mandated Bill and therefore it is not covered by the Salisbury doctrine.
I should like to refer briefly to my experience of the period between 1970 and 1974. One of the earliest Bills that I introduced from the Despatch Box as a Home office Minister was the Immigration Bill in 1971. The noble Lord, Lord Foot, will remember his own important part in the debates. The House divided against that Bill, unsuccessfully, on Second Reading. The House also divided after a two-day debate on the Second Reading of the Industrial Relations Bill on 5th and 6th April 1971 on a reasoned amendment in the name of the Leader of the Opposition. It was supported by the Opposition as a whole. On 26th July 1972 the House divided again on the Second Reading of the European Communities Bill. Two of those Bills were straightforward manifesto commitments; the third, the European Communities Bill, was unquestionably one of the main planks of the policy of the Government of the day.
It is evident, therefore, that the Salisbury doctrine has not always been adhered to in recent times. Since 1966, a total of 13 Bills which have been passed in all their stages in the House of Commons have been opposed on Second Reading in this House by a straightforward Motion, or by a reasoned amendment, or by a dilatory amendment, excluding two Bills which were opposed but in respect of which tellers were not appointed. Some were Government Bills and others were Private Members' Bills. Three of the Bills were defeated on Second Reading in this House, as was the Death Penalty Abolition Bill, if we go back as far as 1956. In each case, whatever the outcome, the House showed itself willing to divide on the principle of the Bill.
To argue now that this House should not divide against a Bill because it has passed all of its stages in another place would be an extension of the convention relating only to mandated Bills, which, as I have demonstrated, has not by any means always been observed. To take that as a guiding principle would be an unwarrantable restriction on the powers of this House.
The noble Lord, Lord Callaghan, in a powerful speech, to which we listened with great attention and respect, pointed out that this Bill went through another place on a free vote. It was one of those occasional issues of principle which transcend party 1133 loyalties. When such a situation occurs, as we know, the overriding claims of conscience are marked by the granting of a free vote. A notable example was the abolition of capital punishment, when for some years this House was in conflict with the elected Chamber.
A free vote on a government Bill is different in character from those measures which have obtained the support of the electorate. Usually where there is a free vote, as in this instance, the electorate has not been consulted at all. Confidence in the Government is not at risk. A free vote is a clear signal that the Bill is precisely the kind of issue on which this House has not only an opportunity, but a duty, to express its views.
I shall vote for the amendment. I shall do so because I believe the Bill is wrong morally and legally, for the reasons that have been given. We should have nothing to do with it.
§ Lord Mackie of Benshie
My Lords, I rise to speak against the amendment. I have listened to the constitutional arguments with a little amusement, as distinguished speaker after distinguished speaker has stated that because it was not a Government Motion and the whips were not on, the vote in another place could be disregarded here. It is a contradiction in terms to state that where the elected representatives vote according to their own conscience for their constituents, that that is a lesser occasion than when they vote according to the whips. That argument does not hold water.
I have listened with great care to the distinguished lawyers, who are of one mind. I found the arguments interesting, but I very much doubt whether they are basic to the problem. It is interesting that the two distinguished lawyers of great experience who were subjected to the toil of examining the records of what happened, came to the conclusion that some prosecutions could and should be effected. Therefore, it was recommended that some changes in the law should be made and that legislation should be brought forward so that what was done at Nuremberg could be repeated in this country. The argument that that should not be done because the crimes were committed not here but in a foreign land does not hold water when one considers the whole history of our attitude. Speaker after speaker has supported the Nuremberg trials. If that is so, it is logical that if such men exist in this country and if there is enough evidence to mount a prosecution, then that should be done.
It is true that it will be embarrassing to prosecute old men. It will be very expensive to give to the defence the same opportunities as the prosecution to go to other countries in order to collect evidence. That is perfectly true. However, none of the speakers in favour of the amendment has suggested what should be done.
The only suggestion was made by the right reverend Prelate; namely, that the accused person should be deported. Rightly and properly the lawyers who conducted the inquiry decided that that would be even less in the interests of British justice than if they were tried here. In listening to the debate, the 1134 one matter on which I have been absolutely sure is that these men would receive a fair trial. The legal system in this country comprises people steeped—and perhaps too steeped—in the traditions of the law. The judges are raised in that tradition and defence counsel would probably have a field day. As the noble Lord, Lord Houghton, said, it is probable that there will be fiascos.
However, what are we to do? The Government are in a dilemma. The evidence came forward many years after these men are alleged to have committed the crimes. Therefore, we are habouring alleged war criminals. Are we to do nothing? That is a dilemma which none of the defenders of the amendment have answered. Would they leave them alone and say, "Live out your lives in peace and plenty"? I cannot think that that can be right particularly in view of the state of world opinion at present with the renaissance of anti-semititism in parts of Europe. It appears to me that we must do something.
I dare say that the Bill has many snags. However, it must be right to support the Government's effort to do something, to be fair and to provide justice and a fair trial for these men. It cannot be right to say that they should go free. When we look back at the horrors of Buchenwald, Belsen and Auschwitz, we cannot say in this country, "Well, it is 40 years on. Some of those men were tried 40 years ago but we can now let the others go free". That will not do British justice any good at the Bar of world opinion. I support the Bill.
§ 6.54 p.m.
§ Lord Fraser of Kilmorack
My Lords, I shall not detain your Lordships this evening because much of my original speech, when I thought there would be fewer speakers, has already been made by other noble Lords. It has been an impressive debate so far and I merely wish to make one or two remarks in support of the amendment for which I shall vote if we vote on this matter this evening.
I belong to the war-time generation. I was a Gallipoli baby, born in 1915, two years before the Russian Revolution. I had the good fortune to travel widely in western and Central Europe between the wars when I was a boy. I had a small brush with the Nazis in their early days which luckily was not fatal. Before I reached university I formed a deep loathing of totalitarianism in any form. One feature of this Bill in which I am interested is that it has excluded the other forms of totalitarianism and other war and indeed "peace crimes" which have taken place in the course of this rather desperate century.
From 4th September 1939, for most of the war, I was a gunner officer and I was still in the army in Germany until April 1946. I was attached to the RAF at that time for purely technical reasons which do not enter into this debate. I was an official observer at the Belsen trial and I spent almost a year in Germany after the war in what I call the "age of the displaced person". Here I should like to say how much I admired and enjoyed the speech of the noble and learned Lord, Lord Shawcross, which recreated some of the mood which existed in those years just after the end of the war.
1135 The reason that I do not have to go into any great detail in my speech is that I am convinced on several of the points which have been made already and I shall refer to them very briefly under headlines rather than going into detail.
I very much agree with my noble friend Lord Windlesham, my noble and learned friend Lord Hailsham and the noble Lord, Lord Callaghan, in what they said regarding the constitution. It is one of the duties of this House on occasion to ask the House of Commons to think again. The amendment is a perfectly legitimate way of doing that in the case of this Bill which was not mandated and not in a party political manifesto. On this occasion I do not agree with the noble Lord, Lord Mackie of Benshie, whom I normally meet further north. I agree with the opinions of the other noble Lords I have mentioned. If the feeling of this House is that we should divide on this amendment then we should have no doubt about our full power and reason to go into the Lobby against the Bill if that is our view.
Secondly, having dealt with the constitutional point, there is the amendment itself. I have been associated with politics for 44 years, since 1946, in a variety of capacities and only recently, or relatively recently, in your Lordships' House. Throughout that period I have acquired an increasing dislike for anything which looks like retrospective legislation. There are admitted aspects of retrospection in this Bill and I should oppose it on that ground alone without going into the other niceties of it, if that were the only point to make.
If it is accepted in any field of policy, retrospection can move in time, into all the others. One can see the extent to which that could become, once started seriously on its way, an attack on the whole of our system of parliamentary domocracy. For example, in the economic field and others it could deeply affect the private citizen.
Thirdly, there is what I call—indeed, what the noble and learned Lord, Lord Hailsham, called—the "selectivity" of the Bill. Not only are we going too far back in time and therefore falling into all the difficulties so eloquently described by learned and noble Lords on all sides who have spoken, but, as I pointed out, in my youth long before the war or these horrors were revealed I discovered that I disliked national socialism. I disliked fascism just as much, although I did not personally come into contact with it as much. I disliked communism just as much. I found when reading Robert Conquest's book The Great Terror about the Stalin terror that the most impressive yet depressing thing about it was that it was the only book of that sort that I have read where you could divide every statistic of horror by 10 and not alter the argument. That was the scale of it. All the totalitarian states have behaved in terrible ways.
Finally, I should like to refer to the somewhat insensitive timing of this measure. It is a political thought, but a small one. Apart from being introduced into a very busy programme, which all sides will agree is a very testing programme of major legislation in this Session, it comes at a time when it seems that we have at last a possible change of 1136 major consequence in the post-war world, at least in Europe.
NATO, backed by the bomb and the balance of terror that it created, allowed us in Europe to live without a major world war for 45 years. That is a long period by previous standards. The age of the dictators, which I personally know all too well and have disliked intensely, appears at last to be possibly giving way—at least in Europe—to other things. Suddenly in Europe we have a period of great hope, but also of overblown expectations and great potential danger. The hope is either of a return to or a new move towards parliamentary democracy in many countries. The danger is that instead of being replaced by parliamentary democracy, dictatorship, like a snake, will either shed its skin and go ahead in a new one in some country or perhaps many other countries, or give way to the alternative of anarchy or chaos.
When people shout about democracy they of ten only mean that they want to get away from that which they have been enduring. That has applied in all the dictatorship countries world-wide. They are all over the place, big or small, and have been for a long time. In most countries the people do not know, because they have not had much experience of it and most of them are young, that democracy is a difficult system. It is imperfect, like all systems. We know that because we have lived through it and know a little about it. Many of us here are great experts. However, there are a lot of people just looking for something different from that through which they have been living, understandably. Who would not feel a sense of joy in appearing to get out of what they have been going through? However, it will not be easy.
Having heard all that has been said and agreeing with much of what has been said regarding the difficulties of achieving justice if we pursue the Bill, and the narrowness of the area in which it is necessarily pursued at this stage, it seems to me that it is a dead end. It is insensitive in its timing and unequal to the challenge of the day. I therefore strongly support the amendment of my noble friend Lord Campbell of Alloway. If there is a Division, I shall certainly vote for the amendment.
§ 7.5 p.m.
§ Lord Carver
My Lords, as one who took a pretty active part in the Second World War from start to finish, I know at first hand that all acts of war are examples of man's inhumanity to man. After all, what one is doing in war is trying to kill people and to find ever more efficient ways of doing so.
Even before the Christian era, attempts were made to introduce limits to what the forces of each side did to each other and to the population of each other's territory. Around 600 BC the Chinese strategist, Sun Tzu, wrote that one should aim for victory in the shortest possible time, at the least possible cost in lives and effort, and having inflicted on the enemy the fewest possible casualties; that one should remember that one had to live peaceably after the war with those against whom one had been fighting.
1137 One thousand years later, St. Augustine made a major contribution to the development of the concept of the just war—both the jus ad bellum (the justification for going to war), and the jus in bello (the acceptability of the methods one employed in so doing). It was the development of ideologically based wars, both the medieval wars of religion and the wars between peoples rather than just between sovereigns, from the French Revolution onwards, that tended to undermine the accepted usages of war.
The American Civil War with its particular problem of how to treat the opposing civil population, provoked modern attempts to define the laws and customs of war, breach of which is an essential element of the crimes with which this Bill is intended to deal. Two principles are generally accepted; discrimination and proportionality. The first attempts to limit both those who may kill and those who may be killed or otherwise be the subjects of acts of violence; prisoners of war and non-combatants are excluded from both.
Those principles are enshrined in the Geneva and Hague Conventions of 1864, 1899 and 1907. They were added to by the 1949 Geneva Convention and the protection of civilians in times of war, an of fence against which in this country or by citizens of this country is covered by our Geneva Conventions Act 1957. That does not apply to acts before 1949. the other principle of proportionality is not relevant to this debate. It decrees that the degree of force used must be proportionate to the purposes for which one is fighting. There were thought to be several breaches of that in the Second World War.
These laws and customs of war, except for the conventions that I have mentioned, are not legally defined rules, and they seem to me to be an unreliable basis on which to try to secure convictions unless the war crimes with which this Bill is intended to deal are just about killing prisoners of war. If, as I understand, they are connected with the extermination of people on racial grounds, particularly Jews and gypsies, that does not seem to me to be anything to do with the laws and customs of war. They were crimes against humanity which the Germans, and some others, were also inflicting on their own people. They were crimes—terrible crimes—committed during the war but not, it seems to me, anything to do with the laws and customs of war.
That is not my principal objection to this Bill. That lies exactly on the grounds expressed by the noble Lord, Lord Campbell of Alloway, in his amendment: that it involves retrospective legislation, always objectionable and doubly so for being retrospective by nearly half a century; that it extends to people who were not citizens of this country nor subject to its laws at the time; and the possibility of a fair trial, and one that is seen to be fair, is remote. The memory of witnesses even after a short interval is notoriously unreliable—after 40 years it could not be anything else. If written documents are relied upon, how can their validity be checked? Finally, that there is no appropriate punishment. The object of the latter is either to reform the individual or to deter him or others from 1138 committing the crime again, or because he is so dangerous to society that he needs to be kept away from it. None of those could apply in these cases. If Hitler or Stalin had introduced a law of this nature, would we not have condemned that as an act of tyranny? The only motive for trials under this Bill would be revenge and that is never a good basis for action in any sphere. I therefore strongly support the noble Lord's amendment.
§ 7.10 p.m.
§ Baroness Phillips
My Lords, I rise to support the Bill. I remind your Lordships that its purpose is to confer jurisdiction upon the courts of the United Kingdom.
As usual, we have been treated to long diatribes from the legal pr of ession, going into great detail. That is not what the Bill is about. We all know that ultimately legislation dealt with in this House has to be carried out through the courts. This Bill is no different. I listened with great interest to the noble and learned Lord, Lord Shawcross, to the noble Lord, Lord Mayhew, and one or two others, who told the House about the views of the post-war government in which they served. Indeed, the noble Lord, Lord Mayhew—I see he is not in his place—helpfully informed the House about the Government's decision to cease war crimes prosecutions in the British zone of Germany in the autumn of 1948.
Today we are discussing a Bill that concerns allegations against individuals who, it appears, perpetrated gross atrocities in German occupied territory during the war and then masked their identities among the throngs of immigrants admitted to this country immediately following the war. When we had a debate on the Bill relating to Scotland my heart went cold when I realised—I had not realised, but I am not alone in this—that these people were living here in the United Kingdom. One hears of these people in South America but it is horrifying to think that they are living comfortably in this country.
We all pay tribute to Sir Thomas Hetherington; noble Lords on the Government side should particularly appreciate his great qualities. Your Lordships will know that he was the co-author of the war crimes inquiry and I had the privilege of listening to him speaking to a meeting in your Lordships' House. He referred—I do not think anyone else has done so—to the extensive searches through government and Cabinet archives. This is an important point and your Lordships will see that I can be as complicated as legal people when necessary. Neither Sir Thomas Hetherington nor his colleagues could find anything to suggest that a positive decision not to prosecute alleged war criminals living in the United Kingdom was ever taken. A totally different decision was taken, but that is the one constantly referred to.
The reason why no decision was made is simple. According to the report it was thought—not unreasonably—that efficient screening would prevent those people entering this country. Again—this point was underlined—government and official confidants believed that war criminals would 1139 not gain admittance to the United Kingdom. That is not an unreasonable supposition. No consideration was ever given to extending the jurisdiction of British courts to allow the prosecution of war criminals in this country. That is what the Bill is about. At the time it was not even conceived that these people would enter the country. For that reason the decision was taken concerning those who had allegedly committed war crimes. We are dealing with something different. However, once we face the possibility of war criminals living in our midst, once the Government have set the Bill in motion and once we are aware of the existence of powerful evidence, we cannot ignore the position—and neither can the Government—and hope that these people will disappear.
I am tired of hearing about these poor old men. I read in a newspaper recently the question: why not let this poor old man stay with his roses? When considering alleged war crimes I have to be careful, but why did not some of these Nazis think about the poor old men and women that they dragged away to the death camps?
Let us not constantly refer only to the Jewish people. of course the Jewish people suffered appalling losses but I had socialist friends who died in the death camps. Trade unionists died in the death camps. Catholic priests died in the death camps. It was the slaughter of the innocents. Perhaps I should suggest that the Bill is incorrectly titled and that it should be called the "Crimes Committed During the War Bill". That would have met the situation.
The argument suggests that, if we are not to do anything to them, we are going to reward the perpetrators of those dreadful crimes for their success in escaping detection. That is what the message is. Would we be quite so kind to old Charlie Wilson living on the Costa del Sol, if he had not been shot by some of his rivals? I do not think we would. If we finally capture such people the period of time is not the important factor.
Having sat as a magistrate I can state that the courts are quite capable of deciding these matters. Have your Lordships no faith in the courts? It does not sound like it. The people who administer justice are perfectly capable of looking at the facts. In this country we bend over backwards in favour of defendants. In my judgment we are not so concerned as we should be about the victims. We are extremely concerned about defendants so your Lordships need have no worry that these poor old men—I notice that there do not seem to be any women—will be in any difficulty. They will have a fair trial.
We can no longer deny society the right to punish these criminals. We can no longer ignore the horrors that were committed in gross violation of international law. These men must be held culpable for their actions regardless of their nationality at the time. By accepting British citizenship they accepted the responsibility of citizenship. They have had the advantages of citizenship so far as I can see. I believe that one man mentioned in a newspaper even suggested that he was going to sue it for mentioning 1140 his name. Therefore, these people certainly see British justice as something to be utilised.
We must afford prosecutors the opportunity to proceed against alleged war criminals, as the Bill suggests, given sufficient evidence. I remind your Lordships that this Bill does not move to convict all suspects residing in the United Kingdom but merely installs the legal mechanism.
Churchill has been quoted. I do not think he was in government at the time but he has been popularly quoted. I commend the words of the allies in the declaration of October 1943:Most assuredly the three Allied Powers will pursue them to the uttermost ends of the earth and will deliver them to their accusers in order that justice"—not revenge—may be done".I hope your Lordships will join me in fulfilling this promise by condemning the Nazi atrocities and by supporting the Bill.
§ 7.19 p.m.
§ Lord Boyd-Carpenter
My Lords, I support my noble friend Lord Campbell of Alloway in his amendment but I should like to make clear at once that I am not a person who has ever shown particular tenderness to war criminals. Some of your Lordships may know that I sat as a superior allied military government court in Italy during the latter stages of the war when I had full powers, including capital powers. I hope I did my duty. Certainly I believe I helped to restore law and order in that country as we occupied it.
Therefore, I start with some bias in favour of those who want to prosecute war criminals. However, as I listen to the debate it is clear that we are preparing something of a farce. I take the noble Baroness's point about poor old men. The people concerned will obviously be of some age. They must be at least 70. In your Lordships' House that is no great age nor any particular ground for undue sympathy. These poor old men or these people who have been living quietly and peacefully for more than 40 years will be hauled in front of a very high-powered court. They will all be brought together at great expense. None of your Lordships has mentioned the fact that the Bill points out that an annual expenditure of £12 million is involved in what is proposed. That sum mentioned in respect of social security issues, for example, would cause some of your Lordships to become very excited indeed.
These men will be hauled in front of a distinguished judge. Distinguished counsel will be provided and there will be a great state trial. At the end of the day one of two things will happen. They will be acquitted, as some of your Lordships have suggested—in which case the whole exercise will be seen as a rather wasteful one—or they will be convicted. In that case what is then to happen? Presumably they will be given an impressive sentence such as imprisonment for life, but that again will be somewhat farcical in view of their age. It is also farcical in view of the fact that they will be in prison for a year or two and then they will certainly 1141 move to the prison hospital. Later, in the quiet and kindly way in which we do things now, they will be released from prison on grounds of health. There is not the slightest chance of their serving more than a fraction of the imposing sentence that will be given to them.
If, in the event of conviction, they were going to be taken to Tower Hill for their heads to be chopped off, as happened to a forebear of mine who backed the wrong side in the '45 Rebellion, there might be some point in it. But simply to keep them in prison at public expense for a year or so, and then for them to go to the prison hospital and later to be released, seems to be a rather farcical procedure. Indeed, it is an anti-climax which might expose us to some derision. If we have talked so fully about the terrible crimes they have committed, as I have no doubt many of them have, then this farcical anti-climax will lead most thinking people to feel that we have made fools of ourselves.
The only other matter I wish to mention is the constitutional point. My noble friend Lord Windlesham dealt with it so effectively that I need detain your Lordships for only a moment. As your Lordships know, under the Parliament Acts we as a House are free to reject Commons measures. At the end of a year the Government can return with the Bill or the proposal for a second time and it becomes law within a month of reaching this House.
As we have that power, it is surely for consideration that on occasion it should be exercised. If we never exercise it, it will fade away and be regarded as obsolete. Therefore, if there is an appropriate occasion for its use I see no constitutional difficulty in making use of it. I know roughly about the Salisbury-Addison convention and I am aware of the rather sensible practice—it is no more than a practice—that we do not reject measures which have been contained in an election manifesto, which are plainly supported by the electorate and which the other place has voted for.
As has been pointed out, that does not arise in this case. This Bill was not in the Government's election manifesto. It was not contained in any proposal until quite suddenly, for some reason that I still do not fully understand, the Government came forward with this extraordinary measure. Therefore, we can look at it on its merits.
There is a further reason why we should consider very seriously stopping the Bill here. If it were a measure dealing with economic policy and, though not a money Bill, dealing with financial matters, it could be argued that we were getting rather near to Commons privilege. But it is not; it is a Bill dealing with law and morals. Without wishing to seem offensive to another place it is quite obvious that in matters of law your Lordships' House is far better equipped than any other part of our community, including another place. We include virtually all the most distinguished lawyers in the realm. Therefore, a matter involving law is one about which your Lordships' House should feel particularly free to form a view and to insist on it.
As to morals, I do not know that our morals are necessarily any better than those of another place 1142 though we have the advantage of the right reverend Prelates, who must raise our standards in that respect. As this is a matter which was not in any election manifesto and not part of any electoral commitment and was decided on a free vote in another place, as has been pointed out, and as it deals with law and morals, it seems to be an example of what we should insist on if we are ever to insist on anything at all.
I shall be extremely sorry for the future of this House if we do not on occasion exercise the power that we have been given under the Parliament Acts to reject a measure when it is thought fit.
§ Lord Callaghan of Cardiff
My Lords, as I understand the noble Lord, if this House were to vote against the Bill tonight it could be introduced again at the beginning of the next Session and become law within a month. I understand that the Government hope to get this Bill through by July. If the Bill were defeated tonight, presumably the delay in implementing this measure would be only the time between July, when the Government hope to get their Bill, and December when, presumably, the House will again admit the Bill into the new Session for one month. Is that correct?
§ Lord Boyd-Carpenter
My Lords, I am sure that the noble Lord's timing is correct. However, it is not to be taken for granted that the Government, having seen and heard the arguments put forward in your Lordships' House, will necessarily proceed with the measure for a second time. After all, it was not a government policy measure; it was brought forward on a free vote. For my part I do not take it for granted that the Government will exercise their power, though, as the noble Lord says, they could do so. That would delay the measure for quite a period.
Given the age of some of the people concerned, a delay of this kind would perhaps—I do not want to appear tactless—narrow a little the field of selection of those to have the privilege of being charged under the Bill.
All those factors might weigh with the Government, who are also always desperately concerned about parliamentary time. I have no idea how the Government would react, but it might well be that, having heard the arguments put forward in this House—some of them may be taken up by Members in another place if there is a second Bill—they would decide not to expend government time on it. I do not know.
I do not think we should take it for granted that the Government will proceed further with the Bill. Even at the worst, the matter may be delayed for a considerable number of months. However, with respect to the noble Lord, Lord Callaghan, that is not the point. The point is surely whether your Lordships' House, as a part of Parliament which is particularly well equipped to deal with matters affecting law and morals, does its duty by letting this measure go through.
I suggest to your Lordships that this is a case where the whole function and purpose of this House is 1143 involved and that if we were to let the Bill go through, despite the obvious view of the majority of your Lordships that it is a bad measure, it would permanently weaken the standing of this Chamber. I should enormously regret that.
§ 7.30 p.m.
§ Lady Saltoun of Abernethy
My Lords, any one of the three reasons advanced by the noble Lord, Lord Campbell of Alloway, against giving this Bill a Second Reading should suffice to kill it. Leaving aside the question of whether or not the atrocities perpetrated were war crimes, legislation to enable persons who were not British citizens at the time to be tried for crimes committed 45 to 50 years ago in another country, where at that time we had no jurisdiction, is retrospective. I am against retrospective legislation.
I am also seriously concerned about the trial of subordinates—and they can only have been subordinates because of their age at the time—subordinates who, had they not obeyed their orders, would under the Nazis very probably have suffered the same fate as their victims, as also might their nearest and dearest. If the Nazis forced Field Marshal Erwin Rommel to commit suicide, they would not have stuck at killing a mere prison guard.
It is not possible after such a lapse of time for any accused person to have a fair trial. The evidence must be a contest of faded recollections. The crucial part of the evidence will be that concerning the identity of the accused. The noble and learned Lord, Lord Ackner, and others, have dealt with that fact. However, I should like to add that there must be grave doubt as to the ability of a witness, even the victim of an atrocity, to identify for certain the perpetrator of that atrocity whose face, however clearly etched on his memory 45 to 50 years ago, may have changed out of all recognition.
On Wednesday 16th May there was a programme on the television about John Demjanjuk who may or may not be a war criminal known as "Ivan the Terrible". On the programme, one Franz Stiffel who was a prisoner in Treblinka said that if he were now to meet some of his fellow prisoners he could not say that he would recognise them.
The names of some suspects residing in Scotland were leaked to the press or to Scottish Television. It was announced that the war crimes report said that there was thought to be enough evidence against them to secure a conviction. At least one of them has already been subjected to publicity on the radio and in the press. Such publicity must prejudice their chances of ever having a fair trial should this Bill be passed. Jurors read newspapers; jurors have read newspapers before they became jurors. Down the centuries the guiding principle of British justice has always been that the accused is innocent until he is proved guilty. In these cases, surely the accused starts guilty and has to prove his innocence.
The report of the war crimes inquiry in Chapter 8 mentions the difficulty of distinguishing between persons of the same name and the difficulty it had with all the resources at its disposal in tracing 1144 witnesses, quite apart from the problems of recollection to which I have referred. Some of your Lordships may have had the experience of comparing notes with a friend on some event which you had both witnessed only a short time ago and finding that you do not agree at all on what in fact occurred.
As there can be no appropriate punishment for these people if they are found guilty—and I assume that it is not proposed to reintroduce the death penalty—what useful purpose would be served by these trials? On the contrary, I can see the danger of something that the right reverend Prelate the Bishop of St. Albans—who I am glad to see is in his seat today—mentioned in our debate on 4th December; namely, the danger of an anti-Jewish backlash and of fuelling the anti-semitism which may have led to such deplorable incidents as the desecration of a Jewish cemetery in North London recently. I think that the danger is far greater if we embark upon trials than if we do not.
Recently the Katyn massacre has received much publicity. The Soviet Union has admitted responsibility. In order to bring to trial the suspects living in this country and in order to obtain evidence for the prosecution, we shall have to team up with the Soviet Union. Your Lordships may think it repugnant that this country should associate itself in war crimes trials with a country which was itself responsible for such atrocities.
This is a moral question. The Government have conceded a free vote. We are invited to express our individual opinions in the Lobby fearlessly, without regard for previous votes in another place or for misleading suggestions that to do so might provoke a constitutional crisis or lead to the reform or abolition of this House. If we do not, why are we here? I shall support the amendment.
§ 7.35 p.m.
§ Lord Bauer
My Lords, I am of Jewish extraction. My father was killed by the Nazis. I emphatically support the amendment. This Bill is another step towards the erosion of the rule of law.
§ 7.36 p.m.
§ Lord Kagan
My Lords, I stand before your Lordships today as one of the few survivors of the Nazi extermination programme in Lithuania where the alleged crimes took place. On June 21st the Wehrmacht, the German army, occupied Kaunas, the then Lithuanian capital. The German army issued two edicts. One, customary in time of war, was that looting was forbidden and would be punished summarily. The other was an appeal for volunteers to identify and eliminate enemies of the Reich with the promise of a reward. The reward would be that anyone who handed over or killed an enemy of the Reich would be entitled to all the possessions that that man and his family had. of course, the Jews were by definition enemies of the Reich. It was a blatant appeal to the basest criminal elements, a few of which, unhappily, can be found in any society. In addition to that, they opened the prisons and released all the criminals.
1145 There were of course other people involved. Any Lithuanian, any German or any Pole who dared to help or shield a Jew would automatically be deemed to be an enemy of the Reich and suffer the same fate. There were many examples of these cases. I owe my presence here today to one of those people. He was a Lithuanian Catholic worker who took it upon himself to help me, my mother and my wife. Those noble Lords who have visited Jerusalem and the Holocaust museum at Yad Vashem will have seen these people commemorated there in eternal gratitude.
This was the Nazi master plan for the anatomy of genocide. It worked with diabolical precision and success right through Eastern Europe. On June 24th in Viljampole, a suburb of Kaunas, in a religious seminar, a thousand scholars, their pupils and their families were massacred. In Kaunas the seventh fort and the ninth fort became assembly points and killing fields. Fifteen thousand people were killed at random in the first five months, so much so that Sturmbahnfuhrer SS Colonel Karl Jaeger could report to his Berlin superiors and say:I can confirm that Einsatz Kommando 3 has reached the goal of solving the Jewish problem in Lithuania".Trained Lithuanian volunteers were available in sufficient numbers, and the city was, in his words, i "a shooting paradise".
Some of those volunteers—a few perhaps—have slipped through the immigration net and settled in this country. Should they be called to account? Those so-called volunteers were not conscripted soldiers. They were not following superior orders. They volunteered, and they knew for what they volunteered. They did not even, as some of the Germans did, volunteer for those duties to escape duties at the front. It was sheer avarice and barbarity of the basest kind. Those acts continued day after day, week after week and month after month for three years. They were not acts committed in the heat of battle.
Sir Thomas Hetherington and Mr. Chalmers were briefed to examine the case. No one in the House doubts their integrity or their competence. One former Home Secretary and the present Home Secretary were privileged to see all the evidence and they have put their weight behind the recommendations and approved them. The British judiciary is sufficiently honourable and competent to prevent anything happening of which we could be ashamed, and therefore I shall support the recommendations and the Bill.
I should like to mention one further point that has been raised in the House. It relates to the fact that faces can be forgotten, and that 40 years is a long time. Anyone who was in a concentration camp knew his guards' faces. He knew every muscle of them. He knew whether they were happy or unhappy that day and whether they were bored. Those matters were etched into his mind, his memory and his heart more than even his mother's face. It is difficult for people who have not experienced that to know what it was like.
One thing haunted us in the camp. Did the world know what was going on? If it did, did it care? I am still occasionally haunted by that question.
1146 I have listened to the debate and I feel that the consensus is that nothing should be done and that things should be left as they are. I shall say as Burke said:For evil to succeed, all that is necessary is for good men to do nothing".
§ 7.44 p.m.
§ Lord Blake
My Lords, I shall be brief because nearly everything that is likely to be said has already been said.
I shall vote for my noble friend's amendment for two reasons. First, because the Bill—whatever verbal quibbling there may be—is retrospective legislation. It is retrospective, ex post facto, retroactive or whatever one will. It makes it possible to prosecute people for of fences for which they could not have been prosecuted at the time that they committed them. If that is not retrospection, I do not know what is.
I do not claim that such a measure is unconstitutional. It would be difficult to say that any legislation by Parliament is ever unconstitutional. I am not sure that it can be; but it is contrary to the whole spirit of the constitution. For that reason, if no other, I shall vote in favour of my noble friend's amendment and against the Bill.
My second reason, which is distinct from the first, and would move me to vote for the amendment in any case, even if the legislation were not retrospective, is that there can be no serious chance of a fair trial unless the accused admits his guilt. That will turn, as several noble Lords have said, on a matter of identification of people at least 45 years ago, and witnesses who could be hardly less than in their early seventies. As my noble friend Lord Home said in a previous debate on this subject, "old men forget".
I was a prisoner of war in Italy for 15 months between 1942 and 1943. I should have the greatest difficulty in identifying any of my captors and guards after this interval of time. If I were asked to give evidence, I should refuse to give it. I agree that there is a difference. I was not ill-treated and so I suppose that I did not have the same reason for thinking so closely about the guards as those people who were in the position of the noble Lord, Lord Kagan. Memory is a real problem. Apart from all the other considerations, such as the procuring of evidence for the defence, and many other matters which have been mentioned in the House, that is a second reason for supporting my noble friend's amendment.
I promised to be brief. I should like to end by saying that your Lordships should ignore the alleged constitutional question of the role of the House of Lords vis-a-vis another place. It is not relevant. This is not parallel to anything connected with the Salisbury doctrine, as it is called. The Salisbury doctrine itself is a usage. There is nothing obligatory about it. The fact that no Bill has been rejected on Second Reading since 1949 does not matter. We have the power to reject the Bill. It was carried by a free vote in another place. We are entitled to reject it on a free vote here and not to feel any sense of 1147 threat or intimidation. I shall vote in favour of the amendment and against the Second Reading. I hope that as many of your Lordships as possible will do the same.
§ 7.48 p.m.
My Lords, three major issues have emerged in the course of our debate. I am sorry about my voice and I hope that the House will be patient. The three main questions before us are: the morality of prosecution at all; retrospection in legislation; and the constitutional issue, upon which I shall say a few words later.
The noble Lord, Lord Houghton of Sowerby, claimed support for his view in the editorial in The Times this morning. It states, and the noble Lord, Lord Blake, used almost the same words:Above all, the Bill would breach the principle, hallowed by common law, that no man may be punished retrospectively for an of fence for which he could not justly have been tried at the time".The truth is that these people could have been tried at the time, and would have been if they had been British citizens. However, they hid by crawling into the mother of democracies and hiding their identities successfully for 40 years. It is now claimed that we should overlook the dramatic story told us by the noble Lord, Lord Kagan, who was in one of the camps.
I am sometimes asked about forgiveness. The noble Lord, Lord Houghton, can never resist a dig at anyone with Christian beliefs. I wish that he were here. I would prefer that he were present when I say this. It is not we who are asked to forgive; the people who should forgive are not here. It is those whose children had their brains battered out before them, those who saw their own mothers led to the gas chambers. They are not here to forgive. What an impertinence for anyone here, for a non-elected person, to say, "We forgive on behalf of those people". It is offensive even to suggest that somehow that is our right. If it were, then forgiveness applies to every of fence committed within this realm. We should disband our law courts; we should say, "Forgive".
A just society requires laws. All that this Bill does is to ensure that the laws that apply to the rest of us shall apply to them since they asked to be British. They wanted to come here. Was it because they liked our way of life, or was it to escape the prosecution to which they knew they were properly liable?
I have listened anxiously since arriving in the Chamber. I apologise to the House for being a little late; I entered when the noble and learned Lord, Lord Shawcross, was addressing the House. Like many who have spoken, I am an octogenarian. The noble and learned Lord is an octogenarian with a good memory. I am satisfied that anyone who saw their persecutor in a concentration camp would, as the noble Lord, Lord Kagan, reminded us, remember all right. What is more, those who did these things—and the courts will decide whether they did them—know and would remember.
1148 Many of us in this House—apart from noble Peeresses—are in the aged group. We represent no one but ourselves. We are answerable to no one but ourselves. We are taking it on ourselves to say on a constitutional issue, as the noble Lord, Lord Blake, said, "Forget the other place. Take no notice of the constitutional issue; do what we like". I suggest to noble Lords that this is 1990, not 1890. The Bill was supported in another place by the Prime Minister and the Leader of the Opposition and received support across the board. It was my high privilege to be called in that House to serve as Speaker and the guardian of its rights and privileges. We made sure then—as I am confident they make sure now—that Members did not seek to take away any privileges we enjoy.
During the seven years that I have been in this House, we have been a revising Chamber. We are privileged people; some are more privileged than others. They are only here because their ancestors—some of them centuries ago—did some good for the country. The days when we could talk of a governing class are gone. This is 1990. I have too much of another place within me ever to be able to say, "Ignore what that House said".
The Bill was carried by enormous majorities. The people who have to go back to the electorate in this country are not us; it is they, the Members, who are responsible to the electorate. They voted overwhelmingly with their consciences. It was Edmund Burke—the Member of Parliament for Bristol—who long ago proclaimed that Members of the House of Commons are not delegates. They are there to exercise their conscience on behalf of their constituents. When they fulfil that without pressure from the government, is this House to say, "We know better, thank you, and we will throw the Bill out"?
It is easy to say that it can come back within a year. The same people who say that have been saying for years, "Justice delayed is justice denied". Yet they are quite prepared to push this Bill back, in the knowledge that if the Government have any guts—if I I may use an old-fashioned English word—they will send it back to us. Noble Lords tonight may think that they have an inborn right to tell the House of Commons, "Jump in the river" or "Get out of the way". But that House is where the elected representatives of the people are.
I love being in this House. I enjoy it here. I like the fellowship and the courtesies. However, I have never deluded myself that we can have a parliamentary democracy where real power is in the hands of non-elected people. I have never believed that. I wish that my noble friend Lord Callaghan of Cardiff were here; we used to sing the same song together in the old days. However I disagee with him tonight. I must confess that if during his administration this House had said that it knew better than the Commons, there would not have been quite the same speech from him that we heard tonight.
It is because I love the House that I have bothered for the second time to make my views known. I believe that we shall be digging our own grave if we 1149 throw aside a Bill that has the massive support of the House of Commons: it is not bullying. Who would try to bully the noble and learned Lord, Lord Hailsham? Not me! I should be afraid to get within a hundred yards of trying to bully the noble and learned Lord. It is not bullying: it is stating a fact to point out that two Home Secretaries have seen the evidence We have not. I am glad that I stopped my near attack a moment ago since the noble and learned Lord, Lord Hailsham, has taken his seat. I must tell him that I was only saying that I disagreed with him.
My Lords, I am astonished that some noble Lords—no single one in particular—who are learned in the law should jump to conclusions without even reading the evidence. It is astonishing to me that High Court judges should come hei"e and tell us what we ought to do when they have not even read what Hetherington and Chalmers said. The Government, or the Home Secretary at least and, I presume the Prime Minister, if I know her, will have read it all right. Those who read it voted to support the Bill. I say to noble Lords on the Opposition Benches that we shall be giving a good weapon to those who want to end this House if tonight the Government are defeated. Let us remember that the Bill is a government Bill; it is not a Private Member's Bill. If tonight this Chamber defeats the Government noble Lords on the Opposition Benches will know what to expect. I hope they will stay and vote against the amendment. The only way to protect our unwritten constitution is to ensure that we keep our power to be a revising Chamber and not take the ultimate step of throwing the Bill out. I propose to vote for the Second Reading.
§ 8 p.m.
The Earl of Selkirk
My Lords, it is a great pleasure to follow the noble Viscount, Lord Tonypandy. One readily recognises that he will always be known as one of the great speakers of another place.
I wish to finish a quotation by Sir Winston Churchill which was referred to by the noble Lord, Lord Mayhew. The quotation is as follows:Our policy should henceforward be to draw the sponge across the crimes and horrors of the past … and to look, for the sake of all our salvations, to the future. There can be no revival of Europe without the active and loyal aid of all the German tribes".This Bill is part of the peace-making process of this Continent. We should remember that war is easy to make but peace is difficult to achieve. Many of us may remember Neville Chamberlain declaring on a sunny Sunday morning some 40 years ago that we were at war with Germany. What we are doing now is much more difficult. Perhaps not everyone realises that we have not yet made peace with Germany. We are still technically at war with Germany. Those are the kind of complications which we are faced with.
The Bill before us has its advantages and disadvantages. I myself am not convinced that it is well divided up. I wholly agree that if any criminal of outstanding character came to this country and 1150 pretended to be someone else he could and would be properly dealt with. However, I am a little worried by the fact that we in this country will have to deal with a crime which was committed in another country. I hope that my noble friend Lord Campbell of Alloway will deal with that matter. That is an unusual procedure.
We must look back at the Treaty of Versailles. That treaty was far from successful. I think most people agreed with the comments and claims made in respect of that treaty as regards the economic consequences of the peace. Let us be quite sure that we do not make the same mistakes in this matter and that it does not result in the hatred that arose from the Treaty of Versailles. That treaty was one of the strong weapons that Hitler used to gather together the German people. The hatred caused by the treaty had much more effect than the undoubted hatred which he bore towards Semitic matters.
This measure must be dealt with in an international context. It is important that we recognise that at the present time there are something like eight countries in Europe which are not sure what kind of government they should have. That is an extremely dangerous situation which could break out in all kinds of different directions. At the present time there is nothing more important than to enable those countries to see clearly how they can form acceptable governments which will live in peace with neighbouring countries.
§ 8.6 p.m.
§ Lord Morton of Shuna
My Lords, I support the amendment in the name of the noble Lord, Lord Campbell of Alloway. It seems to me wrong in principle that this country, having decided in 1948 to stop prosecutions of war criminals and having in 1969 passed the Genocide Act without taking the opportunity of making its provisions retrospective, should now go in for retrospective legislation over 40 years after the event. I also do not understand why the Bill is framed in such a selective way. The noble and learned Lord, Lord Hailsham, referred to the concept of selectivity. We are looking at war crimes committed between 1939 and 1945, but why do we ignore Italian occupied countries, Japanese occupied countries or even Stalinist occupied countries? Further, I do not understand why the Bill refers to manslaughter and culpable homicide. My understanding of English law may well be wrong, but I understand that in England murder is committed by a person who causes death meaning to do so or meaning to cause grievous bodily harm. In Scotland murder is committed when a person causes death intentionally or is reckless as to whether his victim lives or dies. Apparently in this War Crimes Bill we are to prosecute people 40 years after the event who did not intend to cause death because that is the necessary consequence of including culpable homicide and manslaughter. Is that really what we are seeking to do?
However, my main objection to the proposal in the Bill is the practical impossibility of achieving a fair trial. The Hetherington-Chalmers Report deals at length with the difficulties of prosecution. However, the difficulties of defence are nowhere 1151 mentioned. They are never even considered. How is a person who has lived in this country for some 40 years to be able properly to instruct a solicitor to prepare his defence for something that happened in Eastern Europe before 1945? How is that solicitor to be able to trace the people that the accused person wishes to have traced? Where is the guarantee that any government concerned will give the full co-operation that would be necessary?
In this country—in both England and in Scotland—we are very proud of our reputation for fair trials. That reputation has perhaps received a few dunts over the past years, but it is vitally important, if we are to remain a democracy, that we retain the presumption of innocence and the concept of equality of all people before the law. Can we be certain that somebody we accuse now of this type of crime will be treated equally with everybody else? I very much doubt it.
The last point that I wish to make is that there was a suggestion from those who support the Bill that a judge would have the power to say that a particular indictment could not go on. Speaking as a Scottish judge, I should be very surprised if I had that power. If the Lord Advocate chooses to frame an indictment, I do not know whether I have that power at present. Certainly if the Bill were to become an Act I doubt very much whether I would have the power for this type of presecution.
§ 8.11 p.m.
§ Lord Cocks of Hartcliffe
My Lords, I should like first to reinforce the point made by the noble Lord, Lord Jakobovits, and also by my noble friend Lord Mason that if the House were to accept the amendment tonight that action will not be understood abroad. People will not understand the niceties of our procedure. The action will be interpreted by well-meaning, honourable people in entirely the wrong way, and it will be used by people who are malicious as a weapon to foster and nurture anti-semitism. Therefore we have to look beyond the barren legal arguments and consider the impression that will be created by any such decision tonight.
A great deal has been said about the historic nature of the evidence and the time which has passed. However, only recently the noble Lord, Lord Aldington, brought an action for defamation in the civil court and was awarded record libel damages in a case concerning events which occurred immediately after the Second World War some 43 years ago. It was never suggested during the trial that the events—
§ Lord Cocks of Hartcliffe
My Lords, I shall not give way because there are so many other noble Lords who wish to speak. I am very sorry. It was never suggested during that trial—
§ Lord Cocks of Hartcliffe
My Lords, it was never suggested that the evidence was not good. I was in this House when a number of your Lordships congratulated the noble Lord on his success. Nobody mentioned being surprised that the verdict went that way because of the time that had elapsed and the difficulty of obtaining evidence. Not a bit of it.
§ Lord Campbell of Alloway
My Lords, I am not making a political point. I am merely trying to be helpful to the noble Lord. The case is under appeal. The noble Lord must realise that it is sub judice and it is not proper to comment in Parliament.
§ Lord Cocks of Hartcliffe
My Lords I close my remarks on that aspect.
I must say to your Lordships that there are a handful of Members of this House who take part in debates who are not experienced lawyers. If we transgress from time to time over such matters noble Lords must forgive us. Occasionally we like to speak on matters of great national import.
In the other place the Member for St. Helens, who has in his constituency a great many Ukrainians who came here after the war to work in the mines, said that he had received a number of representations from them. They were very much in favour of action being taken on the lines proposed by the Government.
A number of quotations have been made from Winston Churchill. I am indebted to the political editor of The Sunday Times, Michael Jones, who in an article on Sunday furnished the full quotation of the remarks which prefaced the speech from which quotations have been taken. I shall not weary the House at this stage with the entire quotation, but it finishes:The guilty must be punished".Let us not have too much selective quotation.
I also wish to deal with the point made by the noble and learned Lord, Lord Shawcross, who had calculated the average age of Members who had spoken in the other place. He worked out that at the end of war they were five years old. The noble Lord, Lord Mason, mentioned the age of noble Lords who had spoken in the debate on this subject in December. I have calculated the average age of those noble Lords who took part, but I shall not embarrass your Lordships by giving it. However, it should be borne in mind that there are two sides to the point raised by the noble and learned Lord, Lord Shawcross.
My noble friend Lord Irvine said that there was resentment in the other place about the number of lawyers who had spoken in that debate. I can confirm that from my own discussions with colleagues. of the 18 Members of this House who spoke against the legislation, 15 came from backgrounds which include Oxford, Cambridge or Eton, or a combination of any two of them.
§ Lord Cocks of Hartcliffe
My Lords, they are admirable citizens but I would not regard them as a representative cross-section of the population of the United Kingdom.
In my maiden speech I mentioned that of the meagre experience that I was able to offer probably my experience of the "usual channels" in the other place was the most important. I said that I had come to realise that the House of Lords was an infinitely subtle counterpart to the other place, both complementary and supplementary. I am one of the very few people in this country who has been Chief Whip of a major party in the other place both in government and in opposition. That is one subject of which I have some knowledge. Therefore, I should like to talk briefly about the constitutional position.
Points have been raised about this Bill not having been included in a manifesto and therefore not having a mandate. It is hard to see how it could have been included in a manifesto for the last election because the report was published only in July 1989. We are told that there is a need for speed.
What is the origin of the Bill? It originates from a decision of the House of Commons on the 12th December. The House agreed a Motion endorsing the need for legislation on this matter. Are we seriously being told that a Motion endorsed by the House of Commons on a free vote by 348 votes to 123 that there is need for legislation carries less authority than something which is put into a party manifesto at the time of a general election? I put it to your Lordships that it carries a great deal more authority because it is founded on such a vote in the other place. I believe that a majority of 225 across the parties is much more powerful in this context. The Bill went on to receive a very substantial majority at both Second and Third Reading.
It seems to me that at times in this House we try to have it both ways. If a Bill comes here from the other place which has been timetabled or guillotined we say that we have a duty to give special scrutiny to those parts which were not discussed in the other place because of the timetable. We go over it with a toothcomb. We say that we must look at it carefully because it has been bulldozed through by the majority party and that we have a duty to do so. Here we have a Bill which originated on a free vote, was passed on a free vote and which results from the Government responding to the freely expressed will of the Commons.
I have had some experience of dealing with Back-Benchers in the other place. They value a free vote very much indeed. It is not cast idly on the toss of a coir nor is it cast entirely on their own opinion. Members of Parliament are in constant contact with their electorate. They meet constituents in all kinds of ways and have all kinds of problems put to them. They consult them and consider their interests even when they are casting free votes. Therefore, noble Lords should not believe that it is a purely random individual choice.
I believe that great consideration has been given to the issue. Your Lordships will frustrate it—I shall not say "at your peril" because that sounds like a threat. Your Lordships will open up the whole 1154 question of constitutional reform once again. At present that is put forward in a Labour Party policy statement. I believe that it is included in order to round the statement off and that there is no great head of steam behind it. If the amendment is passed tonight your Lordships will generate great resentment not only among Members of the Labour Party in the other place but among Members of the Conservative Party and others because their primacy has been challenged in this way. If the Bill is wrecked there will be widespread resentment across all parties. Although I have not been a Member of this House for long, I remind your Lordships that its function is to revise and not to reject.
§ 8.20 p.m.
§ Lord Donaldson of Kingsbridge
My Lords, I rise with extreme trepidation to follow the noble Lord, Lord Cocks. I blush as I say that not only was I at Eton but I was also at Trinity College. That combination is generally regarded as being fatal. However, I agree with the noble Lord on one issue: there are a few non-lawyers in this House and it is probably as well that they should be allowed to speak in the debate—
§ Lord Donaldson of Kingsbridge
My Lords, I hope that they will not be frightened by anything the noble Lord said about annoying other people. Conscience has nothing to do with annoying other people; a free vote is about conscience.
That is all I shall say for the moment as regards morality. In order to avoid repeating all the arguments I shall point out that I agree with every word said by the noble and learned Lord, Lord Shawcross, in his excellent article in yesterday's edition of the Observer and which he backed up in his speech. As regards the constitutional question, in spite of the strong words of the noble Lord, Lord Cocks, I am happy to take the view of my noble and learned exact contemporary, Lord Hailsham, and of the noble Lords, Lord Callaghan, Lord Carrington and Lord Blake. Together they mounted an argument which superseded that which we have just heard.
I wish to probe only one line of thought. I am opposed to prosecution for one clear reason. It has been mentioned again and again but has not always been entirely justified. The reason is that 45 years is too long. Time erodes not the horror of crimes committed nor the guilt of the perpetrator but the appositeness, the appropriateness, of the punishment. Therefore, I am uncomfortable about the whole idea of such trials, quite apart from the legal difficulties which weaken the certainty of actual proof, and I should oppose it even if there were now no doubt about the guilt of the people concerned.
I try to justify that point of view by saying that I do not believe that punishment is good in itself. The deliberate infliction of distress or pain, whether mental or bodily, can be justified only if it effects some compensating good. The noble and gallant Lord, Lord Carver, hinted at that but did not develop the argument fully. The justification can occur in a 1155 number of ways but the main and normal way is the maintenance of law and order. Nationally that is a fairly clear issue; internationally it is rather more obscure but nonetheless important.
Secondly, that is achieved by the deterrence to the of fender; by the deterrence to people who might copy him; by occasional reformation; by compensation to the injured party or family if that can be arranged; and by protecting the public from further risk from that man which is best achieved by capital punishment but not too badly achieved by prison. However, we must be careful about both punishments. Finally, and not least important—and the only real justification for retribution—by expressing society's condemnation and, in especially bad cases, horror of the act committed.
Apart from the expression of society's condemnation of horror I cannot see that any of those aspects apply to the cases concerned. I shall not cover the argument again because that has been done several times. However, it appears that none of those ordinary reasons for punishing people applies in these cases because, if we punish them after 45 years, we shall effect nothing of the slightest good unless we believe that retribution has real value in itself.
In taking that utilitarian view I realise that many distinguished figures, including Emanuel Kant, believe that in some way retribution is a good in itself. I have never been able to understand that belief. They consider that it is intrinsically right regardless of consequences. The man in the street also tends to hold that belief but it is a primitive feeling of no more moral value than, for example, a medieval belief in the age of chivalry; that to fight successfully in battle or in single combat was the finest life for a man. We have moved forward from that last view and are beginning to move forward from belief in the virtue of retribution. Certainly there has been a major change in the type of retribution since the floggings in the army and navy of 100 years ago. If hangings took place today some people may go to see them but I believe that they would be ashamed. That is a small advance.
It is a difficult question. I have read widely of the horrors of the camps and of the dreadful final solution. I have also read recently Primo Levi's remarkable and devastating account. Therefore, in no way do I underestimate the evil and horror of the crimes. Most Members who have spoken from this side of the House have been anxious to say the same; it is true and we mean it. If we are dealing with recent crimes I should support condign punishment. I supported the Nuremburg trials but with certain reservations. However, as this can do no good to anyone, except in the sense of retribution being in itself a good, we must let the matter be. I shall support the amendment.
§ 8.28 p.m.
§ Lord Dacre of Glanton
My Lords, the arguments have been well rehearsed and I do not wish to repeat them. I am in total agreement with everything said 1156 by the noble Lord, Lord Donaldson. Indeed, he took some of my arguments out of my mouth. I wish to turn briefly to the central question. Surely it is: why do we have war crimes trials? What is the point of them? The point is not retribution. As was said by the noble Lord, Lord Donaldson, that is a primitive reason. The point is not punishment nor is it even reform. Sometimes we have hanged people, after which they cannot be reformed. Surely the purpose of war crimes trials is exemplary. It is to re-establish and to vindicate the rule of law which, during the period of war, is broken, sometimes monstrously so, as in the last war.
That was the reasoning behind the war trials which were instituted after the victory in 1945. We wished to correct the balance and to restore the respect for the rule of law, insisting that it obtained and was valid even in times of war. Not only did we do that; others did it too. The Germans did it afterwards, and other nations have applied the same philosophy. Also these trials had another vindication, which was proper to that time. They were both politically and historically expedient. They were expedient in their time because there was a possibility and a fear that a myth would grow up which would be used to justify a recrudescence of Nazism in Germany. Therefore, it was essential to establish all the facts beyond the possibility of denial; and the war crimes trials in Germany did that.
All the evidence of the horrors in the camps was put through the courts, witnesses were cross-examined and documents were tested. Defence lawyers were able to challenge them. The result was that the facts were demonstrated and have not since been denied. No myth has grown up. Therefore, both historically and politically the war crimes trials were justified not merely because they were fair in themselves, as I think they were, but because they were at that time politically and historically expedient.
I have attended several war crimes trials. I attended the trials before the International Military Tribunal at Nuremberg in 1946 and the trial of Adolf Eichmann in Jerusalem in 1961, as well as the Auschwitz trials at Frankfurt before a German court in 1963. Although there were certain reservations of detail that one could make, I believe that all those trials were essentially fair trials. Witnesses were confronted and cross-examined and documents were tested. Nobody has denied the essential fairness and justice of those trials.
But all that was before 1963. It was a long time ago. What is the position now? These trials, if they take place, are neither politically nor historically expedient. I am totally convinced by the arguments that I have heard in this Chamber from the noble and learned Lords, Lord Shawcross, Lord Wilberforce and Lord Ackner, as well as from the noble Lord, Lord Hutchinson, and many other noble Lords. I do not think it is necessary to emphasise them any more. The possibility of a fair trial has been excluded. It cannot take place.
It is all very well to say that the evidence is known to the Home Secretary. It is not evidence until it has been through the process of cross-examination and 1157 tested in court. It is mere prima facie evidence until then. In any case, what is the purpose? I can see no purpose in having trials at this time. Nothing is gained except a sense of satisfaction through retribution, which I believe to be a primitive emotion.
My noble friend Lord Beloff referred to the possibility of a recrudescence of anti-semitism. I agree entirely with him that it is essential that we should do everything we possibly can to prevent such a recrudescence. But I differ totally from him in his interpretation of that possibility. He thinks that it is likely to happen if we do not have trials. I believe, as does the noble Lady, Lady Saltoun, that the reverse will be the case; namely, that these trials are more likely to provoke anti-semitism.
When I was in Jerusalem at the trial of Adolf Eichmann I was impressed and indeed moved to hear the Israeli lawyers, counsel and judges repeatedly cite precedents, judgments and opinions from English lawyers and English judges. I know that that has an historical basis. However, they were also cited as a model. It seems to me that British law provides a model of fairness which was recognised in the trials after the war. We should not damage that model by holding trials which, when they are viewed in the future, may be considered to have been unfair in their procedure. It may be that they will completely founder for reasons which have been explained by noble Lords; namely, the collapse of evidence and the impossibility of bringing witnesses. Matters may drag on expensively and get nowhere.
But even if they are carried through they may very well be seen afterwards, in the cool after-light, as having been unfair trials. I believe that the trials of 1948 and 1963 were fair trials. I do not feel confident that these trials would be fair. If we are not to have fair trials what is the point of a trial at all? A trial is only of value if it is a fair trial. To pass a law in order retrospectively to make it possible to have a trial which is then found not to be a fair trial would be a terrible error. I hope that this House will not make such an error. I shall vote for the amendment.
§ 8.36 p.m.
§ Earl Lloyd-George of Dwyfor
My Lords, I shall be very brief. What I wish to say is based on personal experience. In January 1946 I found myself at Nuremberg during the trials. My duties were in a very humble capacity. I was an officer commanding the ceremonial guard which mounted guard outside the Palace of Justice. Since we shared that responsibility with the other three great powers, we had to undertake it only every fourth day. It was not very onerous. However, one was able to watch the trials daily, which I did for a period of some weeks.
As your Lordships will remember, there were some 20 defendants in the dock: Goering, Ribbentrop, Hess and others—names which have passed into the history books. What a ruffianly-looking crew they were. The first count of the indictment—I still have my copy—was common conspiracy which seemed to fit them like a glove. Be that as it may, my abiding impression of the trial brought by an international tribune of the four Allies in the heart of Nazidom 1158 was the scrupulous fairness and consideration with which all the defendants were treated. Indeed the proceedings were fairer than by their own standards they could ever have expected. To me that fairness was exemplified by the president of the tribunal, Sir Geoffrey Lawrence, later Lord Oaksey.
In the words of that gallant officer, Airey Neave, writing much later, it was the tradition of the Temple which ruled at Nuremberg. There could be no question of mistaken identity. These men were who they were said to be. They sat there in flesh and blood. They were on trial in their own country. They were able and indeed encouraged to seek out and obtain the highest legal minds in their defence from Germany and in some cases Switzerland. There was no difficulty or problem about the evidence or the witnesses for those terrible crimes, the full extent of which had only become truly apparent the previous year when hostilities ceased.
The Nuremberg trials have been criticised at different times. They may not have been perfect but I believe them to have been fair. Certainly that was my experience at that time many years ago. I do not believe that this could be said of any trial that may be brought under the Bill so long after the events concerned. Retrospective legislation, as many speakers have said, is always dubious and to be avoided. To use a slightly cruder expression, it seems to me that the Bill attempts to move the goal posts. I am not a lawyer but I have seen it happen in business and no one has ever come out of it with any credit. I do not believe that it should be allowed to happen under our old English law.
Finally there is the constitutional position. My own family has had some connection with this historically. I do not wish to become involved. However, I have been totally convinced by the arguments that I have heard tonight that we are quite entitled to make up our own minds on this matter. That is what I shall do. I shall support the amendment.
§ 8.40 p.m.
§ Lord Rees
My Lords, I am a little diffident about inflicting a further intervention at this stage since many points have been made so admirably in the course of a debate of high quality. I cannot speak with quite the same first-hand experience as the noble Earl has revealed either from Nuremberg or on previous constitutional changes in this field. However, in case there should be any disagreements here or in another place, it is important that we should attempt to demonstrate that there are deeply held and clearly thought out views in this House on this highly controversial issue.
I am against the Bill for a variety of reasons that have been well canvassed. Although I deal with them rather summarily, I hope that the House will understand that I feel keenly about them. First, the issue of retrospection has been touched upon by many noble Lords. I have spent a great deal of my life in another place and in government arguing against retrospection in a less serious field than that which we are now considering. It would create a quite deplorable precedent in a field where criminal 1159 law is at stake to put people in jeopardy who were not in jeopardy before the Bill was introduced. Such are the twists and turns of public life that I am confident that if the precedent were set it would be invoked time and again in other situations which we cannot at this moment envisage.
Secondly, I am against the Bill for the reason that my noble and learned friend Lord Hailsham described as the selective point. I prefer to say that the Bill does not attempt to enunciate any general principle. It might be justifiable if we were being asked to consider—not limited by time or place—the question of whether acts committed by people who were not then British subjects in an area not subject to the British Crown should be brought within the purview of the British courts. But we are not. We are asked to take a view of a range of hideously unattractive events that took place over a period of only five years in a limited number of countries. I find that unattractive. It is as though we were reverting to some act of impeachment or attainder.
Again, the trials themselves will be hugely difficult. That was readily acknowledged by the authors of the report that we are in part debating. Already there is the suggestion that the rules of evidence should be relaxed. I am sure that as the difficulty of securing convictions, or indeed affording a proper opportunity for defence for those involved in these trials, becomes more apparent, there will be increased pressure to relax the rules of evidence still further.
There is also the sentencing difficulty with which any judge will be faced should any person be convicted. One's heart goes out to those who sit on the bench and will be concerned with such trials. There is no longer a death penalty. In the case of perhaps a septuagenarian or an octogenarian in doubtful health a life sentence would be extremely unattractive. I seem to recall that only a matter of years ago we were pressing for the release of Hess who was in a somewhat similar situation. A short specified sentence would be treated with cries of outrage and incredulity.
There is the question of drawing the line. Since I have been fortunate enough not to have had any direct experience—as have some noble Lords—of the grotesquely horrible events that have given rise to this piece of legislation, I do not need to enlarge on that. I recognise that they may be entitled to approach this in a quite different way. My views have been fortified by those who may not have had that experience but who were close to the events at the time. They are arguing strongly that the line should have been drawn many years ago.
There are two other questions. It is rightly said that there is evidence of the recrudescence, the surging up again of anti-Semitism not only in Central and, Eastern Europe. I agree that that horrible phenomenon should be eliminated, exturpated, so far as lies within our power. But would the solutions proposed by the Bill have that effect? A number of noble Lords have purported to speak with knowledge of the sentiments of our fellow countrymen. I do not speak with any confidence on that subject, being no longer responsible to the electorate in any direct 1160 sense. However, I rather suspect that the younger generation—perhaps not even the younger generation—will recoil from the consequences of the Bill as they become apparent if it is passed into law. I do not believe that the difficulties, injustices, hardships and absurdities have been fully explored.
On the constitutional position, it was agreeable to hear the noble Viscount, Lord Tonypandy, speaking with all the eloquence which was denied to us in another place when he was constrained by the responsibilities of the Speaker's chair. I venture to think that he and other noble Lords, mainly speaking from the other side of the Chamber, have slightly mis-stated the position. Yes, we are a revising Chamber. But I do not think that we must confine our efforts purely to the commas and the fine print of legislation. There must be occasions when we are entitled to express a view on a question of principle even if it is not a view that has commended itself in another place. I can think of no more suitable an issue than this. But I have to say with regret that if the amendment proposed by my noble friend Lord Campbell of Alloway, which I shall be supporting, were to be carried tonight, we cannot halt for ever a measure that has commanded the approval of another place. All that we can do is to retard its passage into law. All that we can do is to invite the Members of another place perhaps to reflect again and to think about the points that have been advanced with care, thought and sincerity in this place. That is all that I hope to achieve by voting for the amendment tonight.
§ 8.48 p.m.
§ Lord Monson
My Lords, anyone who rises to speak more than halfway through a list of 65 speakers has two duties: first, to try to correct if possible errors of facts and judgment which one believes one's opponents may have made; and, secondly, to advance any arguments for one's own side that have not yet been made.
I have always had a great respect for the noble Lord, Lord Beloff, I was therefore intending to try to refute in detail some of the charges that he made against those of us who oppose the Bill. However, there is not time and the noble Lord is not in the Chamber. I shall therefore jump straight to those arguments not yet developed, of which, surprisingly, there are more than one.
In his opening speech the noble Earl, Lord Ferrers, said that we cannot act as though a mere passage of time was in itself a justification for not proceeding. In abstract, theoretical terms the noble Earl is quite right. But in realistic terms I submit that he is mistaken. How many of us over 50—and most of us in this Chamber are over 50—consider ourselves to be the same people as we were 50 years ago? To what extent is a man of 68 the same person as the callow youth of 18 that he once was? To what extent is an old, bent man of 80 the same person as the confident man of 30 in his prime of life that he once was? In other words, is one in any but the most technical sense setting out to punish the same person as the individual who orginally committed the crime?
1161 During debates in another place, and in the press, the potential defendants have been referred to on numerous occasions as wicked old men. Can it be taken for granted that an individual who committed an evil deed in his 'teens or early twenties automatically remains wicked for the rest of his life? It is certainly possible; but if, in contrast, ever since that terrible day he has led a godly, righteous and sober life, as the Prayer Book puts it, can the wickedness of that terrible day 50 years ago be said to adhere: to him for ever more? I am not wholly sure, but I doubt it. I say that not on Christian or other religious grounds but on the basis of common sense. Perhaps philosophical doubts of this nature can never be resolved to everyone's satisfaction.
What I am more certain about is that the Bill is distasteful, in that it is aimed at the small fry when so many of the much bigger fish were deliberately exempted from prosecution by the allies over 40 years ago. I am not thinking so much of the late Emperor Hirohito (whose guilt was to some extent at one remove) but more of the very senior Italian fascist generals who had vastly more blood on their hands than those at whom the Bill is aimed, as a result of massive atrocities initiated by them in the Balkans, especially in Yugoslavia, and earlier in Ethiopia, but who escaped prosecution for reasons of realpolitik. The Gestapo officers whose extensive knowledge and skills were sought by the Americans and the Russians for their own respective purposes also got off scot-free.
The understandable disquiet among those in government about so many people escaping prosecution for what I will not call cynical but pragmatic reasons must have been a major factor in the decision to abandon war crimes trials in 1948.
I have no hesitation in saying that another aspect of the Bill is not only distasteful but positively immoral. The Bill minutely targets one specific group of individuals who are said to have been implicated in massacres, to the exclusion of other individuals who are still alive and guilty of equally terrible crimes. The noble and learned Lord, Lord Hailsham, termed it "selectivity".
Why should the Bill be restricted to crimes committed in Germany or in German-occupied territory and to crimes committed during World War 2—or the war in Europe, to be more precise? What about Stalin's widespread massacres that were carried oat before, during and after World War 2, which killed many more people than Hitler's massacres ever did, albeit in a less perverted and less sadistic way? That includes massacres of Christians and other anti-communists in Lithuania and Latvia a year or so before the massacres with which the Bill deals. What about the millions murdered by Chinese and Cambodian communists respectively? On a very much smaller scale, what about the thousands of Sudeten German civilians who were murdered by vengeful Czechs after May 1945? That matter was revealed in the press subsequent to our debate in December.
Why should any of the perpetrators of those crimes be specifically exempted from prosecution by the Bill, should they happen to reside in Britain or visit 1162 this country? Nor can we ignore the fact the Western allies (excluding the Russians) and particularly the Americans also committed war crimes. They were by no means all crimes that were committed in the heat of battle as has been alleged. How can such double standards be justified?
Having read the debate in another place, it is obvious that some honourable Members got hold of the wrong end of the stick. It was alleged that the of fences with which the Bill is concerned were unique crimes. With respect, they were not unique crimes, as I have already pointed out. Successive honourable Members mentioned Auschwitz, Treblinka, Buchenwald and Belsen. Indeed, the first two of those terrible places constitute a unique form of horror that is not, thank God, to be found elsewhere in human history.
But the crimes with which the Bill is concerned have nothing to do with extermination camps, or with the terrible perversions of science that were attendant upon them—agonising medical experiments on helpless prisoners, and so on. In essence, terrible though those crimes undoubtedly were, they were in the tradition of awful massacres that have occurred periodically ever since Julius Caesar slaughtered the inhabitants of Gaul and probably since before then. That being so, there seems to be no reason for pursuing Nazi murderers while letting communist murderers get away scot-free. Otherwise, we might go down in history as acting a little bit like General Franco in reverse. Notoriously and vindictively, Franco hunted down and imprisoned or executed, up to 20 years after the end of the Spanish Civil War, those guilty of republican atrocities, while totally exonerating those guilty of equally terrible nationalist atrocities.
However, rather than widening the net to catch communists as well as Nazis, is it not better to let time and the Almighty take their toll? As the noble Lord, Lord Belhaven and Stenton, stated last November, revenge breeds revenge. To revive the issue at this late stage would only stir up old hatreds in Eastern Europe, which could have potentially dangerous consequences for the whole Continent.
One's inclinations in deciding which lobby to enter are strengthened by the fact that most of the people I know who have served as regulars in the armed forces are against the Bill, as are most of the people I know who fought in World War 2.
Winston Churchill (and what an excellent speech his grandson made on this subject last December), Clement Attlee, Ernest Bevin and nearly all the statesmen and senior politicians of the immediate post-war era who were close in every sense to the terrible events in question opposed the continuation of war crime trials. Who are we at this distance in time to claim that we know better?
§ 8.58 p.m.
§ Lord Soper
My Lords, I intend to vote for the amendment, but before I deploy my reasons for so doing I should like to make two statements. I abominate, as an indication of total depravity, the crimes with which we have been concerned, not only those committed by the Germans but those 1163 committed by others. In my judgment it is not a question that war contains crime but that war is in effect and in substance a crime.
It is not surprising that that argument has not centred upon but has been very much concerned with the form of evil called anti-Semitism. In a previous debate in your Lordships' House I made a statement that I should like to repeat. As a member of the Christian Church I accept a responsibility for the repeated disgraceful behaviour of the Christian Church with regard to the Jewish people. The accusation that they killed God is among the more ridiculous as well as the most objectionable of their accusations.
I agree that we are not fundamentally concerned with a particular expression of a war crime. I intend to deploy a number of reasons which come from the faith I hold, however imperfectly. As a churchman, it is astonishing to me that the issue of Christian teaching and doctrine has largely been ignored in the attempt to assist the qualities of justice. I believe that the Christian interpretation of justice has a very great deal to say to us in our assessment of the kind of response we make in this debate to its prevalence.
Your Lordships will be aware that over the last hours there have been repeated references to the inadequacy of the Bill to provide justice. What is justice in terms of what a Christian is required to believe? I should like to begin with the concept of war as a crime. I agree with the noble Lord, Lord Dacre, that one of the hopeful eventualities in our concern with the War Crimes Bill is to reset in its proper fashion the rule of law. I ask immediately: what law is it that we are going to recover? I make my testimony as a pacifist but I shall not argue that case except to say that it seems to me that unless the rule of law excludes the use of armed violence, that rule of law will falter again as it has so of ten in the past. I believe that we are on the edge of an opportunity of total disarmament which can create a new set of laws, and I earnestly hope that that will be forthcoming.
I can introduce the second area by saying that if you inhale tobacco, you will suffer from its effects but passive smoking means that whether or not you inhale, you will be involved in an environment in which you will tend to suffer. I believe that the essence of the case for justice is in the recognition that in this wicked world it is impossible to complete or finalise it.
The question to which we must address ourselves is: to what extent is it possible for broken mankind to set before him a prospect of and to find a place for increasing justice which progressively excludes the enormities of injustice from which he suffers? There is no case for absolute justice on this planet but there are reasonable hopes that we have already, in our more enlightened moments, found the opportunity to get rid of some of the great crimes committed in society.
Nevertheless, this debate in your Lordships' House has demonstrated that in an environment which is contaminated, there can never be a final assessment and practice of perfect justice. We must make a 1164 judgment. At what point are we prepared to deal with an imperfect process of justice because we cannot finally express it in perfect form?
I am quite aware that after listening particularly to the arguments set forth this afternoon and evening that there is no justification for this Bill in terms even of the partial justice to which we aspire by a practice hitherto unknown and unenlightened. Therefore, I make a comparative judgment in the light of the Christianity which I try to believe and I say that here we have an impermissible kind of attitude to the justice which finally eludes us but which nevertheless is our ambition and should be our ideal.
I come rather quaintly perhaps to the last part of what I have to say. No mention has been made of hell and yet I believe that it is impossible to conceive of the Christian answer to the problem of evil without recognising that this world is governed by a heavenly father who delegates to his children a measure of responsibility for their behavioural pattern but nevertheless reserves to himself the absolute proclamation of justice to which we cannot attain. Therefore, those who are indignant that we should allow bygones to be bygones with regard to past enormities by Nazis and others should reflect that it is not a question of letting bygones be bygones but rather a question of letting God be God. That is a faith which I would almost hesitate to intrude upon this argument unless I profoundly believed it.
I do not know much about the next world although I am very conscious of the ignorance of those who profess to be experts. However, I know that you cannot separate the concept of the Christian faith and eternal life and therefore what cannot be punished on this planet and what cannot be undertaken and fulfilled on this planet does not pass into the realms of impossibility but lies in the providence of God.
Those are reasons which are among the very complex and difficult arguments of the Christian approach to this problem. They are the reasons which are final for a repudiation of what the Bill intends and, in place of it, something which belongs to the realm of compassion and forgiveness.
Finally, it is very dangerous to use either of those words idly or naively. Forgiveness is the offering of the hand of re-creation but it is not forgiveness until the response has been made by those who look to that hand as a way of redemption. Therefore, we cannot forgive, but we can offer to forgive in terms of what we believe to be a just assessment of the evil and a penitence on the part of those who have committed it. However, that penitence must be accompanied by a realm of compassion. That is not sentimentality but a recognition, on which I was somewhat adversely criticised in a newspaper the other day, of an overall concept of human wickedness.
I must admit that if I am not guilty of total depravity, I am part of the realm of original sin. In that realm, a humble attitude of compassion is probably the way to open far more doors than the attempt to discover an absolute standard of justice, which evades us. To plod on in the hope of 1165 compassion working the miracles which justice cannot fully attain is part of the obligation and opportunity of this debate. It is in that light that I welcome the amendment and believe that it will be a nourishing meal for those in another place in their attempt to find an answer to this complex and agonising problem.
§ 9.6 p.m.
§ Lord Shaughnessy
My Lords, when I put down my name to speak in this debate I planned to raise two matters which were of anxiety to me and which I thought had a bearing on the Bill before us. The first concerns the scope of the Bill. The report of the inquiry is directed exclusively to those war-time atrocities committed under the Nazi regime in Europe. The terms of reference required the commissioners to consider:Murder, manslaughter or genocide committed in Germany and in territories occupied by German forces during the Second World War".The Bill reflects those terms.
However, we are aware of many instances of similar of fences committed in Japanese occupied territories during the course of the Second World War. Thus, if the cause of justice is to be served by this Bill. although I am among those who do not believe that it will be, we must recognise that justice should be even handed. I question why the Bill is directed only to the hideous of fences committed in Europe and apparently excludes similar atrocities committed in the Far Eastern territories such as Hong Kong and Singapore.
If the proposed legislation is to have any validity surely it is flawed, since its basis does not encompass the full spectrum of war crimes with which it purports to deal. I leave it to your Lordships to conjecture on that point, but I ask the Minister to address the anomaly when he speaks at the end of the debate.
The second matter I wished to pursue is the result of the trial of Imre Finta, the captain of the Hungarian Gendarmerie who was tried in the first prosecution under the Canadian war crimes Act. However, the noble Lords, Lord Callaghan and Lord Houghton, in two outstanding speeches, have made your Lordships fully aware of the circumstances of that trial which ended in a verdict of not guilty on all counts 10 days ago. It would therefore be inappropriate for me to discuss it further at this hour.
Nevertheless, in citing the case again I want to make it clear that I am not suggesting that it should be taken as a dogmatic precedent. The failure of one prosecution cannot vitiate a complete criminal statute. However, I submit—as the noble Lord, Lord Houghton, said—that it provides a cautionary message that retroactive legislation of this order and under these specific circumstances should be approached with extreme care. Consequently I oppose the Second Reading of the Bill and shall vote in favour of the amendment if there is a Division.
§ 9.10 p.m.
§ Baroness Elliot of Harwood
My Lords, I listened to this debate with enormous interest, and I have 1166 heard almost all the speakers. I intend to be very brief. I only want to say that I feel strongly regarding the facts about which other people also feel strongly.
I have read the Hetherington Report with the greatest interest. It seems to me to be entirely fair in the way that it carried out the investigation and the conclusions to which it came. Every detail was gone into with the greatest care. When any doubts arose or contradictions appeared, Sir Thomas Hetherington always came down on the side of no prosecution unless the facts were absolutely true and a criminal trial would be entirely fair. Then and only then should any action be taken.
Up to the present, as I read it, we are the only nation involved in the last world war that has not brought criminals to justice. That is not the way the British generally proceed. As I understand it, justice in our country has always been, and still remains, our absolute principle. If it is necessary to pass legislation to carry out that principle, then clearly that should be done.
The report emphasises that when the accused is too old or too ill to be able to give evidence, prosecution should not be undertaken. That is another safeguard. The proposal that any legislation carried out to cover the war crimes of the Second World War should be limited to that period and not to any period in the future is described in paragraph 9.25 of the report. The report supports the limitations of prosecutions to those acts committed in German-occupied territory or German territory by people who are now British citizens or living in Britain. I also support that limitation.
It might be advisable, when old people wish to give evidence but cannot attend in person, for other methods to be used. In paragraph 9.54 the report recommends that prosecutions should take place in this country, and finally that they should take place as quickly as possible, with which I agree.
Finally, I would quote;The crimes arc so monstrous and so appalling"—as they have been described by many noble Lords and judges who took part in the trials—that they cannot be condoned. To take no action now would taint the United Kingdom with the slur of being a haven for war criminals".Surely nobody would want that.
§ 9.13 p.m.
§ Lord Lloyd of Hampstead
My Lords, perhaps I may begin on a slightly personal note. Some 30 years ago I was taken on an official visit to Auschwitz and given the opportunity of seeing the surrounding circumstances in which the most appalling outrages and horrors were committed—probably unique in the history of the world. Speaking for myself, I remember extremely vividly everything that I saw and was shown on that occasion. When it is said that the memories of the people who were actually the victims and the subjects of those terrible torments and outrages cannot be relied upon in subsequent trials which take place many years after, I am bound to say that I do not find that argument impressive. I thought that the evidence provided by 1167 the noble Lord, Lord Kagan, sufficiently supported that matter.
When one is No. 44 in a list of speakers, and there are over 20 to follow afterwards, one is under a duty to be as brief as one possibly can. Therefore I shall limit myself simply to two matters and deal with them as briefly as I can. The first is the question of retrospective legislation. As one who has spent all his working life in the law, that is naturally a matter to which I give the fullest possible weight. Indeed, as one would expect, that is done in the report itself, which gives the most careful examination to the matter.
It is important to remember in approaching this issue that English law as such does not exclude all retrospective legislation but it raises a very strong presumption against retrospective effect particularly in criminal matters where it involves treating an act as criminal which was innocent when that act was committed. However, I think it is clear—this is carefully examined in the report—that in the case of war crimes, which have long been regarded as crimes in international law, national courts are entitled to exercise any criminal jurisdiction conceded by international law. This extends to war crimes committed abroad by persons who were non-nationals at the time they were committed.
That view is fully endorsed by international conventions, and in this connection the European Convention on Human Rights, by Article 7.2, expressly permits trial and punishment of any person for any act which at the time committed was criminal by the law of nations. Precisely the same doctrine is embodied in the United Nations International Convention on Civil and Political Rights.
Your Lordships know that a number of countries, including the USA, Canada and Australia, have introduced legislation and have since embarked on proceedings on the lines of the present Bill. Moreover, English law is not against extra-terri-toriality as such. A murder committed by a British subject anywhere is regarded as proper matter for the jurisdiction of our courts. In the case of a person who was not a British subject at the relevant time all that is required is an extension of jurisdiction to those who were not British subjects at the time.
This is a purely procedural matter. It does not involve treating as criminal what was hitherto innocent as the matters in question—war crimes—are already fully recognised as major crimes. Accordingly, one finds the report concludes that the matter is not truly retrospective legislation,but would merely empower British courts to utilise a jurisdiction already available to them under international law".That is given in paragraph 6.44. I respectfully agree with that view. It seems to me that the argument which is placed at the forefront of the proposed amendment, which relies specifically on the retrospective character of the legislation, ignores the force of these arguments which are clearly set forth in the report.
The second point I wish to mention briefly is that of justice. It is said that to try a few old men who have lived peacefully in this country for over 40 years 1168 and then to convict and punish them on evidence resurrected after so many years could not result in a fair trial. That is the substance of the contention. However, it must always be borne in mind that under this legislation, as in any other legislation, it is not for Parliament to decide whether a prosecution should be initiated in an individual case. It is for the legal authorities to do so. In so deciding under the mechanism of this Bill, if it becomes an Act, and the general machinery of English law there will be circumstances which will have to be carefully examined to see whether there is a prospect of a fair trial and a realistic prospect of conviction. Those matters will have to be weighed against the alleged atrocities which it is said have been committed.
Many other nations of comparable character to ourselves have not found it against justice or impracticable to embark on such prosecutions. I shall not refer again to the case which has already been discussed; but in Canada there has already been an acquittal which does not seem to provide an argument suggesting that a fair trial is impossible.
The two learned and very experienced lawyers reached the conclusion in their report at paragraph 9.18 that:The crimes committed are so monstrous that they cannot be condoned … To take no action would taint the United Kingdom with the slur of being a haven for war criminals".I understand that the right reverend Prelate the Bishop of Southwark, in his speech earlier this afternoon, rather agreed with that general view in that these crimes cannot be condoned, but he was in favour of adopting extradition rather than prosecution. Probably most of your Lordships would agree that, however desirable that might be in a more ideal world than the present one, that is not really a practicable alternative. Therefore, we are left with the proposal of the Bill that these people should be prosecuted.
A good deal of argument and play is made with the notion of these poor old men who are going to be harassed by unfair prosecutions. The question of their being old men is not a very impressive point. I am sorry to say that many of us in this House—and I include myself—can doubtless justly be designated as old men. On that account I do not think that we would claim any special exemption.
Moreover, the Bill contains important safeguards such as the fact that no prosecution can be brought without the consent of the Attorney-General. Speaking for myself, I regard as the ultimate safeguard the fact that British judges and juries, with the whole panoply of British justice in such a context, can be relied on to ensure that the trials will be fair in cases of this sort as they ensure that they are in other cases.
We are faced with a difficult choice here. It is fair to say that the arguments are not conclusive in either direction. There is no doubt that opposite views are very sincerely held by your Lordships. Nevertheless, in considering the balance of the argument, there is one further consideration that needs to be taken into account. If we as a nation contract out of the responsibility to bring home to these people, if they are guilty of these terrible of fences, that they are of fences that cannot be condoned, and if, unlike 1169 other comparable countries, we shed our responsibilities, the message that will go out will be that we are renouncing the importance of bringing justice home to war criminals of a character whose deeds have exceeded any of fences hitherto recorded.
It will be most unfortunate if the outside world, however unjustly, forms the view, as a result of any action that your Lordships may take this evening, that we are indifferent to the impact of this terrible history of atrocities. That will create a very unfortunate impression and it will give comfort and solace to those forces in western society who are inimical to vindicating the principles of justice in war Climes trials. For those reasons, I feel constrained to reject the arguments in favour of the amendment which has been moved; and, speaking for myself, I shall support the Bill.
§ 9.25 p.m.
§ Lord Walston
My Lords, in his very forceful speech the noble Lord, Lord Beloff, said that he regretted the fact that prejudice has crept into the debate. Whatever one may think about the context of his comments, if we are honest with ourselves we have to admit that in matters such as this we all have prejudices of one kind or another.
I admit to a prejudice, a prejudice which is basically in favour of mercy rather than in favour of revenge. Therefore, I approach the matter in a manner which I freely admit leads me, when listening to all; he arguments, to try to find reasons for supporting my prejudices rather than refuting them. I have found many arguments which support those prejudices—that is, the prejudices in favour of mercy—and very few which support the prejudice, or the absence of prejudice, in favour of revenge.
At the beginning of the debate, in his admirably objective speech the noble Earl, Lord Ferrers, made two comments which I found significant in reinforcing my views. I do not have a note of his exact words. But the general thesis was that it was found, when referring to the Hetherington Report, that a certain number of people had committed such crimes. That immediately impressed me as a comment which would make it extremely difficult to ensure that the accused had a fair trial. It implies, even if it does not specifically say so—and in my view it did—that the Hetherington Committee had in fact already decided that certain people were guilty. I am quite sure that the general public, from whom juries are drawn, will have gained that impression. That is the first point which makes it unlikely that there will be, or would be, a completely fair trial if these particular characters were brought to justice.
The second comment made by the noble Earl of which I took note concerned the reason for starting these investigations and pursuing them with the vigour and the expertise required. He said that we did not wish to,be tainted with the slur of being a haven for war criminals".One can sympathise with that wish. But our concept of justice and what it is right to do cannot be based upon pandering—I use that word advisedly—to the opinions of other people and other countries and 1170 acting because we do not wish to be thought to be on the wrong side. Those are two comments which reinforce my original prejudice to which I freely admit.
My next prejudice—I was going to say my second prejudice, but it is probably my first—is one which is against retrospective legislation. We have heard a great deal about retrospective legislation. I am not a lawyer and I cannot deal with its niceties, but as a simple layman it seems to me abundantly clear that if legislation is required to enable us to bring to trial people who, without that legislation, could not be brought to trial, we are indulging in retrospective legislation. Whatever the legal niceties that seems to me to be a simple, incontrovertible fact.
While I am prepared occasionally to indulge in something which creates a precedent and which perhaps goes against our established principles, I would do so only if the result is clear cut and to the benefit of the whole country and, in this case, to the benefit of humanity in general. The case for that has lamentably failed, and I have listened to all the arguments.
On one side it is said that these people will be unable to have a fair trial. On the other side it is said that British justice is such that it may well be ruled that their trial is not capable of being fairly conducted for a variety of reasons. I shall not go through those arguments again. Because of that—putting it at its mildest—element of doubt, to embark upon this major operation, when the result is more than likely to be acquittals or no prosecution, and to do so only because we have legislated retrospectively, is against the principles of this country and of justice. It may not lead to the results which anyone in the Chamber wishes to see.
In respect of the message going out to the world and whether we run the risk of being accused of condoning the activities and crimes which those people are accused of having committed, and which I am prepared to say probably have committed, I cannot believe that anyone who has listened to even one-tenth of the speeches which have been made by your Lordships could doubt that any of us, whether we are in favour of the legislation or the amendment, are in any way condoning the bestiality and horrors of those acts which were committed in the past.
§ 9.34 p.m.
§ Lord Thomas of Swynnerton
My Lords, I had some degree of hesitation when I was thinking about what line to take on this issue: whether to be in favour of the Bill or of the amendments. On the one hand—I am sure that, in this respect, all of us who are likely to support the amendment will be in agreement—the idea that men, who early in life committed appalling crimes, should be living peacefully without inconvenience in a country whose ideals and traditions of which they plainly knew nothing when they came here is intolerable.
On the other hand, it seems important to bear in mind that people change a great deal. If we are seriously to try people who are now 70 or 80 for crimes which they committed when they were 20 or 30, we should bear in mind that we are likely to be 1171 trying people who do not have the same personality in any respect as they had when the crimes were committed.
I remember too that if these people turn out to have been criminals when they entered the country they probably did so with some degree of deceit. So there is a case against them. However, the suggestion made with great force by many noble Lords—not by any means all lawyers—that these men could not expect a fair trial is convincing. Therefore my hesitations have been brought to an end. The sight of an intellectual vacillating as to what course to pursue is not a pretty one at the best of times. I do not propose to exhibit such a sight to noble Lords any longer tonight. I have decided to vote for the amendment put forward by my noble friend Lord Campbell of Alloway, basically for four reasons. However, that does not mean that I have no other reasons for supporting it.
First, I believe that the Bill is discriminatory and unequal. It is perfectly clear that the crimes committed under the Nazi leadership in Germany, Poland and other countries under German occupation were the worst in history and therefore obviously the worst in the Second World War. All the same, all the combatants in the Second World War, including the allies, committed acts which, had they lost, might have exposed them to charges, under The Hague Conventions of 1907 and 1899, of homicides which might be described as war crimes.
There has been much discussion, appropriately, of the actions committed by our great ally in the course of the Second World War, the Soviet Union. Most of Stalin's crimes were crimes in peace-time but I am not at all sure whether the crimes of Vinnitsa, or the prisons in Lvov in 1941, much less Katyn in 1940, could be so described. Therefore it would be right that if the Bill were to go ahead it would be desirable to try to make it non-discriminatory and equal. Then all war crimes, whoever committed them, could be embraced under the terms of the Act.
My noble friend Lord Selkirk drew attention to the mistakes made at the time of the Treaty of Versailles. There are certain indications about the terms of the Bill which recall the war guilt clauses of that treaty which, as my noble friend indicated, caused a great deal of trouble afterwards.
My second reason for supporting my noble friend Lord Campbell is that although it is not at all obvious exactly who will be designated criminals, it is fairly clear from reading the Hetherington Report that most of the people concerned will turn out to have been natives of Lithuania, Estonia, Latvia or the Ukraine. It seems appropriate to point out that the nations from which these people originally came are among those which (after the Jewish people and the Armenians) have suffered the most during the course of the twentieth century. If there is a political issue at stake, we should do all we can to avoid discrimination and prejudice that may be represented in the popular press as regards the idea that these communities are in any way especially guilty of or prone to war crimes.
1172 Thirdly, my noble friend Lord Dacre of Glanton and others drew attention to an important fact. Many suppose that if trials take place it will mean that the lessons of the Holocaust will be brought to the attention of a great many people and that that would be a good thing. I am sure that is correct, but on the other hand if there are wrangles about evidence and identity it seems likely that the accused could easily become the subjects of public sympathy. That would be highly undesirable.
The fourth reason why I shall support my noble friend Lord Campbell of Alloway is that we are now at a time when we are plainly drawing to an end of that time of troubles that a distinguished English Marxist has recently referred to—I dare say this is the first time that someone from these Benches has used the phrase "a distinguished English Marxist"—as a time of troubles which began in 1914 with the First World War.
As all these crimes basically sub specie aeternitatis derive from the events of the First World War and since that time is now drawing to an end, surely our national mood should be the mood which has been mentioned several times in the course of this evening's debate. That mood was expressed by the reference to Sir Winston Churchill's sponge: a sponge to wipe away the tragedies of the past. I believe that mood was well indicated at the beginning of this year when President Havel of Czechoslovakia apologised on behalf of his nation—it is hard to imagine any president apologising for his nation—for the actions carried out by his compatriots between 1945 and 1947 in unjustly repatriating 2.5 million Germans whose families had lived in Czechoslovakia for several hundred years. That surely should be the mood which should inform us at this moment of great opportunity in national and European affairs.
When General Franco died in 1975, and King Juan Carlos was able to introduce a regime of democracy and liberty, a great many old men living in various parts of Spain felt a deep sense of insecurity and fear lest the crimes which they had committed when they were young during the war of 136 to 1939 might be visited upon them. However, as events turned out, no charges were brought against anyone who committed crimes under the regime of General Franco in those atrocious years. As far as I know, no crimes of vengeance have been committed. It may appear that those crimes are more pardonable than those we are discussing, but I am not at all sure that that can be said. Under the authorities of General Franco in Spain between 1936 and 1939 atrocious murders of completely innocent men and women were carried out. I am not sure that one can draw a distinction between one kind of murder in intolerable circumstances and other kinds. If proverbially intolerant Spain can show itself generous, it seems to me that proverbially tolerant Britain should do no less.
§ 9.45 p.m.
§ Lord Donaldson of Lymington
My Lords, in taking part in this debate tonight, in fairness to my brother judges I should make it absolutely clear that I speak only for myself. I have not inquired what their views 1173 are on the Bill. All that I need say is that whatever their views may be, if the Bill were to be passed and become an Act of Parliament, they would, of course, give the fullest effect to it in the same way as they would to any other Act regardless of their views as to its wisdom or propriety.
The first point raised by the noble Lord, Lord Campbell of Alloway, related to the retrospective nature of the legislation. I agree that any retrospective legislation is potentially objectionable. However, I agree with the noble Earl, Lord Ferrers, that there is a distinction between taking a power to investigate and, if proved, to punish conduct which was a criminal of fence at the time it was committed and taking power to treat as criminal conduct which was not criminal at the time when it occurred. The retrospective criminalisation of conduct can never be justified. It is right to make it clear that the Bill does not seek to do so.
Nevertheless, I suggest that, while taking retrospective power to try criminal of fences may be justified in special cases, it must, if it is to be justified, be shown to involve very special circumstances indeed. For my part I cannot see that those exist.
What is being sought here is an extension of the jurisdiction of the United Kingdom courts. Under the existing law the United Kingdom courts have power to try allegations of murder or manslaughter committed abroad, provided always that the alleged of fender was a British subject at the time of the alleged of fence. I could understand it if the Bill proposed retrospectively to extend that power generally to of fenders who subsequently became British subjects. It does no such thing. Mass murder outside Germany or German-occupied territory or mass murder committed since June 1945, in either case by someone who became a British subject after the of fence, is to remain immune from prosecution before the United Kingdom courts.
In the case of foreigners who are resident in the United Kindom who are not British subjects the position is even more extraordinary. The United Kingdom courts have no power whatever at present to investigate their alleged crimes committed abroad. Yet we now propose to take powers in respect only of crimes committed by them between 45 and 50 years ago and limited to crimes alleged to have been committed in a particular part of Europe.
It is said that the justification for all of this is that these were war crimes, murder or manslaughter in violation of the laws and customs of war. What justification is that? The laws and customs of war may provide a defence to a charge of murder or manslaughter, and commonly do in ordinary combat between soldiers in uniform. However, as I understand it, they do not create any of fence. If one acts in violation of the laws and customs of war one simply deprives oneself of a defence. One is left with the charge of murder or, as the case may be, of manslaughter.
In this country we have always rejected, and rightly so, the concept of terrorism as a crime in itself. We say that terrorists are merely murderers or commit manslaughter. Why then do we suddenly turn round 1174 and treat war crimes as a separate crime distinct from murder or manslaughter?
I turn to what is by far and away the most important aspect of the noble Lord's amendment. It suggests that there will be no reasonable prospect of a fair trial. For my part I should have phrased it differently and said that there will be no reasonable prospect of a trial at all. I say that because the Bill contains two special safeguards. The first is that the Attorney-General or, as the case may be, the Lord Advocate must give his consent. I am confident that such consent would not be forthcoming if there were no possibility of a fair trial. In addition, as has been pointed out, a judge could summarily dismiss the charge if it appeared to him that the evidence was not sufficient for a jury properly to convict.
Subject to amendments which may have to be made in Committee, those two safeguards would prevent an unfair trial from taking place. However, equally they would prevent any trial from taking place. In most cases these charges will inevitably hinge on the evidence of identification. As was pointed out by my noble and learned friend Lord Ackner, and as every judge knows, that is the most difficult and dangerous form of evidence. It was the subject of special warning in the decision of the Criminal Division of the Court of Appeal in The Queen v. Turnbull in 1977. In the light of those warnings I venture to think that a case turning upon identification five years after the of fence is alleged to have been committed would give anyone pause for considerable thought. It would lead the judge to issue very serious warnings to the jury. Identification after 45 years is a wholly preposterous proposition.
§ Lord Donaldson of Lymington
My Lords, the matter does not stop there because a fair trial assumes an equal opportunity to disprove as well as to prove. It assumes a level playing field. However, as was pointed out by the noble Lord, Lord Hutchinson of Lullington, in tonight's debate and previously, the resources available to the prosecution and to the accused in this context are grossly uneven.
What about the jury? It will be concerned not only with identification. It will also be greatly concerned with the intent with which the crime was committed by the accused if he committed it. As was pointed out by my noble and learned friend Lord Morton of Shuna, that is the difference between murder and manslaughter. Therefore, the jury must form a view on intent. How does a jury assess the intent of someone who committed a crime 45 years ago? I have directed juries, as have all judges, that they cannot look inside the mind of the accused. They must see what he did and judge it by their own experience of life as it is lived. How can one say that to a jury unless it is composed of 70 year-olds? How will jurors know how life was lived in a period of war time? Even the 70 year-old Members of this House know how it was lived only in this country and in active service abroad. They have no idea how 1175 life was lived in the context in which these crimes were committed. Therefore, I ask rhetorically: how is a jury to ascertain the intent which will lie at the basis of these charges even if—and I beg leave to doubt—identification is established without any doubt?
The flaws in the Bill are cumulative. If it does not serve the interests of justice—and it comes far too late for that—it has, I venture to think, no rational justification. It is said that a trial will keep the public aware of the horrors of the past and that it does not matter whether the accused is acquitted. I disagree; it is not the function of a criminal trial to keep the public aware of the horrors of the past. It is a gross 1176 injustice that anybody should stand trial even if he is acquitted, if that is the object of the exercise.
Then it is said—this is the last point that I want to make—that refusal of a Second Reading will send a wrong signal. We shall be telling the world that we prefer wrongdoers to victims of crime. We shall be telling the world that this country is a haven for war criminals. I venture to disagree. I think that quite a different message will go out. It is a message that has been promulgated to law students for centuries; namely, that it is far better that nine guilty men be acquitted than that one innocent man be convicted. It is a signal that we put justice before all else. For my part I should be proud to join in sending out that signal tonight.
§ 9.56 p.m.
§ The Earl of Longford
My Lords, it would be an impertinence for me to discuss the legal aspects any further. They have already been dealt with thoroughly by eminent lawyers. These matters were perhaps disposed of in one sentence by the last speaker when he said that after 45 years identification is a wholly preposterous proposition. Much has been said to the same effect by other great lawyers in the debates that we have had. I shall therefore leave that point to one side.
Like other noble Lords I can only speak for myself. After all too many years in this Chamber and elsewhere I have never been so revolted by any measure coming from any government as I am by this Bill. I hope that that is not speaking too plainly. At any rate that happens to represent my feelings.
The constitutional issue, so called, has been mentioned although I do not think that there is a constitutional issue involved here. I was a junior member of the Attlee Government when the Bill was passed to restrict to one year the powers of delay possessed by the House of Lords. At that time no one imagined that that measure would deprive this Chamber of using that power of delay.
I hear noises which are not of dissent but of approval, which is very unusual and gratifying. However, I realise the caution and balance with which this matter was addressed by the noble Lord who opened for our party in this debate. He left uncertain whether he would vote at all or, if he did, how he would vote. He made plain that he disliked the Bill very much but suggested that there were dangers in any rejection of a line taken up so strongly in the House of Commons.
To me the House of Commons is by no means the voice of God. We have not yet reached the point where we have to defer to that House altogether. It has constitutional rights; in the last resort it can override this House. However, I resist the argument that if we delay this measure and resist the commons, in some way that will increase the strength of the argument for abolishing this House. I am entirely against such abolition. I have for many years been in favour of reforming your Lordships' House but not of abolishing it.
If this House were so craven that it did not dare to vote according to conscience tonight, people would say, "What is the point of having these people? Let us get rid of them." That is enough to say on the constitutional point.
With regard to the moral side of the issue, I shall not repeat what I said on the occasion of our last debate. I pointed out that as we understand it today, forgiveness, about which I ventured to write a small book which is in the Library—I do not know whether noble Lords have read it—was introduced by Jesus Christ. Since then it has formed a large part of Christian religion.
I have consulted more than one rabbi on this subject. There is a chapter in the book on the Jewish idea of forgiveness. It was pointed out to me that the Jewish idea of forgiveness was introduced in the 1178 Talmud and today some Jewish theologians (but I think not all) would agree that the Jewish idea of forgiveness and the Christian idea of forgiveness are identical.
On the last occasion I ventured to say that one could not find forgiveness of man by man in the Old Testament. I stated that after consultation with a rabbi. My dear and noble friend and acting Leader, Lord Mishcon, has taken me to task. He states that one can find forgiveness in the story of Joseph. Certainly Joseph was maltreated by his brethren and later forgave them. He was a forgiving man. I call that an implicit doctrine. There is no explicit doctrine of forgiveness according to the best teaching of the rabbis made available to me. I shall not dwell on that subject because time is short.
I wish to add only one thought tonight. The subject has been ventilated already by the noble Lord, Lord Callaghan, and others. However, I feel this very strongly. I say it as one who is only too anxious to find the best way to be of assistance to the Jewish community. Not long ago I was honoured to be present at a ceremony at the Jewish Sternberg Centre where Cardinal Hume presented the prize to the eminent Rabbi Friedlander. It was a prize for the greatest service in the past year to friendship and reconciliation between Christians and Jews. During that ceremony, and in the press, there have been many references to the incipient growth of anti-semitism. That is obviously feared at the present time.
I regard the noble Lord, Lord Beloff, as one of the finest orators here. However, on this occasion, I thought that he was talking nonsense. I say that with the greatest respect, as they used to say when I first came to the House. He suggested that in some mysterious way the amendment would promote anti-semitism. It is a free country. Anyone can say what they like. I recognise that these trials may never come of f. That makes nonsense of them in a way. But if they were to take place can anyone imagine the growth of anti-semitism? It is obvious that people would ask, "What are these trials?" People as old as myself, and possibly just as gaga, would be dredged out of their homes. It would cost millions of pounds to bring these very old people to court. There are only about three of them. They would have medical certificates. People would ask: what is this all about? The answer would be, "It is our Jewish friends". I say with the utmost seriousness that I can imagine nothing that would do more harm to the Jewish community or bring more discredit to Christians than this measure.
§ 10.2 p.m.
§ Viscount Caldecote
My Lords, I fully respect the views of all those who support the Bill, in particular those who have suffered either indirectly or directly through the ghastly crimes that were certainly committed. As the noble and gallant Lord, Lord Carver, indicated, we must surely ask ourselves: what is the purpose, the objective, of prosecuting 1179 with the possibility of conviction and punishment for any criminal of fence? That point was not covered in the report of the war crimes inquiry.
The first objective is surely the reform of the individual and deterrence against a repetition of the crime. In this case of alleged crimes committed 40 years ago, there cannot possibly be any aspect of reform or individual deterrence.
Secondly, there is a deterrent to others against committing similar crimes in the future. That is certainly a relevant consideration. But surely it is readily achievable by other means without the major disadvantages of the Bill. For instance, a Bill could be introduced making it legal in future for the prosecution of any British citizen for crimes specified in the Bill irrespective of whether the individual was outside the UK when he committed the crime or was a British citizen when the crime was committed, if he was at the time of the prosecution a British citizen. That would provide a full deterrent to any such future crimes without the major objections of retrospection and the other aspects that have been referred to by many speakers.
Thirdly, there is the protection of the public from repetition of damaging crime by the individual. There is not the remotest chance of that situation occurring in this case.
Fourthly, there is the question of punishment. On the basis of making the punishment fit the crime, the most severe punishment possible should be meted out for a crime of such enormity. That is the only sustainable case for prosecution and punishment. Punishment for punishment's sake alone is to my way of thinking synonymous with vengeance, which is as unattractive as it is useless. Many of those who might be prosecuted under the Bill have already suffered greatly in their consciences; others may not have suffered. Whatever the case, the punishment will serve no purpose whatsoever except to settle old scores. That is crude vengeance and has nothing to commend it.
Others more expert than I have cogently argued the legal aspects of the Bill, including those of retrospection, the difficulty of obtaining reliable evidence and of ensuring a fair trial. I will not detain the House by repeating any of those points.
The noble Earl, Lord Ferrers, in his excellent opening speech suggested that in considering the Bill we were only concerned with justice. That is a fair and sensible point. Justice is an elusive concept except in relation to the rule of law. In that context the pursuit of justice requires good laws to be enacted against which guilt or innocence can be judged. We cannot escape deciding whether this is a good Bill on which justice can be soundly based.
I should like to mention two further aspects that are secondary but nonetheless relevant. As the noble Lord, Lord Boyd-Carpenter, pointed out, £12 million would be involved in carrying through the purposes of the Bill.
§ Viscount Caldecote
My Lords, I stand corrected. Every day we are told that money is not available for worthy causes. I can quote four worthy charities which work to help disadvantaged young people to prevent them becoming criminals in the future. If £1 million pounds a year was given to each of those charities for three or five years, it would make an enormous difference and would give tremendous value to thousands of young people far into the future. Can we justify spending £12 million a year on investigating events which took place 40 years ago?
The second point is that at least 35 people will be involved in the investigations. People with expertise in this field do not come easily. Surely, such people with the relevant experience are already overworked and their efforts could be better deployed in dealing with IRA terrorists, fraud and other such matters that damage society.
On balance, I am convinced that this is a bad Bill and I shall vote for the amendment. In one respect I do so with enormous regret because it means that I disagree with the noble Viscount, Lord Tonypandy, with whom I do not think I have ever disagreed. He referred to the importance of deciding the question on the basis of our consciences. We have to do that and that is what I am doing.
If another place passes the Bill and it returns to this House, no doubt we shall think again and consider the arguments that are put to us. There is no question of insulting another place. I reject any idea that we should be influenced by suggestions that the Parliament Act should be used to push the Bill through. It is far too early for such a consideration. If the Government in their wisdom decide to use the Parliament Act to push the Bill through, honour will be satisfied, our consciences will be clear and so, I hope, will theirs.
§ 10.10 p.m.
Baroness Ryder of Warsaw
My Lords, I stand here this evening to support the Bill because I have seen, worked with and nursed the victims of one of the world's worst tyrannies. The fact is still not well known that a minimum of 20 million innocent men, women and children of over 40 different nationalities, faiths and races were killed under the persecution inflicted on them by men and women of the Gestapo and the SS between 1935 and 1945.
Nor are the numbers of such forces known. There were 500, 000 members of the SS, 600, 000 members of the Waffen SS, 40, 000 members of the Gestapo and 3, 000 members of the action execution squads (A, B, C and D). The strength of one SS division was estimated at 15, 000. Only a handful of those people, approximately 6, 400, were ever brought to trial. The rest were never arrested and they have enjoyed life all the time. Furthermore, the Americans, British and Russians used a few of those terrible people for intelligence work, and so on.
During my relief work in Europe in 1945-46, I witnessed that tattoo marks under the armpits of several non-Germans who had been recruited by the SS were erased prior to them being examined and accepted for immigration to Britain under the 1181 Westward Ho! Work Scheme. Hardly any screening occurred. I also attended some of the war crimes trials conducted by the Allies and later by the German courts. Today I still visit non-German prisoners lingering in German prisons. Those experiences are grim.
I support the noble Lord, Lord Kagan, and I had already written out the same quotation of Edmund Burke, who said:For evil to triumph, it is only necessary for good men to do nothing'.I agree absolutely. I believe that such people should be tried for crimes which they committed. Much has been said by noble Lords about not finding and charging war criminals between 1948 and 1950. With respect, this country has not been occupied for a thousand years nor has it lived with the grief of both occupation and the aftermath. It has not lived among the haunted survivors. So many simply cannot understand.
We have heard that evidence and recognition is remote. I can only say from being with witnesses up until last year, before the war crimes trials, that enormous trouble is taken to establish the facts. Any of us who saw the persecutor remembers him or her to our dying day.
The noble and learned Lord, Lord Shawcross, mentioned the atom bomb. My husband was one of two official British observers. If those two bombs had not been dropped on Japan the extension to the war in the Far East would have been at least another year with an estimated loss of 5 million allied and Japanese lives, more than half of whom would have been civilians.
I thank the Minister and endorse every word which the noble Baroness, Lady Phillips, and the noble Viscount, Lord Tonypandy, said with such deep sincerity.
We, as the last generation to have a living memory of the events, have a duty to record as fully as possible the facts of human cruelty. A judicial tribunal hearing with living witnesses' accounts under the strict rules of evidence is the surest way to provide a record for present and future generations. The fact that even some well-known historians have cast doubts upon the very existence of the Nazi extermination programme should further strengthen the resolve of the Government to proceed against the perpetrators of those crimes and so demonstrate them to today's society which is ready, alas, to reduce the atrocities to a casual reference or even a subject for sick humour.
However, no amount of time can erase guilt of that magnitude. It is not a question of revenge or even justice but of keeping a record so that it may never be denied or overlooked in the future.
We seem to express an arrogance in burying the past. Please let us never forget that we do not have the right to turn our backs on the millions slaughtered who have never seen the roses, or enjoyed the freedom for which many of us fought so hard.
§ 10.15 p.m.
§ Lord Harmar-Nicholls
My Lords, the noble Baroness has re-created the atmosphere in which we, 1182 as Members of this House, ought to examine the Bill. It is so easy to let one's expertise on one narrow part remove the ability to look at the plcture as a whole. She has re-created the atmosphere which I hope will prevail from now until the time when we vote, if there is to be a vote.
I have a feeling that we are approaching the Bill the wrong way round. We are here as parliamentarians. The evidence we have heard from the lawyers, doctors and businessmen is very useful in creating the general knowledge in which we have to work. However, at the end of the day we are here as parliamentarians and it is our duty to operate the parliamentary vehicle which has been handed down to us. We did not create it. It has worked effectively for a century, and certainly very effectively since 1911 in the area which we are now discussing.
I was rather surprised that the noble Lord, Lord Callaghan—we served together for many years and I have a great respect for him—and others spoke about it making a difference because it was a free vote. What has a free vote to do with it? We know that at the end of the day, whether or not we vote as a result of somebody sending the Whip, the result is exactly the same. If we vote and pass the Bill it becomes legislation to which everybody has to adhere. Exactly the same applies in the other place. Theirs was a free vote, but it did not mean that they were no longer the power in the land, which is what the House of Commons is.
That is how we should view the Bill when we come to vote. What has been said has been valuable, typical and absolutely right. We have never had a more formidable contribution to any debate than the one just given by the noble and learned Lord, Lord Donaldson, Master of the Rolls; but it was a lawyer's view. He was looking at the situation from the point of view of a judge. That is good; that is what we want. However, when it comes to the vote I want him to think again and act as a parliamentarian. Let him disrobe himself of the judge's robes and think of the matter in terms of Parliament.
From the point of view of Parliament the vehicle is very clear. The only people who could enthusiastically refuse to give the Bill a Second Reading are people who genuinely think that although we now know that there are war criminals who claim to be our fellow nationals, although we know of the horrible crimes to which they may well have been party, because of the time element we do not think we should do anything about it. People who think that have a duty as parliamentarians to vote against the Second Reading.
Some people formed their view on narrower issues—even the one which is the basis of my noble friend's amendment—but there is now considerable doubt. Even the Master of the Rolls casts doubt on whether or not this retrospective argument has any real weight. I have no doubt that my noble friend made that the main hook on which to hang his hat because it was a formidable one if it could be upheld. The noble and learned Lord, Lord Donaldson, does not think that; nor do the lawyer authors of the I report which is the basis of our examination. They 1183 said that it is not retrospective in that sense. Therefore, although the retrospective element is weighing with some people, it is not so relevant.
Others have referred to the evidence that may have to be brought in, with old people giving evidence on television cameras, and so on. They said that that could not produce justice and nor could it produce the kind of evidence that we must have. AH I can say is that those arguments were well based and attractive when listened to as separate ingredients of the whole argument. However, I thought that when we became Members of Parliament, whatever experience we may have had as lawyers, doctors, businessmen, or in any other field, we let ourselves know the real meaning of the vehicle of which we were given charge, in both Houses.
Like the noble Lord, Lord Callaghan, I have been in the Palace of Westminster for more than 40 years and I expect it to work. I would expect this Bill, whatever one's views—and very strong and coherent views have been expressed—to be given a Second Reading; though as I said, if it is so absolutely objectionable to some noble Lords they must vote against it. However, in regard to the separate ingredients, we should give the Bill a Second Reading, take it through the Committee stage and endeavour to amend it—that is our function—in order to bring it nearer to what we think is right.
Many of the points made so effectively and emphatically by the noble and learned Lord, Lord Donaldson, could form the basis of amendments. It may well be that the Committee will be convinced so that some of the proposals are incorporated in the Bill. The same applies to many of the other arguments that have been put forward. We should have the Committee and Report stages and the arguments given in greater detail than can be done today with 61 speakers all wanting to speak on the general aspects.
Having Committee and Report stages will answer to some extent the doubts in regard to the constitutional point. I am in no doubt about that. I disagree with noble Lords who have held more senior office than myself, but I am convinced that there is very much a constitutional issue involved. However, I am also convinced that if we kill the Bill now it will make a difference, constitutionally, in the future make-up of the House of Lords that will be allowed to exist.
Although we can argue today, those of us who think we know the nuts and bolts of this parliamentary vehicle—well, it is a free vote, there is no Whip, and the subject was not mentioned in the manifesto—I will guarantee (the last election was my 18th) that when people throughout the country are arguing on whether there should be a House of Lords at all or whether it should be reformed, this instance will be quoted. It will be stated that people with no elected power have prevented the putting into effect of what an elected House of Commons accepted. I know that will be said. I heard it said frequently on the capital punishment issue, which we turned down again and again. Therefore, the constitutional issue is a real one and I do not think it fair that we should risk accepting the amendment.
1184 My advice is to let the Bill go through to the Committee and Report stages. I would allow all the experts in their various fields to do their best to convince the Committee and the House on Report that certain amendments should be accepted and then return the Bill to the other place. If we cannot do that and we reach a point where the Bill cannot be accepted by the majority, then let it be defeated on Third Reading. That is the time to decide—when it has been shown that the procedures given to this place have been used in endeavouring to amend the Bill but that they have not worked. That is the time to say that the Bill is not workable and should not be passed into legislation; not on Second Reading.
We should give the Bill a Second Reading for this reason: many noble Lords have said that they will vote for the amendment on the basis of one or two of the narrow ingredients to which I have referred. I have heard most of the speeches from the noble Lords who are here now. They have said: "It will not do all that much damage. We are entitled to vote". Part of the procedure is that we can vote and there is no argument about that. However, the convention by which we deal with the Second Reading of a Bill is almost as clear as the rules.
If we try to amend the Bill, having given it a Second Reading in principle, and it goes back to the other place so amended, we are telling the other place the kind of Bill that we think might be better than the one they sent to us. But to send it back blankly by merely turning it down and asking them to think again, is giving the other place no indication at all as to the kind of improvements we think should be made to the Bill. If this matter comes to a vote I suggest that the way round is to give the Bill a Second Reading unless noble Lords feel so overwhelmingly that it is a wicked and awful matter and those people who are now nationals should get away with all of the events about which the noble Baroness has told us occurred in the past. In that event noble Lords must vote against it.
If the feelings of noble Lords fall short of that then it is absolutely vital that we use the vehicle that has been given to us. We should indicate to the other place the kind of Bill that we think might be better so that the legislation which will flow from it can be effective in a way that at present it cannot.
§ 10.26 p.m.
§ Lord Bridge of Harwich
My Lords, your Lordships may well ask, especially after the speech we have just heard, what can possibly be left for another lawyer, at number 52 in the batting list, to say? But they will rightly predict that, being yet another lawyer, he is going to say it.
of course we must not be flippant. This debate is of the utmost seriousness. I believe that the overriding and decisive objection to the Bill arises from the impossibility, after the lapse of time since the of fences with which people are to be charged were committed, of ensuring that they will have a fair trial.
I do not believe that any of us in our 70s, accused now and out of the blue of an of fence which we 1185 committed in our 20s, in England, and to be judged by the ordinary rules of procedure and evidence which obtain in English criminal courts, could have a fair trial. The difficulties involved in the cases which it is proposed to prosecute under this Bill will be magnified one hundred fold. That is obvious.
The points have been made about witnesses scattered ail over the world; the circumstances obtaining when these of fences were committed; and the proposals to manipulate the rules of procedure and evidence in order to make it possible to bring the accused to trial. In the circumstances which are contemplated the prejudice to the accused from the delay will be enormous and insurmountable.
It has been rightly said again and again in the course of the debates about the proposed prosecutions that English law imposes no absolute time limit on a prosecution for an indictable of fence. That is entirely correct, but it is only half of the story. There is a well-developed doctrine whereby the court will exercise discretion to quash an indictment, to prohibit a prosecution, where it is satisfied that there has been delay which is prejudicial to the defence and that that delay has been inexcusable and that the prosecution were responsible for it.
If that doctrine were applied to a case where an individual crime had been committed, where the prosecuting authority had considered whether an investigation should proceed and whether in due course there should be a prosecution and had ultimately decided against it but where years later the prosecuting authority sought to change its mind, I have no doubt that in such circumstances any judge would say that, if there has been inordinate delay resulting from the decision not to prosecute taken so many years ago, the prosecuting authority should not be permitted to change its mind now and bring a prosecution after such a delay. That would be oppressive and an abuse of the process of the court. If that is so in relation to a single crime, why should it not be so in relation to a whole class of crimes?
As your Lordships heard from the noble Lord, Lord Mayhew, and the noble and learned Lord, Lord Shawcross, in 1948 a conscious and deliberate decision was taken not to continue to investigate with a view to the further prosecution of war crimes. I am totally convinced from what I heard that that was a right decision. However, that is not the point I now make. The point I make is that, that decision having once been taken, it would be intolerable that Her Majesty's Government as the prosecuting authority should now be permitted to change their mind.
The delay of 40 years, with all the prejudice which it would cause to anyone now to be prosecuted under the Bill which has been put forward, flows from the decision taken in 1948. It is the responsibility of the prosecuting authority and so these oppressive prosecutions should not be permitted to proceed now.
As I understood him, the noble Earl, in commending the Bill to the House, contemplated that the jurisdiction of judges to quash an indictment on the ground that the delay had been so great and 1186 so prejudicial to the accused that a fair trial was no longer possible might yet be exercised. However, on the face of the Bill as it now stands, how could that be? If counsel for a defendant was to make a submission on the lines of what I have just said, what would the judge say to himself? He would say, "Look at the statute. Parliament, with full knowledge of the extent of the delay and the reasons for it, has specifically authorised the bringing of these prosecutions. Parliament cannot have been ignorant of the inevitable prejudice to the defence which the delay would cause. How can there be any room left for exercise of judicial discretion by me to order that these prosecutions be not proceeded with?"
I recognise that there is a possibility of amending the Bill to overcome that difficulty. I also recognise the fact that there is a possibility of amending the Bill so as to give to individual judges a discretion in any particular case to rule that on account of delay the defence has been so greatly prejudiced that the prosecution should not be allowed to proceed. But what an intolerable, onerous and invidious task that would be to place on the shoulders of individual judges. Let us consider the field day which the tabloid press would have: "Judge Releases the Ogre of the Concentration Camp! " Then a writ would be served and the newspaper would get a trial and a libel action.
In my submission the issue of whether this Bill authorises prosecutions which would be oppressive and an abuse of the criminal process of the court is one which we cannot avoid answering. Moreover, whether we answer this question on Second Reading or, as the noble Lord, Lord Harmar-Nicholls, suggested, on Third Reading, is a matter for your Lordships. I do not see that it will become any easier to answer on Third Reading than it is to answer today. It seems to me there is only one answer: this Bill would authorise prosecutions which would be oppressive and an abuse of the criminal process. That is one of the most cogent reasons why it should be rejected.
§ 10.35 p.m.
§ Lord Gridley
My Lords, for a number of reasons, I support the amendment moved by my noble friend Lord Campbell. So far as I am aware, my noble friend and I, and later the noble Lord, Lord Kagan, are the only three peers in your Lordships' House who were in occupied territories during the last war. We became accustomed to the actions of the secret police. I in Malaysia, through the Japanese Kempetai, and my noble friend, who was in Germany, because of Hitler. When victory was achieved Hitler would have stood as a war criminal if he had not acted quickly to prevent that by taking his own life.
I was not in Germany, which is the country we are talking about this evening. We are considering its secret police, the way that they operated, and the concentration camps. I can speak with first hand knowledge of the activities of the Kempetai in Malaya. I was there when they started operating and I became mixed up with them in rather unfortunate circumstances. However, I shall not go into that matter now.
1187 I am sure that your Lordships will accept that the actions and operations of the secret police are much the same in whichever country they are. I am repeatedly reported as having been a prisoner of war. I never was one. I am a government trustee of the Far East (Prisoners of War) and Internee Fund which looks after men who suffered as a result of secret police activities. I was one of about 1, 500 colonial civil servants interned by the Japanese in Changi gaol from 1941 to 1945. They considered us to be subversive. I cannot think why they held that strong opinion about us. It was probably because most of us had been working with the people and they wanted to separate us and keep us as far apart as possible. The Governor, Sir Shenton Thomas, told us when we were all assembled in the gaol that it was his opinion that we should stay and suffer with the people of Malaya because we were unable to stop the Japanese aggression against them. One great difficulty was that the Japanese never recognised the Geneva Convention or the Red Cross.
When I read what we were to debate this evening I felt strongly that it was important to bring to your Lordships' notice the position of the men whom it is considered politic to charge with war crimes. I tried to take myself back to Malaysia and what went on under the secret police. As I said, I cannot believe it was dissimilar to what went on in the concentration camps in Germany.
I support the amendment moved by my noble friend, and I shall vote for it. It was a period of great terror. No one should have any doubts about what went on. When secret police are present in a territory, fear is universal and permanent. It continued throughout the time that the Japanese occupied that country. I consider it important to stress that the secret police intend that this should be so.
I now turn to the basics of what happens under police interrogation. If these men about whom we are talking are to be prosecuted we should remember the circumstances. In a police investigation, when an individual is under torture, in order to ease the pain and horror suffered he or she may well make an admission implicating others which may be totally false. That is important. When that admission is made, it may achieve temporary cessation of the torture until the questions start again. Some people are excessively brave and rise above this terror and horror, while others are unable to do so. That is one method by which the secret police succeed and information is obtained. But the danger is that if we try to find out from victims details of such torture in a situation in which there was no basic law as we understand it in England and this method of governing a country was in operation, we must be careful of the evidence produced. It may even be impossible to obtain such evidence.
It is not possible, 40 or 50 years after those times, to obtain a conviction when conditions were as I described them in these territories. These alleged criminals, now stated to be in Scotland, lived in circumstances where, under the secret police, every man's hand lay against the other's. Veracity and evidence, as we understand them under British law, would be totally lacking. Does it not smack of 1188 revenge to carry on with this now? Does it make any sense at all if prosecutions were to follow, resulting in a gross act of injustice against old men who are or may be innocent? Who can be sure that they are not the victims of false reports?
There has been a certain amount of press comment about this debate. I was amazed at an article in the Sunday Times yesterday by Michael Jones with the heading:Lordly wind blows ill for Nazi Victims".In the last paragraph he writes:What matters is keeping face with those who suffered the full horrors of Nazi brutality… Appeasers old and new owe them that, at least".To me, this is rubbish. In 1943 in Changi, I and others were to suffer the full horrors of secret police brutality. In no circumstances, anywhere, in anything I have said, do I seek appeasement nor do I suggest that those who were convicted many years ago as war criminals should not have been convicted. It is my belief that they should have been convicted.
I have sought to warn of what I know from experience could happen at the hands of the secret police, where they operate and are in full control. Because of this, false admissions are made under torture, intimidation is rife, old scores are paid of f Is it safe to bring charges against these old men? I do not believe it possible to produce reliable evidence to justify prosecution against them.
In conclusion, let me say this to the writer of the article. If he considers that those who suffered have a right to demand that we keep face with those who suffered, that what matters is that we should admit that and they should be appeased, I fee! that is nonsense. I reject that as an unworthy suggestion. When persons were charged with crimes committed in Singapore, we who had suffered at the hands of the Kempetai and the Japanese secret police—they were then arraigned as war criminals—did not cry for more blood. On the contrary we made representations to the tribunal in favour of two of the accused asking that the charges against them be dropped. That plea was approved and they were saved from possible execution.
During the time of our own suffering during the Japanese occupation, 58 internees were taken for investigation. All were tortured and 11 were to die. In the British war criminals trials 135 Japanese, including those of the Kempetai who had committed of fences against us, were convicted and executed. All of us who had suffered hoped that that was the end of the matter—I know I certainly did. I hoped this was the end of war crimes executions. However, it has come back again today.
I hope that this will be the end of the matter and that it will not be necessary to consider these serious issues again. I shall vote tonight for the amendment of my noble friend Lord Campbell of Alloway.
§ 10.46 p.m.
The Earl of Halsbury
My Lords, I support the amendment for reasons substantially identical to those adduced by other like-minded Members of your Lordships' House. I do not intend to say more than that at this late hour. If noble Lords wish to 1189 explore my views in greater detail they can find them in the debate on 4th December and in the leading article published in The Times today. It is still today, but it will shortly be yesterday.
I wish only to draw the attention of your Lordships to three dangers that I see in this field. The first is to claim a priori that we have insight into why honourable Members in another place voted the way they did on the occasion they did and to suppose that they would vote in an identical sense if they had a second round. They will by that time have read the debate in your Lordships' House this evening and I do not see any reason to suppose that their views will be prima facie changed or unchanged. We should make no assumptions there. From that point of view I believe the threatened constitutional crisis is vacuous.
The second danger that I foresee is the capacity of our fellow countrymen for sentimentality. I doubt that noble Lords have yet forgotten Rudolph Hess, who was imprisoned for life in Spandau. As he grew older, dottier and more infirm a demand arose to release him on compassionate grounds and restore him to the bosom of his family and allow him to die in sentimental comfort. That was wrecked by the intransigence of the Russians in so far as Hess in Spandau meant a Russian presence in West Berlin. We must make sure that nothing of that kind occurs.
The third danger is getting into situations before we have thought out how to extricate ourselves from those same situations. If the Bill is passed unamended, there will arise an irresistible demand that there should be prosecutions. That will be politically irresistible and it will put the judiciary and politicians at loggerheads with one another. There can only be one outcome—a prosecution in the least unfavourable case. That will result either in an acquittal or in a conviction. If there is an acquittal, political demand will arise on the basis of the old injunction: if at first you do not succeed, try, try and try again. We shall find our political life launched into a series of actions on a decreasingly favourable expectation of securing a conviction.
However, suppose a conviction is secured. A further demand will arise on the basis that we want more of that. Once more the judiciary and the politicians will be at loggerheads with one another and eventually we shall again be launched on a series of prosecutions in decreasingly favourable circumstances. I believe that that will prove a running sore in the public life of this country. The time to kill the Bill is now. I shall vote for the amendment.
§ 10.50 p.m.
§ The Earl of Cork and Orrery
My Lords, the Hetherington Report states in paragraph 9.18:Both the Soviet authorities and Soviet public opinion consider it important that the United Kingdom, one of their Allies in the 'Great Patriotic War', should be seen at last to be bringing war criminal; to justice".That statement contains a fallacy of the kind known technically as suggestio falsi. The falsity resides in the phrase "bringing war criminals to justice".
There is nothing about justice in the Bill. Judgment, yes, but justice, no. It may happen that 1190 in a particular case the two coincide or correspond, but they are most emphatically not synonymous. The word "justice" does not occur in the terms of reference of the inquiry. Why should it? The inquiry was asked to consider whether, in the light of the evidence likely to be available, there was a reasonable chance of a successful prosecution and, if so, whether:the law of the United Kingdom should be amended in order to make it possible to prosecute".Leaving aside the question of retrospective legislation, I take it that there is nothing that is not commonplace in that instruction. It must be the most normal routine to consider whether or not the evidence against the accused is likely to be enough to convict him. Yet, in the generality of cases—namely, those of crimes recently committed—the evidence in favour of the accused can be left to the defence to marshall and produce. However, how is an accused person to produce his evidence if, nearly half a century after the alleged crime, important documentation has been destroyed or lost, key witnesses refuse to come from foreign parts or are dead or alleged to be dead? How is a charge ever to be proved beyond reasonable doubt in such circumstances, especially when it is known that the prosecution has changed the rules of evidence in its own favour?
In the context of the Bill the familiar words "beyond reasonable doubt" take on a new significance. The notion that they represent usually comes into being during the course of the trial itself. The reasonable doubt that has to be dispelled exists in the mind of the jury and nowhere else. However, in any case covered by the Bill there is an antecedent doubt that there exists already the gravest suspicion—and who is to say that it is unreasonable—not only about the value of the evidence but about the justice of the proceedings themselves? That doubt not only may or may not enter the minds of the dozen citizens in the jury box; it exists already in the minds of many noble Lords who sit in this House now as a jury upon this Bill.
Furthermore, I have a very strong impression from talking with all kinds of people that that doubt exists also in the minds of a majority of my fellow countrymen. Indeed, I have a suspicion that traces of it may lurk in the minds of the authors of the Hetherington Report itself. In paragraph 9.6 on page 91 there occurs what is to me one of the most significant statements in the whole of that document:Justice delayed has the appearance of revenge".To that I may add, in view of what I have already said, that judgment delayed has an even more convincing appearance of revenge.
I believe that whether or not they suspect a vengeful motive many people, both here and throughout much of the Western world, will believe that this Bill, if it should be enacted—which I do not expect—has been drafted with a deliberate intention of loading the dice against prisoners at the bar. Nor can I find it in me to condemn their suspicions.
For those accused, whoever or however many they may be, I do not care, but for British justice I care 1191 very much indeed. I believe that if that justice is not to be brought into derision and disrepute this Bill must not pass.
§ 10.55 p.m.
My Lords, I was unable to take part in the debate in your Lordships' House on 4th December because I had not then read the Hetherington-Chalmers Report. I have now read it carefully. I have also read the debate which took place in December and have listened to most of the speeches today. I should like in a couple of minutes to indicate my position on the Bill.
Although I did not progress beyond pupillage, technically I am a barrister. I suppose that the saying "Once a lawyer, always a lawyer" may apply even at the lowest level of achievement. I found the legal arguments put forward and expounded so eloquently by many eminent lawyers in this House both compelling and cogent. They represented in themselves a justification for supporting the amendment.
As regards the wider issues I, like the right reverend Prelate the Bishop of Southwark and other noble Lords, remain puzzled about the motives for bringing the measure forward at the present time. I can understand why members of the Jewish community support it. Naturally, their experience has made them implacable. But I am not sure that implacability is necessarily compatible with good judgment. I can understand that Members of another place, however high-minded their motives, might conclude that there are more votes in supporting the measure than in opposing it. It is of ten said that we in this House are out of touch with public opinion. Perhaps we are. But I find great difficulty in believing that our children's generation and our grandchildren's generation have much, if any, enthusiasm for a measure of this kind.
I can understand that some sections of the media may support the measure because, in serial form, it will give them material for many months or even years. However, I am concerned about the effect of media treatment of any trials that may take place. I suppose that the Government might also be concerned on that point. Although the reports of the proceedings might be thought by some to have an educative and elevating influence I believe that in practice they would have the opposite effect. Like the noble Lady, Lady Saltoun, I believe that there would be a backlash and that the proceedings would be demoralising rather than bring moral benefit. It would all end not in credit but in disrepute. In short, I consider that the legislation is misconceived and I shall vote for the amendment.
§ 10.58 p.m.
§ Lord Simon of Glaisdale
My Lords, when I ventured to address your Lordships in December I submitted that what was proposed in the report was quite unacceptable for two main reasons. First, that in all probability we could not vouchsafe to the defendant a fair trial. Secondly, viewed realistically the measure was retrospective in effect.
1192 I shall not go over that ground again partly because the hour is late and partly because anything that I might say has been said already in a way much better than anything I could aspire to. However, the objections are fundamental. They cannot possibly be cured by tinkering by way of amendments in Committee or on Report. My noble and learned friend Lord Bridge dealt conclusively with that matter.
That brings me to the only new matter that has arisen since December; namely, the vote of the House of Commons to which naturally great importance is attached throughout your Lordships' House. I venture to agree entirely with the noble Lord, Lord Callaghan, a great commoner, that there is no question here of challenging the decision of the House of Commons. That view was supported explicitly by another great commoner, the noble Lord, Lord Houghton of Sowerby. It was also supported by the noble Lords, Lord Goodman, Lord Carrington and Lord Windlesham. That is a powerful team of opinion. There were others who said the same.
The issue is in fact this. My noble friend Lord Tonypandy referred to Burke's famous address to the electors of Bristol after his election when he said that your Member owes you not only his industry but also his judgment, and he betrays rather than serves you if he sacrifices it to your opinions. The Members of the other place are entirely justified in adopting that view, which has been generally accepted constitutionally. But your Lordships are also in a similar position. Noble Lords are here as a second Chamber by virtue of the law: partly the ancient common law and partly fairly recent statutes. Your Lordships also are bound to express an opinion. That is the way that it was put by the noble Lord, Lord Windlesham, and my noble and learned friend Lord Hailsham said that that opinion should follow conscience.
Your Lordships are here, by virtue of the law, as a second Chamber. If noble Lords sacrifice their judgment to the opinion of any others, including the other place, they will not be serving the nation but betraying its interests. At the very head of this Bill come words to confirm that it is to pass into law:by and with the advice and consent of the Lords".It is not merely consent to the view of the House of Commons but involves your Lordships' advice. In view of the speeches that were made in December and have again been made tonight, how can your Lordships possibly say that noble Lords are advising that this measure shall pass into law? I shall support the amendment.
§ 11.3 p.m.
§ Lord Pym
My Lords, at this late hour after a long and exceptionally impressive debate, I shall try briefly to summarise my views. With regard to the constitutional aspect, I agree with my noble friends Lord Carrington, Lord Windlesham, Lord Boyd-Carpenter and others as well as with the noble Lord, Lord Callaghan, and the noble and learned Lord, Lord Shawcross, who have expressed their opinions. I do not accept that a constitutional 1193 problem arises. Yes, if we turn down the Bill there will be a tactical difficulty for the Government; but that is something that they must have anticipated when they proposed the Bill to another place, because they did not know what would happen. But a tactical difficulty is not a constitutional problem.
The other place came to its conclusions on the basis of a free vote. It seems to me that we who have a free vote also have a duty to do the same. To me it seems that any failure to express our convictions on this issue would be an exercise of extraordinary futility.
On the substance I support the amendment of my noble friend Lord Campbell of Alloway because I believe that it would be a mistake to jog backwards in the way that this Bill proposes. The two world wars which blackened this century and indeed the moral leadership of Europe ended 45 years ago. As has been said many times, it is over 40 years since the government of the day decided to abandon war crime trials in this country, with the full support of both Houses of Parliament.
No doubt it is true that the failure to try alleged war criminals was a failure to see justice done. But neither can justice be done by trying such people after a gap of so many years. I was impressed by the feeing that existed in 1948-49 that led to the abandonment of war trials with widespread public consent. I recall it myself. I felt it then as I feel it now. Many other noble Lords have expressed the same view.
There the issue rested without any controversy until 1986. In the light of the evidence that then became known, in my view the Government were right to set up the war crimes inquiry. As we know, it reported exactly a year ago. In my view at that time the right response to that report would have been to have shelved it. A year later I feel that even more strongly. Why? During this past year we have witnessed nothing less than the beginning of a revolution in Europe—a dramatic change, a seismic change, of a character that happens in history scarcely once a century. A new volume has been opened. None of us has the slightest idea what the story will be.
That revolution presents enormous difficulties and dangers but it also presents a tremendous challenge and a marvellous opportunity of extraordinary dimensions—one that will tax our statesmanship and our energies and skills to the utmost. We would be right to concentrate on the issues that really matter, on the future. Let us therefore adhere to the decision of 1948 and refrain from trying to go back to events of 50 and 75 years ago.
§ 11.7 p.m.
§ Lord Cornwallis
My Lords, at the time the noble Lord, Lord Campbell of Alloway, put down the amendment I told him that I would support him. Since then I have conducted my own mini-poll among almost everybody I have met from every walk of life without at any time asking them leading questions on the subject of the War Crimes Bill. I can only tell your Lordships that in my researches I 1194 have not met one single person who is in favour of this legislation; and I have not met one single "don't know".
§ 11.8 p.m.
§ The Earl of Onslow
My Lords, I am not a "don't know" on this Bill. I know perfectly well that I shall support my noble friend Lord Campbell of Alloway. I do so on the ground that I believe the Bill is racist. It specifies only one type of bestial crime which can be retroactively tried.
Nuremberg was supposed to be a warning. The trials up to 1948 were supposed to deter. They did not deter the Indians from slaughtering each other in the partition of the Punjab. Will a Hindu man in Bradford who was involved in that be tried for murdering his Moslem compatriots in the Punjab? No. Will a Moslem be tried for murdering his Hindu compatriots in the Punjab? No. If an Armenian becomes a British citizen, will he be tried for murdering an Azerbaijani? No. If an Azerbaijani becomes a British citizen, will he be tried for murdering an Armenian? No. It is unwise to pass specific legislation for one group of people and to make their crime, however bestial it may be, more triable than somebody else's equally bestial crime. Therefore, I shall vote for the amendment moved by my noble friend Lord Campbell of Alloway.
§ 11.10 p.m.
§ Lord Fitt
My Lords, I apologise for having added my name to the list. I have sat in this Chamber for longer today than in all the years that I have been here because this is a very serious issue. The attendance in the House tonight indicates that this subject is regarded with the seriousness which it deserves.
I cannot accept some of the arguments that have been put forward. I cannot accept the argument that these are old men and that it would be unfair to try them now. If that were the case, a 70 or 80 year-old murderer could commit a crime tomorrow and not be charged. If age were the determining factor, geriatrics could commit murder and manslaughter with impunity. I do not accept that argument.
I do not accept that there is a facet of British law which states that we can wipe the slate clean. I fail to see how that argument can be used to prevent prosecutions for crimes against humanity. We are talking about crimes against humanity, whether the crimes were committed in Lithuania, in Poland or in Germany. Humanity does not recognise national boundaries.
I support the Bill. I have in my office a cutting from a Belfast newspaper. It lists day by day, week by week and year by year the number of murders that have taken place since the onset of the present troubles. There are 3,000 names on that list. The human mind cannot take in the names on the list and the atrocities that we are discussing today.
The noble Lord, Lord Donaldson, stated that a lapse of 45 years is too long. Can any noble Lord tell me what period of time he regards as not being too long? Is 40 years too long, or is 35, 30 or 20 years too long?
1195 In 1969 nine murders were committed in Belfast. Only one conviction was obtained. In regard to the other eight murders, none of the murderers has been found. If 21 years have elapsed, does that mean that the police should close their files on the people who are guilty of those murders? After 11 years should we call of f the search for the murderers of Airey Neave? Does the lapse of time mean that we could not get the evidence to convict those who committed those murders year by year over the past 20 years? I do not believe that the lapse of time is a tenable argument.
The crimes that were committed at that time were so horrendous that human nature cries out to the high heavens for retribution. Noble Lords have stated that they do not believe in retribution. All court cases, whether they result in fines or sentences of imprisonment, are forms of retribution. We should not say that people who are suspected of having committed those crimes are for ever to be immune from prosecution. That is not the message that we should send out to the people of this country or elsewhere. Even if a prosecution never takes place, I believe that those people know in their own consciences that they were guilty of those crimes. We should not take a decision which will absolve them from worry. I believe that they should live to the end of their days with the possibility that retribution may come knocking at the door to make them answer for their alleged crimes.
This Bill is very necessary. The Prime Minister said recently that there must be no haven for terrorists in relation to IRA atrocities and the recent murders. It appears that certain elements within this country are prepared to accept Britain as a haven for yesterday's terrorists. The other day the defence Minister, Mr. Tom King, appeared on television commenting on the murders of young soldiers during the past three or four days. He said that we should make no mistake—that they will be pursued until they are brought before the courts of justice. For how long do we pursue them? Do we pursue them for five, 10 or 15 years and then wipe the slate clean? I believe that the slate should never be wiped clean and that the people who committed those terrible crimes should be brought to justice.
§ 11.16 p.m.
§ Lord Harris of Greenwich
My Lords, we are coming to the end of not one but three prolonged debates on this issue: first, our take-note debate on the Hetherington-Chalmers Report last December; secondly, the debate on the war crimes amendment to the Law Reform (Miscellaneous Provisions) (Scotland) Bill which took place last month and lastly, today's debate. I have calculated that there have so far been 105 speeches on this question. Therefore, it is possible that your Lordships are now moving towards making a final judgment on this matter.
For that reason, I do not propose to rehearse once again the detailed arguments on two of the most important issues before us. First, there is the question of retrospection. That was raised by the noble and learned Lord, Lord Hailsham, on the first 1196 occasion on which we debated this issue. He was right then and everything I have heard since has justified the judgment which he expressed on that occasion.
The second issue was raised in the December debate by my noble friend Lord Mayhew and repeated by him today and by the noble and learned Lord, Lord Shawcross; namely, that this legislation was introduced despite the decision of the post-war Labour Government supported by the Conservative Opposition led by Sir Winston Churchill to bring to an end the war crimes trial procedures.
So far I have heard no effective answer to what my noble friend said. That decision was announced in a parliament which had substantially more recent knowledge of the horrors of Nazi atrocities than is now the case.
I now turn to the third issue which I do wish to discuss; namely, whether it will be possible for a man charged under this Bill to receive a fair trial. First, how will those given the responsibility for defending one of those men be able to discharge that task? Sir Thomas Hetherington and Mr. Chalmers were accompanied on their visit to the Soviet Union by a strong team of former Scotland Yard officers. They collected evidence and videotaped a great deal of it. In his report, Sir Thomas paid tribute to the professionalism of that work—and I am sure he was right to do that—and also expressed his gratitude to the Soviet authorities for their co-operation. of course, with 20 million war dead, the Russians obviously did all they could to assist Sir Thomas.
However, what kind of facilities will be made available to the defence? Will they be given the same scale of resources—a point touched on by the noble and learned Lord the Master of the Rolls—to rebut, if possible, the prosecution evidence? Will they or their representatives be given the full co-operation of the Soviet authorities when or if they visit Latvia, Lithuania, the Ukraine and Byelorussia, as were the Hetherington team? How many months will they be given to challenge the prosecution account of what occurred 47 years ago?
Let us examine the position of the Procurator General in Moscow, who quite properly gave a great deal of assistance to Sir Thomas Hetherington. Does anyone seriously suggest that he and his staff would regard it as part of their responsibility to assist the representatives of the defence in the case of men whom they regard as being guilty of appalling atrocities against Soviet citizens? How then could British defence lawyers prepare that defence?
Let us say they want to question the accuracy or authenticity of documents relied on by the prosecution. Some of those may be held by the Soviet authorities. Is it believed that the Soviet authorities would co-operate with undermining—as they would see it—the case of the prosecution? Or let us say that the defence want to find a witness or witnesses who may be helpful to a defendant. After 47 or more years many of those witnesses may be dead. How would it be possible to identify in Soviet territory witnesses who may still be alive and who may be of help to the defence in a British criminal court? I believe that such assistance would not be 1197 forthcoming from the Soviet authorities for representatives of the defence in a case of that kind.
I say that for another reason. It is hardly necessary to point out in this House that the legal procedures in the Soviet Union are rather different from those enjoyed in a western democracy. There have been many encouraging developments under Mr. Gorbachev, but their court system is still not free and independent like ours. It is merely an agency of the state. In Soviet procedures there is a presumption of guilt, not innocence, of anyone brought before a criminal court. I believe that that is a highly relevant issue which we must face when considering what we intend to do in a few moments time.
That is the environment in which lawyers for a defendant appearing before a British court would have to endeavour to obtain evidence in the Soviet Union. I do not believe that it is possible to maintain that they could fulfil that responsibility.
There is then the question of identification, which has been touched on in many of the speeches in our debate today. How many of us could identify without difficulty someone we last saw 47 years ago, and identify them to the satisfaction of a British court and jury knowing that if convicted they would spend the rest of their lives in prison?
Then is another issue related to identification. In this country great unease has of ten been expressed in the courts when identification and other evidence has been given two years or so after the commission of an alleged of fence. Even when there has been no such delay, grave concern has of ten been expressed.
An example of that was given by the noble and learned Lords, Lord Ackner and Lord Hailsham, and my noble friend Lord Hutchinson. They raised the question of the report of the noble and learned Lord, Lord Devlin, on evidence of identification in criminal cases which was published in 1976. As the noble and learned Lord reminded us, that committee was set up following the cases of two men, Mr. Laslo Virag and Mr. Luke Dougherty, in which innocent men were convicted on the basis of mistaken evidence of identification.
I deal with one of those cases—that of Mr. Virag. He was convicted at Gloucester Assizes in 1969 of a number of of fences, including using a firearm to resist arrest and wounding a police officer. Three witnesses picked him out from an album of photographs and no fewer than six witnesses picked him out at an identification parade. When doubts arose about Mr. Virag's conviction in the course of statements made by another man in custody, a further police investigation took place. On the basis of that the then Home Secretary did not even trouble the Court of Appeal but recommended to the Queen that he should be pardoned at once. He was then released from prison.
At paragraph 3.103 of its report the Devlin Committee said:The main cause of wrongful conviction and subsequent punishment of Mr. Virag was unquestionably the fact that he was wrongly identified".I hope that the House will also remember that Mr. Virag's alleged of fences occurred in January and Februa:7 1969; his trial took place in July 1969. In 1198 other words, the six witnesses identified Mr. Virag and caused him to be convicted and sent to prison for a substantial period of time just five months after the commission of the alleged of fences—and those witnesses got it wrong. In the issue we are debating today the gap is not five months but 47 years.
In conclusion, perhaps I may add that I hope the House will tonight vote on this Bill and on this Bill alone. I hope your Lordships will reject the so-called constitutional argument which was dealt with so effectively by the noble Lord, Lord Carrington. The facts are clear. The House of Commons had a free vote on this issue and so tonight do we. We should, I consider, reject the suggestion that because the House of Commons has made a decision we should at once accept its view. I believe that approach is wholly mistaken.
I am opposed to the Bill because I believe it is retrospective; but quite apart from that it is objectionable because, as I have indicated, I believe it will be wholly impossible for those charged under its provisions to secure a fair trial. We do not have a written constitution in this country, unlike the United States where if such legislation were to be enacted it would be declared unconstitutional by the Supreme Court. The only protection for a British citizen lies in Parliament. I believe that in recent years this House has won for itself the reputation of being the final guardian of our civil liberties. I hope tonight that we can demonstrate the justice of that view by voting for the amendment now before us.
§ 11.28 p.m.
§ Lord Mishcon
My Lords, on this historic night—for it is an historic night—I have seldom needed more the patience and the indulgence of my fellow Peers. It is not easy, after this long and very distinguished debate, to address the House by way of a winding up speech made personally from these Benches, as indeed the speech made by my noble friend Lord Irvine of Lairg was a personal speech.
I intend, if I may, to preface my comments with but three remarks. The first is that I have been delighted by the moderate tone of the debate throughout almost the entirety of the hours we have been speaking.
This measure should be taken into the Division Lobby, if there is to be a Division, with each of us, as we walk through the Division Lobbies, convinced of our own integrity, of the decencies of our consciences and of the honesty of our purpose.
The second thought that I have is this. I must confess that in the course of the proceedings I have had some doubts as to the wisdom of even holding the debate. It seemed to me that great, world-shaking events and chapters of history, which, pray God, are never to be written again, have been somewhat trivialised by the arguments advanced. If we do nothing else after the Division, if one there be, I hope that every one of us in this House will be determined at least to see that we are engaged, each and every one, in a fight against prejudice, injustice and discrimination which, after all, led to the bestialities that we have been talking about. May we try at least to prevent our children from seeking such 1199 an epoch again. We can only do that if each and every one of us is committed to that purpose.
The third and last observation is this. Yes, it is a free vote. A free vote means, as a rule, that you listen to the whole of the debate and you make up your mind as a result of the speeches you have heard. I was a little unhappy, especially when I listened to some long, written speeches, prepared before the debate, to find that minds were committed as a result. I have no doubt, however, that perfectly honourable and honest discussions took place before the debate.
I shall now deal with some specific points. What are we dealing with in this Bill? It is best to be accurate and to quote the very words. We are dealing withmurder and manslaughter (or culpable homicide)… in violation of the laws and customs of war in Germany or German-occupied territory".The noble and learned Lord, Lord Hailsham, whose voice is always listened to with affection and respect, somewhat came of f the high level of his speech not by trivialising anything but by arguing that, after all, we were being selective. What about Katyn and other matters? I know that the noble and learned Lord may be wiser than I. I know of no friend of Stalin who has obtained citizenship of this country or who is resident here. Neither do I know of any occupants of houses in this country who were concerned in the Katyn massacre. Therefore, that was a total irrelevance. I say that with the deepest respect as always to the noble and learned Lord.
It is a question of murder and manslaughter committed some years ago. The argument then moves to the fact that the measure is retrospective. Murder and manslaughter retrospective in regard to a crime. Is there any doubt that that was against the law of war and international matters? Is there any doubt about that? No, said many of the speakers, there is no doubt about that. But, says the noble Lord, Lord Campbell of Alloway, in his amendment, you are making it retrospective because you are attaching liability to people who did not have that liability. That is something which we who are the defenders of British justice could not stomach.
It is an extraordinary submission because there was specific provision made in a convention which we signed in 1950; namely, the European Convention on Human Rights. With war crimes specifically in mind, Article 7(2) reads:This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognised by civilised nations".Knowing that this provision was included specifically to cover war crimes, why did we sign it? Why were there not protests made by distinguished lawyers in your Lordships' House or elsewhere saying, "We cannot stomach this. We cannot possibly agree that this is in accordance with our laws relating to retrospective legislation". We signed it. We are not making any new crimes; we are merely saying that people who came here and who may be guilty of these crimes are now to be subject as from the passing of the Bill into an Act to the jurisdiction of our courts.
1200 Those who favour the amendment have gone on to say, "Look at the delay! " That is a point you make when the prosecution has delayed. That is the meaning of delay. But if time passes—even 40 years—in respect of someone who is guilty of a heinous crime and the reason that the years passed and the prosecution cannot be brought is that that person has fraudulently and wrongly hidden himself under assumed names, and so on, and the question of his existence or residence in a certain place only becomes known years afterwards, is that what you call a delay which should stop a prosecution?
Is the message going forth from this House and from the lawyers and the Law Lords in this House that if you commit a murder and you manage to evade trial, prosecution and the police, "Do not worry. After 40 years you will be forgiven because people in the House of Lords will say that 40 years is too late for identification and too late for the process of law to take place." You may say that that is not justice. However, that was the argument which was put forward.
The next argument put forward was that all this was closed in 1948 and that Winston Churchill said something in 1946. Will anyone tell me that the great Winston Churchill would have said what he did if he had known that people who had come to this country having managed to evade the immigration authorities and our laws through false stories, or whatever, were guilty of war crimes? Is that what the House thinks Winston Churchill was saying in 1946? It is completely untrue, as was said by several Members of your Lordships' House, who were not endeavouring to mislead the House—they have been misinformed—that both Houses of Parliament had agreed to a closure of this matter in 1948. I can tell your Lordships, with every authentic reason for saying so, that it did not come before the other place and it did not come before this House. Neither House of Parliament ever agreed to that closure.
§ Lord Mayhew
My Lords, I wonder whether the noble Lord will agree with me that there is no better sign that the other place agrees with something, but that no one asks for a debate and no debate takes place.
§ Lord Mishcon
My Lords, if that is the best point that the noble Lord, who is a great debater, can make against what I have just said, then I am more than content.
So far as concerns an agreement in 1948, would your Lordships be good enough, with patience and courtesy, to listen to what the Home Secretary said in another place on 12th December last year:The decision was made not to proceed with war crimes trials in the British-occupied zone. We are not talking about that. No decision was ever made by a British Government that there should be an end to all war crimes trials, least of all that there should be an exemption from prosecution for all time for persons resident in this country".—[official Report, 12/12/89; col. 889.]How can we listen to points about closure without reminding ourselves of what a very honourable Minister of Her Majesty's Government said on that occasion? I hope that all those who sit opposite me will have sufficient respect for the Home Secretary of their Government to realise that the argument put forward about closure was specious.
1201 I turn to my last point, which is that I almost said of those who spoke in favour of the amendment, "Oh ye of little faith". I thought of that for this reason. Have we no faith when we appoint an eminent: Director of Public Prosecutions for England and Wales and an equally eminent person who carries on a similar function in Scotland, who started by thinking that they were on an errand that led nowhere, and who with all the care that we know that those gentlemen exercised when carrying out their duties to see that a prosecution was not brought until there was a reasonable chance of success, that there would be a fair trial and that it was in the public interest so to do? Both of them came to a unanimous conclusion: that it was possible to bring prosecutions and it was right. Those who follow the amendment ignore them.
We have not seen the evidence. Not one bit of evidence has been seen by any Member speaking in the debate. The evidence could be as strong as anything. It could contain admissions so that identification is not necessary. It could contain evidence of boasts people made to others, "I escaped prosecution. I murdered 10 people". There could be that evidence. I do not know. Nor, my Lords, do you. Yet those noble Lords who support the amendment have decided that there is not sufficient evidence that could be produced to afford a fair trial.
I move on to Parliament. There is no faith, presumably, in the decision of the Commons. The decision was reached by 273 votes to 60. I ask your Lordships how and why. Are those in the Commons, who sit as Members, people who have not listened to our previous debates or read them? Are they fools? Are they unjust? Are they people who like putting others in the dock for unfair trials?
I shall give noble Lords a reason why I believe there is a difference in view. I have looked at the list of speakers today—every single one of the approximately 60 who have spoken up till now. Not one is under the age of 60. I exclude, of course, the lady Members of your Lordships' House who have spoken. If there is anybody under the age of 60 who spoke in this debate, I invite him to rise at this moment. The only exception—
§ [Noble Lords rose.]
§ Lord Windlesham
My Lords, this may be an indication of the accuracy of the noble Lord's other observations. I am aged 58.
§ Lord Mishcon
My Lords, being two of f is not such a disgrace. I shall alter my wording and then see whether anybody rises. I could make it the age of 50. The average in the Commons is something like 40. I shall give the House the reason for the difference, because I share it. We were there in the war years, we served in the forces. Many were like me. I come of a small family. I have no brothers; I had cousins. One of them, a pilot in the Battle of Britain, was shot down; the other was killed fighting in the infantry in Italy. A waste of lives; a waste of time. I have been trying to forget the war years.
1202 Maybe your Lordships have been trying to forget them too, except to pray God that it never happens again.
The Commons were listening to their constituents. We have no constituents. The Commons, consisting of younger people, were saying, "What do we owe to this generation and to the next?" They came to their decision by 273 votes to 60.
I listened to the noble Lord, Lord Harmar-Nicholls. I thought that he spoke words of wisdom, words of much greater wisdom, if I may say this without of fence, than the noble Lord, Lord Campbell of Alloway. I turn to him in the last resort, before I sit down. He has the admiration of all of us. He did not mention once in his speech that he was a prisoner of war in Colditz. He mentioned previously that while he was in Colditz some Czech pilots arrived. They were deemed to be traitors. He argued in their defence and we admire him for it. I ask him to conjure up in his imagination the following and give me an answer when he replies, without in any way telling me that I was technically wrong. I am going to imagine with him that he escaped from Colditz with a brother officer. However, just after they had escaped he saw a brute from the Baltic states who was employed at Colditz beating to death some of those Czech pilots. He knew the man perfectly well and knew that he had two moles on the left side of his forehead and a jagged scar on the right. He gave that description as soon as he could after he had escaped with his brother officer.
Some 40 years later he was walking with the brother officer who was still his friend when they came across a man who looked exactly like the description. They went closer to him and discovered he had the same features. The two marks were there, as was the scar. The noble Lord, Lord Campbell of Alloway, went up to the man. He asked, "Were you at Colditz?" The man replied, "Yes, and what of that?" If this Bill is not passed, the police authorities would tell the noble Lord, Lord Campbell of Alloway, that he could do nothing as the man was now a British citizen or was resident over here and the House of Lords threw out a Bill.
§ 11.51 p.m.
My Lords, we have just heard a most moving speech from the noble Lord, Lord Mishcon, which attained and indeed surpassed the heights which the noble Lord normally achieves. We have had a long debate. I agree with the noble Lord, Lord Mishcon, that it has been an important debate. It is not of ten we have over 60 speakers and it has been a formidable list of people. There have been many notable and powerful speeches. There have been speeches which have come from the heart, from personal experience and from deep personal interest and conviction. There have been speeches which have portrayed the religious and moral views of their propounders. We have had a propensity of legal opinion. Indeed we have been provided with eloquence and impressive persuasion from the Law Lords and from those who have a legal training. There has been, unusually—I hope I may say that—a remarkable degree of unanimity among them.
1203 We also heard the maiden speech of my noble friend Lord Swaythling. I congratulate my noble friend on his short, succinct and clear speech which contained much feeling. On top of it ail, he remained uncontroversial. On a subject such as this, that was a great achievement. I hope that we shall hear from my noble friend on many occasions in the future.
The arguments for and against the Bill have been well rehearsed and expounded this evening and I do not propose at this hour to weary your Lordships by replying to the many points which have been made. However, I should like to refer to one point which has caused an underlying anxiety; namely, that a constitutional issue is involved here. The noble Lord, Lord Callaghan, has great experience of another place as a distinguished former Prime Minister. He said that there were no party politics in this matter and that if your Lordships voted against the measure it would not be considered a challenge to the supremacy of another place or to the constitutional position. The noble Lord is a formidable oracle and I would not seek to contradict him.
I could not help but contain a wry smile when he and the noble Lord who sits next to him, the noble Lord, Lord Houghton of Sowerby, who must have bubbled with irritation when they themselves were Members of another place and your Lordships took a contrary view to another place, nevertheless today found themselves urging your Lordships to vote contrary to another place.
My noble friend Lord Carrington did the same, in his usual clear and forthright way. It was interesting to hear him go into the confessional and say that as a Whip, as a Leader of the House and a Leader of the Opposition he must more than anyone else have exhorted your Lordships not to vote against a government Bill which had come from another place. He had no such compunctions today. It was an interesting metamorphosis. I can only console him by saying that Churchill once said that periodically one has to make a meal of one's own words. He added that it is not an unwholesome task. I should have preferred it if my noble friend had chosen a subject other than this in which to indulge himself.
I agree with noble Lords that there is no constitutional issue here. Your Lordships are perfectly entitled—constitutionally—to vote against this Bill. It was not in the manifesto and it does not therefore fall within the ambit of the Salisbury doctrine.
The Salisbury doctrine adumbrates that where a Bill was brought to Parliament which had featured in the election manifesto of the Government of the day, it was deemed to have had the approval of the electorate and that your Lordships should not deny such a Bill a Second Reading. That principle has guided your Lordships ever since. It still does.
The Bill did not feature in the election manifesto at the last election and therefore is not subject to the Salisbury doctrine. In that way, if noble Lords should decide to vote against the Bill, which I am sure your Lordships will not, they would not be acting unconstitutionally.
1204 All I would say to your Lordships on that point is that although something may be constitutionally acceptable, it does not mean that it will therefore necessarily be politically inconsequent.
I agree with the noble Lord, Lord Irvine of Lairg, who said that this is not a question of the powers of your Lordships' House but a question of judgment. It is clear that some of your Lordships are not enamoured with the Bill. I understand the reasons for that, but I agree with my noble friend Lord Harmer-Nicholls. To those who feel that way I say, give the Bill a Second Reading. Let us have a Committee Stage and a Report Stage, and if your Lordships still do not like the Bill it can be voted upon at Third Reading.
Among the many weighty and sensitive factors upon which the House will wish to reflect before deciding which way to vote, I know that your Lordships would wish to take into account the fact that another place has, on three occasions, voted by a substantial majority in favour of the principle of the Bill—once on the report of the inquiry and twice on the Bill itself, each time on a free vote.
That is not, as the noble Lord, Lord Goodman, and my noble and learned friend Lord Hailsham said, blackmail or bullying. It is a fact. Some noble Lords may consider that to be an important factor. Some may consider it to be a factor of no consequence at all. Whatever views your Lordships may take, it is nevertheless a factor. It has happened. It has relevance. I have no doubt that the House will wish to give such weight as it considers appropriate to that factor.
The Government's case for the Bill does not rest upon that. It is that these terrible atrocities have occurred; that they were, at the time when they were committed, crimes under international law; that there is no time limit in our existing law for the prosecution of murder; that citizens of the United Kingdom can, under our present law, be liable now to prosecution for murder which they may have committed as British citizens at any time during their life anywhere in the world; and that there is evidence that there are people living in the United Kingdom who have made the United Kingdom their home, and who may have committed these murders but who are not, in this respect, accountable in law in the same way and to the same degree as are other United Kingdom citizens.
That is the case for the Bill. To those who are concerned that people will not receive a fair trial after so many years I repeat that there is nothing to prevent any judge from stopping a case from proceeding if he believes that a fair trial will be impossible. Whether there will be prosecutions if the Bill becomes law, or whether there will be convictions, are not matters for us. They are matters for the prosecuting authorities and the courts.
It is Parliament's duty to say what the law of the land should be. I suggest to your Lordships that the law of the land should apply equally to those who have come to make the United Kingdom their home as it does to those who have always been citizens of the United Kingdom. I invite your Lordships to reject my noble friend's amendment and to give the Bill a Second Reading.
§ 12 midnight
§ Lord Campbell of Alloway
My Lords, as my noble friend the Minister has truely said, all the arguments have been well rehearsed. At this time of night, and with your Lordships' leave, I do not propose to repeat any of the arguments or weary the House with any further discussion; for example, in respect of the last point taken by my noble friend the Minister and on which the noble and learned Lord the Master of the Rolls advised to the contrary. There is no object in considering the arguments further at this time of night.
I agree with the noble Lord, Lord Mishcon, that we vote according to our conscience and not assuredly as parliamentarians, whatever that may mean. The question is: do we accept the principle of the Bill? If we do not, there is no object in letting the Bill go forward to any subsequent stage. If, as we have said on two previous occasions, we do not believe that the trials should ensue it is better to say so now.
I wish to thank all noble Lords who have spoken on all sides of the argument. It has been a constructive and good-humoured discussion as is usual in your Lordships' House. The order of contribution assuredly warrants consideration with respect to another place. The messengers who helped form public opinion to which I have referred—namely, the press and television—will now have valuable material at their disposal for that purpose.
I must deal with a point taken by my noble friend Lord Harmar-Nicholls. For three reasons I hope that none of your Lordships will be taken for too long or too bumpy a ride in his home-made parliamentary vehicle. First, as I have said, we are concerned with the question of principle; whether the trials should ensue. In that context the advice of the noble and learned Lord, Lord Bridge, supported by the noble and learned Lord, Lord Simon of Glaisdale, was that there is no object in seeking to amend the Bill if your Lordships are contrary to it in principle.
Secondly, according to the consensus of opinion no constitutional issue arises. We heard the speeches of the noble Lords, Lord Carrington and Lord Windlesham, and the noble Earl, Lord Longford, who are all former Leaders of your Lordships' House. We also heard from my noble and learned friend Lord Hailsham, the noble Lord, Lord Mayhew and so on. We had a mass of expertise from noble Lords who, if we are to talk in terms of parliamentarians, must be parliamentarians.
Then one comes to the third reason before inviting your Lordships to divide. It was the advice of all those parliamentarians—former Leaders of the House, former Prime Ministers and former Lord Chancellors—that we have a duty to vote on the merits according to our individual conscience. The noble Lord, Lord Mishcon, agrees with them and with me on that matter. If we do not vote straight on this occasion what on earth are we here for? I now propose that we do just that. I ask your Lordships formally and respectfully to agree with the amendment.
§ The Lord Chancellor
My Lords, the original Question was that the Bill be now read a second 1206 time; since when an amendment has been moved to leave out all the words after "that" and to insert the words set out on the Order paper. The Question I now therefore have to put is: that this amendment be agreed to.
§ 12.5 a.m.
§ On Question, Whether the said amendment shall be agreed to?
§ Their Lordships divided: Contents, 207; Not-Contents, 74.1207
|DIVISION NO. 1|
|Ackner, L.||Elles, B.|
|Adrian, L.||Erroll of Hale, L.|
|Ailesbury, M.||Faithfull, B.|
|Aldington, L.||Falkland, V.|
|Allenby of Megiddo, V.||Foley, L.|
|Ampthill, L.||Foot, L.|
|Ardwick, L.||Fraser of Kilmorack, L.|
|Astor, V.||Gainsborough, E.|
|Balfour of Inchrye, L.||Gisborough, L.|
|Barber, L.||Glenarthur, L.|
|Belhaven and Stenton, L.||Grantchester, L.|
|Benson, L.||Greenway, L.|
|Bessborough, E,||Gridley, L.|
|Biddulph, L.||Griffiths, L|
|Birdwood, L.||Grimond, L.|
|Blake, L.||Grimthorpe, L.|
|Boardman, L.||Hailsham of Saint|
|Bonham-Carter, L.||Marylebone, L.|
|Borthwick, L.||Halsbury, E.|
|Boyd-Carpenter, L.||Hampton, L.|
|Brain, L.||Hankey, L.|
|Bridge of Harwich, L.||Harding of Petherton, L.|
|Bridges, L.||Harris of Greenwich, L.|
|Brightman, L.||Harrowby, E.|
|Brougham and Vaux, L.||Hartwell, L.|
|Buxton of Alsa, L.||Havers, L.|
|Byron, L.||Hayter, L.|
|Caldecote, V.||Hemphill, L.|
|Callaghan of Cardiff, L.||Henderson of Brompton, L.|
|Camoys, L.||Hertford, M.|
|Campbell of Alloway, L. [Teller.]||Hood, V.|
|Houghton of Sowerby, L,|
|Camrose, V.||Howie of Troon, L,|
|Carlisle of Bucklow, L.||Hutchinson of Lullington, L.|
|Carnarvon, E.||Hylton, L.|
|Carnegy of Lour, B.||Hylton-Fostcr, B.|
|Carr of Hadley, L.||Jenkin of Roding, L.|
|Carrington, L.||Jenkins of Hillhead, L.|
|Carver, L.||Johnston of Rockport, L.|
|Charteris of Amisfield, L.||Kaberry of Adel, L.|
|Clanwilliam, E.||Kearton, L.|
|Clitheroe, L.||Kennet, L.|
|Cobbold, L.||Kilmarnock, L.|
|Coleraine, L.||Kimball, L.|
|Colnbrook, L.||Kinloss, Ly.|
|Cork and Orrery, E.||Kinnaird, L.|
|Cornwallis, L.||Kinnoull, E.|
|Craigavon, V.||Kintore, E.|
|Craigmyle, L.||Kitchener, E.|
|Cranbrook, E.||Lauderdale, E.|
|Crickhowell, L.||Lindsay, E.|
|Crook, L.||Lindsey and Abingdon, E.|
|Cross, V.||Listowel, E.|
|Dacre of Glanton, L.||Liverpool, E.|
|David, B.||Lloyd-George of Dwyfor, E.|
|De L'Isle, V.||Loch, L.|
|Denman, L.||Lockwood, B.|
|Derwent, L.||London, Bp.|
|Devonshire, D.||Longford, E.|
|Dilhorne, V.||Lucas of Chilworth, L.|
|Donaldson of Kingsbridge, L.||Lyell, L.|
|Donaldson of Lymington, L.||McGregor of Durris, L.|
|Downshire, M.||Macleod of Borve, B.|
|Eden of Winton, L.||Mancroft, L.|
|Mayhew, L.||St. John of Bletso, L.|
|Merrivale, L.||Saltoun of Abernethy, Ly.|
|Mersey, V.||Seear, B.|
|Meston, L.||Seebohm, L.|
|Middleton, L.||Selkirk, E.|
|Milner of Leeds, L.||Selsdon, L.|
|Molloy, L.||Sharpies, B.|
|Monckton of Brenchley, V.||Shaughnessy, L.|
|Monkswell, L.||Sherfield, L.|
|Monson, L.||Simon of Glaisdale, L.|
|Monteagle of Brandon, L.||Slim, V.|
|Montgomery of Alamein, V.||Soper, L.|
|Morris of Castle Morris, L.||Southwark, Bp.|
|Morton of Shuna, L. [Teller.]||Stockton, E.|
|Mottistone, L.||Stodart of Leaston, L.|
|Mountevans, L.||Stoddart of Swindon, L.|
|Mountgarret, V.||Swansea, L.|
|Munster, E.||Swinton, E.|
|Nicol, B.||Taylor of Blackburn, L.|
|Norfolk, D.||Templeman, L.|
|Norrie, L.||Thomas of Swynnerton, L.|
|Northesk, E.||Thomson of Monifieth, L.|
|Ogmore, L.||Thurlow, L.|
|Onslow, E.||Tranmire, L.|
|Orr-Ewing, L.||Trenchard, V.|
|Oxford and Asquith, E.||Tryon, L.|
|Oxfuird, V.||Vaux of Harrowden, L.|
|Peel, E.||Vestey, L.|
|Pender, L.||Walston, L.|
|Perth, E.||Wamock, B.|
|Portsmouth, E.||Westbury, L.|
|Pym, L.||Wigram, L.|
|Redesdale, L.||Wilberforce, L.|
|Rees, L.||Willoughby de Broke, L.|
|Renwick, L.||Wilson of Langside, L.|
|Rochester, L.||Windlesham, L.|
|Rockley, L.||Winstanley, L.|
|Romney, E.||Woolton, E.|
|Ross of Newport, L.||Wynford, L.|
|Russell, E.||Yarborough, E.|
|St. Albans, Bp.|
|Aberdare, L.||Kagan, L.|
|Abinger, L.||Lloyd of Hampstead, L.|
|Addington, L.||Lothian, M.|
|Alexander of Tunis, E.||McAlpine of West Green L|
|Beaverbrook, L.||McColl of Dulwich, L.|
|Beloff, L.||Mcintosh of Haringey, L.|
|Belstead, L.||Mackay of Clashfem, L.|
|Birk, B.||Mackie of Benshie, L.|
|Blatch, B.||Masham of Ilton, B.|
|Blyth, L.||Mason of Barnsley, L.|
|Boston of Favershan, L.||Mills, V.|
|Bridgeman, V.||Mishcon, L.|
|Buchan, E.||Monk Bretton, L.|
|Campbell of Croy, L.||Morris of Kenwood, L.|
|Carmichael of Kelvingrove, L.||Nelson, E.|
|Clinton-Davis, L.||Park of Monmouth, B.|
|Cocks of Hartcliffe, L.||Pitt of Hampstead, L.|
|Davidson, V. [Teller.]||Radnor, E.|
|Denham, L. [Teller.]||Rea, L.|
|Elliot of Harwood, B.||Richard, L.|
|Elliott of Morpeth, L.||Ryder of Warsaw, B.|
|Ferrers, E.||St. John of Fawsley, L.|
|Fitt, L.||Saint Oswald, L.|
|Eraser of Carmyllie, L.||Serota, B.|
|Galpem, L.||Sharp of Grimsdyke, L.|
|Glenamara, L.||Strabolgi, L.|
|Goold, L.||Strange, B.|
|Graham of Edmonton, L.||Swaythling, L.|
|Gray of Contin, L.||Teviot, L.|
|Grey, E.||Thomas of Gwydir, L.|
|Hacking, L.||Tonypandy, V.|
|Haig, E.||Tweeddale, M.|
|Harmar-Nicholls, L.||Wade of chorlton, L.|
|Hesketh, L.||Weidenfeld, L.|
|Hirshfield, L.||Whaddon, L.|
|Hives, L.||Wolfson, L.|
|Jakobovits, L.||Wyatt of Weeford, L.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ House adjourned at eighteen minutes past midnight.