§ 3.9 p. m.
§ Lord Waddington
My Lords, I beg to move that this Bill be now read a second time.
The Bill before us this afternoon needs little introduction. It is the same as the one which failed to receive a Second Reading in this House on 4th June last year and has been reintroduced, after again completing its passage through another place.
Many of your Lordships know that I have been concerned with the legislation from an early stage, and that it is my personal conviction that the legislation is right. But that does not mean for one moment that I do not appreciate the strong views that have been expressed in this House against the Bill by many whose judgment I greatly respect. It now must be for each one of us to make up our minds as to what is right. All I can do now is to give the House what help I can on some of the issues raised and then also, as Leader of the House, give the House what guidance I can on some of the procedural matters which arise.
Your Lordships know the origin of the measure. In February 1988 the then Home Secretary set up an inquiry under Sir Thomas Hetherington, formerly Director of Public Prosecutions for England and Wales, and Mr. William Chalmers the former Crown Agent for Scotland, to consider allegations that some people who had committed war crimes during the Second World War had come to this country after the war and were still resident here.
The inquiry's terms of reference were to consider what substance there was in these allegations, to assess the strength of evidence that might be brought before our courts, and to advise as to whether United Kingdom law should be changed, so as to confer on our courts jurisdiction to prosecute for war crimes persons who are now British citizens, or resident here, in the same way as they would have been triable here had they been British citizens at the time.
The inquiry reported in June 1989 and it concluded that there were some people living in this country against whom there was sufficient evidence to support criminal proceedings for murder, and that further investigations might disclose the necessary evidence against others.
620 The cases they had investigated, said Sir Thomas and Mr. Chalmers, disclosed horrific instances of mass-murders; and they did not consider that the lapse of time since the offences were committed, or the age of the offender, provided sufficient reason for taking no action. Rather, they recommended that legislation should be introduced on the lines of this Bill.
I suppose that I am one of the few who has read the second unpublished part of the report. I think that I can and should say to your Lordships that histories are related, and crimes against civilian populations of appalling barbarity are described. I think that it is necessary to make this point, lest anyone outside this place still thinks that we are talking of excesses committed in the heat of battle rather than cold-blooded mass murder of defenceless civilians.
We are also, of course, talking of acts which were crimes according to the laws of all civilised nations at the time they were committed, and crimes which were war crimes according to international law as it stood at that time. Sir Thomas and Mr. Chalmers, therefore, stress the point that legislation on the lines of the Bill is not retrospective legislation in the sense of legislation which creates new criminal offences; that is, not retrospective legislation in the sense of making criminal actions which were not criminal at the time they were committed.
The Bill deals with jurisdiction, not the creation of offences, and it puts those who could be brought to trial here in no worse position than they would have been in had they been British citizens at the time, rather than people who settled in this country later.
It has also been argued by the noble Lord, Lord Mayhew, and the noble and learned Lord, Lord Shawcross, in particular, that the legislation is unjustified because a decision was made after the war that no more war crime trials should take place.
I treat with the greatest respect the views expressed by the noble Lord and the noble and learned Lord, who speak from their wealth of experience as Ministers in the Government of that day; but the inquiry which studied the records and spoke to the principal surviving participants, concluded that it could not be argued that the British Government took a positive decision not to prosecute war criminals in this country, not least because no one thought there were any here. The decision to bring to an end war crime trials in the British zone of Germany is another matter.
There is also the point made by my noble friend Lord Ferrers in answering a Starred Question the other day that, even if a decision had been made after the war not to have war crime trials in Britain, it would still be for us to decide today whether evidence now put before us, which was not available to the post-war Government, requires now a different course of action.
Some might think it odd indeed if, when we in this country have never thought in terms of murderers escaping justice because of the operation of some sort of statute of limitations, we were to decide now that a 621 particular category of murderer, a mass murderer, should be exempt from prosecution just because of the effluxion of time.
I understand those who are concerned that, after so much time has elapsed, there may not be sufficient protection for an accused person in any trial which might take place. However, in this country we are used to relying on the good sense of the prosecuting authorities when they have to decide whether or not to bring a prosecution, and the good sense of British juries when examining evidence.
Further, and most importantly, it has certainly always been the intention of the Government that the Bill should preserve intact the court' s inherent jurisdiction over the fairness of proceedings, and the right of a court to terminate a trial if unfairness to the accuses might result.
But having said that, this may be an appropriate moment to emphasise that the Bill being presented to your Lordships unchanged does not, of course, mean an unwillingness on the Government' s part to consider any amendments to improve it which this House may wish to make. Naturally, any such amendments would have to be considered by the other place where there has been, and no doubt will continue to be, a free vote.
There is then the question of whether the Bill should have been wide enough to cover Japanese war crimes or, indeed, any other war crimes not covered by the Bill. But your Lordships may think that the point to be borne in mind here is that the Bill is only before us at all because of the allegations which led to the setting up of the Hetherington and Chalmers Committee, the evidence that it revealed and the recommendations that it made.
It certainly would have been unusual if the Bill had covered crimes committed in Japanese-occupied territory, without having any recommendation from a committee charged with investigating such crimes and charged with examining the question of whether there were arty such war criminals in this country.
The position is that it has never been suggested that any Japanese war criminals did come here to settle after the war. I think that this House has almost always taken the view that one should not legislate unless there is a clear mischief to be addressed.
As to more recent war crimes, including, for instance, war crimes committed in Iraq, the position as I understand is that ever since the passing of the Geneva Conventions Act in 1957 our courts have had jurisdiction to try grave breaches of the convention, including killing and torture, wherever in the world they have been committed and whatever the nationality of the suspect. So there is no need for us to legislate to cover events in Iraq. Of course whether Iraqi war crimes trials will be held is another matter entirely and not for our Government alone.
I said at the outset that at the end of the day we all have to make up our minds as to what is right and I doubt whether it will help greatly for me to explain how I came to decide on the matter. The House will excuse me if I just say this. I understand those who argue that there is nothing to be gained by reviving public interest in these matters after all these years and 622 ventilating them in the full glare of publicity; but the difficulty I have is seeing how, now that all the evidence has been laid bare by Hetherington-Chalmers, we can somehow re-bury it. The evidence is with us, and there is no way in which we can close our eyes to it.
Of course no one would have chosen to address the 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, let alone the pasts of men who have lived peacefully in this country since before some Members of this House were even born. But sometimes one is brought face to face with facts that cannot be buried, with deeds so terrible that action has to be taken. I shall say no more on the merits of the Bill. Your Lordships know the issues; so I shall now shed my present hat and put on my hat as Leader of the House, advising the House as best I can of the procedure we should follow when the debate draws to a close.
We shall start with the vote on the Motion tabled in the name of the noble Lord, Lord Houghton of Sowerby. The Companion to the Standing Orders says that the carrying of a Motion in that form, which is intended to deny the Bill a Second Reading during the current Session, is treated as a rejection of the Bill. It follows that if your Lordships were to agree to the noble Lord' s amendment the effect would be to stop further proceedings in the House and your Lordships must assume that the way would be clear for the Speaker to certify that the provisions of Section 2 of the Parliament Act applied so that the Bill could be presented to Her Majesty for Royal Assent to be signified.
If the Motion is not carried, the Motion for the Second Reading will be put and if carried we will proceed to the Instruction in the name of my noble friend Lord Campbell of Alloway. I know the enormous interest my noble friend has taken in the Bill and nobody respects his qualifications for speaking in the debate more than I do. But as Leader of the House I have to hand on the advice that I have received that it would be most unwise for the House to approve the Motion in my noble friend's name.
The last occasion when an Instruction was tabled to extend the scope of a public Bill before this House was in 1906. The last time such an Instruction was passed was earlier than that. It was in 1899. Clearly therefore the procedure has fallen in to desuetude. It cannot be said to be out of order since it has not been ruled out of order by the Procedure Committee; but I have been advised that an Instruction is clearly not part of the current procedures of this House.
The use of Instructions to extend the scope of a Bill would have significant implications for the legislative work of the House. The procedure should surely not be revived without prior consideration by the Procedure Committee.
There is no more that I can say. I have explained why I think the Bill is right. I ask you to give it a Second Reading. I beg to move.
§ Moved, That the Bill be now read a second time.—(Lord Waddington.)623
§ 3.25 p. m.
§ Lord Houghton of Sowerby rose to move, as an amendment to the Motion that this Bill be now read a second time, to leave out ("now") and at end to insert ("this day six months").
§ The noble Lord said: My Lords, I rise with great diffidence but with a full sense of responsibility to perform the task that I have assumed this afternoon. I am sure that we are most grateful to the noble Lord the Lord Privy Seal and Leader of the House for his explanation of the Bill' s provisions and the procedural matters which arise from the Motion on the Order Paper. I came to my task this afternoon believing that what we had to consider was not so much whether we were disposed to change our minds but what action we should take in the light of the open threat made by the former Prime Minister that if we did not pass the Bill the Parliament Act 1911, as amended in 1949, would be invoked to get it on the statute book. Numerous threats of what would attend upon our refusal to pass the Bill have been made.
§ The Home Secretary, as recently as last month, in introducing the Bill a second time, while expressing the hope that your Lordships would pass it this time, said that precautions had nevertheless been taken to have the Bill ready to go through the process of the Parliament Act: it was therefore the same Bill as that which had been introduced previously and the one upon which we reached our judgment on 4th June last. Our proceedings today, I had thought, would take place in a mood of deciding where we stand in relation to the Parliament Act. I was not expecting an additional seminar on the principles and matters raised by the Bill itself upon which so many of us have reached firm conclusions.
§ My qualifications for saying something about the Parliament Act, which I shall do in a moment, may be that I remember when it was passed. It was just a week after my 13th birthday. I had already taken an active part in two general elections to get it on to the statute book. The two elections held in 1910 were both designed to obtain a mandate from the people to curtail the powers of the House of Lords, in accordance with the desires of the Government, following the serious differences which arose between the Government and your Lordships' House in 1909 and 1910. The mandate given by the electors in 1910 was dubious. The Liberal Government lost 124 seats in the House of Commons in the first election and had to hold a second election in December of the same year. They recovered only two of them. They did not have a majority to carry the Bill in the House of Commons. They relied upon 82 Irish Nationalists, who by 1918 had become 76 Sinn Feiners, and a Labour Party of 50 members—a rather uncertain start for an important Bill at that time. Nevertheless, my father was overjoyed that it had been passed. It has been confirmed and sanctified by time and disuse. Today is perhaps the most important occasion in the past 50 years when we are called upon to consider whether to stand by our own judgment and not to become subordinate to the House of Commons.
§ In an article by the political correspondent of The Times newspaper on Wednesday 24th April, I read 624 that we are losing our confidence; that if something does not happen soon, we shall be a peripheral nuisance to the Government. I ask the House to restore its self-confidence. I add my weight to the effort. That does not mean that we do not think again about the considerations which have been put before us by the Leader of the House this afternoon on the merits of the Bill. However, we have all gone through anguish over the matter. We have argued it out; we searched our conscience and our convictions before reaching the opinion that we did on 4th June.
§ The 4th June was not the first occasion upon which your Lordships' House had made its views clear. There was a trial run on 1st May last year on the Law Reform (Miscellaneous Provisions) (Scotland) Bill, on an amendment moved by the noble Lord, Lord Campbell of Alloway, to exclude from the scope of that Bill any matters relating to war crimes. There was the warning to the Government. On 4th June they had it confirmed in a most emphatic way.
§ No olive branches have been extended to your Lordships, no overtures have been made by the Government about reaching a mutual agreement. In years gone by, on all the disagreements we have had with the Commons—and there have been many—we have either come to an accommodation with the Commons or they have wisely agreed that we were right.
§ Take, for example, the disagreement that arose over the abolition of the GLC. A Bill was brought before us to end the term of office of the elected members of the GLC a year before the statutory limit. It was brought forward in order to make way for nominee members of the council put there by the London boroughs in order to conclude the final year of the council' s existence in a spirit of co-operation with the Government instead of being awkward, as they expected Mr. Ken Livingstone to be. We rejected that. We would not wear it. We thought it was quite outrageous that Parliament should bring to an end an elected representative body and replace it for a final year by stooges elected by London boroughs instead of the great majesty of the Greater London Council. The Government never returned with that. If they had done so, this occasion may well have taken place then.
§ We have been accommodating. We have always had regard on all matters to the supremacy of the elected Chamber. Nothing that we can do can stop the Government getting this Bill on to the statute book by the procedures which the Leader of the House has outlined. The Government have a straight course to the Crown. The conditions which would enable them to do that are clearly set out in Section 2 of the Parliament Act 1911. As the Leader of the House said, if we accept this amendment it could be construed as a rejection, and the Government could act accordingly.
§ We cannot therefore stop the Government in their tracks on the Bill. Nor should we try to do so. I hope that we are establishing this afternoon the right to have a mind of our own, firmly fixed in deep convictions on the principles of the matter before us. We are entitled to hold to it. As one privy counsellor said in the debate in the House of Commons the other 625 day, no one can criticise the House of Lords for exercising the powers which Parliament has given to it. That is what we can do this afternoon. We can tell the Commons, with great respect, that we cannot change our minds on the merits or demerits of the Bill before us. I do not enlarge upon what they are. It would be superfluous for me to begin to examine them again although I believe that the noble Lord the Leader of the House was fully justified in laying them all before us.
§ So the difference between us today is on procedure. Do we hold to the opinion we have expressed and keep our honour and integrity? Or do we subordinate our view to that of the Commons for parliamentary, political or any other reasons that we may feel are relevant to the situation. I do not believe that any of them are relevant. I feel more strongly today than I did on 4th June that to go along this path will lead to acute dismay, disappointment and probably controversy.
§ Two events have happened since 4th June which weigh with me very heavily indeed. The first is that in Australia and Canada, the first attempts have been made to do what we are asked to undertake today. They have led to frustration, futility and fiasco. My opinion, expressed in the last debate on the Bill, was that we were on the path to a fiasco. I believe that that is now so.
§ I circulated a few details about the state of play in Canada and Australia on the two cases. There is no encouragement there. I put it no higher than that. There have been no convictions. We must consider whether we are being asked to apply all the majesty of the law, at great cost to the nation, in order to punish the last dregs of the war criminals whose sins were hideous and horrendous. But what do we achieve? What more can we say about war crimes that we have not already said? How does it profit us to pursue them further?
§ The second reason which weighs heavily with me is that since we had the Second Reading of the Bill last time there has been an entirely new dimension of war crimes, war devastation, cruelty and perfidy. We have witnessed turmoil in the world such as we have not had for many years. Loud noises were made about bringing the war criminals to book at the beginning of the dispute. That is not in the terms of the ceasefire; only reparations are included—not criminal charges. If there are to be criminal proceedings against those who perpetrated the more recent criminal acts in the world, we ought to begin there. If the head of the state of Iraq Is to continue in his illustrious position, wield power in the world, sit at the conference table and be regarded as part of the machinery of establishing the peace, it will be an astonishing outcome. Yet it may well happen. There is nothing that I can see that will remove him, if his own people will not.
§ Finally, it is about time that we handed over responsibility to a United Nations that seems more willing to accept it and to bring this whole question of the waging of war, the laws of war and the criminality that may arise within the compass of the United Nations. Meantime, starvation, misery and the curse of dictatorship are still across the world. Leave those crimes wide and we find that we go to Russia for other 626 crimes and to Turkey for others as regards the Armenians. One can go anywhere and find war crimes. They are littered about the world and throughout history within the range of the criminal acts that we are dealing with this afternoon. We must stick to our principles and not be ashamed of them. We must not bend before any influence to desert those principles. We are entitled to our position and we should use it. We should be respected as having minds of our own. We must stress that we are not impeding the process of government but doing what the law enables us to do; and in our wisdom and in our conviction we shall do that.
§ Moved, as an amendment to the Motion that this Bill be now read a second time to leave out ("now") and at end to insert ("this day six months").—(Lord Houghton of Sowerby.)
§ The Chairman of Committees (Lord Aberdare)
My Lords, the original question was that this Bill be now read a second time, since when an amendment has been moved to leave out ("now") and at end to insert ("this day six months"). The Question I now therefore have to put is that this amendment be agreed to.
§ 3. 40 p. m.
§ Lord Campbell of Alloway had given notice of his intention to move, That it be an instruction to the Committee of the Whole House that they have power to extend the Bill to confer jurisdiction on United Kingdom courts in respect of certain grave violations of the laws and customs of war and crimes against humanity committed against United Kingdom subjects in Japanese-held territory during the Second World War and in Iraqi-held territory between 1st July 1990 and 12th March 1991; and to afford safeguards to seek to ensure fair trials.
§ The noble Lord said: My Lords, this is a consolidated debate. I wish first to speak to the amendment which has been moved by the noble Lord, Lord Houghton of Sowerby. I support the amendment. Secondly, I shall speak to the Motion which stands in my name. But before doing so, I wish to explain to your Lordships my reservation about the suggestion that my Motion was unwise. The Motion has been accepted by the Clerks of the Table as being in order. It is in order in accordance with an extant but ancient procedure to enlarge the scope of a single purpose Bill, which unlike other Bills cannot be amended by enlargement of the Title in Committee. It is for your Lordships to decide whether resort should be had to that procedure.
§ It is for your Lordships' House to regulate its own procedure on recommendations from the Procedure Committee, which has not as yet been consulted. I say respectfully to my noble friend the Leader of the House that it is premature to stigmatise the Motion as unwise. The Motion was not tabled to serve either as a soft option compromise on matters of conviction or as a sop to expediency. It was not tabled as the basis for some kind of pretended assent to a Second Reading for such reasons as were canvassed by my 627 noble friend the Leader of the House—I shall deal with those in due course—or indeed for any other reason.
§ When this Motion was tabled it was known assuredly that the Second Reading of this Bill would be opposed, but by a noble Lord other than myself on this occasion. As for the amendment, noble Lords who wish these trials to ensue will reject the amendment and give the Bill a Second Reading. Their view is entirely understood and it is wholly respected. Noble Lords who take a view different from mine know that it is not a trite forensic comment when I say that their view is truly respected. However, what is not understood is the suggestion that noble Lords who are opposed to the Bill and to the trials should give a kind of pretended assent to a Second Reading which enables the trials to ensue.
§ It is said that the Bill will go to another place, so why should we not assent. However, that begs the hypothesis. It also begs the essential moral issue to which the noble Lord, Lord Houghton of Sowerby, spoke in a truly remarkable speech which I shall not, of course, be able to emulate. It is said that if we do not give our assent we shall invite imposed reform. But the question of imposed reform simply does not arise. There is no challenge to the supremacy of the elected Chamber which has assured its entitlement, albeit on a massive abstention of 465 votes; that is, less than 40 per cent. of another place was in favour of the measure.
§ I am trying to deal with the arguments that have been put forward. It is said that if we do not give our assent certain procedural amendments governing the conduct of these trials may not be introduced; but the draft of these amendments, with a note on drafting, was submitted to the Government before the procedural Motion and the Second Reading occurred in another place and was rejected by the Government. The Bill has been returned to us without amendment.
§ The reality of this situation, whatever my noble friend the Leader of the House may say about consideration in due course, is that these amendments, to which he referred and which inevitably inhibit the prospects of conviction, will never be acceptable to government. If government were minded to accept such amendments they could have been incorporated in the Bill in another place or sent to us as suggested amendments, thus retaining the right to have the Bill as it stands—if they so wished—under the Parliament Acts. That would be in accordance with a procedure that was adopted when the noble Lord, Lord Shepherd, was the Leader of your Lordships' House. Or the amendments could be introduced—if this were a serious suggestion on the part of my noble friend—as government amendments in Committee. Naturally, no such assurance has been given. If there were any viable prospect that any such amendments would be acceptable to government surely they would have been tabled for your Lordships' consideration today. But they have not, so to what end and to what purpose shall we continue to toil on a Bill which to the majority of your Lordships is repugnant in principle?628
§ Imposed reform is that ghost which stalks the corridors of this ancient Chamber to strike terror into certain noble Lords either to induce them to abstain or even to vote for the Bill. If that is the case, that mischievous imp, or wimp of an imp, can do no service to the credibility of your Lordships' House. For this is a single purpose Bill. It is a Bill of limited incidence concerning the trial of a handful of men. Neither the governance of the realm nor any matter of general constitutional import is at stake such as could conceivably engender any obligation on the part of any noble Lord to assent against his conscience for the sake of comity. At the invitation of the Government we have a free vote. Another place has ensured its entitlement to the Bill as it stands. It is idle to talk about conflict and confrontation in a circumstance such as this. Another place has the Bill.
§ It is idle to rehearse the arguments. I agree, respectfully, with the noble Lord, Lord Houghton of Sowerby. What is the object of going back over the arguments? My noble friend the Leader of the House made certain assertions when he introduced the Bill. I shall not repeat the counter assertions. We have discussed this matter on three previous occasions, and it is idle to rehearse or rehash the arguments. I merely point to the fact that the assertions made by my noble friend the Leader of the House are not common ground.
§ It comes to this. Noble Lords to whom these belated, selective trials on stale evidence are anathema and hateful, for whom they offend belief and strike so deep into the roots of reason or the dictates of conscience, will surely not associate themselves with the complicity of some pretended assent to a Second Reading. That is an obvious dissemblance. Surely we can say to another place with the freedom of truth, honour, and courtesy, "Have your Bill but without our assent".
§ Cabinet papers show that the book was closed on these extermination camp trials in the wake of Nuremberg. In the Nuremberg trials, held so soon after the event, one third of those impleaded—on what my noble friend the Leader of the House referred to as evidence assessed as sound and safe to support a conviction—were acquitted. According to those in the saddle of government at that time, whose names are down to speak—the noble and learned Lord, Lord Shawcross, and the noble Lord, Lord Mayhew—who know about these things (whereas most of us do not) that book was closed to end trials, to wind-up the process of retribution against known suspects and to call off the hunt. Fifty years on what more may be said?
§ As to the Motion which stands in my name—which may be of only academic interest because the hope is that your Lordships will support the amendment moved by the noble Lord, Lord Houghton of Sowerby—the proposed enlargement seeks to take into account war crimes and crimes against humanity committed under Japanese occupation in the Second World War, on which noble Lords have spoken on previous occasions in these debates, and the dimension of recent events in the Gulf and Iraq. That is not an entirely new dimension. One thinks back to 629 the Armenian massacre, to Tibet and the sad history of man' s ultimate inhumanity to man—to genocide, wherever committed, in the course of history.
§ The amendment would render the Bill less selective and more relevant to the world in which we live. It is accepted that, the Bill having been given a Second Reading, trials for crimes committed under German occupation shall ensue. There is no amendment to that provision. Jurisdiction for those trials is to be founded on subsequent allegiance or United Kingdom residence, notwithstanding all the objections that have been raised the past. For the proposed enlargement jurisdiction is based on a different concept; namely, conduct against victims who are Her Majesty' s subjects. The enlarged jurisdiction would arise only if the Attorney-General consented and the accused was present for trial and had not been impleaded in any other state. Safeguards to seek to ensure a fair trial would be introduced to govern the extended scope of the Bill.
§ There is a long list of speakers. With the leave of your Lordships, if the need arises, perhaps I may return to raise another point or two in connection with my Motion.
§ In conclusion, perhaps I may respectfully say that there is no assurance from the Government as to the acceptance of any amendment. There is no viable prospect that any amendments would be accepted by the Government. The rope around the neck of our advisory role has been tightened with a tourniquet to ensure the entitlement of another place to the Bill as it stands. Our delaying power, duly exercised, is spent, to no avail. Why should noble Lords opposed to the Bill pretend on a free vote to consent to a Second Reading? My Lords, enough is enough. Let us have done with it.
§ 3. 58 p m.
§ Lord Mishcon
My Lords, I rise before this very full House in order to make my position clear from the start. I stand at the Dispatch Box speaking personally, expressing my own view and having no power other than to make a recommendation most respectfully to the House and especially to noble friends who sit behind me.
There are two requests which we ought to make. The first is that the debate is conducted as we normally conduct our debates, with respect for each other' s point of view. The second is that nothing should be allowed to cheapen one of the darkest chapters of the world' s history in which millions suffered, not least millions of my own people.
I incend to be brief out of consideration for the many speakers who follow me. I wonder whether those speakers intend to go over old ground and old arguments. I should not have thought that that was a worthwhile expenditure of your Lordships' time. We have heard the arguments. They have been recited again in part by the noble Lord, Lord Campbell, who talked for example of Cabinet records. I shall make only one brief reply. I could quote a whole speech by the Minister of State at the Home Office as recently as 630 18th March in the other place. He called for research to be done. There was no such record at all and no such decision was ever taken.
§ Lord Campbell of Alloway
My Lords, I am much obliged. The noble Lord is mistaken. The noble Earl, Lord Ferrers, kindly sent me, at my request, publicly expressed in the House, a copy of the Cabinet records. I was quoting from them.
§ Lord Mishcon
My Lords, is the noble Lord saying that a Cabinet record was produced to him which referred to the cessation of any trials in the United Kingdom? That was my impression of what he said. I have no doubt that I am right in saying that there is no such record. The noble Lord the Leader of the House nods his head in assent. Those words are used for the purpose of Hansard.
I turn at once to what I think is the issue here. We had our debates in our usual way. We respected each other' s opinions. We voted in a different way from the other place. If I remember correctly, there were three debates in our House. There were six debates in the other place.
I listened with great respect, as I always do, to the noble Lord, Lord Houghton of Sowerby. On the last occasion when we debated the matter, the noble Lord, Lord Home of the Hirsel, said in an appealing way: old men forget. He could not have been thinking of the noble Lord, Lord Houghton. Addressing the House without a note, as he always does, with an eloquence that is quite remarkable and with a memory of events that occurred even when he was at a tender age in his teens, he recalled clearly the reactions to the Parliament Act and many other such matters.
However, is not the kernel issue, negating what the noble Lords, Lord Campbell and Lord Houghton, said, our relationship with the other place? What is the position of your Lordships' House? Is it cowardly, as was suggested, and is it giving in to an open threat? This is an issue of judgment. It is an issue of principle in regard to whether or not certain events should be forgotten or brought before our courts, if a Director of Public Prosecutions thinks that it is right to do so. We all have faith in our judges and in the integrity of the Director of Public Prosecutions.
But the issue is this. The elected House, voted by the people of this country, having listened to all that your Lordships had to say, having seen the vote of your Lordships and having read the speeches—and they were quoted—concluded by 254 votes to 88 that the Bill should have a Second Reading. I reiterate: the other place considered it six times. Is it right that we, trying to serve our country as we do in this place and with a great tradition behind us, should stand up and, talking about open threats from the Commons, say, "We shall not give in to open threats. We shall throw out the Bill which has twice passed through the Commons"? Is that the job of this House? Is that the duty of this House or are we, as we have always said, the revising Chamber. Yet we try to deprive ourselves of the very power to revise.
The noble Lords, Lord Houghton and Lord Campbell of Alloway, say, "Let us throw this out at Second Reading and throw it back in the face of the 631 other place. We are not going to try to amend by giving this a Second Reading, whether we agree with the principle or not, as we do so many times". According to the Salisbury doctrine, we do not throw out a Second Reading even if we object to the Bill. My noble friends have had sufficient opportunity to look at Bills that they hate the sight of. But we pass them at Second Reading and try to revise them.
I conclude with a recommendation to my noble friends. We have debated the matter. The other place has debated it. The elected representatives of the people voted by a large majority. Let us not in this Chamber for heaven' s sake refer to abstentions and absent Members; we should get a very bad press if we did. With all due respect to him, my recommendation is that the resolution put forward by the noble Lord, Lord Houghton, should be defeated. So should the resolution that will be put to the House in due course by the noble Lord, Lord Campbell of Alloway, if your Lordships give the Bill a Second Reading.
How odd it is that the noble Lord, Lord Campbell of Alloway, should talk about Japan when he knows perfectly well that not one instance of a Japanese war criminal who is resident in this country or who has taken citizenship of this country is known to us. With regard to his reference to Saddam Hussein, do we want the message to go to him at this of all times that the House and our Parliament say that if you manage to cheat the immigration authorities and, even though you have murdered, you remain unknown but suddenly are discovered, Parliament says that you escape? Is the advice, "If you do those things, try to go to a country where you will not be justly tried" to be our contribution to history?
§ 4. 8 p. m.
§ Lord Jenkins of Hillhead
My Lords, I have not previously spoken in this series of debates and I have not previously applied myself closely to the issue. I voted against the Bill last year. I did so without much doubt, but, to be honest, without much grasp of detail either. Coming afresh to the subject and having read through all the relevant debates in both Houses, I am left bewildered. I simply cannot understand what force drives the Government on.
How did it arise that it was decided to reverse what had been settled policy since the doctrine of "enough is enough" was promulgated by Attlee and Bevin, and supported with verbal vividness by Churchill when he spoke about drawing a sponge across the crimes and horrors of the past? It is now suggested that a different view would have been taken by all those three had they known that a few war criminals were living in this country or might come to live here. I find that implausible, to say the least. Why it should be thought that those statesmen would have abandoned magnanimity on the continent, where clearly the great majority of the evil doers were living, had they known that a few might be in Britain, I cannot imagine.
It would only begin to make sense to pursue the lesser rather than the greater evil had it been thought that the war criminals in this country might repeat their crimes here. That already looked unlikely in 1948 632 and was simply inconceivable in 1988. So I regard it as incontestable that there was a settled and bipartisan policy for four decades which was overturned in 1988. It was apparently done on the basis of a list of 17 names which grew to 300 and then, somewhat mysteriously, shrank to three, which was supplied by an institute in Los Angeles. That was fortified by a subsequent report of the Hetherington-Chalmers inquiry.
I feel that that inquiry has been given an authority wider than was intended, or than those who carried it out would have wished it to have. It was composed of two skilled and experienced prosecutors. It was a good body for advising on the technical feasibility of a prosecution and perhaps on the likelihood of a conviction, though some most brilliant lawyers have occasionally been wrong on that latter point. But it was not a body of a breadth which would be sought if the question at issue were whether the combined wisdom of Churchill, Attlee and Bevin was to be set aside. Yet that is almost the import with which its conclusions have come to be invested.
On that basis, a government Bill was presented to the House of Commons and carried by a large majority on a free vote. It was then met in your Lordships' House by a combination of intellectual weight, legal distinction and practical experience of government at the highest level, such as has rarely been assembled. The two debates of 4th December 1989 and 4th June 1990 taken together constitute one of the most powerful waves of argument that I have ever heard deployed. I can say that without embarrassment because, alas, I took no part in either debate. Not only were the arguments of merit touching upon the integrity of British justice advanced; the constitutional point, showing how far this Bill was outside the Salisbury doctrine, was advanced with great force by the noble Lords, Lord Carrington and Lord Callaghan, and by the noble and learned Lord, Lord Hailsham. The noble Lord, Lord Home, added his voice in the earlier debate.
I would not say exactly that all this had no effect on the other House. The arguments of this House give the impression of having brooded over the Commons' Second Reading debate this year, not so much changing votes as unsettling minds. The most remarkable example was the speech of Mr. Hattersley. He showed himself sensitive to, and indeed persuaded by, the arguments of your Lordships, but then announced that he would vote for the Bill for declaratory reasons and lest it be misunderstood if he did not.
That strikes me as a very odd attitude to legislation, and particularly legislation which the Government preclude themselves from amending because they wish to claim the protection of the Parliament Act. I do not know how many Members of the other place may have cast an equally schizophrenic vote as Mr. Hattersley, but as Deputy Leader of the Opposition he must be regarded as having some influence. But what I think is even more odd is what I would call the quiet decision of the Government. It could hardly be one taken with fanfares when the Prime Minister voted on the other side.
633 But the Bill is suitable to be only the fourth measure over a span of 80 years to pass under the provisions of the 1911 statute, as amended in 1949, but never once since used. As noble Lords will know, the other three measures were the Home Rule Bill and the Welsh Church Disestablishment Bill, which began their particular courses in 1912, and the second Parliament Bill itself. Those were all major controversial measures which had been argued about in the centre of politics for years, even decades, previously. They were exactly the kind of measures which the Parliament Act, highly controversial at the time but since secured from any serious thought of repeal, was designed to protect.
The essence of the Parliament Act—whose origins and passage I wrote of in one of my first books, now 37 years ago—in my view, was to put a safety spring into the Constitution and to enable us to enjoy the benefits (in my view, great benefits) of bicameralism and even the anomalies of your Lordships' House without life being made absolutely intolerable for Liberal or Labour governments.
It was to give occasional relief—very rarely indeed was it used—to such governments from the handicap that a largely hereditary Chamber almost necessarily has a built-in Conservative majority on what one may call the major conventional party political issues of the day. That is the reason why a Conservative Government until now have not used the Parliament Act. If I may say so, it is not because their arguments were more persuasive than those of more Left Wing governments or even that their Bills were conceived with more wisdom; it was because the built-in majority existed and still exists, even, for example, on the poll tax.
But the built-in majority is not at all a problem in relation to this Bill. The problem is that a minor measure in political terms, nevertheless with a major capacity for inflicting damage on the reputation of our legal system, a measure never discussed before the electorate, dividing the highest ranks in the Government, as indeed in the Opposition, too, nonetheless supported in the Division Lobbies, even if perhaps not with equal conviction in argument in the other place, fails on a completely non-party basis to secure the agreement of the great majority of your Lordships' House. The majority has been fortified by the overwhelming preponderance on that side of both those most learned in the law and those who have held the highest offices of state. I think that the use of the Parliament Act in these circumstances is a constitutional monstrosity
If anyone had tried to advocate the need for that Act in 1911 or 1949, in terms of a measure such as this Bill, he would not have begun to be taken seriously in either House of Parliament.
My mind goes back to a time when, as Home Secretary, I was easing the passage of some of the legislation of the 1960s. They were mostly liberalising measures. However, one, majority verdicts in criminal trials, was a toughening measure. Those were not manifesto commitments. They were not unanimously supported in the Government. However, they went through the House of Commons with substantial cross-party majorities. But I remember the tension 634 with which I waited to see what the noble Lords of those days would do to the legislation. It never occurred to me to think: Oh, the Lords don't matter. We can pass the measures under the Parliament Act next year. They were not measures suitable for the Parliament Act. The Bill being debated today is still less so.
It may be said that whether or not the Parliament Act is used depends on what we do and how we vote today; we can always escape it. Yes, of course, we can. We can do so by turning round like squirrels in a cage, not because of a new conviction—I do not believe that there is a single noble Lord among last year's majority who now believes that the Bill has, on its merits, become less objectionable—but because we choose to disguise our impotence. But that would be at the price of making a mockery of bicameralism and of inflicting, with great judges themselves a party to it, a serious and unnecessary stain on British justice. I hope that we shall do no such thing.
I conclude with one brief point on the merits, or demerits, of the Bill. I speak entirely as a layman in relation to the law, but as a layman who has twice had responsibility for dealing with alleged miscarriages of justice. A high proportion of the most difficult cases related to verdicts which had turned on identification. That led me to set up the Devlin Committee of 1974 which improved the position, but also pointed out the inherent uncertainty involved, even when dealing within a timescale of a few months or a year.
It also led me to refuse, although under great pressure, to have a full rehearing of another case—that of James Hanratty, who had been hanged in 1962. It was a case which turned on identification. I could not convince myself that one would get nearer to the truth on identification after a substantial lapse of time after the event. In that case 10 or 12 years had gone by.
If the Bill becomes law, either there will be no cases—in which event the controversy will have been a sad little farce which makes its unflagging pursuit by the Government so mystifying—or cases will have to turn on identification evidence not 10 or 12 years on but nearer 50 than 40 years on. I cannot believe that that would assist the cause or the reputation of justice.
§ 4. 24 p. m.
§ The Lord Bishop of Southwark
My Lords, it is not within my competence by many miles to follow such a powerful speech as that made by the noble Lord, Lord Jenkins, on the constitutional issue. I should like to turn attention towards another area of debate which has not been much rehearsed so far.
On an earlier occasion, the noble Lord, Lord Houghton of Sowerby, congratulated the noble Earl, Lord Longford, on mentioning forgiveness and chided the Bench of Bishops for not doing so. Of our previous debate, he said:There has been no philosophy. There has been little religion"—[Official Report, 4/6/90; col. 1131]Let me therefore say at the outset that forgiveness is central to my understanding of the Christian faith and indeed to the way in which God deals with each of us, whatever our faith. It is therefore central to the way in which we should try to deal with each other in our 635 personal relationships. But it cannot be a substitute for the rule of law in a country or a community. Nothing in the teaching of Jesus Christ suggests that the place of law is redundant. What can and must be said is that we should always strive to be merciful and compassionate to those found guilty under the law as God is merciful in his dealings with us. The desire for vengeance must never be the reason for bringing people to justice. Punishment declares the community's abhorrence of the crime but should also point to restitution. Of course in that context it follows that the administration of justice must always be as fair as we can possibly make it.
I do not believe therefore that one can deal with the issues presented by the Bill simply in terms of forgiveness versus punishment. As the Leader of the House emphasised, the fact that war crime trials were abandoned by this country in 1948 does not quite settle the matter. Those against whom the Bill is aimed may indeed be very old by now but the crime remains. There is no statute of limitations on any kind of murder in this country or elsewhere. I have to say that there is no religious ground for arguing for one in this case. There are of course many substantial and practical reasons for doubting whether it would be possible to prosecute successfully, apart from the one or two cases on which the Hetherington-Chalmers Report seems to rest its case so confidently.
However, reading once again the reports of the debates in your Lordships' House and in another place there is no doubt that many people are deeply offended by the suggestion that serious, horrific crime can in any sense be overlooked because of the passage of time. The question of forgiveness or mercy may properly arise after a person has been found guilty, when considerations of age or infirmity will have to be taken into account. But those considerations belong at that point in the process and not earlier. I believe that it does not demonstrate a lack of theology or compassion to make that point.
Your Lordships are well aware of the depths of emotion running once again beneath the surface of this debate as we struggle to find the right way to respond to the issues raised by the Bill and to cope with the constitutional question that is also presented to us. On the one hand, there is insistence that something must be done and seen to be done in the name of justice for those who died and for the sake of generations to come; and, on the other hand, there is profound and cogently argued doubts that this is the right way to do that.
I have talked to people, as have other noble Lords, who feel passionately that no good will come from mounting this kind of trial. There are doubts about the legal nature of the offence with which people may be charged since the crimes were more to do with cold-blooded extermination of large numbers of people on racial grounds than with war crimes.
There are the widespread difficulties in obtaining a fair trial, of which we may hear much again today. There is the well-founded resistance to retrospective legislation. Others are much more competent to speak of that than I. But I have also been talking to those 636 who feel, with equal if not greater passion, that the horrendous nature of these crimes cannot be just put aside by technicalities, as they see it, which was an argument put once again today most movingly by the noble Lord, Lord Mishcon.
As a Christian minister I can only plead for resolute attention to the facts in the midst of our emotions if we are to resolve this matter graciously enough to avoid further division and to provide a basis on which more recent crimes against humanity can also be brought to some kind of court, as the noble Lords, Lord Houghton and Lord Campbell of Alloway, are proposing.
The first fact which strikes me is that the matter has come to a head partly because of persistent research which has revealed that some major war-time criminals actually escaped the Nuremberg courts and are resident in this and other countries. If we now do nothing, will the problem go away? I doubt it. It is important to recognise that the mood has changed since 1948—even I am old enough to remember that—partly because we are now much more aware of the sheer extent of crimes against humanity and of the way in which they are still occurring in many places today. Many people now believe that it is essential to declare our abhorrence of such crimes in more than words. Clearly, trials, even of people in their 70s and 80s, seem to be a way of doing that. I would differ very hesitantly with the noble Lord, Lord Jenkins, in saying that I do not think this shift of mood has been sufficiently recognised in some of what he said.
The second fact is that we are forced to debate the possibility of holding a fair trial with one hand tied behind our back, so to speak. Most of the noble and learned Lords in this Chamber said earlier, and I have no doubt some will say it again today, that it is no longer possible to hold a fair trial. The Hetherington-Chalmers Report, written by two distinguished lawyers, suggests that it will be possible in those cases they have researched if this legislation is passed, and the full weight of government has been placed behind that conviction.
At the end of the day, how shall we know until and unless a case has been brought? As has been said, the evidence from Canada and elsewhere suggests clearly that it is unlikely to succeed. Where will that leave us? All this puts us in an acutely difficult position when trying to vote wisely.
If we are genuinely concerned with morality, as I know we are, we need to remind ourselves how easy it is to focus moral outrage on the past as a means of avoiding in part what needs to be done in the present. Crimes against humanity continue unabated throughout the world. I wish that it were not so. What are we doing about those? What can be done?
There is a need for an international court, working within an extended corpus of international law, before which mass murderers, among others, can be brought. That must be the long-term aim to which I believe some of the popular support for this Bill in another place is probably pointing, rather than just trying to extend the jurisdiction of United Kingdom courts in this case.
637 In the short term, something has to be done about the handful of cases still extant and now before us. I still believe that extradition, not retrospective legislation and trial in a different country, creates fewer difficulties provided that there are safeguards of the kind I tried to suggest last June.
If we pass this Bill, I should like to ask the noble Leader of the House whether it would be possible to revise it in such a way as to make such a course of action possible. Are the objections to extradition really so much greater than those which attach to this course of action?
I shall listen to your Lordships with great care once again as I struggle to decide how best to vote, because I believe that the purpose of a debate of this kind is to help us to make up our minds. I am still struggling, as are many others, with the enormous difficulty of doing that in what I believe to be a just and realistic way.
§ 4. 36 p. m.
§ Lord Hailsham of Saint Marylebone
My Lords, I have been a Member of one or other of the Houses of Parliament since 1938, and I have never addressed myself to a debate with more reluctance or with more sadness. I happen to agree with the noble Lord, Lord Jenkins of Hillhead, that it would be extremely wrong-minded of another place to exercise its rights under the Parliament Act. I shall come back to that point very shortly.
There cannot be a constitutional issue for this House Since the Parliament Acts have been passed it must surely be the duty of this House to vote in accordance with its conscience. Not to vote in accordance with its conscience just because other people with greater legal powers than ourselves take a different view would be to vote against our conscience, which is the voice of God, in order to please man.
Having said that, I come back to the merits of the Bill. As your Lordships have been reminded, this is not the first time that the issue has come before your Lordships' House. On the two occasions that I remember most clearly your Lordships' House decided by an overwhelming majority that this was a bad and irremedial measure, and although I heard my noble friend the Leader of the House say—I doubt not with complete sincerity—that he would consider any amendments put forward if there were a Committee stage, the reality is that the Bill is unamendable, as everybody knows. It is too late now to talk about amendments. Either the Bill is wrong in principle or right in principle. If it is right in principle the Second Reading is the right course and amendments can be proposed, but if it is wrong in principle and cannot be amended, it is a waste of time to say that amendments will be considered if they are put forward.
The weight of opinion against the merits of the Bill was well summarised by the noble Lord, Lord Jenkins of Hillhead. The noble and learned Lord, Lord Shawcross, whom we are all anxious to hear, has said that it would be an indelible stain on British justice if it were passed. The noble Lord, Lord Mayhew, now speaking from the Liberal Benches but then a junior Labour Minister, testified to the decision deliberately arrived at by the international community and by all 638 parties in the House of Commons that the book should be closed at the end of the Nuremberg trials. With great respect to my two noble friends on the Front Bench, one does not have to delve into Cabinet minutes such as have been disclosed in order to know that. I was a Member of the House of Commons at the time and I know that not a single person in that House but supposed that the book would be closed at the end of the Nuremberg trials. No one suggested it, and it was universally believed. Therefore, that must be a bad point.
The objections to the Bill can be summarised, first, on the grounds that it is retrospective. My noble friend the Leader of the House, choosing his words carefully but with complete accuracy, may have believed that it does not create a new offence and that what is alleged against these people, if any such still exist, is against international law. It is an offence against English law to commit murder or manslaughter and there is no statute of limitations. All those are indubitable contentions.
However, the whole Bill is retrospective. There is not a clause, subsection or schedule which is not retrospective. If it were otherwise, there would be no need for a Bill at all. The British courts have no jurisdiction to try these people for what they did in what is now Soviet but was then German occupied territory. The whole procedure provided for in the schedule, which messes up our law of committal, is retrospective in its effect. Therefore, the Bill is retrospective in its essence and is discriminatory in the respects which have already been announced.
If that were all, I should regard this Bill as objectionable. Of course, on previous occasions we were treated to a number of speeches by a galaxy of Law Lords—and I know that my noble and learned friends on the Cross Benches will forgive me for so referring to them—explaining why in their opinion, as it was also mine for what it was worth, it is impossible to guarantee a fair trial for the proposed defendants; that is, partly because it would be totally impossible to charge their own memories after so long a delay but also because it would be totally impossible to identify or compel the attendance of potential defence witnesses.
It is perfectly true that there is no statute of limitations in respect of crimes. I know of no case in English jurisprudence—though I stand to be corrected in this company—where a serious crime of homicide has been tried longer than 27 years after the event. That was a domestic crime. There may be some but I do not know of them. No doubt the reason is that they could not be effectively prosecuted. There is no statute of limitations but the possibility of a fair trial is precisely what is at issue.
The noble Lord, Lord Houghton of Sowerby, referred to the Australian and Canadian experiences of such legislation. One case was in Canada. It took eight months to try. The judge summed up for a week and the jury acquitted without the defendant being able to go into the witness box. Then, by some curious quirk of the patriated Canadian constitution, there 639 were parallel proceedings to demand a new trial by those demanding vengeance. That is not a very happy experience of this legislation.
One case was heard in Australia. The old gentleman—if those are the right words to apply to a person who is not proven to be guilty—who was in the dock was found to be unfit to plead because of his state of health. At any rate, that was the only issue tried. Those proceedings ran into the sands and have never been determined at all. In parallel, a new set of proceedings was instituted under some quirk of the Australian constitution to prove that the whole legislation was ultra vires the Australian Act. That is not a very happy precedent in this context.
I return to the fact that no case has been put forward for the Bill which was not put forward on the two or three previous occasions when the proposals were under consideration. So what? The first thing to remember is that the Parliament Act was never passed for this sort of purpose at all. The noble Lord, Lord Jenkins of Hillhead, made that point and I shall not labour it. In 1911 or 1949 the idea that a case of this kind should be brought forward would have been treated with ridicule and contempt. That is the first thing which one is bound to say.
Secondly, it is a free vote of the House. I do not know whether my noble friend, for whom I have the deepest respect, has ever thought of this point. Is it not rather hypocritical to say, "You may vote as your conscience dictates. Indeed, it is your duty to do so. However, it will only count if you vote in a particular way"? Remember that that applies not only to the Second Reading but also to the Committee stage because under the terms of the Parliament Act the Bill must go through unaltered except by such amendments as the House of Commons approves. That is not much of a free vote.
That brings me back to my starting point. The Parliament Act freed the House of Lords to express its opinions on the merits of legislation on Second Reading as well as in Committee. It did that by securing the power of the Commons to assert its supremacy if it chose to use it and if it thought it was within its conscience to do so. If the Commons must do that against the opinion of the noble Lord, Lord Jenkins of Hillhead, and for what it is worth my own, let it do that. However, let the Commons not ask us to go against our consciences by saying to be true and right what we believe to be untrue and wrong.
I end on this note. To suggest the contrary is the cloven foot of populism. Populism is the enemy of justice, the enemy of freedom and, ultimately, the enemy of democracy. There is nothing in common between populism and democracy and those things in which we believe. Populism destroyed the life of Socrates and forever left an indelible stain—to use the expression of the noble and learned Lord, Lord Shawcross, about this Bill—upon the reputation of Athenian justice.
It was populism which led a Roman ruler to give in to rent-a-mob when he said,if thou let this man go, [thou] art not Cesar's friend".640 It was populism which led the principal speaker from the Opposition Benches in another place to say that he voted one way on the first Bill and another way on the second, not because he had changed his mind about the merits but because it was said, forsooth, that he was afraid of being accused of forgetting the holocaust. Note that he did not say that he had forgotten the holocaust; he said that he was afraid of being accused of it. He was afraid of appearing not to be Caesar's friend.
The truth is that this House has a plain moral duty. Some people may disagree with what I have been saying on the merits of the Bill. They are entitled so to do. Some people will agree with me; but let each man, each noble Baroness and each right reverend Prelate follow his conscience into the lobby and not be terrified into folly by a false view of our constitutional position.
§ 4. 50 p. m.
§ Lord Soper
My Lords, I rise to follow with gratitude what has been said by my ecclesiastical friend. This is essentially a moral question and therefore I presume to think that from the standpoint of the faith I hold it is entirely appropriate that the issue should be judged as far as possible within the framework of a moral consideration. I am reminded at the very insistence of this argument that in the teaching in the New Testament there is a clear representation of the obligation of those who judge that they should recognise also that they are being judged.
The illustration of the mote in one eye which prevents a clear understanding and a clear statement of justice because it is shared by a beam in somebody else's eye, is the introduction with which I find it imperatively necessary to begin to criticise the essence of the Bill. It cannot provide a fair trial and I therefore oppose it.
I oppose the Bill on the ground that there are so many elements of retrospection involved which do not necessarily combine to produce an accurate memory or recollection. I am completely convinced by what the noble and learned Lord, Lord Hailsham, said; that it is impossible to provide a principle of justice when dealing with matters that occurred 40 years ago, and particularly one produced by those who to some extent are themselves involved. I for one do not find a profound difference between the abominable behaviour towards the children of Israel and the bombing of the children in Dresden. A little later I shall turn briefly to the consideration of what is the underlying problem with which today this House must be involved.
It seems to me that the House is involved with the whole question of what we mean when we speak of war crimes. We know that within the general framework of warfare some of the most sublime expressions of human courage are demonstrable. We know that decent people do many decent and splendid things in the arbitrament of warfare. However, I am increasingly convinced that we miss the point unless we examine far more rigorously what we mean by "war crimes"
641 I shall include in the debate this afternoon my own reluctant conclusion that war itself is a crime and that we are missing the opportunity of declaring a full-scale and entirely full-sighted perception of the nature and inevitable consequences of warfare today even more consequential in terminal conditions than any warfare in previous generations. It is to that that I invite your Lordships' consideration.
There is overwhelming evidence that it is impossible to baptise any of the necessary programmes of warfare as if they are consonant with Christian principles and can be. carried out in love. I do not believe that to be possible. Once again I reiterate how profoundly I admire; those who are courageous and self-sacrificing within the general framework of warfare.
I remember long ago as a young cadet I became a bayonet-fighting instructor. I loved it at the time and remember winning some kind of prize for writing an essay on the nature and substance of bayonet fighting and how imposing it was to grunt as one stuck the bayonet in. That had a profound effect upon me, though it was not apparent at the time. It was the recognition that unless we spoke in absolute terms of what we meant by warfare we could dissolve the whole argument into a sentimentality, on the one hand, and an arbitrary exclusion of the facts on the other.
I believe therefore that in this debate in your Lordships' House and indeed in whatever decisions are made—I for one shall abstain—there is need for the presentation of the argument that not only are there war crimes but that essentially the practice of war should be condemned as being totally wrong. I look forward with some hope—it may be a fairly extensive idea—that even in my old age this House or some suitable combination of people who want to do the right thing may perhaps take the unprecedented step of saying that under no circumstances is it possible from the Christian standpoint, nor from any other standpoint, to justify the arbitrament of violence, particularly in an age when we have the terminal possibility of destroying almost everything.
I defend my argument in terms of what I find in the New Testament, and which I cordially invite your Lordships to consider. It is the same Jesus who said "Love your enemies" and who said "Those who take the sword will perish by it" Reference was made to the trial of Jesus. What perplexed the scoundrel Pontius Pilate, though a somewhat amiable scoundrel, was that he had found a revolutionary leader who repudiated the way of violence. He did his best—though subsequent historians on the Christian matter made little of it—to obtain some kind of acquittal for Jesus. It was impossible.
I do not believe that the Christian Church could have emerged in the symbol of the cross if at the same time it had been prepared to walk the way of the contemporary resistance leadership. I have therefore taken, and apologise for reiterating this so often, the confident view—more than ever established in contemporary experience—that we are on the threshold of a tremendous adventure. When we are prepared to say that under no circumstances can war 642 be described as anything less than a crime, we shall make a breakthrough in a world which is now almost drowning in violence.
I spend a good deal of time in large and open spaces. I conclude by reminding myself that over a period of more than 60 years of talking to people in the open air I have been increasingly convinced that though vox populi is not vox Dei, there is an inner certainty of truth and a readiness to accept it on the part of ordinary people if we can only encourage them sufficiently to think in depth and not to obscure their thoughts by circumstances which can have little final effect on what they say or believe.
There is another aspect to the matter. In the judgment that is made there is increasing relevance to a truth that we are made for God and that our destiny is in Him. This is not a neutral universe into which we human beings alone have the capacity to inject moral principles. Therefore, those who say that it will be completely false to let this matter lie and do nothing about it assume unfortunately that in this universe there is no prospect of it being dealt with. It may sound quaint for me to remind myself, and to dare to remind this House, that the teaching of the Christian church is the existence of Hell and that those who do wrong are not left to enjoy the fruits of their wickedness but sooner or later will pay the price of it.
I believe that is the recognition that when we have failed, as we repeatedly do, in presenting a fully just programme for human society our best efforts will be rewarded by the confidence that we are moving in the direction of a world redeemed. It is for that reason that I have presumed to put into this debate at this stage—no doubt other noble Lords will react as best they can and probably better than I have done—the proposition that we are facing not the question of war crimes but the emergence of a society which once and for all has repudiated war as being the supreme crime of organised society and pray, God, the day will soon dawn in which that society will repudiate it.
§ 5. 2 p. m.
§ Lord Shawcross
My Lords, the noble and learned Lord, Lord Hailsham of Saint Marylebone, was good enough to refer to the speech that I made to your Lordships when this matter was discussed last June. I shall try not to repeat myself too much. It is not easy because there has really been no change in the situation since that time that should lead us to alter the conclusion at which we arrived with such a large majority. The only difference is that the Bill now comes to us for the second time with an indication—I will not say a threat—that the Parliament Act will be used to pass it into law if we repeat our rejection of it.
That seems to me to present no kind of constitutional problem and no problem of principle. There is one restriction on the right of this House to disagree and veto measures that have come down from another place and that is not by law but by convention. That is known as the Salisbury-Addison convention. Nobody has suggested that that convention has the slightest application to this case. The noble Lord who moved the Second Reading nods his head. If that is so, by implication it follows that it 643 is our duty and constitutional right to express our own independent view. That is the right and duty which is left to this House under the Parliament Act. We should exercise it for the public expects us to discharge it by taking an independent view of those measures that come down to us from another place and to say exactly what we think about them.
There is nothing to suggest in this case that if we did so on this Bill we should be doing anything to thwart the views of the electorate as a whole. But even if that were so, and even if there were the slightest evidence that the electorate as a whole is in favour of this Bill, it would still be our duty to vote against it if we believe that it is wrong. As your Lordships know, the Bill has not excited a great deal of public interest. It was passed again in another place. The number voting for it on the second occasion was slightly less than the number of those who previously did so. That number included young men who had not experienced the horrors of war. The number was less than the majority of the Members of the other place. If there has been any movement of public opinion I suggest that it is marginal. On the whole, it appears to be against this Bill. Our clear duty is to vote according to our consciences in the matter.
I oppose this Bill not merely on legalistic grounds but on grounds of principle; on moral grounds. As I believe the noble Earl, Lord Ferrers, said when introducing the Bill at Second Reading last year, on that there can be no compromise, no pragmatism. Pragmatism may be used to water down a principle in order to make it politically expedient, but the principle will have been lost. If we now suggest pragmatic amendments to go down that route, we shall be in grave danger not only of losing the pragmatic amendment, but of losing the right to stand on principle by rejecting this Bill as a whole. This is not a House of Wimps, this is the House of Lords. We are expected by the public to express our view honestly and clearly. I hope that we will. As the noble Earl put it in his admirable speech when introducing the Bill last year at Second Reading, this is,a matter of fundamental principle and indeed philosophical intuition".—[Official Report, 4/6/90; col. 1081.]He went on to say that there could be no compromise about it. My philosophical intuition is that this Bill violates the great traditions of English law. It cannot satisfy—and no trial under it could satisfy—the requirements and canons of fairness and justice. Last time I dealt at some little length with the two basic reasons why I had reached that conclusion. It was partly the nature of the evidence, being evidence of identification which is the most frail form of all human testimony, and partly because of the lapse of time. I shall not go into that now, but I ask your Lordships to look with me, for a few minutes, at the practicalities of the matter and then ask yourselves whether any trial could be fair.
The Hetherington-Chalmers Report sets out some of the difficulties which the team of lawyers, detectives, interpreters and the rest experienced in its investigations. It was provided with the sometimes enthusiastic support of the Soviet Government. It had long lists of 644 witnesses from the Wiesenthal Centre. The Soviet and Israeli authorities supplied other lists of witnesses. The team visited, and saw witnesses, in the Baltic states, Russia, America and Canada. It took a very long time. Often the witnesses were seen in the presence of the local police.
The team members said that the greatest difficulty was the age of the witnesses. But not only that; they found few eye witnesses. Those who had witnessed the atrocities were usually themselves killed. However, many were able to help with circumstantial and hearsay evidence. Some were able to identify suspects from photographs. Circumstantial evidence perhaps, but hearsay and identification from photographs have not previously attracted much favour in British law. How is that evidence to be given? Apparently few, if any, of the witnesses are willing to travel to this country and they cannot be compelled to do so. Their evidence will be given by television, by video, on commission, or in some other indirect way.
There is a curiously vague reference in the report to evidence of a documentary nature. However, the report in that context suggests that experience in war crimes proceedings in Federal Germany and America indicates that documents from the Soviet Union had not been forged and the witnesses had not been coached. As one who had to listen—I remember it vividly—to the persistent efforts made by Mr. Vyshinsky and chief prosecutor Rudenko at the Nuremberg trials to prove that the Germans had committed the Katyn massacres, I found that particularly naive and hard to take. There is no doubt at all that a good deal of false evidence was given and many false charges were brought.
The authors of the report say that the investigation of crimes committed so long ago is fraught with difficulty. However, it must also be clearly said that this report has been rightly praised—and I have joined in the praise—for its clarity, detail and comprehensive historical account, but it is written from the point of view of a prosecuting authority. The difficulties which the prosecution would have to face are set out and alterations in the law are suggested in order to mitigate. However, little if anything is said about the much more serious difficulties which would face a defendant. That is not surprising, because highly distinguished as the two authors of this report certainly are, their distinction lies in having held high office in the law enforcing departments. Sir Thomas Hetherington was a most able Director of Public Prosecutions for more than 10 years. He served in other departments of government. However, he had never been in private practice and he has never had to defend an innocent man who has been wrongly accused. Mr. Chalmers, it is true, did practise as a solicitor for two years, but his high distinction lies in having held high office as Procurator General in Scotland. The whole point of the inquiry was to advise whether the law of the United Kingdom should be altered in order to make it possible to prosecute these people.
Perhaps your Lordships will allow me, as one who has defended innocent people falsely charged, just for a moment to consider the position of a defendant in a 645 case of this kind. The defendant is arrested somewhere in Northern England or Scotland and cast into prison. He is charged with murder 47 years ago, say in Byelorussia. He is innocent. Your Lordships must assume that he is innocent, because at least that presumption of English law is not wiped out by the proposals in the Bill. What does the defendant do? He applies for legal aid and is assigned a solicitor on the local list. They discuss together how to conduct his defence. He wants first to test the evidence of the prosecution, which is what the advisers of defendants always wish to do. However, he cannot do that because the preliminary hearing before the magistrates, which is such a very important opportunity for a defendant to test the evidence against him, is abolished by the Bill. The evidence is to be given by video or television and the jury will be deprived of the opportunity, in the vast majority of cases, of seeing the witness face to face with the accused and judging which is the more reliable of the two.
The defendant wants to show that the evidence given mistakes his identity. Will he be given the money and the time to go to Byelorussia and cross examine the witness who has given evidence on the video? Perhaps the prisoner wants to put up some affirmative defence. Perhaps he wants to show that, while he was there when the alleged crime was committed, the incident was very different from that described by the prosecution witness. Perhaps, although he saw what happened, the killings were committed by somebody else. Perhaps something was done in self-defence. How will he find his witnesses? The Wiesenthal Centre will not help him with a list. Your Lordships will hardly expect the Soviet Government to come forward with enthusiasm—a government who do not recognise in practice the principle that people are assumed to be innocent until they are found guilty. Nor is it likely that in Byelorussia where, as the report says, there is strong pressure for convictions, the public will rush to help.
Perhaps the wretched man wants to prove an alibi. He wants to show that in fact he was in the German forces at that time, but was in another part of Europe. Who will find out and produce the records which will establish that? Will this man be allowed an investigating team to go to Byelorussia and seek out evidence to prove his innocence? There is not sufficient money for that in the whole of the legal aid fund. Nor would he be granted the months of time that an inquiry of that kind, even if it were possible, would involve.
The fact is that this man will find it impossible to get affirmative evidence from Byelorussia to sustain his defence. He will stand alone. He will stand facing a jury who will know that this man in the dock is the man of whom a weighty inquiry costing millions of pounds has said ought to be put on trial; that this is the mart whom the British Government, with the authority of the Attorney General, have said ought to be charged with murder; that this is the man whom the British Parliament has solemnly decided should be brought to justice. How is he to hope for a fair trial?
We should not attempt in a cowardly way to shrug off our responsibility by passing it on to the trial judge. 646 This man stands as an island surrounded by a hostile sea. We remember that John Donne told us that no man is an island, he is part of the main. We share in that man's difficulty and if injustice is done to him we ourselves are diminished by it. That is why I agree with what was said in this House by Lord Reading and Lord Simon in 1940 when they were discussing the possible trial of a German general. I shall not quote it again as I referred to it when I spoke on the previous occasion. They thought that a delay of four years would prevent a fair trial. This is 47 years—it will not do.
Perhaps I may just make one other point. It has been said, notably by the noble Lord, Lord Jakobovits, that we have a duty to ensure justice for the victims as well as for the accused. That involves, if the noble Lord will forgive me for saying so, a certain sophistry. Justice cannot be done to the dead. They did no wrong; their characters do not have to be restored; they are beyond our help. We must hope that some higher power has given them solace, peace and the spirit of forgiveness. When we talk about doing justice to the dead we mean retribution for the wrong which has been done to them. However, retribution and justice are two very different things. Some of the relatives of those murdered realise that and so should we.
I conclude by quoting part of a letter—and I receive many—which came to me after my previous speech. It came from a Jewish refugee who came to this country, became a solicitor and has established himself here:I agree. Our family lost twenty-one members in the Holocaust but we have no desire to be burdened with a re-hash of a sordid episode unique in its extent though not in essence of bestiality and sadism. We do not require' further and better particulars' and our judges ought not to be encumbered with presiding over a ghastly chapter of contemporary historyAs to the effect of deterrence, a recital of names—Amin, Gaddaffi, Khomeini, Ceausescu, Pol Pot, Saddam Hussein, et al—suffices.to what extent gentiles can gauge the suffering of Hitler' s victims from the moment of being collected from their homes in the middle of the night to being forced into the gas chambers, is something I cannot answer. Retribution is both evil and futile. This is England. We do not indulge in show trials, however fairly conducted. The Bill should be thrown out
§ 5. 20 p. m.
§ Lord Cochrane of Cults
My Lords, this is the first time that I have had the privilege of addressing your Lordships' House. Previous debates on this subject took place during the lifetime of my late brother. I have come new to what was said on those occasions and, consequently, have read the reports of the debates which took place both in this Chamber and in another place.
The lifetime of my brother reminds me, because it was one of constant suffering, of the fact that this Bill relates to people. Indeed, that is very much so. Among his papers, tucked in with the Writ, was a letter from the noble Baroness, Lady Masham of Ilton, who congratulated him on his fortitude in taking his seat. 647 That letter obviously encouraged him greatly. It links me with the fact that here today we are dealing with the fate of individuals.
I read the Bill with increasing puzzlement. It is short and, as was said earlier by noble and learned Lords, has but a single purpose; namely, to try any suspected war criminal who has become a Briton during the period of roughly 50 years since the end of the war. It seems to be beyond doubt that at the end of the war it was accepted, after a very short time, that it was impossible to try even a small proportion of those who were suspected, or known to have been, war criminals. Many of them escaped in the fog of war, as it is so truly called. In the intervening years, very many of them will have perished from one cause or another.
Latterly, the Bill has been introduced with the aim of catching all those who are left. It has already been questioned in your Lordships' House as to why it is so urgent and so compelling that this should be done now, so many years later. I fear that I have found no answer. The big fish were caught in Nuremberg. Before that, in the heat of war, summary justice had been envisaged on the basis that there would be about 100 international outlaws who, when they were caught and properly identified and certified as such by an officer of the rank of major-general or above, could be shot within the hour. That never happened.
In that chaotic situation at the end of the war, when the whole country of Germany was overrun from East and West, there is no doubt that some war criminals—if not a large number of them—got away. Some of them are, rightly or wrongly, believed to be living among us now many years later. The Bill proposes to try them by retrospectively enlarging the jurisdiction. I fear that I may be saying in less eloquent words what has already been said. I have never heard in any company such elegant expositions of a complicated subject.
However, perhaps we should look for one moment at retrospection. The Bill is enacted from 1st September 1939, which is about 52 years ago. If we imagine ourselves on 1st September 1939 and turn back 52 years, we find ourselves in the year 1887 which was the year of Queen Victoria's Golden Jubilee. Can we seriously say that in 1939 we would have contemplated the prosecution of someone for any offence committed in the year of the Golden Jubilee? I have to say that I think we would regard it as amazing were we to do so.
Another aspect of the matter is the change in the procedure to which the noble and learned Lord, Lord Hailsham of St. Marylebone, referred. I entirely agree with what he said. The change in procedure by abolishing committal creates a much greater chance that the wrong person may be charged and will go through late in life, entirely blameless, a most fearful experience. That seems to me not to be a good idea.
Further, the Bill provides for different categories of evidence to be adduced, which were not previously regarded as being admissible. That has already been explained. In order successfully to convict someone, it must be proved that the chap who is in the dock has actually done the deed. Someone will have done it or 648 may have done it, but it must be proved that it is that chap. I do not think that there is any great likelihood with linguistic difficulties, differences in culture and this enormous lapse of time that that can be done. Moreover, the defendant will be arraigned under the special procedure and, as has been said, everyone will know that Parliament passed a special Act to ensure that such people were tried. Those concerned have been described in the report in terms which leave little doubt as to their guilt or expected guilt. That, in itself, is unfair.
It seems to me that the Bill proposes to create a new class of outlaw. Having checked the word "outlaw", I see that it is a crime which was discontinued a long time before it was finally abolished in criminal proceedings in 1938. I believe that it would be a great mistake to attempt to revive it. On these grounds, if no others, I feel that the Bill should be rejected.
§ 5. 28 p. m.
§ Lord Glenamara
My Lords, on behalf of the whole House I should like to congratulate the noble Lord on his maiden speech. The noble Lord has much experience as a businessman, as a farmer, in banking, in the leisure industry, in the boy scouts and, to crown it all, he is a commissioner of income tax. I hope very much that he will make that vast experience available to us in future debates. We hope to hear much more from him.
I did not intervene in the last debate, but I do so on this occasion for two reasons. First, it seems to me that the debates which have taken place in this House and in the other place have been dominated by lawyers and judges. It is most important that the layman should also be heard. Surely this is a matter for the conscience of all of us. Secondly, I believe that the Government are absolutely right to reintroduce the Bill in its original form and so serve notice upon us that if we do not give it a Second Reading, it will, in any event, become law.
For almost half a century it has been universally recognised that this House is a revising Chamber. Its major function is to examine and, if it thinks fit, to revise what the other Chamber proposes to do. The noble and learned Lord, Lord Shawcross—I see that he has left the Chamber—said that the Salisbury-Addison convention did not apply to the Bill. I could not disagree with him more. He said that the noble Lord opposite nodded his head. I hope that he did not. I am sure that the Salisbury-Addison convention applies to the Bill and to any other Bill passed by the other place with such a majority.
The noble Lord, Lord Denham, interviewed in the current issue of the Field magazine, said:Although the Lords are entitled to amend a Government Bill substantially they would not reject it out of hand at Second Reading. In recent years, this has been adopted to cover wrecking amendments".To defeat on Second Reading what the other place proposes—the noble Lord and the noble and learned Lord, Lord Shawcross, used the word "convention", in constitutional terms a much stronger and firmer word than "agreement"—is a breach of the convention. So it almost amounts to being unconstitutional. The convention has operated for half a century.
649 The amendment moved by the noble Lord, Lord Houghton, is strictly in order but amounts to a rejection of the Second Reading. It is the classic wrecking amendment. The proposal of the noble Lord, Lord Campbell, would give the Committee power vastly to extend the scope of the Bill. Although permissive it gives the Committee permission to act as proposed—the power would deny the Government their tingle-purpose Bill. Both amendments are in clear breach of the Salisbury-Addison convention. To pass them and so negate the Second Reading or radically to alter the Bill, passed by the other place by the considerable majority of 254 to 88—and if the noble and learned Lord, Lord Shawcross, does not believe that to be sufficient, I do not know what is—would be wrong.
If the House of Lords has a future—I am not sure that it has in the short term, although I hope it has—it can be only as a revising Chamber. Let us not jeopardise that future by listening to the siren songs of the noble Lord, Lord Houghton, and the noble and learned Lord, Lord Shawcross, which would lead us straight on to the rocks.
My noble friend Lord Mishcon said that he hoped we would not go over the old ground again. I have sat through debates and heard our learned lawyers—my noble friend Lord Mishcon, the noble and learned Lord, Lord Shawcross, the noble and learned Lord the Lord Chief Justice and others—going over the old ground. I believe that it is right and proper that for a few minutes they should listen to one of the ordinary, non-legal Members of your Lordships' House going over the old ground and saying what he thinks about it.
The second part of the report contains a record of the investigation of 301 cases. Rightly, that part of the report has not been published, but some Ministers, including the Leader of the House and the Home Secretary, have seen Part 2 and are shocked by it. The Home Secretary has said:It is a chilling story of cold-blooded murder on a horrendous scale—committed not in the heat of battle, but in circumstances which have no possible connection with military objectivesThe report describes crimes so monstrous that they cannot be condoned, not even after 50 years. Again, the report states:There is detailed evidence implicating people of certain ghastly and horrible events which are so serious that passage of time, however long, cannot blot them out".The alleged perpetrators of those crimes are the people who could be brought to justice by the Bill. Let me emphasise "brought to justice" It is not retribution, despite what the noble and learned Lord, Lord Shawcross, said. It is not vindictiveness; it is bringing them to justice.
I suppose that no one in this country is more experienced in deciding whether a body of evidence is sufficient to justify a prosecution than Sir Thomas Hetherington. Some of us went upstairs to hear him before the previous debate. He and Mr. Chalmers have examined the evidence with meticulous thoroughness. As a result they recommend:There is sufficient evidence to give a realistic prospect of conviction650 The Bill, as the Leader of the House pointed out, would not create crimes retrospectively. That, I agree, would be intolerable. The acts alleged in the report were a clear breach of international law at the time they were committed. Had they been committed then by British citizens, those British citizens would most certainly have been prosecuted years ago. Had the alleged criminals remained in their own countries, they too would have been prosecuted or extradited years ago. But they did not remain in their own countries. They were admitted to the United Kingdom by some means or other. They acquired British nationality by some means or other. By so doing, they evaded prosecution. Thus we have the intolerable situation of a native-born British citizen being liable to prosecution had he committed those crimes in the 1940s but a naturalised emigre from Europe who committed similar offences not being liable to prosecution. I find that intolerable. I do not understand how the Bill' s opponents can defend that situation.
Moreover, in 1957 Parliament ratified the Geneva Convention. The British courts were given jurisdiction from that date in war crimes, regardless of the nationality of the perpetrators or of the victims, or of the country where the alleged offences took place. So we have a second intolerable situation. If a naturalised emigre from Europe committed a war crime at any time from 1957 he could be prosecuted wherever the crime was committed, whatever his nationality at the time and no matter how many years had elapsed. But had he committed the same crime before 1957, he could not be prosecuted. That is an indefensible situation which would be rectified by the Bill.
There are genuine fears as to whether anyone prosecuted under the legislation could have a fair trial. I listened carefully to the speech of the noble and learned Lord, Lord Shawcross, and to the speech of the noble and learned Lord the Lord Chief Justice on the previous occasion. It is worth pointing out—far be it from me to defend the Government—that the Government have gone to some length to include in the Bill arrangements to ensure a fair trial. For example, there is the right of the accused to appeal to the court to have the trial set aside, and there is the power of the Attorney-General to sanction prosecution. With the safeguards that the Government have provided, I believe that I have sufficient faith in our judges and courts—I have a great deal of faith in them despite the criticisms that they have encountered in recent years—and in British juries to believe that anyone prosecuted under the Bill would have a fair trial.
As the right reverend Prelate the Bishop of Southwark pointed out, there is no statute of limitations in criminal matters except of course for those gentlemen from Europe who have escaped justice by acquiring British citizenship. Apart from those gentlemen, anyone else can be prosecuted at any time for a war crime wherever committed. Let me postulate two cases. First, let us suppose that evidence comes into the hands of the police that Mr. X committed a minor crime—let us say a minor fraud 651 —50 years ago. Would he be prosecuted? Of course not. It would be held that it would not be in the public interest to prosecute.
Suppose that evidence came into the hands of the police that Mr. Y, an apparently respectable citizen, had committed a quite horrendous murder or series of murders 50 years ago. Would he be prosecuted? Should he be prosecuted? Of course he would, and so he should. Why then do we make exceptions in the case of people alleged to have committed quite horrendous crimes 40 or 50 years ago? These were crimes against which most others pale into insignificance and for which the otherwise attractive plea of "Forgive and forget" can have no possible application.
Sad and repugnant though it may be to have the Bill—it is extremely sad but the evidence is there—we owe it to the memory of those who suffered so appallingly to see that justice is done to their memory. In spite of what was said by the noble and learned Lord, Lord Shawcross, I believe that we can and should do justice to the memory of the dead. That has nothing whatever to do with retribution; it is a matter of justice.
§ Lord Mishcon
My Lords, as the representative of the Opposition Front Bench in regard to the Bill, I rise to make a short intervention. The noble and learned Lord, Lord Hailsham, knows of my intention. He is always fair. However, he made a reference to my right honourable friend the Deputy Leader of the Opposition in another place and the reason he had given in Parliament for the vote that he cast on the Bill. I have shown the noble and learned Lord the excerpt from Hansard relating to the reason that my right honourable friend gave. I believe that the noble and learned Lord wishes to say something.
§ Lord Hailsham of Saint Marylebone
My Lords, with the permission of the House, I am grateful to the noble Lord for giving me this opportunity. I was not the only person who attributed that sentiment to his right honourable friend. It was clearly in the speech of the noble Lord, Lord Jenkins of Hillhead; he nods his head.
If I have defamed or misrepresented the right honourable Member in any way, I can only say that I am extremely sorry. Quite independent of the noble Lord, Lord Jenkins, I was under the distinct impression that I had received a report to that effect. I have not been able to study Hansard in detail, so whether this took place in Parliament or outside I do not know. I find at cols. 30 and 31 of the Official Report for 18th March 1991 this passage:I do not want it to be possible for anyone—no matter how ignorant, prejudiced or malicious—to have the slightest opportunity of arguing that the House has either forgotten the holocaust or forgiven. This is not the time to appear in the slightest degree tender-hearted about those who commit war crimes or are complacent about anti-Semitism.
§ Lord Hailsham of Saint Marylebone
My Lords, if I am not in order, I apologise. I intervened at the invitation of the noble Lord, Lord Mishcon.
§ Lord Denham
My Lords, perhaps my noble and learned friend will forgive me. I believe that these are rather special circumstances but equally it is not in order to quote directly from Hansard the remarks of a Member of another place.
§ Lord Hailsham of Saint Marylebone
My Lords, I apologise to the House for having done so. I was tempted and did eat.
§ 5. 44 p. m.
§ Lord Mackie of Benshie
My Lords, I do not intend to repeat the speech I made last time, but since this is very much a matter of conscience I must restate my position with regard to the principle. It is that which was ably enunciated by the noble Lord, Lord Glenamara, at the end of his speech. In memory of the appalling crimes committed in the holocaust and in the last war, it appears to me quite impossible for any government or person to ignore the fact that evidence has come forward that there may exist in this country people who may have committed those appalling crimes.
The Government were quite right to appoint the two distinguished lawyers, steeped in the traditions of law in this country—prosecutors though they may be—to investigate and provide the money for so doing. The investigation by those two distinguished and honourable men led them to conclude that a case could and should be brought against the men in this country. They had come here and were now citizens.
The Government have introduced legislation to allow evidence to be brought under new circumstances. Most distinguished lawyers have said that the essence of retrospective legislation is to invent a new crime which was not a crime when it was committed. With that I wholly agree. However, this crime is universally admitted and universally and rightly detested. Therefore I take the simple view that the Government were right to try to do something about the situation which was pointed out to them. They investigated it and found it to be real. That is the reason for my supporting the Bill.
I shall now admit that it is embarrassing to try old men. The noble and learned Lord, Lord Hailsham, referred to "the old gentleman in the dock" It is embarrassing, but that is no excuse for saying that because it costs a lot of money and is embarrassing we should not do it. There would be an excuse if it were thought that these people could not have a fair trial. However, the noble, distinguished and learned Lord, Lord Shawcross, gave us ample evidence that any barrister—even an average British barrister—can put a convincing case after a lapse of time and with the precedents at his disposal. We have been shown that where trials have been set up it has been impossible to secure a conviction. That is embarrassing. Nevertheless, not to try would be even worse. That is my position.
I come now to the constitutional question. I was much impressed by the arguments of my noble friend 653 and Leader Lord Jenkins of Hillhead. I was impressed by the force and skill with which he put them, not with the arguments themselves. To say that because 40 years ago Churchill, Attlee and Bevin were all agreed that in their time, and with the problems facing them, they should ignore the matter is not a proper argument. Nor is the argument that this House has a right to upset legislation in the first place; that it is not primarily an amending House and that this would be the right thing to do
I like this House. I came into it 17 years ago. I have enjoyed my time here. I may have done some good. However, I am under no illusions as to the powers of myself or this House. By custom and acceptance this is an amending House. It can amend and advise, but it is not the forum of the nation.
In a striking phrase, the noble Lord, Lord Carrington, said once, "Some of us are here because of political patronage; some of us are here because we are the sons of our fathers" That is a striking and funny way to put it, but I do not believe that either of these qualities—in my case, political patronage and, in the case of the hereditary Peers, a system of random selection and breeding which no cattle breeder would ever think could produce hereditary legislators—is sufficient reason for us to believe that we can upset the freely expressed will of the House of Commons. In my opinion, it is much more important than the will expressed under the threat of the Whips.
In my view, there is nothing wrong with people thinking again about this matter. Like others, I have thought long and hard about it and have realised all the snags that it entails and all the fiascos that may occur. However, there are two principles involved. First, I believe it would be wrong for any government not to do something when clear evidence was adduced that these people were British citizens and lived among us. Secondly, we as Peers should not upset the principle accepted in a free vote by the elected forum of the people.
§ 5. 50 p. m.
My Lords, your Lordships' House never fails on an occasion when great issues are at stake to provide examples of great oratory. Today we have heard in this Chamber splendid and moving oratory. I confess I was deeply moved by the speech of the noble and learned Lord, Lord Hailsham of Saint Marylebone, in which he spoke about conscience being the voice of God. I do not wish to ask anyone to vote against his conscience. My conscience is clear on this issue and I shall express it.
I was also moved by the speech of the noble Lord, Lord Jenkins, with whom I served in another place. I served in another place with most of the noble Lords who are now on those Benches. I never heard one of them at any time say that this House somehow had the right on a major issue—this is not a small issue—to tell another place that the House of Lords has the last word.
My Lords, the noble and learned Lord must not spoil my speech. I was quiet during his speech although I admit that I bit my tongue once or twice. The noble Lord the Leader of the House has come to this House from another place within the past 12 months. Today in cogent terms he made it clear to us that the Cabinets of the 1940s—the Attlee Cabinet and the Churchill Cabinet—thought only in terms of war crimes committed on the continent of Europe.
I was also in Parliament in 1945. Who of us believed that those who had committed crimes in the concentration camps in Europe were living in our country? We looked down our noses at those Latin American countries where those rogues were fleeing for shelter. We used to be proud of the fact that we in Britain stood for different values and, above all, for the respect of human dignity. The issue that is before us tonight involves human dignity.
There are two reasons why I wish to speak in this debate. I spoke in the previous debate on this matter. The first reason is that I visited Auschwitz concentration camp and saw the half burnt remains of human beings. I also visited the gas chamber. Therefore I know we are not dealing with a small issue tonight when I think of the millions who died. We may be old, but surely we have not lost our values. Surely we have not revised our belief that evil is not to be tolerated. Are we to say that because time has passed evil is now excusable?
I listened to the speech of the noble and learned Lord, Lord Shawcross. He used the word "sophistry" in connection with my noble friend the Chief Rabbi. However, I must say that the noble and learned Lord, Lord Shawcross, gave the best example of sophistry that I have heard tonight in the way he damned with faint praise Sir Thomas Hetherington and Mr. Chalmers. That was said within the hearing of us all. The noble and learned Lord used every histrionic device that he employed long ago when he practised in the law courts of this land.
My noble friend Lord Glenamara was the Leader of the House of Commons when I was the Speaker. That brings me to my second reason for speaking in this debate. My reason for being here and for sitting on these Benches is that I was the Speaker of the House of Commons, and a primary responsibility of every Speaker has been to guard the rights and privileges of the elected representatives of the people in that House. If noble Lords in this House try to push aside the wishes of another place, the other place can apply the Parliament Act. The Parliament Act is there to protect another place from this House. That is the sole and simple reason why our fathers fought to vest power in that House, where it belongs. Another place is answerable to the nation whereas we in this place are answerable to ourselves.
It is correct to say that some of us are here because centuries ago our forefathers served our nation well. Some of us are here through luck, and some of us are here as a result of political service given in another place. No one who has served in another place can say with his hand on his heart that he believes the House of Lords has a greater authority than another place, or 655 has a moral right to force another place to use the Parliament Act to enable the will of the people to prevail.
I promise to be brief as a great many noble Lords wish to speak. I, too, received letters after the previous debate on this matter. I received a letter from a Methodist minister. I am sorry that my noble friend Lord Soper has had to leave us as I have spoken on platforms with the noble Lord for over 40 years. The letter I received from the Methodist minister asked me whether I had remembered that forgiveness is at the heart of the Gospel. Those words went through me like a knife. But, am I being asked to forgive on behalf of the 6. 5 million people who died in gas chambers and in torture chambers? I have no moral right to forgive those who committed those crimes. No one in this House has the right to say he forgives those who committed the crimes on behalf of those who were murdered and put to death.
Finally, is a fair trial possible? We either trust our judges or we do not. I was surprised to discover such little trust on the part of the noble and learned Lord, Lord Shawcross. He referred to a letter he had received which stated we should not place responsibility for this matter on the judges as though they were a lot of weak wimps. I use the cultured language used by the noble and learned Lord. There is every guarantee that no one will be punished, under the protection that is provided, unless the case against him is proved. I believe that the Government have done an honourable thing. The House of Commons has lived up to its responsibility. I shall support the Government on this Bill.
§ 6 p. m.
§ Lord Pym
My Lords, it is my good fortune and pleasure almost always to find myself in full agreement with the noble Viscount, Lord Tonypandy, particularly on parliamentary matters. However, on this occasion there are some things that he said with which I am not able to agree.
The weight of argument against the Bill was deployed most forcefully last June. The vote at the end of that debate reflected the conviction of this House. Like other noble Lords, I was surprised and dismayed when the Government decided to bring the Bill back a second time. The arguments against the Bill are continuing to be deployed with equal force on this occasion. I should like to add my congratulations on the maiden speech of my noble friend Lord Cochrane who added substantially to that argument.
I do not intend to delay the House by repeating those arguments in my own terms. However, in the intervening 11 months we have witnessed the appalling events in the Middle East, including the Gulf war and particularly the crimes against humanity perpetrated by Saddam Hussein and others, and the suffering of the Kurds. Those events dominate the news every day and, in my view, make the Bill even more irrelevant than before.
This is not a party political issue, as everyone agrees. Both Houses have had free votes and each House has come to a different conclusion. If we were 656 dealing with a matter which was important to a government' s programme, then of course the will of another place would prevail. The Parliament Acts are there to make that possible. However, on a non-party matter of this kind there is no question of the Government's political programme being involved. In those circumstances, I believe that the government of the day ought to secure a broad measure of agreement in both Houses before proceeding.
In this case, I should have thought that the scale and quality of the objections to the Bill were more than enough to cause the Government to pause. There is no doubt that the Government are entirely within their rights to bring the Bill back, but the question is whether it was wise to do that. My feeling is that to do so is against the spirit of our parliamentary practice for dealing with non-party issues of this kind.
We do not know what the outcome of this debate will be, but it would be extraordinary if the conclusion was any different from last June. Nothing has happened in the meantime to cause anyone to change his mind, so far as I can see. If it is the same, the Lord Privy Seal has told us that the Parliament Act powers will be invoked. I urge him and his colleagues to think again about that. The Parliament Acts were introduced to prevent a minority party in another place from using its majority in this House to frustrate the will of the elected government. In this case we are not dealing with the will of the elected government. Indeed, the Prime Minister himself, in another capacity, voted against the Bill in the last Session. We are dealing with an issue on which there was a free vote on all sides.
The Parliament Acts have been invoked on only six occasions. Three have been mentioned by the noble Lord, Lord Jenkins of Hillhead, when three Bills were passed without the consent of your Lordships' House. Three Bills have been enacted through the use of Section 2(4) of the 1911 Act. However, so far no Conservative government have ever invoked the powers of those Acts. It can fairly be said that they have had no need to. On this occasion for the first time they could do so. The Government have that right. But again, would it be wise? I want to say as forcefully as I can that I think not.
To use those powers for a purpose different from that for which they were granted would be a very dangerous precedent. The will of the elected government is not being challenged. No question of government policy arises. Therefore the Parliament Acts are totally inappropriate here. I endorse very strongly what the noble Lord, Lord Jenkins of Hillhead, and my noble and learned friend Lord Hailsham of Saint Marylebone said. The use of those Acts, if the Government so decided, would be highly authoritarian and dictatorial. Indeed, I feel that it would be an abuse of power. I sincerely hope that it does not come to that.
The arguments against the Bill are very powerful and widely held, on a non-party basis. If the decision of your Lordships is the same tonight as it was last June, the Bill should then be left on one side. Let us get on with the real problems facing not only our own country but the world, and let us concentrate on the 657 future and not the distant past. As I voted against the Bill in June, so I shall do the same again tonight and support the amendment so ably moved by the noble Lord, Lord Houghton of Sowerby.
§ 6. 6 p.m.
§ Lord Bridge of Harwich
My Lords, when this Bill was before the House last year I both spoke and voted against giving it a Second Reading. This year I propose both to speak and vote in favour of giving it a Second Reading. When your Lordships have heard me out, I hope that you will not conclude that by saying that I condemn myself either as a wimp or as the cloven-footed populist of my noble and learned friend Lord Hailsham' s vividly mixed metaphor. A charge to which I must plead guilty, if it is a wicked thing to be, is the charge of being a pragmatist.
The reason I have changed the position that I take in relation to the Second Reading of the Bill is not that I have changed my opinion of the Bill. It is because the effect of denying the Bill a Second Reading this year will be radically different from the effect of doing so last year. Last year we had the power to prevent the Bill reaching the statute book, which we exercised. This year we no longer have that power.
Especially in view of what we have just heard from the noble Lord, Lord Pym, I must try to dispel a total misapprehension about the position under the Parliament Act. There is no question of the Parliament Act not being invoked. There is no question of the Government changing their mind and deciding not to invoke the Parliament Act. The language of the Parliament Act, which will become applicable to the situation produced by a rejection of the Bill on Second Reading in present circumstances, is perfectly clear. The procedures to attract the Act have been followed; the formalities have been complied with.
To dispel misunderstanding I shall read the provision which now will become applicable:That Bill shall"—
not may—on its rejection for the second time by the House of Lords, unless the House of Commons direct to the contrary, be presented toHer Majesty and will become law. A direction to the contrary under that provision would require a fresh vote in the other place to reverse the votes which have been cast already in favour of the Bill. Even if the other place was invited to do so by the Government, there is not the slightest prospect that it would do so.
Therefore, whether we like it or not, the Bill will reach the statute book. To describe the resort to the Parliament Act in those circumstances as a constitutional monstrosity does not prevent that fact. We cannot prevent the Bill becoming law by denying it a Second Reading. What we can do is to improve it by amendment. That is what I believe we should do.
The object of the amendments, which I and some of my noble and learned friends on the Law Lords Corridor would be minded to table after the Bill had been given a Second Reading, would be precisely to mitigate some of the objectionable features of the Bill which have provoked such passionate opposition to it from so many of your Lordships. As so many speakers 658 have sought to disparage and discount in advance the possibility of improving the Bill by amendment, I shall not apologise if I take a little time to say something that has not yet been said and to try to explain to your Lordships how the Bill can be beneficially amended.
I have always thought that the gravest ground of objection to the Bill lay in the near impossibility of securing a fair trial for any man charged with an offence which he is alleged to have committed not less than 46 years ago. All the reasons for that have already been explored in the speeches that your Lordships have heard today. The courts have an inherent jurisdiction to order a stay of proceedings where they are satisfied that delay in bringing a prosecution has caused serious prejudice to the defence, or otherwise created a situation in which a fair trial will not be possible.
I was greatly encouraged today to hear from the noble Lord the Leader of the House that it has always been the Government' s intention that that power shall be available in cases under the Bill. But, unfortunately, I am clearly of the view that it would not be available under the Bill as it stands. The jurisdiction rests on the underlying principle that to bring a prosecution after a very long delay amounts to an abuse of the process of the courts.
If Parliament expressly enacts, as the Bill proposes and as it will do if it becomes law unaltered, that the courts are to have jurisdiction to try offences committed not less than 46 years ago, then, unless it embodies an express saving clause to preserve the jurisdiction of the courts to stay proceedings on the ground of prejudice by delay, no court would say that the delay of 46 years amounted to an abuse of process of the courts when, ex hypothesi, no prosecution could be brought because the courts had no jurisdiction to entertain it.
It therefore seems to me that the one absolutely vital amendment to be made, which would meet one of the major objections that prompts opposition to the Bill, is the introduction of an express clause. We can now take it, from what we have been told by the noble Lord the Leader of the House, that such a clause would not be opposed by the Government, providing that the court would have the power to stay proceedings in any case where the lapse of time since the commission of the offence was such as to cause serious prejudice to the defendant in the conduct of or preparation of his defence or otherwise, such as to make it impossible to ensure a fair trial.
That power would have to be exercised on a case-by-case basis. As I apprehend it, whether or not in any particular case a stay would be ordered would depend on the nature of the evidence relied on by the prosecution and the nature of the issues raised by the defence. I realise that to require judges to make the decision on that issue will put a very onerous responsibility upon them. That is why I contemplate tabling a further and related procedural amendment which would give an express power of appeal to either side—to the prosecution or the defence—against a decision by a judge of first instance as to whether or not to order a stay of proceedings on the grounds of prejudice by delay. The object of that would be so that 659 responsibility for this in some cases difficult, and in all cases sensitive, decision would not rest ultimately on the shoulders of a single judge, but on three judges in the Court of Appeal.
To take the course that I contemplate in relation to these two amendments is not to shuffle off responsibility from this House on to the shoulders of the judges. It is to resort to the only expedient we have which can ensure that, in a case in which a fair trial will not be possible, the suspect will not have to stand trial.
Looking at the clock, I realise that I shall have to be much more brief with regard to the other, as I believe, beneficial amendments that I contemplate tabling with the support of my noble and learned friends. The first would be to exclude the admissibility of evidence by television link. That would accord with the view that your Lordships' House expressed, as some noble Lords will remember, in Committee stage of the Law Reform (Scotland) (Miscellaneous Provision) Bill in May of last year. I do not know whether that would be acceptable to the other place.
The other two amendments that I have in mind address the very problems highlighted in the speech of the noble Lord, Lord Jenkins of Hillhead. We all recognise that evidence of visual identification is liable to error. The most honest and convincing witnesses may claim to identify someone and be mistaken. Two amendments need to be made in relation to evidence of identification. Lest the other place were not prepared to agree to the exclusion in all respects of evidence by live television link, we should at the very least offer it the alternative of an amendment which provided that evidence of visual identification should be admissible only if given by a witness present in court before the jury, so that the jury could hear that witness tested in cross-examination in the flesh.
Another problem arises. There is the gravest danger of juries arriving at erroneous convictions where the prosecution case, which seeks to identify the man in the dock as the man who committed the offence charged, relies wholly or mainly upon evidence of visual identification. Obviously, that danger will be greatly magnified in those cases. It is present even in trials of recent offences. The law as it stands already requires the judge to give a strong warning to the jury of the danger of mistaken identity in a case where such evidence is wholly or mainly relied on by the prosecution.
When the problem is seeking to identify the man in his seventies or eighties in the dock as the man who, when he was in his twenties or thirties, committed one of those horrifying offences, a further safeguard will be needed. I regret to say that I have not yet discussed this matter. I have in mind an express provision putting upon the judge a duty at the conclusion of the prosecution case, whenever it relied wholly or mainly on visual identification to establish the necessary identity, to consider whether that evidence was capable of supporting a conviction, of satisfying a jury and of establishing that identity was proved beyond reasonable doubt.
660 Some of your Lordships opposed to the Bill will say that there is no guarantee that the other place will agree to any of those amendments. That is true and, if it did not, our labours would have been in vain. However, I am optimistic in that regard. The tenor of the debates in the other place in support of the Bill seemed to me to have been activated primarily by two considerations. The first consideration is that it is important to affirm the principle that perpetrators of the hideous and monstrous crimes with which the Bill is concerned must remain answerable for those crimes wherever and whenever they are found. The second consideration, which on reading the debates it seems to me would certainly have moved a number in the other place, was the consideration—particularly now that following the Hetherington-Chalmers report the Bill has acquired, so to speak, a momentum of its own—that if Parliament failed to enact the Bill it would be a condonation of the offences.
§ Lord Callaghan of Cardiff
My Lords, perhaps the noble and learned Lord will allow me to speak for a moment. He is making a most persuasive case that some of these amendments would undoubtedly reduce the very great reluctance with which most of us go along with this Bill. I hope that he will allow me in intervening to say that I think that he is being a little over-optimistic perhaps in believing that the Government will give way because we are so rational and reasonable.
I ask him therefore whether it would not be preferable—this debate has several hours yet to run—if he were to press the Leader of the House, who sits here now, between now and the end of this debate to consult his colleagues in government and come back to us when he winds-up the debate with whatever he can say in reply to the noble and learned Lord's proposals in general. That might influence the vote of some of us who certainly do not want to see the Bill carried in its present form but, on the other hand, fully recognise the very great case that is made in favour of the general principles.
§ Lord Bridge of Harwich
I shall not repeat what the noble Lord said. The noble Lord the Leader of the House will have heard it. I am sorry if I take up too much time, but as no one has canvassed the question of amendments I thought that I was entitled to do so. I believe that there is no necessity to anticipate that supporters of the Bill in the other place will object to the proposition that those who cannot be fairly tried should not have to stand trial, or will object to the kind of stringent safeguards intended to guard against the danger of wrongful convictions which the amendments that I have in contemplation would be designed to introduce.
I appreciate that the great majority of noble Lords are opposed to the Bill. Those of us who think that it can be improved by amendment are part of that majority. The sole practical effect of denying the Bill a Second Reading will be to deny us that opportunity. We believe that we have the opportunity at least to ameliorate the effects of the Bill, which is a significant and well worthwhile one.
661 I appreciate that many noble Lords find this Bill so repugnant that they would not feel able in conscience to cast a vote in its favour. But I invite noble Lords to consider it from a pragmatic point of view. I hope it will be concluded that a vote to deny the Bill a Second Reading is neither necessary for conscience sake, nor able in practical terms to achieve any useful purpose whatsoever.
§ 6.24 p.m.
§ Lord Crickhowell
My Lords, for reasons which will become apparent I am greatly encouraged by the speech of the noble and learned Lord, Lord Bridge of Harwich, whose position is not very different from my own. Two weeks ago I stood in front of the memorial to the victims of the Holocaust in the ghetto in Venice. A few days later I read Sybille Bedford's stark and moving account of the trial, a quarter of a century ago in Frankfurt, of 22 former staff of Auschwitz and the events that led up to it. Those two happenings confronted me with the arguments in favour of the Bill.
Sybille Bedford wrote:They had to be judged because it would have been indecent to condone and forget offences such as theirs. What was at stake in Frankfurt was the establishment of truth: a unique opportunity of testing what many Germans, and non-Germans, still like to evade, in the hardest, straightest arena of all, an open court of law. A German court it must be repeated, not at Jerusalem, not at Nuremberg under an alien code, but under the German criminal code as established nearly a century ago".She went on:Pity and anger are inadequate. The law is inadequate … Comment is inadequate. Expiation will be inadequate. And yet letting it go, looking aside, would be an offence against justice, morality, the sense of fate itself. That is why the Frankfurt trial had to go on to the weary end".In August 1966, two and a half years after the trial began, the truth was unequivocally established. Seventeen were convicted. There can therefore be no looking aside or forgetting, no way of closing our eyes to the evidence—to use the words of my noble friend the Leader of the House. The trial took place 20 years after appalling events and the judge spoke of the difficulties that that fact dictated. Since then the time span has more than doubled: another 25 years have passed. If it was difficult between 1963 and 1966 in Germany to hold a fair trial, it becomes in my view impossible a quarter of a century later. That above all others is the reason why I cannot vote for the Bill. The possibility that perhaps two or three old and wicked men may escape conviction is a lesser evil than that further injury should be given to our system of justice.
Some argue, indeed my noble friend the Leader of the House argued, that the judges will maintain the integrity of the system and call off the trial if the truth cannot be safely established. But by then the world will have heard the charges and the allegations will have been made. I can think of no greater travesty of justice than to level an accusation knowing that its truth can never be tested.
I cannot then vote for the Bill. But, for the reasons that we Eave just heard, if I join with others and defeat it, under the parliamentary procedures approved by another place the Bill will become law in any case. I am surprised—I am rather shocked—that it has been 662 decided to proceed in such a way with a Bill of this kind. The procedures have only been used on a handful of occasions. As it happens, one of them was the Act to disestablish the Welsh Church which was passed after prolonged constitutional debate in which my great-great uncle the Bishop of St. Asaph, later the first Archbishop of Wales, played a central role. The circumstances on this occasion are wholly different.
I have to offer an apology to the House that because of a longstanding engagement I cannot be present for the concluding part of the debate. I apologise both to the House and to my noble friend who will reply; however, I shall feel no great sense of regret at being absent when the vote is called. I cannot vote for the Bill. If I vote against it, it will pass in a wholly unsatisfactory form. I feel unable to support the Motion of my noble friend Lord Campbell of Alloway.
There has been reference to disguising our moral impotence and pretending to assent. It is because I wish there to be no pretence that I have chosen to speak. If the Bill passes I hope that the House will use all its considerable skill and wisdom to amend it so as to remove what faults we can. My noble and learned friend Lord Hailsham of Saint Marylebone said that the Bill was unamendable. But we heard a contrary view in the encouraging speech of the noble and learned Lord, Lord Bridge of Harwich. Thus encouraged, without daring ever seriously to challenge the legal opinions of my noble and learned friend Lord Hailsham, I still hope that some steps can be taken to make improvements and provide some safeguards to make the Bill the best that can be achieved in wholly unsatisfactory circumstances.
§ 6.30 p.m.
§ The Earl of Longford
My Lords,I sympathise with the dilemma expressed by the previous speaker. I find my position somewhat easier than it might have been. I am delighted that, with our tradition on this side of the House of freedom of speech, we are free to vote as we wish.
On the last occasion I said that this was the most revolting Bill that I had known—and I am on my way to nearly half a century of attending this House. I reaffirm that position now. On the other hand, the noble Lord, Lord Mishcon, suggested—not obscurely—that the right action for all noble Lords sitting behind him is to support the Bill. I have an unbounded admiration for the noble Lord. If ever I were in bad trouble I would ask him to represent me—although I do not believe that I should be able to afford what I understand to be his enormous charges. However, he might make an exception for a colleague, even if it were unsatisfactory.
§ The Earl of Longford
My Lords, I suppose I might receive legal aid but that is problematical. However, I have the greatest admiration for the noble Lord, Lord Mishcon.
Luckily, there is no dilemma for me as there is for the noble Lord who has just spoken. Cardinal Newman was once asked whether it was possible for 663 him to drink the health of the Pope and of conscience. He replied, "Certainly. I drink the health of conscience first and of the Pope afterwards". That is my position, in this case the Pope being the noble Lord, Lord Mishcon. I have no dilemma. I speak, as did the noble and learned Lord, Lord Hailsham, according to conscience.
I shall not dwell in these few minutes—and they will be few—on the so-called constitutional issue. I do not believe that there is a constitutional issue. As I remarked in one of our endless debates, I was a junior Member of the Government who introduced the measure which restricted the delaying power of the House of Lords to a year. It was never contemplated that that meant nothing. We have a delaying power of a year. That is our constitutional right. Therefore, let us have no talk of a constitutional issue.
It is generally agreed that no fair trial is possible under the Bill. The previous speaker agreed with that, but seemed to share a hope expressed by the noble Lord, Lord Mishcon, in some way or other, by some extraordinary sleight of hand, that the Government might be persuaded to make the measure quite different so that a fair trial would be possible. I do not share that optimism. I see no grounds for it. Therefore, I am wholeheartedly in opposition to the Bill.
In these few moments, I shall do something that I seldom do: that is, to enter into the minds (I am not being sarcastic) of those who support the Bill. It takes some intellectual effort but I make that effort. I have been associated over the years with certain well-known criminals—people who have been convicted of murder. I am well aware that the relatives of murdered people cherish in some cases—though by no means in all cases—an undying antagonism to the murderers. It is understandable. Loyalty comes into the situation. There is the feeling that someone's child has been murdered and that one would be betraying that child if one did not pursue the murderer to the ends of the earth. That is a strong feeling which I have encountered at first hand. That aspect is relevant on the wider scale today.
I am aware that the past sufferings and atrocities inflicted on the Jews are unexampled in world history. I know of nothing to equal those appalling atrocities. One has to ask, therefore: what are the consequences over the years? I agree with the decision of the Labour Government in the 1940s, supported by Sir Winston Churchill. However, considering the matter more generally, can one understand the feelings of Jewish people in the face of those unexampled atrocities?
We were told on 4th June where this matter started. It comes from the Wiesenthal Centre. The centre has pursued remorselessly all over the world those who may be thought to have committed some of the appalling crimes. The initiative therefore is Jewish. There is no doubt about that. It is very understandable, but it is Jewish. The majority of those in this House who supported the Government on the previous occasion were not Jewish. There were a number of Jews but there were others. I understand the feelings of the Jews, in the sense that if I were a Jew 664 I would probably feel the same. But it is impertinent to pursue that aspect further. However, I am puzzled by the attitude of people who have not themselves suffered directly or indirectly. I therefore appeal to them. I do not refer to Jewish people whose sufferings have been unparalleled.
§ The Earl of Longford
My Lords, yes, but perhaps I may finish my sentence. I understand the feelings of the Jewish people whose suffering has been unparalleled but those who are not Jewish have to explain themselves more clearly than they have done up to now.
§ The Earl of Longford
My Lords, I shall try to enter into their minds, including the mind of the noble Lord.
§ Lord Mackie of Benshie
My Lords, I was about to explain my mind to the noble Earl. I find it very difficult to understand his mind if he is saying that one or one's family must have suffered before one can understand the suffering of others.
§ Baroness Phillips
My Lords, I had not meant to intervene, but I cannot resist it. As a Catholic, I remind my noble friend that Hitler was a Catholic too.
§ The Earl of Longford
My Lords, he was not what is called a practising Catholic. I do not believe that he had access to the Sacraments unless there was a lenient priest. However, let us leave that aspect of the argument.
I am trying to enter into the minds of people who have not themselves suffered but who nevertheless feel that these old gentlemen—some are almost as old as me—have to be pursued to the ends of the earth. Medical certificates have to be dredged up. All that process has to be gone through, but in the interests of what? We may say that it is in the interests of the victims or relatives of the victims. What good will it do the relatives of the victims? I put that point to the noble Lord, and then I shall finish this sentence before he pops up again. We have to think about the issue carefully.
I have often been asked how I would feel if one of my children had been murdered. How would I feel about the murderer? I have always said, "I cannot tell you how I feel but I hope that I would not argue that my feelings should be the basis of the just punishment of the murderer". I do not consider that the feelings of the victims should be made the basis of the punishment of the murderer. That is an individual case, but I take that position over the world scene. That is what I assert in the face of any argument and opposition.
We come to this question: what good can we do to the victims? On the previous occasion several speakers said that they supported the Bill because they were trying to do justice to the relatives of the victims. God knows those relatives need justice done to them and very few people have done much to help them. Those 665 who speak on the matter have not always done as much to help them as one would wish. On the whole, the relatives of victims have had a pretty raw deal over the years. But what good will it do them by persecuting the murderers?
§ The Earl of Longford
My Lords, I said "persecuting" them. It is a matter of opinion. It is a free country. The noble Lord has made a speech and I make mine which will not continue for much longer.
What good will it do the victims? In the end talking about helping the victims becomes humbug. I do not speak of people whose emotions are deeply aroused by the sufferings of their own community. I do not believe that one does any good to the victims by persecuting, or even prosecuting, the old people in question. That is where I take my stand and why I shall certainly vote according to my conscience against the Bill today, or on any other occasion that the opportunity occurs.
§ 6.41 p.m.
§ Lord Jakobovits
My Lords, like so many other noble Lords I rise also for the third time to contribute a few thoughts to our third debate on this agonising subject. There might seem to be very little that one can add to what has already been said. Indeed, one is reminded of the biblical preacher's words in the book of Ecclesiastes:This is the end of the matter. Everything has been heard".Is it the end of the matter? Everything may have been said but has it been heard and answered? These days we hear much about dialogues, about different parties, groups and faiths talking to one another, but I believe more important than talking is listening to one another
In listening to the debate for the third time I hear many persuasive arguments. Yet I am not convinced; nor, quite evidently, have I convinced others. Therefore, I shall try again, encouraged as I am by some of the contributions to which I have been privileged to listen and felt most humble in doing so; notably that of the noble Lord, Lord Glenamara, and the sterling address of the noble Viscount, Lord Tonypandy.
Naturally, we all speak from the vantage point of our own particular training and experience. Lawyers are conditioned to think of legalities, pragmatic politicians of practical difficulties. I suppose that professional preachers like myself are conditioned to think and speak in moralistic terms. All these diverse voices should be heard and carefully considered. In fact, we even hear the pleas for those who are alleged to have committed these horrendous crimes—that they are old and decrepit; their memories are fading, and is it not time to forget and forgive?
But I have an oppressive feeling that there is one voice transcending all others and we do not hear it. When the first murder in history occurred and Cain slew his brother Abel in cold blood, Scripture tells us:And the Lord said to Cain, where is your brother Abel? And he said: I do not know; am I my brother's keeper? And the Lord said: what have you done? The voice of the blood of your brother cries out to Me from the earth!".666 Thousands of voices cry out from the earth. They ring in this Chamber. Shall their voices not be heard? Just as the noble Earl, Lord Longford, put himself into the mind of one who directly sustained the suffering, will not your Lordships understand if I, as the nearest kinsman to most of the victims, cry out in their name; transmitting the voice that rings out from the blood-stained earth where, in the famous poet Yevtushenko's immortal words in his poem Babi Yar, "all screams in silence"?
No one suggests that the accused shall not be given absolutely fair trials. Where that cannot be assured further proceedings should be stopped. I find myself in sympathy with the proposals made to us by the noble and learned Lord, Lord Bridge. I submit that as legislators our task is to ensure that by our default the law will not exonerate the horrendous crimes of which we speak, letting the thousands of voices of the martyrs crying out from the earth go unheeded and unanswered, or perhaps be met with the response "Are we our brothers' keepers?"
As we have already been reminded, since our last debate two things have happened. Contrary to those who have mentioned them, I believe that they both reinforce the argument for the Bill. One is that the war crimes trials in Canada and Australia have come to grief. It has been argued that this speaks against the proposed measure. I believe the opposite. The failure of the two prosecutions has not convinced the parliaments in Canada and Australia to repeal their legislation. What matters is not whether the prosecutions are successful but whether the statutes proclaim the offences as criminal. The second event is the Gulf War. Britain and others are now proposing that Saddam Hussein and his henchmen be charged and tried as war criminals. Shall Hitler's executioners be deemed more acceptable to civilised society? That would only encourage future Hitlers, Saddams and their successors.
Finally, to those who have argued that the crimes we are discussing were not committed on British soil, not by British subjects, I can only reply by asking whether we should stop aiding the Kurds or the millions starving in Africa simply because neither they nor their oppressors are British nationals? Are we really our brothers' keepers only if we hold identical passports? Surely this Mother of Parliaments should show a noble example of human fellowship and not lag behind the legislation already passed by the daughter parliaments of the United States, Canada and Australia. I hope that in all our debates we shall keep our eye not on the trees of detail but on the wood of the overall objective of ensuring that never again in the future shall we have cause for such a debate.
§ 6.49 p.m.
§ Lord Boyd-Carpenter
My Lords, one can well understand that to the noble Lord, Lord Jakobovits, and to many of us, this is an agonising subject. I can only admire the courage and clarity with which, nonetheless, he spoke. However, I thought that he went a little far when he was beginning to suggest that it did not matter what the outcome of the trials were provided the accused were put on trial. It seems to be 667 carrying the argument extremely far to suggest that we should incur the immense trouble, not to say expense, of proceeding in cases where there is no possibility of a conviction.
§ Lord Jakobovits
My Lords, I was misunderstood. I did not say, "Provided the accused were put on trial". I said, "Provided that the law is on the statute book and the crime is registered as a crime, irrespective of whether or not prosecutions proceed".
§ Lord Boyd-Carpenter
My Lords, I believe the argument remains the same. To put something on the statute book which one does not believe is likely to be enforced or enforceable surely is to make a mockery of our law. I should have thought that the amplification which the noble Lord has just given of his observations makes them, with respect, even worse.
I commend to the noble Lord, Lord Jakobovits, whose feelings I fully understand, the speech on 4th June last year of my noble friend Lord Bauer, which seemed to me to embody the ideal approach to this problem. I shall quote his whole speech. He said:My Lords, I am of Jewish extraction. My father was killed by the Nazis. I emphatically support the amendment"—
that is, the amendment to reject the Bill:This Bill is another step towards the erosion of the rule of law".—[Official Report, 4/6/90; col. 1144.]I am bound to say that I found that very short speech by my noble friend Lord Bauer, the most moving of all the speeches made in last year's debate.
This year's debate has been extremely interesting. However, I should like to enter a protest, as my noble friend the Leader of the House is here, at the way in which it has been compressed into one day. It is not a subject on which it is easy to make a short speech. It is a subject of great interest and importance and to compress it into one day seems to me to be treating this House less well than it should be treated. I say that to my noble friend with an easy conscience because, as he knows, I represented that to him a day or two ago.
The case for deferring the latter part of this debate and the vital votes to another day is very much strengthened by the speech of the noble and learned Lord, Lord Bridge of Harwich. The attitude of many of us would be affected by knowledge that the Government were likely to accept the amendments which the noble and learned Lord, Lord Bridge, indicated that he will table if the Bill receives a Second Reading. That will be a highly relevant consideration.
Equally, it is not fair to ask my noble friend to give an answer for the Government this evening. However, if he will at an appropriate moment move the adjournment of part of this debate and the vote to another day, that would give him an opportunity to seek the approval of his colleagues. If that approval is given, that must plainly affect the attitude of many of us. Therefore, I beg my noble friend not just to persist in carrying on this debate, as it will be carried otherwise, into the small hours with a vote of great importance taken in the early morning hours. In the light of the additional factor of the proposals by the 668 noble and learned Lord, Lord Bridge, I ask him at an appropriate moment to move the adjournment of the debate.
I share the view expressed—and therefore I need not take much time over it—that the threat of the Parliament Act on this Bill is outrageous. As has been made clear, the Parliament Act was framed to prevent a party with a majority in this House thwarting the major policies of a government of another party in another place. That is how it arose originally when this House was foolish enough in 1909 to reject the budget of the then Liberal Government.
However, to invoke the Parliament Act on a measure of great psychological importance which raises moral and difficult issues but which does not affect the policy of the Government of the day or the working of the national economy seems to me to be an abuse of the powers given by the Parliament Act. I very much hope that if your Lordships' House, either on Second Reading or later when debating amendments, reaches decisions then the Government will think again. I hope that they will realise that to use the Parliament Act in this situation is not in accordance with our traditions, is not fair to this House and is not a proper working of our constitution.
As has already been pointed out, this Bill was not in the Government's election manifesto. It was carried by a vote on the last occasion by fewer than half of the Members of another place. It seems to me that it would be very unwise for this Government to build it into a great constitutional issue involving the invocation of the Parliament Act. That is the more surprising when one can see clearly that this Bill has never been the declared policy of the party of which the Government are composed. It has already been pointed out that last year our present Prime Minister voted against it in another place, which shows what a sensible person he is. On this occasion, he abstained from voting. Therefore, I urge my noble friend the Leader of the House to convey to his colleagues that relations between the two Houses will not be improved—and may well deteriorate—if the great bludgeon of the Parliament Act is invoked, whatever may be our decisions on the Bill.
It is an extraordinary Bill. To come forward with a proposal after nearly 50 years to try people for offences committed when they were young men a long time ago and in another country is quite extraordinary. It involves reversing the policy—because it has been the policy—of all governments for the past 40 years; namely, to leave the issue alone. It is not yet clear to me what suddenly sparked the Government on this occasion into introducing this Bill with the idea of bringing to trial a number of old gentlemen—and as they have not been convicted, I believe I am entitled to refer to them as gentlemen—who have been living in this country innocently and quietly for many years.
What is to happen if we incur the very substantial expenditure involved? That money could be much better spent in other directions, and I could make suggestions to my noble friend as regards that. What is to happen if this becomes law and a handful of those old men are tried in our courts? From what one hears 669 from noble and learned Lords, it is very unlikely that they will be convicted. The noble Lord, Lord Jakobovits, does not worry about that, but the rest of us do. To have this supposed great measure of justice produce a series of acquittals (as has already happened in Canada) is a waste of time and effort. Moreover, it somewhat denigrates the working of our political and legal system.
What is to happen if they are convicted? What is the judge to do when someone who is probably in his mid-seventies or older is brought up for sentence? Theoretically for an offence of this sort the judge should impose an enormous sentence because the crimes are enormous. What is the point of doing that to a ma.n of that age? In this context, I cannot help recalling the late Mr. Justice Avory whom some of your Lordships may remember—and I see the noble Lord, Lord Mishcon, is indicating that he recalls him. There v; as no age limit for the retirement of judges. I heard Mr. Justice Avory sentencing a man of about his own age to 14 years' penal servitude at which the man from the dock cried out, "My Lord, I shall never live to serve it". "Well serve as much of it as you can", said the judge. And no doubt he did.
§ Lord Mishcon
My Lords, I interrupt the noble Lord only for the purpose of accuracy. The very witty judge said, "Do the best you can".
§ Lord Boyd-Carpenter
My Lords, if I can avoid it, I never argue with the noble Lord, Lord Mishcon. But I was actually present in court on that occasion and made a note of what was said. Therefore I must stick to my own version which, in tribute to Mr. Justice Avory, is the wittier of the two remarks, if one can regard it as wit to be quite so brutal when sentencing someone.
What is a judge to do under the Bill when he sentences someone of that age? He is aware that if he gives an imposing sentence, which the gravity of the offence would undoubtedly dictate, under our penal system that means the old man would probably be placed in the prison hospital for a few months and then quietly released. The whole episode would be a fiasco. It would be a great pity to have a fiasco of that sort on an issue about which so many people feel so deeply, as the debate indicates.
I suggest that the Bill is a great mistake. After all these years, it is wrong to seek to try people who we may well not convict; and if we do convict them, there is little that we can do about it. As I said in the debate last year, if the sequel to a conviction was to be what happened in the case of an ancestor of mine some 240 years ago when, as a result of conviction, he had his head chopped off on Tower Hill, there might be some point in it. But we do not do that kind of thing nowadays; all we do is sentence them to prison, which means in practice the prison hospital at this age. The futility of the operation becomes apparent.
That raises the final question of what your Lordships' House should do today. If we had a real understanding that the amendments of the noble and learned Lord, Lord Bridge of Harwich—which would prevent anybody being convicted under the Bill—were accepted by the Government, there would be an 670 arguable case for allowing the Bill to have a Second Reading and for accepting the amendments. In the absence of that and a clear assurance to that effect—which I very much doubt we shall get—your Lordships' House has no option, for the sake of its own self-respect, but to say, "We think the Bill is nonsense; we shall reject it. If you care to use the Parliament Act to enforce your will, so much the worse for you".
§ 7.3 p.m.
§ Lord Ackner
My Lords, I am not given to writing dissenting judgments. In five-and-a-half years as a Lord of Appeal in Ordinary I have written four; in none of those appeals was my noble and learned friend Lord Bridge a member of the Appellate Committee or the Privy Council. Therefore it is with special regret that I feel obliged to express my dissent from what he suggested. Quite simply, it is my submission to your Lordships that the Bill is beyond redemption. There is no point in seeking to tinker with it by way of amendments which may or may not achieve the Government's approval.
Let me explain why I reach that conclusion. As the noble Lord, Lord Jenkins of Hillhead, reminded your Lordships, the Bill is the product of a careful and painstaking report by two former senior prosecutors of great distinction. Unfortunately, as the noble Lord, Lord Irvine, wisely observed in the last debate in June—without any histrionics may I emphasise—the two senior prosecutors asked themselves the wrong question. That was wholly understandable because they asked themselves the stock question which prosecutors do ask themselves; namely, is there sufficient evidence to give a realistic prospect of conviction? In the quite extraordinary context of these crimes, which they were considering prosecuting some 50 years after they were committed, the vital question is, "Can a fair trial be guaranteed?" I hasten to say that that is not proposing a test which is too high. As the noble Lord, Lord Mishcon, said in the debate on 4th December 1989:justice includes … guaranteeing a fair trial for any accused".—[Official Report, 4/12/89; col. 610.]
Had they asked the right question they would have concluded that there was no reasonable prospect, let alone guarantee, of a fair trial after such a passage of time unless—I emphasise "unless"—first, the quality of the prosecution evidence was outstandingly high, and, secondly, the accused could in practice enjoy the same facilities as the prosecution for gathering and testing the evidence.
With regard to the quality of the evidence the report concedes that, first, the investigation of crimes well over 40 years after the event, "is fraught with difficulty". Secondly, those who witnessed the atrocities had, for the most part, themselves been killed. Thirdly, some of the witnesses who exist are unwilling to come to this country and some are clearly not fit enough to do so. Fourthly, the transmission of evidence by live television link may in practice present very considerable difficulties; for instance, where the 671 witnesses are not fit to travel from their remote villages to one of the major centres in the USSR. Lastly, identification is the crucial issue.
Your Lordships may recall from the speeches made in the last debate that it was the Criminal Law Revision Committee in 1972 which said in terms,by far the greatest cause of actual or possible wrong convictionis mistaken identification of the accused. How is that to be remedied? How is the quality of the evidence to be enhanced by the amendment proposed? What has been suggested is that in regard to identification, as far as I can understand it, the judge should be particularly careful. But he has to be particularly careful now.
My noble and learned friend Lord Bridge did not go so far as to suggest that the identification evidence should be corroborated. No doubt he realistically did not make that proposal because he was anxious to obtain the Government's consent, and the prospect of corroborative identification in these types of cases must be remote. In addressing your Lordships last June I referred, and shall not refer again, to the other problems of identification.
I move on to the second requirement of a fair trial; that is, the facilities available to the defence. Your Lordships will appreciate that we are concerned with facilities which will or will not be available in what is now Soviet Union territory. In considering whether the accused can in practice enjoy the same facilities as the prosecution for gathering and testing evidence, I content myself with drawing your Lordships' attention to the delicate euphemisms, the quasi-diplomatic language, used by the report in paragraph 9.54 when advising against extradition proceedings—the very point raised by the right reverend Prelate the Bishop of Southwark. It reads as follows:Despite recent welcome advances towards a 'rule of law', we are advised that the Soviet Union is still a long way short of having a system of justice comparable to that in this country. 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 a fair indication of the co-operation which the defence can expect in trying to marshal material to defend the charge. What amendment is proposed to remedy that? None, because there can be none.
In opening the debate last June and in closing it, the noble Earl, Lord Ferrers, observed:There is nothing [in the Bill] to prevent any judge from stopping a case from proceeding if he believes that a fair trial will be impossible".—[Official Report, 4/6/90; col. 1204.]That has been emphasised by the noble Lord the Leader of the House today. It is that matter which my noble and learned friend Lord Bridge wishes to be enshrined in the Bill itself. But my noble and learned friend Lord Bridge said at col. 1186 of the June debate, that he recognised that there was a possibility of amending the Bill so as in terms,to give to individual judges a discretion … to rule that on account of delay the defence has been so greatly prejudiced that the prosecution should not be allowed to proceed.He then observed:But what an intolerable, onerous and invidious task that would be to place on the shoulders of individual judges".I entirely agree. The media interest in the quality of the administration of justice lags depressingly far behind 672 its paramount concern with fighting the circulation wars. It is not difficult to anticipate the media campaign against a judge who deprived it of such valuable copy. "Judge usurps jury's function" and "The judiciary frustrate the will of Parliament" will be the more moderate banner headlines which one can expect. The suggestion that the judge's decision has been endorsed by the Court of Appeal and that that would take the heat off the judge overlooks the fact that it is merely four judges then whom the media will attack rather than one. If one wants to see a recent ignorant and offensive attack, one has only to look at what was said on a centre page of The Times this Monday about five or more Lords of Appeal in Ordinary. The amendment proposed is an amendment which places a wholly unsatisfactory and unacceptable burden on the judge.
I have said enough to condemn the Bill if only on the basis that it will dilute or devalue, diminish or debase, or, in a word, degrade, our standards of justice. There are other major defects which are beyond redemption. I can mention them very quickly. First, there is the "selectivity" which inevitably gives rise to the justifiable accusation of double standards, namely, ignoring Italian and Japanese war crimes and others. Secondly, we are apparently to bend our procedural rules. Evidence by television link or the by-passing of committal proceedings, was never contemplated in this category of case. Thirdly, the legislation is clearly retrospective in character even though its retrospection is confined to the jurisdiction of the courts. Fourthly, it entirely ignores the decision made in 1948 to close the files on war crimes. Fifthly, there is the inordinate cost in investigating and launching these prosecutions which involve an excessive demand on limited resources. The annual estimated expenditure in England and Scotland of £12 million to service the proposed legislation just cannot be shrugged aside.
Some of your Lordships may have attended that most interesting debate last Wednesday when the noble Lord, Lord Norrie, attempted to have the teaching of swimming made compulsory. He pointed out that 160 children died last year because they could not swim. But he conceded that it would take £4 million a year to remedy the situation which is one-third of what it is anticipated will be necessary to put by annually for the prosecution of a few elderly men for whom, may I make it perfectly clear, I have not the slightest sympathy.
There can be no escape from the inevitable results of this legislation if it is passed. There will be an irresistible pressure for prosecutions to be mounted. To have this measure on the statute book and to say, "Further investigation has shown that it is unnecessary" will be wholly unacceptable. The trials will become show trials and irrelevant issues, such as I believe arose in the Canadian trial concerning the challenge to the very existence of the Holocaust, could well arise. Wholly misguided sympathy could be directed towards the elderly and perhaps ailing accused and, by way of a backlash, anti-semitism could insiduously raise its loathsome head. The trials 673 will turn out, as the noble Lord, Lord Boyd-Carpenter, warned last June, to be nothing short of a farce.
The stimulus for the legislation, the emotionally charged statement in paragraph 9.18 thatThe crimes committed are so monstrous they cannot be condoned.—as if anyone was considering condoning them—can so easily result in a deeply wounding anti-climax, the supreme; irony, the awful trivialisation of the memory of the 6 million victims of cold-blooded murder which we all so emphatically condemn. If that were to happen. then we would indeed be travelling along the road to fiasco mentioned by the noble Lord, Lord Houghton of Sowerby. I for one would not wish to take that path.
§ 7.17 p.m.
Lord Campbell of Croy
My Lords, today's debate takes place on a significant anniversary. It was on 30th April 1945 that Hitler committed suicide in his bunker. Had he not taken his life he would have been tried before the Nuremberg tribunal. Noble Lords may ask why I remember that. I was wounded the day before and as I then spent a year and three months in hospital I am unlikely to forget those dates. I do not intend to repeat my speech of 4th June although the Bill has returned to us again for a Second Reading as I then foresaw.
I hope to help the House over some misunderstandings that appear to exist about what happened in 1948 and the decisions of the United Kingdom Government. I was in a position then to know about them and I can now shed some light. The essential point is that the United Kingdom Government were involved in two processes of bringing alleged criminals to trial. One was the Nuremberg International Tribunal; the other, the trials in the British occupied zone of Germany. The Nuremberg trials ended in 1948. It had not been intended that that international tribunal, established by the Allied victors in Europe, would be a permanent institution.
As regards the second process, the United Kingdom did not bring the trials in our zone to an end. The responsibility for prosecutions was handed over to the new democratic authorities emerging in Western Germany. Prosecutions for war crimes have been initiated in Germany from time to time ever since. Only three months ago (last January) a former SS guard was convicted of murdering gypsies at Auschwitz. We should remember that the Nazi regime classified gypsies as enemies as well as other categories, although it was the Jews who were the most numerous of their victims. The convicted man was 71 years of age. His state of health was taken into account in the sentencing.
I return to the first and at the time the most important war crimes court, the Nuremberg tribunal, which was especially established for the purpose.
The noble and learned Lord, Lord Shawcross, who spoke again most eloquently today, is probably the most eminent living British participant. He reminded us on 4th June last year at col. 1097 of the Official Report that his part related only to the trial of 674 so-called "major" criminals at Nuremberg. He added that the so-called "minor" criminals were not his responsibility. I also use the term "so-called" because, whether they were major or minor, the alleged crimes were horrifying atrocities. The former category were, in the main, well-known or notorious, and their accomplices. The second, the so-called "minor" criminals, were of less, if any, notoriety.
The noble and learned Lord, Lord Shawcross, in that speech, broadly divided the two processes in which the United Kingdom Government were involved. He had the responsibility for the first—the Nuremberg tribunal. It is the second process which has continued ever since in Germany and it is the so-called minor war criminals to which the Bill generally applies whatever the atrocious nature of the allegations. In 1948, in the three years after World War II, the Nuremberg tribunal dealt with the Nazi leaders—Goering of course committed suicide during the proceedings—and, as the noble and learned Lord has reminded us, the major criminals. They had caused the war in which millions had lost their lives and they had the ultimate responsibility for massacres and deliberate executions of prisoners; for example, British SOE and commando servicemen captured behind enemy lines. They were the ultimately responsible Germans.
By 1948 most of the big fish who were in custody had been dealt with and some of the small fry were in the dock there too. There was also a feeling that there must be an end to retribution. The "British public was beginning to feel doubtful about the validity and propriety of victors' justice"—that is another quotation from the speech of the noble and learned Lord on 4th June 1990. "Victors"' was the significant word. Nuremberg was a special purpose court set up by the wartime allies. The time had come by 1948 to hand over to the new German courts of justice, where suspicions of retribution harboured by ex-enemy victorious countries, would not arise. That is what happened; and so-called minor war criminals, such as the ones who might have concealed themselves in the United Kingdom, have been before those courts from time to time ever since. Personally, I welcomed the new relations with Germany in the late 1940s and I played, if I may so modestly, a leading part in post-war reconciliation, such as participating in the early K Önigswinter conferences.
The book was not closed. I think the use of that expression can be misleading. The United Kingdom withdrew from the proceedings in continental Europe, but did not close the book. The trials which had been going on in the British zone continued.
Nothing was done in the United Kingdom. That is a point which has been brought out in the debate. Nothing was done about war crimes' trials because there was no evidence that there were any such criminals in this country. That, admittedly, left a gap.
Until 1957 there was no law in the United Kingdom under which a prosecution could have been started, and then it was only for years subsequent to 1957. While there was no evidence then, it was possible that some little known perpetrators of war crimes could have concealed themselves, with false names, records 675 and papers, among the thousands of refugees who came to the United Kingdom from Eastern Europe. The screening of these people was by no means thorough. It was very difficult because there was a dearth of information about what had happened in Eastern Europe during the war.
I was working in the Foreign Office in 1947 and 1948 on Europe. In case it is asked how I suddenly popped up there at that time, I should say that I had been successful in the Foreign Office exam and in the medical, while still in a wheelchair and on crutches. That explains being there after a very long time in hospital. Had I been asked in 1948 whether it was possible that there could be minor war criminals in the United Kingdom, I would say, "Yes it was possible that there were some among the many refugees", though there was no evidence at that time about it.
During that period the suspected war criminals with whom I was dealing directly in the Foreign Office were the Yugoslavs. There were a number of accused Yugoslavs in British hands. We had the difficult problem of deciding whether any should be returned to Yugoslavia to face a trial there.
We enlisted the help of my friend and later colleague in the House of Commons, Sir Fitzroy Maclean, who had been the wartime leader of the British mission to Marshal Tito. He assisted with the screening and inquiry procedure, which was the best we could devise. Some of those Yugoslavs were sent back to Yugoslavia. As I was concerned with that part of the war crimes post-war arrangements, I naturally had to be familiar also with what was happening in Germany.
I supported the Second Reading of the Bill on the last occasion and I shall do so again today. I have listened to all the criticisms made of the legal side of it, notably from distinguished noble and learned Lords and again from the noble and learned Lord, Lord Bridge, today. I shall simply summarise my views by saying that any trials must be fair, and that there may be very few prosecutions. That is my view and my forecast, and I have made it before. As I said on 4th June last year, identification is crucial and the horror of the crimes must not colour the proceedings. I support the Bill in establishing a means of bringing prosecutions, even though, as I foresee, there are likely to be few. I would support the principle of the Bill if there proved to be no prosecutions. It must therefore be asked: why go to the trouble and expense? I have a personal reason.
Among other things, I was for four years Secretary of State for Scotland, and therefore Home Secretary in addition to other functions, for that part of the country. I personally find it sickening to hear rumours in Scotland that at least one former refugee has conceded—after a few drinks, probably—that he concealed his identity and is boasting that nobody can touch him now and that nobody can charge him for wartime offences. That situation should not be allowed to continue. There should be jurisdiction to allow that kind of situation to be tested. Either there is no evidence and no case, or there are fair trials, though I foresee no spate of prosecutions.
676 I turn to my other point, which is the objection that alleged war criminals are now too old and frail to stand trial. There is no limit in this country on the time for prosecutions for murder. If a British born national resident here were now to be accused of murder in the United Kingdom in 1939 and all the necessary evidence became available, perhaps including a confession, would there be no trial in this country simply because he was 70 or 75? Of course not. Age should not affect trials for murder, though the mental and physical state of the accused should be taken into account in his treatment and sentence.
I mentioned earlier the war crime case in Germany which ended in a conviction three months ago. As reported in the press, the arguments in that case were not about identity. The defence admitted he was the person who had been at Auschwitz. The arguments were about conclusive proof of the nature of the accused's acts in connection with the victims'—gypsies'—deaths. No one suggested that he had not been there or involved. His state of health was, rightly, taken into account.
However, age is not a determining factor. Several of my noble friends on these Benches are in their eighties, but nothing stops them from making lively and penetrating contributions to our debates. They lead extremely full lives. But we learn from reports in the press that Mr. Ernest Saunders, lately of Guinness, is suffering from Alzheimer's disease which is also known as senile dementia. He was a small boy during the war years and I believe that he is still under the age of 60.
The noble Lord, Lord Houghton of Sowerby, who today demonstrated his state of health in mind and in everything else, is 92. I congratulate him along with everyone else on that. I very much hope that I am in possession of all my faculties and able to stand up to any counts on which I might be charged in a court. I was in the army full-time just before the Second World War started and I am still under 70. I have clear recollections of the life and death episodes in which I took part during the war. I am sure that victims and witnesses of lethal treatment from war criminals would also find that their memories served them well.
Anne Frank, the Dutch girl who wrote the famous diary, died in Belsen. If she were alive today, she would be several years younger than me. I was in the 15th Scottish Division which, with our accompanying tanks, found Belsen in mid-April 1945. It was the first concentration camp to be discovered in the West. However, we were too late, tragically, for Anne Frank and many others. A few days ago, the Belsen exhibition was opened as a permanent part of the Imperial War Museum on the other side of the Thames. The noble and gallant Lord, Lord Bramall, as chairman, presided. He invited me to the opening because he knew about my military connection. I hope that noble Lords will find the time to visit the exhibition.
As regards the constitutional issue and the amendments, I respect the right of everyone to vote against the Bill. I do not think there is a constitutional issue involved. I must remind your Lordships that I was the Peer who was most concerned on the previous 677 this House rejected a Bill in 1976 and when it was reintroduced by the Government of the day. In that case, the action was rewarded by the Government later withdrawing the Bill and accepting what had become known as the "Campbell" amendments. Of course, at that time, they were "Campbell of Croy" amendments because my noble friend Lord Campbell of Alloway had not yet come to this House.
My object today has been to provide clarification of some of the events in the 1940s which affect the Bill. By chance I was close to some of them. It has been said that supporters of the Bill are moved by emotion. I can understand that in certain cases. However, it does not apply to me. My arguments are coldly logical. In particular a criminal should not escape, by deceit and cunning, when his companions in the same crime of murder have had to face trial.
§ 7.33 p.m.
§ Lord Wilberforce
My Lords, I did not participate in the Second Reading debate which took place last year, but I did speak in the preliminary debate of December 1989. I was then in my eighties and therefore entitled to the benefit of the indulgence of the noble Lord, Lord Campbell of Croy. I then gave reasons why I had perhaps some qualification to talk about war crimes, having been in the zone, in Berlin, and in the control office. I shall not expand upon them. I believe that your Lordships will give me credit for no wrong or soft feelings about war criminals: I was too close to it; I have seen too much of it; I have been to all the places; and I am deeply filled with as much horror about what was done as are many noble Lords. I shall not repeat what I said in December 1989 because my point can be very briefly and shortly stated. I remain convinced, as I was then, that the Bill is so morally and legally wrong in principle that we should not be parties to its going through this House.
In June 1990, this House took the very exceptional step of denying a Second Reading to a Bill. It clearly endorsed that position so taken. It would not have taken that exceptional step of rejecting the Bill on Second Reading except on grounds of principle and conscience. I suggest to your Lordships that those grounds are equally valid today. Indeed, to abandon this moral ground and the position taken so firmly a year ago, would be both humiliating and damaging.
I shall leave to others who are more experienced than I the task of dealing with the constitutional aspect. I shall try to frame my attitude accordingly. However, I must say that I was deeply impressed by the speech made by the noble Lord, Lord Pym. I should like very shortly to summarise the four points of principle—I emphasise the fact that there are four of them, not one—which impel me to regard the Bill as irremediably tainted. The first is the retrospective argument; and one can state that very shortly. I know that there is another view about it of a sophisticated kind. However, it is in essence retrospective, as has been endorsed by no less than two former Lord Chancellors in this House. I agree with them and others who have expressed the same view. I do not 678 think that your Lordships would dissent from the proposition that, if something is retrospective, it is contrary to the spirit of our laws.
Your Lordships know that in 1957 and in 1969 Bills were passed that became enacted which dealt with war crimes and genocide respectively, making both war crimes and genocide triable in this country. Those Acts were not retrospective. However, what we are now asked to do is to abandon that principle in relation to this particular type of case. The retrospective argument is simple: either your Lordships accept it or you do not.
The second point is that the Bill is targeted. My noble and learned friend Lord Ackner used the word "selective". I prefer to use the word "targeted". It is aimed specifically at particular people. It will not be passed in order to cure some defect in the nationality law or, as one honourable Member said in another place, to cure a quirk in our nationality laws. That is not the case. It is a question of directing a new law against a limited class of persons who are resident here, who have been in a particular place between certain particular dates and who have committed particular sorts of war crimes. It could not be more targeted or, as my noble and learned friend the Master of the Rolls said in the previous Second Reading, tailored to meet a particular case. For that reason, it seems to me to be deeply offensive.
The third point is whether it goes back on a decision consciously and deliberately reached in 1949. Noble Lords are aware of the material on that and of the speeches made by the noble and learned Lord, Lord Shawcross, and the noble Lord, Lord Mayhew, on the Second Reading. I should like to add a further quotation which has not been recently used. It came from the noble Lord, Lord Hankey, who spoke in the debate on the report. As your Lordships may recall, he was head of the Northern Department of the Foreign Office up until 1949. He said:We consciously and deliberately stopped prosecutions in 1948 or 1949".—[Official Report, 4/12/89; col. 669.]There is no doubt that the picture is not clear. However, it seems from the quotations which can be read in the report from Mr. Churchill and from what was said about Mr. Attlee, Mr. Bevin and the noble and learned Lord, Lord Shawcross, that at that time it was decided to draw a line under the war crimes. In an attempt to escape from that argument, it is said that no one had in mind people living in this country. They were not mentioned. Surely that argument will not do. It was a general decision taken on general grounds that enough was enough. It covers all cases. You do not have to cover every particular case thereafter. It was perfectly well known then—and the noble Lord, Lord Cochrane, mentioned the point in his excellent maiden speech—that there were thousands of unprosecuted war criminals. Indeed, Lord Wright, who was chairman of the United Nations War Crimes Commission, said in the debate which took place in this House in 1945 that it would be more than satisfactory if 10 per cent. of all criminals were dealt with. Paragraph 3.55 of the report states:The target of prosecuting 10 per cent. was not achieved, even of the identified war criminals".679 So the general decision to stop trials must have included identified war criminals. Is it to be said that it did not cover unidentified war criminals? I find that argument extremely weak, and the argument about what was and was not done in 1949 extremely strong. Those three points are strong points of a conscience nature and of a moral nature against proceeding with the Bill. None of them is touched in any way by any suggestion that we have heard as regards possible amendment of the Bill. They are there and will not be removed.
We come now to the impossibility of fair and proper trials. That point has been dealt with by a number of speakers, and I need say no more than that I agree totally with what has fallen from my noble and learned friend Lord Ackner. We are offered what is called a pragmatic solution. I am with the noble and learned Lord, Lord Shawcross, on this point. To me, pragmatic means abandoning one's principles for a possible advantage. As things stand, I cannot wear that.
I can sum up the way the matter looks to me in this way—it is much the same as my noble and learned friend said. The Bill is totally unacceptable in a way which applies to all trials by their very nature and by the purpose of the Bill: because we are now 45 years on. That is the purpose stated in the explanatory memorandum in respect of Clause 1; because trials relate to, and are intended to relate to matters far away—a thousand miles away—where there were no British troops or officials to tell us what happened; because, as the report says, most of the direct witnesses are dead, having been killed in the atrocities in question—that is apart from any question of old age—and because evidence is necessarily circumstantial and hearsay, and in addition is probably unobtainable.
No amendment can alter that position unless it makes such inroads into the requirements for trial that no one could be convicted. My noble and learned friend made that point—that if the amendments went that far, it is clear that the Government would not accept them. The basic fact is that it is our responsibility as legislators to decide whether such a trial, in the framework of the Bill, should be allowed. That is our responsibility. It is one from which we cannot escape.
Perhaps I may quote a few of the pungent comments made on the previous Second Reading. The noble Lord, Lord Goodman, whose words on the subject deserve to be heard, said that he regarded the Bill as damaging a great institution and the rule of law in this country. The noble Viscount, Lord Caldecote, whom I do not see in his place, said that we could not escape deciding whether this is a good Bill upon which justice could be soundly based. My noble and learned friend Lord Simon of Glaisdale said:The objections are fundamental. They cannot possibly be cured by tinkering by way of amendments … My noble and learned friend Lord Bridge dealt conclusively with that matter".—[Official Report, 4/6/90; col. 1192.] in his speech.So he did in Hansard (col. 1186), part of which was cited by my noble and learned friend Lord Ackner.
680 It is our responsibility. It is a question of principle. As things stand at the moment, I cannot believe that any amendment—although no doubt much work could be done to improve the rules of evidence, cut out television links and so on—would go to the essence, nature and irremediable character of the Bill. The noble Lord said that the Bill is amendable. Of course it is. It is equally true, as the noble and learned Lord, Lord Hailsham of Saint Marylebone, said, that the evils of the Bill are irremediable. Both facts are true.
One may ask—I follow the noble Lord, Lord Jakobovits on this—what is the overall objective? On that, one cannot do better than to refer to the telling speech of the right honourable gentleman who led for the Opposition in another place, Mr. Hattersley. It was a sincere speech, and he was struggling with some difficulties.
At the end of his speech he said that there were five possible objectives in passing the Bill, the first four of which could not be remotely applied. Those first four were: first, whether it was a deterrent. He said that it was clearly not. Secondly, it could be for the rehabilitation and reform of the offenders. Again he said that it was certainly not. Your Lordships will remember that that is someone supporting the Bill.
The third point was whether it was needed to lock away criminals to protect the public. He said that it was not that. The fourth point was retribution. He said that it was not retribution; that was too close to vengeance. His fifth point—the only point upon which he fastened—and the final justification, was the demonstration of collective revulsion against the crime and the criminal. That was his ultimate justification. In the end, that is what is wanted: to send a signal, as some would say, to rehabilitate the credibility of the Holocaust; and to place before the public a full record of all that was done. That is what has been said, but that is not a justification for setting up a trial, and a series of trials of individuals. The fifth ground cited by the right honourable gentleman goes against that even more clearly than do the others.
There is just one other point which is of some practicality and which has not so far been mentioned. In passing the Bill, we are not just authorising the prosecution of probably three, said to be elderly, gentlemen against whom there seems to be some evidence; but the report recommends that if the Bill were passed there would follow the investigation of 75 other cases. Let us just think of the expense. I suppose we must not count the pennies. Let us think of the manpower that would be involved in searching over many years in all the archives all over Europe, America and other places where records are kept. Let us think of the turmoil that would be caused to other people's lives. So apart from the question of whether those three gentlemen, or any of them, can properly be brought to trial under any circumstances, I ask your Lordships to bear in mind the wider implications of the Bill if it were passed. I shall vote for the amendment.
§ 7.47 p.m.
The Earl of Selkirk
My Lords, the noble and learned Lord, Lord Wilberforce, mentioned the subject of expense. When my noble friend replies to the debate will he give us some idea of what the whole exercise will cost, bearing in mind the complaints we constantly have about education, hospitals and so forth? The costs must be weighed against what we could do with the money in other areas.
I shall I quote one passage from the Cabinet papers of 4th November 1946 in support of what my noble friend Lord Campbell of Alloway said. They stated that the discussion showed that the view of the Cabinet was that they should do nothing to support the holding of a second international trial, and in general should advocate a policy of discontinuing trials for war crimes. The paper goes on to say that if the United States demanded a trial it might be considered.
The report shows that Lord Jowett thought that if justice were spread over too long a period it began to look like vengeance, and that that is different from justice. That was the position then. There is no reason to suppose that the 10 formidable Prime Ministers who followed could not have raised the issue had they wanted to In no case did they choose to do so. In those circumstances, it is doubtful that we shall benefit anyone by continuing the trials. I am conscious—and I know a certain amount about it—that for 20 years the Jews and others were bullied by Hitler and his crew. They deserve every consideration, but the answer is not to try people by jury. The answer is through the rise of civilisation; that is the essence.
We have reached a corner of the 20th century where all kinds of things happen. There is hardly a country in the world where some form of major or minor revolution is not taking place. I wish that the Foreign Office would show more keenness about the next 50 years than about the past 50. There is little we can do about them, whatever we may wish. We must concentrate on the next century, the 21st century, and make it totally different in character from the 20th. We have had to deal with a century of terrible bloodshed. It is partly a matter of understanding, religious understanding and faith in each other, as well as civilisation. Those qualities will make the century better and will give races in different countries a better chance.
I do not mind whether the Bill is passed. I do not believe that it will do the slightest good to anyone. If we reject it, we shall probably do the House of Commons quite a good turn. It will make them think again, but we shall get nothing out of it. I do not propose to say any more at the moment.
§ 7.51 p.m.
§ Lord Macaulay of Bragar
My Lords, much has been said in your Lordships' House on the morality involved in the debate. It is my view that morality does not enter into the matter at this stage. No one who heard the speeches of the noble Viscount, Lord 682 Tonypandy, and the noble Lord, Lord Jakobovits, could be other than impressed with the factual basis on which they presented a formidable case.
We are dealing not with morality but with facts, the facts of life and death. The death of many millions was described by the noble Lord, Lord Jakobovits. We cannot hide behind esoteric discussions of morality in this debate. We must get down to the facts of whether the people responsible, if they are still alive, can be caught and prosecuted in a fair manner. That is what I believe the Bill and these procedures are all about. I shall come shortly to whether the Bill is a proper procedure.
The Bill—retrospective in character or not—is short on detail, particularly relating to court procedure. That has been demonstrated by the contributions from noble and learned Law Lords in your Lordships' House, and in the law to be applied in obtaining evidence and dealing with it.
The thought of embarking on a major trial or trials of international significance with this legislation as the procedural basis must set legal alarm bells ringing all over the place. I may have misheard the noble Lord the Leader of the House as I was standing at the Bar. However, I understood him to say that the Bill was primarily concerned with mass murderers and he wished to make that clear. A reading of the report indicates that it finally homed in on that point.
If the Bill is merely designed to catch mass murderers, then why is it not limited to that? If that were clear there might be more sympathy for it, but it is not at all clear. It confers upon the courts of the United Kingdom powers of jurisdiction. I have not heard the courts screaming for such powers since 1948 and, but for the Government's action, they would probably not have sought such jurisdiction.
The Bill is defective in many ways and I shall not weary the House with Committee points, except to raise one or two in passing. First, jurisdiction is given to United Kingdom courts concerning any person who was on 8th March, or has subsequently become, a British citizen or resident in the United Kingdom. What on earth does the second qualification mean? What is meant by "resident"?
Shall we apply the test of residency as it applies to tax exiles, who can come back to the country for a certain number of days without being taxed in the UK? If a person comes to visit his granddaughter, or perhaps great-granddaughter, in the United Kingdom he may come to London, Manchester or Edinburgh. He may be recognised as a possible war criminal. Is he to be arrested at that point and charged with war crimes under the jurisdiction of the United Kingdom courts? To produce a major Bill with no definitions at all and no interpretation clause in a field such as this is absolutely monstrous. It cannot be conducive to justice.
There is one other strange point. Perhaps I may draw your Lordships' attention to the preamble which states that the Bill is:An Act to confer jurisdiction on United Kingdom courts in respect of"—note the next three words—
683certain grave violations of the laws and customs of war committed in German-held territory during the Second World War; and for connected purposes".so that is the purpose of the Bill and that is why the preamble exists.
What happens when we look at the Bill? The word "grave" has disappeared. Clause 1(1) deals with murder, manslaughter or culpable homicide, and the jurisdiction is conferred if the offence was committed during a certain period in a certain place and if it—as paragraph (b) continues—constituted a violation of the laws and customs of war".Why has the word "grave" disappeared? Is it not precisely what the noble Lord the Leader of the House was getting at when, deliberately or inadvertently, he mentioned that what the Government seek in the Bill are mass murderers. They are the people who have committed grave violations of the rules of war.
The noble and learned Lord, Lord Ackner, referred to the report which mentions the crimes committed. As I read it, it refers to the crimes for which there is a sufficiency of evidence, in the view of Mr. Chalmers and Sir Thomas Hetherington, that those crimes are so monstrous—I emphasise that word—that they cannot be condoned. Prosecution for them could—not would—act as a deterrent to others in future wars.
The words "monstrous", "grave", and "mass" are used. This seems to me to indicate that the Bill has gone off the rails and has tried to be all-embracing, to cover homicide of any kind in the course of war. There are minor violations of the laws and customs of war where death occurs. Is the Bill meant to give the Government power to chase everyone, anywhere within its context, whoever caused anyone's death?
Perhaps we may take an example in recent times. What would the Government do if the Bill related to the recent war in the Middle East? What about the American pilot who carried out his turkey shoot? That was the most monstrous piece of hooliganism in the war sense that I have ever heard. There was the blood curdling pronouncement by an airman that, "It was like a turkey shoot, so we just shot them up". Will he be prosecuted for a violation of the rules and customs of war or is that just one of the things that happen in war? What about the British pilot who said, "It was just like people coming home from Brighton after the long weekend. They were there in a line. You just picked your target and shot them up"?
Can the noble Lord the Leader of the House give an example of manslaughter or culpable homicide which falls within the definition of,grave violations of the laws and customs of war"?Why is there no guide in the Bill as to the domicile of the person who will be charged since we have separate legal systems within the United Kingdom? The Bill and the speeches in your Lordships' House seem to be completely centred on the idea that the Attorney-General or the DPP will decide who is prosecuted next. I can tell noble Lords within these confines—there are no confines in the House, because there are microphones—that the most likely place for a prosecution to take place is Scotland. There is no mention of what will happen there. Why is there no definition of domicile in the citation for the crime?
684 The Director of Public Prosecutions has no locus in Scotland. What happens if he decides that for show trial purposes with a person living in Scotland the case must be tried at the Old Bailey? How will he get that person down from Scotland? If he manages that feat, he is taking the accused from one jurisdiction, which has one system of law, into another jurisdiction with a different system of law. It is difficult to envisage on what basis such a person could be shifted.
In the Scottish courts, judges do not have the power to stop a trial because they think it unfair or unsafe. If they have that power, they certainly do not exercise it. They are bound by statutory rules on the sufficiency of evidence. If the evidence is sufficient, it is presented to the jury.
After much contemplation on this matter, I have reached the conclusion that war crimes, as referred to in the preamble to the Bill, should not in principle go unheeded, however many years may have passed since they were committed. Allied to that fact there must be a fair procedure within the courts to ensure that fair trials take place, if that is possible. I do not consider that at this stage this Bill in its present form, and in view of the present state of international relations, is the correct vehicle to pursue such trials.
Having listened to what has been said in your Lordships' House during the course of this fairly long day, it appears that 50 years after the crimes were committed, it would be almost impossible for a domestic legal system to cope with the necessary legal procedures. That is why I concurred with what my noble friend Lord Houghton of Sowerby said earlier. I believe the right reverend Prelate the Bishop of Southwark also agreed with that. We must look to the international arena to sort out this matter. If these people are still on the loose and deserve to be prosecuted, let the international community deal with the matter.
If the Gulf War has demonstrated anything, it is that for once nations can get together—this is the first example of such co-operation in a long period of time—and do things together. We should at least think about establishing an international tribunal to deal with these affairs, and give the families of the victims the satisfaction of knowing that a decision has been reached on the culpability of the accused, whatever may have been done. If that does not happen, we are driven back on to this Bill with all its amendments.
We then have to consider three propositions. First, what does one do with a person who has lived and worked here openly and has maintained his own name, and against whom evidence has been available which the state has ignored? Is such a person to be prosecuted? Secondly, what does one do with such a person against whom recent evidence is now obtainable? Is he to be prosecuted? Thirdly, what does one do with a person who has hidden himself from the world in the guilty knowledge of what he has done? He obviously should be prosecuted because he has avoided prosecution. It might be more appropriate for a tribunal to make those decisions rather than a single judge.
The noble Earl, Lord Selkirk, referred to costs. The Explanatory and Financial Memorandum makes the 685 quite astonishing proposition that to implement the provisions of the Bill will require an additional 35 members to be recruited to the public service manpower. It further states:Additional full-year costs of the order of £7.6 to £10.3m per annum at 1991–92 prices are anticipated to arise in England and Wales, including the costs of conducting any trials; for Scotland, total additional expenditure is expected to be £3.6m".I hope that the noble Lord the Leader of the House will tell us what tasks the 35 people will perform and why there is a difference in expenditure of £2.7 million for England and Wales. Legal aid is involved in this matter. I am not sure whether those figures include expenditure on legal aid.
If this Bill is to pass on to the statute book, even though it is inadequate and lacking in content, so be it. As has been said, this House can only do its best to improve the Bill before it goes on to the statute book. However, this House is renowned and respected by the public for the quality of its debates and for the knowledge of its Members. If we are determined to set our face against the Bill and stop it after it has passed through the democratic process—on the previous occasion the vote was 273 to 60—we may well be playing with constitutional fire.
We have to ask who we are in parliamentary terms. In one sense we are nobodies. We have no manifesto, no mandate, no constituency and we are answerable to no one. In many places we are regarded—probably with justification—as being an outdated historical hangover which is still imposed on a democratic process, albeit through powers that are enshrined in statute. We must be careful how we move in relation to the elected representatives in another place.
The Bill has many rights and wrongs, but we must not take the risk of going against it and going to the constitutional wall. I hope I may express the matter in that way. Such a risk is not worth taking as this is not a great constitutional issue. It is a major issue, but it is not a constitutional issue against which this House should set its face. I will not support the Bill in its present form, unless the noble Lord the Leader of the House can confirm at a later stage that the amendments contemplated by the noble and learned Lord, Lord Bridge, will at least be considered by the Government.
§ 8.5 p.m.
Baroness Ryder of Warsaw
My Lords, much has been said forcefully by many noble Lords. We are discussing the cruel murder of 20 million innocent men, women and children of 40 different nationalities, faiths and races who were killed between 1935 and 1945 by vast members of the Gestapo and the SS.
During the war on the direct orders of Himmler—the head of Hitler's SS—special action groups were created to follow the invading German armies to the East and systematically mop up the people that the Nazis decreed to be undesirables. By the end of the summer of 1941 the four units were responsible for 500,000 square miles and clearly needed assistance from the local population. Many volunteered their services willingly and enthusiastically.
After the war under schemes such as Westward Ho! 686 and Balt Cygnet, organised by the Minister responsible for labour in Britain, arrangements were made for the recruitment of suitable labour from among the displaced persons in Europe. The Hetherington-Chalmers war crimes inquiry confirmed that 200,000 men and women were brought to this country after the war. Among the majority of innocent people who made up the displaced persons population in post-war Europe were Nazi collaborators trying to escape justice. While I worked in the various camps I was a witness to the labour schemes. I realised to my great dismay that the people who were volunteering were being accepted with little or no screening. Whenever possible I made strong protests to the British authorities. Furthermore, I saw with my own eyes that tattoo marks under the armpits of many Germans and non-Germans who had been recruited, or had volunteered to serve with the SS, had been successfully and easily erased. The tattoo marks were a mark of SS membership and were removed in case anyone was examined. However, that rarely happened.
Now it has been discovered that people are living in Britain who are alleged to have been involved in atrocities during World War II. We are now wondering what we should do about those people. I should mention that I have attended war crime trials in Germany. I am well aware of the legal side of this issue. There is no question of putting frail old men in the dock. As in any other criminal case in this country, if the defendant is unfit to mount a proper defence the case will not proceed. Health and fitness, not age, are the determining factors. Many democratic countries choose to elect 70 year-old heads of government. If age does not bar a person from public office, it should not provide immunity from prosecution.
I believe that there is only one survivor in this Chamber—the noble Lord, Lord Kagan. Although I was never arrested nevertheless I was a witness to the horrendous crimes committed in different parts of Europe. Many noble Lords have asked how accurate are witnesses' memories of events that happened so long ago. They asked that question during the earlier debates and have asked the same question again today. They have said that old men forget. Since the war I have lived and worked with and I have nursed thousands of survivors of all ages, nationalities and creeds, especially in Poland. I believe absolutely that many of those who have suffered have not forgotten and cannot forget their persecutors, whose faces are etched in their memories, and in mine, for ever. We wake screaming in the night remembering them.
With the permission of the House I should like to quote a witness of the crimes:They do not know the meaning of pity or any kind of warm fellow feeling. They seize every opportunity to terrorise the prisoners entrusted to their care, especially those against whom they have a personal grudge. No regulations, however strict, will restrain them in their evil ways. Only supervision can limit the torment they inflict".That account, recorded in The History of the Second World War, appears in the memoirs not of a camp prisoner, not of an unlikely survivor, but of Rudolf Hoess, who from 1941 to 1944 was commandant of the infamous Auschwitz extermination camp where 4 687 million people, including 1 million children, of over 40 nationalities died. Needless to say there was no supervision to discourage the cruelty.
Is the United Kingdom prepared to stand alone in the world and not bring its alleged murderers to justice? Or is it to follow the lead set by Canada, Australia and the United States and change its laws so that it will not become, in the words of the Hetherington-Chalmers inquiry, a haven for war criminals? If war criminals are allowed to think that by lying low they will escape justice the cause of justice will have been weakened. It is not just a question of the man or woman who has committed a crime being brought to justice but of letting the world see that whoever commits a crime against humanity will ultimately face justice. The passage of time in no way lessens guilt.
I ask those who oppose me, though I witnessed those dreadful scenes, do you really believe in your hearts that a man who has committed crimes against humanity should be brought to justice, even though time has passed, or are you seeking a way of letting him off through legalities?
I could say far more, because from 1944 onwards I was involved, and I served in the Special Operations Executive during the war. Political expediency has covered many of the crimes. What I have heard many noble Lords say has shocked and sickened me because I was there. It is impossible to describe the scenes.
As Edmund Burke wrote, for evil to triumph it is only necessary for good men to do nothing.
We seem to express an arrogance and total lack of understanding of genocide on a scale unknown before or since. That is probably because we have never been occupied. How in heaven's name can we ignore the indescribable suffering and death of millions of people during those 12 long years? If we do we encourage more Hitlers, including Saddam Hussein.
As a witness I beg your Lordships never to forget that we do not have the right to turn our backs on the millions who were slaughtered and those who died so heroically. Some of us chose to fight for them during the war and afterwards. Please, please let it not all be in vain.
§ 8.15 p.m.
§ Lord Blake
My Lords, it is impossible not to be moved by the speech that we have just heard. However, surely no one in your Lordships' House doubts that the most appalling crimes occurred. I do not believe that there is a single dissenter on that point. There were appalling crimes, and the noble Baroness was a witness to them. We could well believe it from all that we have read. The noble Baroness made a most impressive speech, but I am afraid that she did not convert me.
The point is whether or not a fair conviction can be obtained at this distance of time. It is not that I have a desire to forgive any of those miserable old men. However, one wants to be in a position to be able to identify them with certainty. I do not believe that at this distance of time that will prove to be possible. I am sure that immense evils were committed, but the 688 point that we are considering is whether or not one can establish guilt. I have been much impressed by the speeches that I have heard today from many noble and learned Lords who are pretty well agreed that it is not possible to have a proper trial at this distance of time.
I do not want to repeat the speech that I made on the subject on 4th June. I spoke against the Bill then and voted against it: I shall do so again. Nothing has happened in the interval to cause me to change my mind. I expect the same is true for other noble Lords. The Australian and Canadian experience, which I did not know about when we debated the matter last time, only confirms my view about the inadvisability of proceeding with the Bill.
I still regard the question of retrospective legislation with the gravest of misgivings. It is contrary to the British tradition of the rule of law and I believe should never be adopted. To say that this is not retrospective legislation is pure logic chopping. It is retrospective legislation by any sane definition of those words. If noble Lords are in favour of retrospective legislation that is another matter, but those noble Lords who regard it as a pernicious and dangerous encroachment upon our principles of justice should be in no doubt that it is retrospective.
I agree that the amendments which the noble and learned Lord, Lord Bridge, suggested would improve the Bill. If I were being cynical I should say that almost any amendment would improve it. However, there are two aspects which cause me misgivings. One is whether the Government will pay the slightest attention to those amendments. The noble Lord, Lord Callaghan, expressed considerable scepticism about that. He expressed the view that the Government would probably go through with this whatever happened. I cannot read the Government's mind and it may be that my noble friend the Leader of the House will have something to say on that important point. My feeling is very much akin to that of my noble and learned friend Lord Hailsham and the noble Lord, Lord Jenkins of Hillhead; namely, that this is a bad Bill which no amount of amendment can make acceptable.
I was immensely impressed by the speech of the noble Lord, Lord Houghton of Sowerby. The noble Lord said almost everything that I wanted to say; so I have made up my mind to be brief. Several of your Lordships opened their remarks by saying that they would be brief. They were not brief, but I intend to be. I shall sit down in one moment.
The only remaining point that I wish to make is not a new one and I should like to associate myself with those who have already made it; namely, the constitutional question. There is no constitutional question here. I thought that my noble friend Lord Pym and many other noble Lords made the point very well. There is no constitutional problem in this context. The noble Lord, Lord Jenkins, almost made the point the other way round when he suggested that the other place would be behaving unconstitutionally if it used the Parliament Act to railroad through a Bill for which it was never intended. It was intended for a different type of Bill. If there is any constitutional impropriety, it stems from the other House, but I do 689 not thank that the constitutional question arises. We have the right to do this and to exercise the power, and we should do so.
The noble Lord, Lord Jenkins, wrote a very good book about the House of Lords' crisis of 1911. As far as I can remember, its title was Mr. Balfour's Poodle. Let us not be poodles to this Government.
§ 8.22 p.m.
§ Lord Addington
My Lords, I did not speak in previous debates on this issue for one very simple reason I did not think that I had very much to say about the matter. I shall not pretend to be an expert on the technical and legal side.
What has attracted me to the issue is the matter of principle involved. I am far too young to remember any of the events concerned, but I still have opinions about what happened. I hope that most people here will agree with me when I say that the atrocities that we are discussing set a standard of brutality and ritualised sadism never matched before or since. There is a tradition of that kind of atrocity. It is worth remembering that the great Christian heroes of the crusades used to start off with a Jew-burning party. We should remember that we have a disgusting heritage in Europe.
We should take every opportunity to make anyone who committed those crimes pay for them, regardless of age. Many elderly people with excellent minds have occasionally run me down in this Chamber. I do not regard my comparative youth as an excuse for committing any action. I am over 21 and I am therefore an adult in every respect and regarded as such. Adults must be responsible for their actions. People who were adults in the 1940s and were working with the German forces must therefore be regarded as being responsible for their actions. The fact that they are now elderly does not mean that they lose that responsibility. We cannot therefore excuse anyone of those crimes on those grounds. If they cut a pathetic figure in the dock now, that is just too bad. The price for not prosecuting will be far higher.
The Bill may need a great deal of amendment. I bow to all the legal expertise which says so. It would therefore be a great folly to throw out the Bill or attempt to stop it at this stage. If we want to reform it, everyone who has the knowledge and will to do so is here. We must certainly have it back to discuss again.
I shall follow the example of the noble Lord, Lord Blake, and be equally brief. I conclude with this observation: we must ensure an even-handed approach to all those crimes. We must ensure that we regard them in the full magnitude that they deserve. We cannot make exceptions. We must prosecute people who have been proven to have committed those crimes. We would commit greater injustice by not attempting to convict the people who have committed those crimes, ignoring them and hoping that the will die soon anyway.
§ 8.26 p.m.
§ Lord Annan
My Lords, great play has been made during the debate on the decision in 1948 to end war crimes. Great play has also been made of the fact that we are now engaged in retrospective legislation. It will perhaps be helpful if I recollect what it was like in the Control Commission immediately after the war and the events which led up to the 1948 decision.
In the Control Commission we were engaged not merely with war crimes but with denazification. Britain, alone among the three powers in the West, tried to have a legal, just system of identifying former Nazis and of judging how guilty they had been. We had courts and appeal courts and, from having been in 1945 the most popular of all the occupying powers, we became by 1947 the most unpopular.
The reason was that we were trying to do legal justice in what was essentially a political matter. We were disgusted by many of the proceedings and the inability often to be completely sure that the right criminals had been identified. We were disgusted by the denunciations by Germans who tried to pay off old scores against other Germans.
There was the case of Herr Abs, the chairman of the Deutsche Bank who had been responsible during the war for dealing with confiscated Jewish properties. He was a Catholic. He was never a member of the Nazi party and had nothing to do with the Nazis. He almost ostentatiously dissociated himself from the Nazi regime, but, because of his position, the Americans insisted that he should be tried. The British refused, but eventually, under quadripartite agreements, we handed him over to the Americans as we were bound to do. They tried him by their own laws and acquitted him. He was a man for whom Sigmund Warburg, our own famous banker of those days, vouched absolutely.
Injustice was one thing, but there was another consideration. The Cold War had begun in 1948 and, from being a defeated enemy, Germany was becoming an ally. Only a short time after that the German army was reconstituted. Reasons of politics rather than of justice led to the decision of 1948. We ought to bear that in mind. The noble Lord, Lord Campbell of Croy, was right to say at Question Time the other day that by that decision we handed over to the Germans the whole matter of war crimes in the British zone.
The noble Earl, Lord Ferrers, was also entirely right when he said that the War Crimes Bill merely brought to an end trials in the British zone by British courts. But if in 1948 Parliament had been asked to vote that no one in Britain who was accused of the mass murder of Jewish prisoners in the concentration camps should be tried, would such a measure ever have been passed? That is the issue at stake.
Is there anything special in the cases which have induced the Government to put forward this Bill? Of course there is. It is the remembrance of the Holocaust; the remembrance of the crime of genocide. Genocide is a term that is much bandied about today. Saddam Hussein is in no way guilty of genocide. He is merely a horrible man who exacts the most fearful vengeance on his foes, who happen to be members of the Kurdish population. But at no time has he ever 691 said that he wants to exterminate all the Kurds. Heinrich Himmler said exactly that about the Jewish people.
The noble Lord, Lord Campbell of Alloway, made an excellent point when he said that one-third of those who were tried for war crimes were acquitted, meaning by that that so often the evidence fell down. Indeed it did. Perhaps he had in mind the trials of Belsen. Noble Lords may remember that the camp commandant of Belsen and Irma Greese, the woman who made lampshades out of the skins of the Jewish prisoners who had been executed, were of course hanged. But what happened when the guards in Belsen began to be tried?
The British system of adversary justice operated. British officers were commissioned to defend the prisoners. They defended them with absolute fairness, total zeal and a belief in the principles of justice. They put under cross-examination the prisoners at Belsen—poor, wretched, emaciated creatures, who broke down under cross-examination and could not swear to the fact that a particular guard had committed a particular crime. Guard after guard was acquitted.
Is it seriously argued that any of the accused under this Bill will not receive a fair trial in our courts? Do we not trust our judges to ensure that the laws of evidence and the rights of the accused are upheld?
§ The Earl of Longford
My Lords, perhaps I may interrupt the noble Lord for a moment. Having listened to many of the greatest jurists in the country, I thought that that is what they said: there would not be fair trials here. From listening to the great jurists, I understood they said that there would not be fair trials. The trials would not be fair in this country.
§ Lord Annan
My Lords, I am astonished that they said so. I remember that in June last year the noble Lord, Lord Beloff, drew attention to the fact that on the Administration of Justice Bill we were told time and again by the Law Lords how excellent was the system of justice in this country. We were told that it could not be changed or altered, because, if it were once touched and solicitors were allowed to plead in the High Court, the whole of our system of justice would be in danger. Then, when this Bill came up, we were told that the system of justice was in great danger because we might not have fair trials. That is very paradoxical.
I do not believe it is right to say that our judges are so lily-livered and so terrified of adverse comment that they are likely to swerve from the principles that they have upheld all their working lives on the bench and in the courts. Of course that is not so.
Let me confess that I wish that the Bill had never been brought to this House. I agree with a great many of the arguments put against it. The noble and learned Lord, Lord Wilberforce, was enormously persuasive. Indeed, the noble Lord, Lord Boyd-Carpenter, was absolutely right to draw attention to the grotesque expenditure of funds that would be needed if there were to be trial after trial. I doubt very much whether a prosecution could succeed if it relied on the witnesses who would have to be brought to this country.
692 I do not in any way want to criticise the Government for bringing forward the Bill. The point is that the accusations were made and a court of inquiry—or whatever one likes to call it—was set up and a report issued. However, I am bound to say that the criticisms made by the noble and learned Lord, Lord Ackner, of the two distinguished prosecutors who wrote that report were very telling and damning. He said that they asked the wrong questions. They did not concern themselves with the possibility of a fair trial. They simply looked at what evidence was being put before them.
I am reminded of the other case not so very long ago when advice was given to Ministers by the Crown Prosecution Service about Mr. Peter Wright's book, Spycatcher. Ministers were advised that a prosecution could be brought with chances of total success in Australia. Nobody in his senses with a feel for politics would come to such a conclusion. But Ministers were handed a mere legal judgment. The quality of the advice that lawyers give to Ministers is very often deplorable. So in a sense I do not blame the Government, because once the report had been published with great publicity, what were they to do? In a vague way they had to satisfy the public and bring a Bill before the House.
With regard to the constitutional issue, I searched for a bellwether. I found one in the noble Lord who knows much more than most of us about the procedure of the House. I consulted the noble Lord, Lord Henderson of Brompton, who, as your Lordships know, for many years was Clerk of this House. He gave his opinion to the Cross-Bench Peers. In his view we should vote to give the Bill a Second Reading and amend it in any way noble Lords thought fit to ensure that anyone prosecuted under it would have a fair trial. He thought that it was a great mistake that we had not done that when we debated the matter in June.
That was the advice that the noble and learned Lord, Lord Bridge, gave. I must say that I was very much taken with his speech. I thought it possible that this Bill could be improved by amendment. As he said: what is the choice? If the Bill is turned down, that will be regarded by the Commons as a challenge and it will be reintroduced and passed. If, on the other hand, it is amended, there is a chance to make it much better and, if I may say so without being derogatory to the other place, to shame them into accepting that the provisions in the Bill as it is now are insufficient to ensure a fair trial.
So reason makes me feel that I should vote for a Second Reading in the hope that the Bill will be amended. But it has been clear in this debate that it is not only reason that sways noble Lords. Emotion sways us. Great emotion and great sincerity were displayed by those who argued that the House should stand on its principles, and show the world that it is not ashamed to dissent from its rejection of the Bill last June. There is another emotion that guides me. The House should not send a message to the world that it has forgotten the hideous slaughter of 6 million Jews. As the noble Baroness, Lady Ryder of Warsaw, said in a speech that I only wish some of the legal 693 luminaries of the House had heard, it should not be forgotten that 40 millions died in the Nazi camps. We should not appear to condone that.
Of course there are many quotations which could be wed at this stage. The noble Lord, Lord Jacobovits, reminded us of Cain and Abel. We could of course have been reminded of another text from the Old Testament:Vengeance is mine; I will repay, saith the Lord".Somebody else might well quote the Christian sentiment of King Lear:Pray you now, forget and forgive".But, alas, we are in a position where so much water has flowed under the bridge that we have to recognise what will be the effect on public opinion of the decisicn that we take tonight. We cannot be guided solely by our favourite text.
§ Lord Brightman
My Lords, before the noble Lord sits down, perhaps I may respectfully correct him on one point. If this House rejects the Bill, as I understand it, it does not have to be reintroduced in another place. It automatically becomes law unless the other place votes against it.
§ 8.41 p.m.
§ Lord Kagan
My Lords, I shall try to be brief at this late hour. The uniqueness of the crimes that were committed are as follows. In the concentration camps most o f the Germans who took part did not volunteer; they were conscripts. They were brought up in Hitler's schools and perhaps found themselves in the SS or the SA. Even if they did not approve of the situation, if they showed disapproval they subjected themselves to a grave risk of joining the prisoners. In fact, from personal experience I can tell noble Lords that one SS man was sent to the front for giving half a loaf of bread to a girl. That did not apply to the people about whom we are debating, the volunteers. They joined the killing commandos of their own free will and mostly purely for gain.
The noble Lord the Leader of the House knows that when the Germans entered Lithuania—I was there ac the time—they published simultaneously two edicts. One was the usual one in wartime:Das pl ündern was mit dem Tode bestraft".That means, "Looting will be forbidden by shooting". The other edict was that if one handed over an enemy of the Reich or eliminated him, one was absolutely entitled to everything he had. Thereupon the prisons were opened and the criminals came out. The technical situation was that if a Jew was robbed of his watch, the man who did so could have been shot for looting. But if he killed him and his family, he was entitled to move into that man's house or flat. What I am trying to stress is this. These people were not conscripted. They were either lured into it or volunteered.
In fairness, many who joined the German army did so because they were anti-Russian. As soon as they realised their task they resigned or left.
The point was raised about the difficulty of identification. The noble and learned Lord, Lord Hailsham, referred to it. It was known immediately after the war that the ambition of most of the people from the DP camps was not to come to England but 694 to go to Canada or America where they expected more prosperity and where they had relatives. But they came to England because they knew that in England they were immune. They did not take the trouble to change their names. They did not hide their identity. I spoke to some of them who told me in what brigades they had been, in what killing commando, and in what village events had happened. There is no difficulty in identifying such people because for 25 years they were absolutely certain that they were immune. That is why they did not travel on to Canada or the United States. So much for the difficulty of identification.
I should like to raise the issue of the merit of justice being seen to be done. Only a minority of Lithuanians participated in those events. The majority had nothing to do with them. If one asks today in the new Lithuania—of which Mr. Landsbergis is president; he visited this House recently—whether they would like these war criminals to be brought to justice, 95 per cent. would answer yes, because if the situation remains as it is those people will seem to represent Lithuania. They do not.
One of the great merits of the Nuremberg trial was that it helped the young German generation to be isolated from the burdens and the sins of their fathers. Without it, the question, "What did my father do?" would never have been answered. Identifying the culprits—those who instituted such events and forced the remainder of the nation to go along with them—enabled the new generation to dissociate themselves from such happenings. In one moral megaleap Germany has produced a generation which has more democracy and more anti-militarism than any other country in Europe.
I believe that the biggest achievement of the noble and learned Lord, Lord Shawcross, and his illustrious colleagues at the Nuremberg Tribunal was to have helped Germany back to democracy. If one does not identify and isolate the criminals, one leaves the whole population tainted. That is the important aspect of the issue. In that sense, if we proceed with the investigations and bring the guilty people to trial, we shall help the remainder of the Lithuanians to raise their heads in dignity and allow them not to be identified with those people.
In East Germany they stopped the war trials very early. If you want proof, in East Germany neo-Nazism is now raising its head and there is a big gulf in outlook between the 16 million Germans who joined West Germany and the West Germans. So it is not for the benefit of the victims; it is not for revenge, as was said before; it is for the benefit of future generations in enabling them to dissociate themselves from any wrongs which have been done.
I do not know whether noble Lords have seen a film called The Shadow of the Cross which was shown on television. It showed a service in St Charles Borromeos Church in London where there was a memorial service for the Holocaust. Prayers were said for forgiveness, for the sin of silence, for the crime of indifference, for the secret complicity of the neutral, for not taking responsibility, for the washing of hands, for the ready excuses, for appeals ignored, and for people refused. That service was held in the presence 695 of Bishop Mahon. On the same occasion a Minister, the Reverend Alan Ecclestone from Wast Water, Cumbria, spoke. I shall quote him verbatim:We cannot afford to let the truth of the Holocaust be forgotten. It must be permitted to purge out the dross. I believe this to be the religious question that faces us".
§ 8.53 p.m.
§ The Lord Bishop of Ripon
My Lords, like other noble Lords who have spoken, I have neither the skills nor the experience to tackle the legal and constitutional issues, so I shall confine myself to tackling the question of the moral issue underlying the central thrust of the Bill. I take that to be to enable those now in this country against whom there is good evidence that they were in part responsible for the horrendous events of the Holocaust to be brought to trial. I was a young boy barely at school when those events took place. I came to know about them later, but as I explore them and read about them they press in upon me with increasing force.
Just over a fortnight ago I was in Jerusalem in Yad Vashem, the museum of the Holocaust on Holocaust Day. I was looking again at the very understated story which is told by that museum. Yet the story is of such force that when one looks at the photographs one is unable to bring one's eyes actually to remain on the horrific scenes, and it is difficult to recognise that both oppressor and oppressed were actually human. Probably everyone who was in my group who went round the museum that day wept a little for the tragedies of that time and perhaps a little for our own personal tragedies. We were reminded that these were events that actually took place, that in the record of humanity's astonishing capacity for inhumane action these events stand as one of the supreme—perhaps the supreme—acts of evil.
I had to ask myself whether the lapse of time made any difference. I cannot argue that the lapse of time reduces responsibility. All of us who belong to the human race are accountable for our actions, and we continue to be accountable. Those who took part in those events continue to be accountable for what they did. One day, according to Jewish and Christian belief, we shall be asked to give an account before a transcendent court. Until then we remain accountable to one another, to humanity, and no time lapse excuses us from that accountability.
To say that events happened many years ago is not to say that I am not responsible for my past, however distant in my life those events may be. Responsibility means being prepared to be called to the bar of justice to give account of our actions. There has been some talk in this debate of vengeance, even an occasional suggestion that vengeance is a motive behind the Bill; and perhaps even further, a murmur that vengeance is a quality associated with the Jewish belief to be contrasted with forgiveness which is an attribute of Christians. I cannot see matters in this way, and I cannot contrast Jewish and Christian in this fashion.
I was recently talking to the psychotherapist in Jerusalem who has been working with the children of survivors of the Holocaust, the second generation, those who did not experience anything of the camps 696 themselves but whose parents did and whose parents survived. The psychotherapist was describing the kind of difficulties with which the children of survivors have to cope, the ghosts in their family, the people absent from the family because they were in the Holocaust, and the way in which those ghosts haunt the family home. He described the fantasies which children had about why it was their parents survived and not others: what did their parents do which actually enabled them to come through? And there was sometimes even a note of accusation from this generation to a former generation: why did you allow this to happen and not rise up? In all of that I heard no element of vengeance. I heard no element saying "We demand the blood of those who did this". As I listen to my Jewish friends, I do not hear that note of revenge. I do not hear them demanding blood in exchange. When vengeance is contrasted with forgiveness, I have to say to myself that forgiveness is only possible when fault is admitted. Forgiveness is not the same as forgetting. Forgiveness is possible only when fault is acknowledged and when responsibility is taken. Then the relationship can be restored, and not before.
§ The Earl of Longford
My Lords, surely Jesus Christ said on the cross "Father, forgive them, for they know not what they do". There was no question of the people who were crucifying him having repented.
§ The Lord Bishop of Ripon
My Lords, in response to the noble Earl, Lord Longford, it is true that there is a sense in which none of us know what we do but surely we still have to admit what we are responsible for. We shall stand at the bar of ultimate justice, as I have already argued, and then it will become clear for what we are responsible. But until we are in a position to see ourselves clearly to know what we have done wrong there can be no forgiveness. Therefore, that forgiveness that our Father offers is possible at that bar, but not until we know our faults. I believe that to be the Christian position.
Also, I argue that there is such a thing as the healing of memory. That is a factor which weighs with me. I sometimes ask whether these things that are said somehow make that healing more difficult. Indeed, I remember speaking to the noble Lord, Lord Jakobovits, about the healing of memory. We agreed that that had to happen. But again, the healing of memory, like forgiveness, is only possible when the horror of an event is recognised and not before.
In this debate I have heard many noble Lords say that other frightful events have taken place; that is true. However, there seems to be an implication that because frightful events have taken place since the Holocaust, we should be prepared to let that past event die down in our memories. Many frightful events take place in our world. I have spoken in your Lordships' House, as have many other noble Lords, about Pol Pot and the events in Sri Lanka which so often are hidden from our western eyes. I believe those to be frightful. However, they do not for a moment take away from the horror of what happened in the Holocaust nor our need to express our horror at what 697 took place then. There is not much that we can do about many frightful events which have taken place except to express our abhorrence but in this matter we can take certain action.
As I have looked at this matter, I have changed my view. I was encouraged to take part in this debate following a conversation with the noble Lord, Lord Mayhew. He may be rather surprised now to hear what I have to say. When I reached this point in my speech I had expected to have a paragraph beginning "However", which would lead on to say that the Bill is not possible or that it has no moral basis. However, the more I try to write that final paragraph, the more I could not find a moral reason for doing so. As I look back to my previous attitude, I believe it was derived from a feeling that it was better to let these ghosts lie. Why disturb that past? The more I reflected upon it, the more it seems to me that ghosts return to haunt us. I have come to believe that I was wrong in that view.
I believe that for all the difficulties of the Bill, which noble Lords have spoken about with great eloquence, the central thrust is right. To say no to the Bill would be either to deny that the acts took place or to deny the responsibility of those who performed them. It is for the courts and for this House in revising the Bill to take account of the difficulties which have been expressed. However, I believe the deep thrust of the Bill to have a moral undergirding to it.
§ 9.2 p.m.
§ Lord Dacre of Glanton
My Lords, I believe that the crimes committed in the Second World War in the course of the final solution should be neither forgiven nor forgotten. However, the question before us is whether, at this stage, they should be punished.
That is the purpose of the Bill. Since the last time we debated this matter, the House of Commons has again debated the subject. It has debated it in the light of our last debate. The debate in the other place was very interesting. I noticed, as others have noticed, that there was a perceptible shift from the previous position in our direction—not as regards votes but as regards the arguments expressed. We should respect that and equally respect the views expressed by Members in the other place.
The most interesting contribution in all the speeches which I read in Hansard of the debate in the other place was that by Mr. Hattersley which has been already paraphrased—and I must be very careful, especially with the sharp eye of the noble Lord, Lord Mishcon, who sits opposite. That was a rather charming speech, because Mr. Hattersley went through every objection to this Bill which had been made in, this House and expressed agreement with all those objections. However, he stated that in spite of that he would vote in favour of the Bill, because he believed that it would never be implemented; that it was merely intended as a declaratory Bill, because it could not be implemented. It would run into the sands.
I found that rather charming. However, is it not rather odd that this Government have announced that they will mobilise the heavy machinery of the Parliament Act, which has not been used since 1911 698 except to decide grave matters of high constitutional import, in order to pass a Bill which one of its own advocates hopes will be merely declaratory and will not lead to any trials?
Surely the question for us is how far we can accept this Bill, perhaps amended if it can be amended. If we pass it now, it will qualify for amendment. Some of the objections advanced against it do not seem to me extremely powerful. Like the noble Lord, Lord Glenamara, I am a layman and I find some of the arguments of our legal friends rather legalistic. I cannot become excited about the question of retrospective legislation. There has been retrospective legislation in the past and special circumstances may demand it. Provided that the quality and substance of law and justice is not altered, and that new crimes are not invented which were not crimes before, I see no great objection in a mere alteration in the frontiers of jurisdiction.
The selectivity of the Act is rather more serious. Even so, that does not alter the substance or quality of law or justice. Therefore, I cannot become particularly excited about those subjects. I do not believe for a minute that the mere passage of time per se grants exemption from justice. The objection to the passage of time is more concrete than that. It is that it renders proof more difficult, perhaps impossible. The mere passage of time in itself, in a matter such as this, is immaterial. However, the consequences of the passage of time are serious and there remain serious objections which I consider to be too powerful to resist.
The Bill presumes that the men to be charged cannot be found guilty by the ordinary process of law. There would be no point in the Bill if it were otherwise. The Bill presumes that in order to find them guilty it will be necessary to use methods of collecting evidence which detract from the quality of the justice dispensed. I find that to be an insuperable argument against the Bill.
This whole matter is about two men. If the two defendants are found guilty by such a process, it will be said with some plausibility that they have been found guilty by an unfair method of trial. If they are acquitted, or if the prosecution fails and the trials simply run into the sand, what will be the point of the operation at all? It will be a waste of time and money and stir up animosities which I would prefer to see unstirred.
At the most it will achieve a totally inadequate penalty at the expense of the reputation of British justice. That is the objection which sticks in my mind and which I cannot lay aside. There is also a secondary objection. It is not a matter of high principle like my first objection; it is a matter of expediency.
By profession I am a historian and like to detach myself from immediate vulgar reality and look at events from a distance. Although I concede that in the short term we might have a trial which would satisfy some noble Lords and perhaps the public, nevertheless what will be the long term results when we look back at the situation from a few years hence? I am worried about that. Although I know other people hold different views and my noble friend Lord Beloff has 699 expressed the opposite view, I believe that, far from quelling anti-semitism in this country, trials of this nature, especially if protracted, could intensify it.
Anti-semitism is a horrible thing but it lurks endemic in most societies—happily less in our society than in many others. But it is there and can be stirred. If it could be said, not without plausibility, that at the instigation of a pressure group outside of this country trials were mobilised which were protracted and wasteful, and which were either unjust if the defendants were convicted or, if the defendants were acquitted, thereby shown to be unjust in a different way, there is a real danger that these embers will be stirred. I would be extremely sorry to think that that could happen in this country as a result of an undoubtedly well-meaning proposal to achieve justice, but which I am afraid I must say was at first inspired by a desire to achieve revenge.
Much has been said regarding the difference between justice and revenge. Of course there is a great difference between them. However, I am afraid that the Simon Wiesenthal Centre is an organisation devoted to revenge. One can sympathise with the emotions which inspire Simon Wiesenthal and his associates, but I cannot help thinking that it is very negative to devote one's whole life to the prosecution of undoubtedly criminal people.
Would it not be better to devote one's life to trying to discover how these horrors arose and how they can be prevented in the future, rather than carrying out this permanent vendetta which will, as a mere practical matter, possibly lead to results which are the opposite of what we wish? For these reasons, if I survive long enough to reach voting time, I shall vote for the amendment.
§ 9.15 p.m.
The Earl of Halsbury
My Lords, speaking 33rd at a quarter past nine, with another 22 speakers to go, prolixity would be unforgivable. Therefore, I shall do no more than confirm what I have heard for the third time now from very much the same speakers. It is a bad Bill, setting a bad precedent which will lead to bad law as a result of the bad practice of retro-legislation. I voted according to my conscience last time against the Bill. I shall vote for the amendment on this occasion, again according to my conscience and without regard to any kind of tactical cleverness or expediency.
As regards the Parliament Act, perhaps I may remind your Lordships that fourscore years ago my grandfather, with 20 years' experience on the Woolsack, headed the opposition to the Act and very nearly turned it down. It was always to be understood that the real motive for the Parliament Act was to secure home rule for Ireland. That was the reality behind the tactical manoeuvering. The issue was a sure-fire election loser (it had been lost several times) and your Lordships' House was a sure-fire blockade against it. The Parliament Act removed that.
It has always been understood that the Parliament Act should be used only in very grave circumstances. I do not believe that this is a grave circumstance. I 700 shall pay no attention to whether the Government in their wisdom or unwisdom force this measure through the legislature on the basis of the Parliament Act. I dislike the rather unpleasant backstairs gossip that goes on about people's real motives, as opposed to their ostensible motives, in supporting the Bill. That is unworthy. I am not going to recite the details. I shall be glad to be rid of the atmosphere that it engenders. That concludes all I have to say in following my old friend the noble Lord, Lord Houghton of Sowerby, into the Division Lobby on the amendment.
§ 9.16 p.m.
§ Baroness Elliot of Harwood
My Lords, being the 34th speaker in the debate I have no intention of making a speech of any length at all. I strongly support my noble friend Lord Waddington who opened the debate. I strongly support the noble Lord, Lord Mishcon, in everything that he said. I also support the noble Lords, Lord Glenamara and Lord Mackie of Benshie, the noble Viscount, Lord Tonypandy, my noble friend Lord Campbell of Croy and, above all, the noble Baroness, Lady Ryder of Warsaw, who made a most moving speech at a time, unfortunately, when most of your Lordships were having supper. It is most important that we should stand up for the fact that these evil events, even though they were a long time ago, took place in our lifetime. I remember them vividly. I remember the appalling conditions and events that happened because of the Holocaust. One can never forget them.
It is not right that we should let all these matters go by and have no trial to prove that we are wrong. If, for any perfectly good reason, someone is arrested and not convicted, that person will go free. If convicted there is every reason for the person to be imprisoned. I hope very much that noble Lords realise that it will be a very great mistake if we do not carry this Bill tonight. That will show that we are half-hearted in our opposition to the Holocaust and all that was done in those days. As your Lordships know, I am still a very strong supporter of the Jewish community and the country of Israel. We owe it to all those who suffered so much and who were so tragically dealt with both before and during the war to see that something is done to make it perfectly clear that we are entirely in favour of some kind of prosecution that brings to justice those people who behaved so abominably. I shall not say any more because everything has been said. I strongly support the Government. I hope that your Lordships will do the same.
§ 9.19 p.m.
§ Lady Saltoun of Abernethy
My Lords, on two previous occasions I have spoken in detail of the many reasons why I am utterly opposed to the Bill. I shall not bore your Lordships by repeating them. Those of us who are opposed to the Bill are, in the main, opposed for the same reasons. The differences between us are not of substance but of emphasis. I am sure that not one of us in any way belittles the horrors of the Holocaust of which the noble Lord, Lord Mishcon, and the noble Baroness, Lady Elliot of Harwood, have warned us to be wary.
701 Most of us have read a good deal of the horrors of the Holocaust, even if we have not been privileged to read Part 2 of the report of the war crimes inquiry. We have heard the noble Lord, Lord Houghton of Sowerby, move his amendment and we have heard what the noble and learned Lord, Lord Hailsham of Saint Marylebone, and the noble Lord, Lord Houghton, had to say about the Canadian experience. I shall support the amendment of the noble Lord, Lord Houghton of Sowerby. In that connection there are just two points which I should like to make.
It has been argued that we should give the Bill a Second Reading so that we can amend it in such a way as to ensure fairer trials for the suspects. I do not believe that that argument holds water. Had the Government done what it was suggested that they might do, which was to send the Bill back to us accompanied by a schedule of amendments that would be agreed to by another place if this House passed it, it might have been another matter. The very fact that they have not done so seems to me a clear indication that no amendments of any consequence which we might pass would be agreed to. Therefore if we who deplore the Bill give the Bill a Second Reading against our consciences in order to be able to amend it, we shall be gambling against odds, which I for one do not find acceptable. We shall be selling our souls to the devil with little hope of receiving payment.
However, there is another consideration. This House has already voted three times against the principle of the Bill. First, we voted against the introduction of legislation at the end of the debate on the report of the war crimes inquiry on 4th December 1989. Next, on 1st May 1990, the Government sneakily introduced a new clause into the Law Reform (Miscellaneous Provisions) (Scotland) Bill at Committee stage to make television and video link evidence legal in criminal cases in order to facilitate war crimes trials. The noble Lord, Lord Campbell of Alloway, moved an amendment, which was agreed to, to the effect that it should not be used for the purpose of war crimes trials. That amendment was carried in this House. The third occasion was on 4th June 1990 when we denied this Bill a Second Reading.
These decisions received considerable publicity in the country. On all occasions we had a free vote. Now, once again we have a free vote. If we suddenly vote to give the Bill a Second Reading, the general public, who, I believe, are mostly unenthusiastic about the Bill, will not understand. They will think we have turned our coats. They will think that we are afraid that if we do not pass the Bill we shall provoke a constitutional crisis as a result of which we shall be either reformed or abolished. They will, quite understandably, despise us.
There are times when it may be right to be clever and devious. On the other hand, there are times when one should be straightforward and honest and vote as one's conscience tells one, particularly when one has a free vote. This is one of the latter. I shall vote for the amendment of the noble Lord, Lord Houghton of Sowerby. I could not look myself in the face if I did otherwise. We should have no part in passing this abhorrent Bill. This House does not want it. It is the 702 Government and some Members of another place who want it. Therefore let them invoke the Parliament Act in order to have it. They do not have to do so. They could just drop the Bill. However, if they insist upon having it, let the responsibility rest fairly and squarely on their shoulders.
§ 9.25 p.m.
§ Lord Kennet
My Lords, in presenting the Bill to the House this afternoon, the noble Lord the Leader of the House pointed out that, although it was retrospective, it did not retrospectively create any new crime and that it was simply a matter of jurisdiction: it was retrospective in respect of jurisdiction. However, I am not sure that that makes things much better. To assume jurisdiction over people who were not within our jurisdiction at the time they committed the crime for the purpose of trying them for that crime, seems to me to be hardly distinguishable from retrospectively creating a crime. But that is the argument.
The argument was followed up by the Leader of the House stating that the Bill was,only before us at allbecause of the recent discovery that people who had committed these horrible crimes have been living among us and that such people are not within our jurisdiction without the Bill. For 40 years we did not know that they were here. The noble Lord then said that it would be unusual to seek to bring in Japanese war criminals at this time—because of course the Bill is limited to Europe—because there is no evidence that they are here. But there was no evidence until two or three years ago that the Baits and the Ukrainians about whom we are now worried were here. Is it unthinkable that there should ever be evidence that there are Japanese among us who were guilty of committing war crimes?
The noble Lord the Leader of the House also said that we were only talking about the 12 years from 1945 to 1957 when a Geneva Convention came into being which, as I understood it, made justiciable in this country all those who might be here and who had committed war crimes after 1945. That set me thinking. I remembered a short list of wars which had taken place between the years of 1945 and 1957. They took place in India on the creation of Pakistan, in Korea, and in Indo-China where war continued over many years. There were also countless wars in Latin America, one in Indonesia, the war in Tibet when China conquered and annexed it and of course the conflicts—I put them no higher than that—which took place in Egypt and in Hungary in 1956. Hungary is in Europe, but Europe is not covered by the Bill as regards any events which took place after 1945.
What reason have we to suppose that there are no Hungarians, Indians, Chinese, Bolivians, and so on, living among us who may or may not have committed war crimes in respect of whom there may be evidence? What reason have we to wish that they should be prosecuted less than we wish that those who committed their crimes on the continent of Europe within the given six years should be prosecuted? We should consider that question. I can find no good 703 reason. The victims in all cases were human beings, and all are equal in the protection they deserve and in the vengeance which may possibly be exacted in respect of them at any distance of time thereafter. That is my opinion. That is why I shall vote for the amendment tonight.
I have one further point to make. It concerns the amendments which the Leader of the House mentioned. I shall not say that he promised them, because he promised nothing. I shall not say that he foreshadowed them, because he foreshadowed nothing. However, he did not exclude the possibility that there might be amendments. I think that the noble Lord, Lord Bridge of Harwich, was being optimistic in thinking that the amendments he proposed had already been the subject of agreement by the Government. I believe that my noble friend Lord Callaghan was wise to suggest that the many hours which remained between his intervention and the end of the debate might be spent on talks behind the scenes within the Government about what kind of amendments could be promised later.
I shall wait to hear whether the Government say that they will introduce an amendment to extend the effect of the Bill from certain Ukrainians and Balts, who over a short period of time in a small geographical area committed war crimes, to all those who, during the time our jurisdiction did not run, but where it now does, committed war crimes against anyone. If such an amendment is agreed, I should be happy to vote the Bill into Committee. If no such undertaking is forthcoming, I shall be with those who will vote for Lord Houghton's amendment on Second Reading.
§ 9.30 p.m.
§ Lord Lloyd of Hampstead
My Lords, I spoke on Second Reading last June. I gave my reasons for supporting the Bill. I shall not waste your Lordships' time by repeating or elaborating those reasons. I wish now to confine myself purely to considering the position in which your Lordships' House finds itself in the light of the Government's intention to invoke the Parliament Act if the Bill is rejected by your Lordships for a second time, and having regard to the two Motions before the House.
In considering those matters, three points must be taken into account. First, there is nothing unconstitutional, and no constitutional crisis of any kind will arise as a result of your Lordships rejecting the Bill for a second time. That is what is contemplated by the 1911 Act and the Act contains provisions expressly designed to meet that situation. Secondly, the 1911 Act is is no way limited to any particular type of conflict, constitutional or otherwise. There are no words in the Act, express or implied, which limit it in that way. The third point which we must take into account is that if we pass the Bill with amendments, that is deemed to constitute rejection under the Act unless those amendments are expressly agreed to by the other place. That is the situation with which we are confronted.
704 The question is: what is to be done? The Motion tabled by the noble Lord, Lord Houghton of Sowerby, which he moved with his customary eloquence and spirit, and whose speech I realise made a considerable impression upon all your Lordships, is, nevertheless, as he conceded, tantamount to a rejection. It will be treated as such and so, with the greatest respect to him, that would be futile except as a gesture. The Bill will be forthwith submitted to the Royal Assent, and any possibility of changing or improving it by amendment will thereby be excluded.
I turn then to the second Motion in the name of the noble Lord, Lord Campbell of Alloway, which is in two parts. First, it seeks to extend jurisdiction under the Bill to Japanese war crimes. I understand the motivation lying behind that objective. There is little doubt that the Japanese did some horrible and horrendous things during the war; but, as the Leader of the House pointed out, there is no conceivable reason for believing that there is even one Japanese war criminal in our midst. The only effect of extending it to the Japanese in this way could possibly be to stir up some unwelcome political consequences without any benefit.
The second part of the noble Lord's Motion relates to war crimes during the recent Gulf War. I submit that the Motion is unnecessary in that respect because jurisdiction does not need to be conferred retrospectively in view of the dates when these acts occurred. They are now covered by the post-war legislation which deals with grave breaches of the Geneva Convention. The report deals comprehensively with the matter in paragraph 6.6, as your Lordships may be aware.
To add a word about the Motion in the name of the noble Lord, Lord Campbell of Alloway, I appreciate that the Motion has been accepted by the Table and it is not appropriate that one should in any way dispute its validity or its constitutionality. Nevertheless as it stands it is a little strange, to put it no higher. First, it appears to involve a direction by the House to the Whole House sitting in Committee, telling it what it is to do. One cannot avoid the question as to whether the House can properly or effectively convey instructions to itself in this way. It seems open to considerable doubt whether the effect of such a Motion is mandatory. Apart from that, the Short Title of the Bill is limited to war crimes in German-occupied territory. Therefore, the Motion seeks to extend the scope of the Bill before the Short Title has been amended. That seems to put the cart before the horse. I venture to think that the Motion is both unsatisfactory and unnecessary.
The conclusion I come to is that the best course for the House to adopt is that which has already been suggested by a number of your Lordships. It is to give the Bill a Second Reading and enable the House to exercise its proper revising function. The House has expressed its disapproval of the Bill by a resounding majority on the last occasion. To make the same declaration again adds nothing, particularly in the context of the Parliament Act. Far better, I suggest, would be for the House now to accept the inevitable result of the Bill proceeding. Then, as the noble and 705 learned Lord, Lord Bridge of Harwich, so cogently put before us earlier in the evening, it may exercise its revising function and endeavour to improve one aspect of the Bill. That aspect has given many of your Lordships worry as to whether a fair trial can properly be achieved under the present terms of the Bill. If the amendments are passed by your Lordships, they will return to the Commons. If the Commons reject them, that is the power which has been conferred upon the elected House. The House of Commons has the last word on the matter. If on the other hand in their wisdom Members of another place accept the amendments as they are perfectly entitled to do, the Bill will be duly passed with the amendments. That would be a far more satisfactory outcome than simply attempting to cast the Bill aside. That would be totally ineffectual.
§ 9.40 p.m.
§ Lord Gridley
My Lords, I had some difficulty in deciding what I should say tonight. I have heard many excellent it speeches tonight and many points of view have been expressed as regards what this House should do on this issue. However, I decided I should speak entirely from my own personal experience and from my own conscience and not be frightened by anything that anyone might say as regards the standing of this House and another place. I am sure that was the right decision to reach.
I shall not relate to your Lordships a lot of awful but true stories of people's experiences during the last war. I have personal experience of that suffering. However, I should mention the tortures that were suffered by the late Bishop of Birmingham who was once a Member of your Lordships' House. I remember the he was taken away from a cell in Changi gaol. He had been the leader of an organisation which had been set up to try to obtain money to buy food to save the lives of prisoners who were dying in the gaol.
One night some ships were sunk in Singapore Harbour. It was thought that the prisoners in Changi gaol were responsible for informing the Allies that part of the Japanese fleet was in Singapore Harbour. The expert secret police were summoned from Tokyo and they carried out an investigation in the gaol. They discovered that we had some wireless receiving sets which in those days were of great use in keeping up morale. It was, of course, a heinous offence to pass information to the Allies as regards the progress of the Japanese. The Japanese thought we were responsible for passing on information about the fleet. Then the blood bath started. The late Bishop of Singapore, as he then was, was beaten for six hours on end until there was no skin left on his back. He was then thrown into our cell which contained 10 to 12 other prisoners and had a concrete floor. There were no washing facilities in the cell; just a urinal in the corner.
I have heard it said that the late Bishop of Singapore, Bishop Wilson—I shall always remember his name with great affection and admiration—said to his torturers that they must have been children once.
706 He said that therefore they must have been taught when they became adults to torture people. I shall try to approach this debate with a similar philosophy.
I know from experience that intimidation is rife in a war situation and when there is no government in the sense that noble Lords would understand it. In Singapore people made up cock and bull stories and told them to the Japanese secret police to ingratiate themselves with the police. That kind of behaviour has occurred since then under numerous regimes. When such a situation has prevailed for four or five years—we are talking about a situation that occurred over 40 years ago—it is difficult to obtain evidence which can be trusted and which can be presented to the judiciary of this country.
I cannot bring myself to believe that we should go on with this. Trials were held in Singapore. If my memory is correct, 52 Japanese were executed. They included the general who won the victory over us in Singapore, which surprised me.
In spite of what I experienced and what I know about the circumstances, I cannot bring myself to feel that we should bring those people to trial, wherever they are or whatever they have done. We have had enough of it. I have had enough of it. Fifty-two people were executed for crimes committed in Singapore. Let the matter rest and let us leave the whole business alone. I shall vote this evening for the Motion of the noble Lord, Lord Houghton of Sowerby.
§ 9.45 p.m.
§ Lord Acton
My Lords, when the Bill was debated on 4th June last year several noble Lords sought to explain the difference in attitude of the two Houses of Parliament. They did so by reference to the different average ages in the two Houses. The mean age in another place after the general election in 1987 was 49. Allowing for by-elections it must now be slightly over 50. I am a Second World War baby and at 49 I am nearer that age than many of your Lordships. Nonetheless, I am opposed to this Bill.
I have three reasons of principle, which have been explained by noble and learned Lords. First, the Bill is retrospective. Secondly, evidence of identity must be very risky after the passage of half a century. Finally, in view of the publicity and circumstances surrounding the Bill there is a danger that for the three suspects described in the Hetherington-Chalmers Report the presumption of innocence would be lost. Accordingly I shall vote for the amendment of the noble Lord, Lord Houghton of Sowerby.
§ 9.47 p.m.
§ The Earl of Cork and Orrery
My Lords, there are Bills and Bills. Some are embryo Acts of Parliament, others demands for payment. This War Crimes Bill belongs to both those categories. I believe that we should make a dangerous error if we allowed it to reach the statute book without considering the price that it demands. It is a price that will have to be paid in two parts, by the nation in general and by us, the House of Lords, in particular. I refer to the damage, 707 in part already done, to the image, reputation or whatever one chooses to call it of the whole system of British justice.
In discussing the Bill with all sorts of people, I have discovered an almost universal dislike of retrospective legislation. However, before going further perhaps I may make it quite clear what that means, because the issue has been considerably clouded by a statement in paragraph 9.27 of the Hetherington-Chalmers Report. It reads:In our view, to enact legislation to give British courts jurisdiction over acts of murder and manslaughter committed as violations of the laws and customs of war would not be to create an offence retrospectively".Of course, but an Act of Parliament does not have to create an offence in order to be legislation. Retrospective simply means looking back into the past.
This Bill looks back into a past defined precisely as between 1st September 1939 and 5th June 1945. If that is not retrospective the word has no meaning at all. That, in the popular perception at least, looks like a parliamentary trick. Some may argue, and indeed do, that it is a respectable and even necessary trick. Many people, and I count myself among them, find it repugnant nonetheless.
It has been said often, and no doubt it will be said again in the future, that that is but one of several aspects of the Bill which inspire dislike arising from a fear of injustice. But it is perhaps the most obvious of them and, even without the aid or support of the others, it is enough to bring English justice into disrepute. By "justice" I mean the whole apparatus of the criminal law, including the courts, the prosecution service and the police.
I question whether there has ever been a time when such dispute has been more damaging than it is at present when we have learned to bandy about such baleful names as the Guildford Four, the Birmingham Six, the Maguires and the West Midlands Serious Crimes Squad, just to name but a few. I need say no more to explain why it is my considered belief that the enactment of the Bill will do much to diminish worldwide respect for and the repute of British justice which is at a pretty low ebb just now.
That is part of what I mean by the cost to the nation at large of the Bill. Can we afford it? Perhaps we can, but only at the price of a grievous self-inflicted wound. I spoke also of the price to be paid by your Lordships' House. We refused emphatically to pass the Bill. Are we now to announce that we have changed our minds? If we do, it is certain that we shall not be believed. Is it credible that, without hearing new arguments and bringing new evidence, a three to one majority against it should spontaneously change itself into a majority in its favour? Surely, that can hardly be so.
If we do what we have so far refused to do and give the Bill a Second Reading, it will be said that we have done it to give way to those in another place and it will be right to say that. We shall have done it without compulsion or obligation of any kind. If we still believe that the Bill should be rejected on its demerits as distinct from most of us having unaccountably changed our minds about it, it is not only our right but 708 our bounden duty to reject it again. Such action implies no criticism of Members of another place, nor does it cast any slur upon their integrity or wisdom. We acknowledge their right to pass the Bill without further reference to us while remaining true to our own beliefs. If we decline to do that, thus inevitably exposing ourselves to the eyes of the nation as both ineffectual and pusillanimous, we shall have earned just contempt and almost certainly hastened our own demise.
So much for the loss side of the profit and loss account. What of the profit side? We must assess that, too, if we are to decide whether or not the game is worth the candle. What does it profit us if we pass the Bill? That brings us to the question that has been asked many times; namely, what is the objective of prosecuting with the possibility of conviction and punishment for any criminal offence? I follow others in positing four such objectives.
First, there is the matter of the reform of the criminal and his discouragement from future crime. We hardly need waste time on that point. After 45 years of peace, the scope for multiple war crimes for a septuagenarian must be slight. Secondly, there is the matter of deterrence to others. We might spare a second or two to consider the deterrent effect of the Nuremberg trials on such persons as, for example, Stalin, Pol Pot, Idi Amin, Papa Doc Duvalier, Ceausescu and Saddam Hussein, to name but a few of our more unpleasant contemporaries. Thirdly, there is the matter of the protection of others from the repetition of the crime. It would require a fevered imagination or a nightmare to imagine any such thing. Fourthly, there is the matter of punishment.
The Hetherington Report describes the crimes to which the Bill relates as:so monstrous that they cannot be condoned".That is surely a fair comment. Will spending a few last years of life in an English prison amount to an appropriate penalty for such unspeakable offences? A slap on the wrist is hardly a punishment for rape.
In the previous debate my noble friend Lord Caldecote said:Punishment for punishment's sake alone is to my way of thinking synonymous with vengeance, which is as unattractive as it is useless … 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". [Official Report, 4/6/90; col. 1179].The Bill is by no means the end of the story. What the end will be if this Bill becomes law has been foreshadowed and illuminated startlingly by the story of the Canadian crime. Noble Lords will remember that after a trial lasting eight months Imre Finta was acquitted by a Canadian jury on four charges of war crimes and four charges of crimes against humanity, including manslaughter involving 8,617 Hungarian Jews. That was an acquittal despite the prosecution having the overwhelming advantage in the matter of money, witnesses and evidence.
Are we to suppose that that jury was so heavily biased in favour of a man accused with apparent justice of such a weight of appalling crimes, that after listening for eight months to the indictments against him it was prepared to set him free? Yes, we are to 709 suppose exactly that. Furthermore, I suggest that anyone accused under the provisions of this Bill will be tried by just such another jury, biased before ever the trial begins not in his favour but in favour of justice itself.
At this point I am prepared to make a personal declaration, though I admit that it would carry more weight if I were not exempt from jury service. If ever I were to find myself as a member of a jury empowered to try such a case, I should insist on a verdict of not guilty and I should be greatly surprised if I were not in the majority. That is what happened in Canada and it will happen here if this Bill becomes law and any of the accused are brought to trial. It is not a question of the judges deciding that the evidence is insufficient; it is a question of the jury simply refusing to convict, as I believe they will do.
I do not want that to happen. I do not give a fig for what may happen to the accused. But I do not want to see government, Parliament and the whole machinery of justice fall flat on its collective face, thereafter rising sheepishly to its feet with that face covered in mud and egg to hoots of derision from the less respectful sections of the world's press. Alas, we cannot prevent that calamity. But there are two things that we can still do: we can say what we think and, under the leadership of the noble Lord, Lord Houghton, we can again throw out the Bill.
§ 9.58 p.m.
§ Lord Donaldson of Lymington
My Lords, I came to the House this afternoon with the firm intention of speaking and voting for the amendment proposed by the noble Lord, Lord Houghton of Sowerby. In June last year I voted against the Second Reading. I understood then and I understand now the arguments in favour of the Bill. It is said that we must not send wrong signals to the world. It is said that we must not lend comfort to those who wish to forget the Holocaust. It is said that we must do justice to the victims of the appalling events of those years, although justice in any ordinary sense is of course beyond our powers.
I can understand, too, how offensive it must be to those who had relatives who were involved to be told in this House and elsewhere that we cannot afford the money and that it would be better to spend it on teaching people to swim. I understand all those things but I still intended to vote in favour of the amendment because I said to myself, "This is a criminal justice Bill. It is not only about crime, it is also about justice".
In June I had spoken of the notorious problems involved in identification evidence. Time is a very great healer but it is also a very great distorter of the truth. Worst of all, those who give evidence as to what happened long ago are perfectly honest witnesses; they believe implicitly everything that they say. But they may well be mistaken. When it comes to identification purely on the basis of personal appearance, I suggest that noble Lords consider some of the photographs that we sometimes see in the press of prominent and distinguished citizens, perhaps in 710 their 60s and 70s, and compare them with the photographs that are published showing them in their 20s. They are virtually unrecognisable.
In June I also spoke of the element of intent which can be involved in such criminal trials. It must not be forgotten that the Bill covers manslaughter. The difference between manslaughter may well turn, among other things, on intent. How does one convey to a jury in the 1990s the surrounding circumstances, the pressures and the situation with which the accused was faced in the 1940s? It is a different world. Even people of my age do not really know about it because we were serving in the forces which is an entirely different situation.
I spoke again at that time of the paramount need for a level playing field where the resources available to the defence were comparable with those available to the prosecution. Then I came here and listened to the opening speech by the noble Lord the Leader of the House. He told me that Sir Thomas Hetherington, a very distinguished ex-Director of Public Prosecutions, had considered the evidence—which of course none of us has been able to do—and had come to the conclusion that there was sufficient evidence to give a realistic possibility of conviction. For my part I do not doubt that he was right, in particular if the defendant did not have the resources to defend himself.
The noble Lord the Leader of the House stated that he had seen the evidence. He told the House that we would not be concerned with individual cases of murder. We would be concerned, as would the courts, with mass murders in the most horrifying of circumstances. Of course, he has seen the evidence and we have not. But I have to point out to the House that the Bill says nothing whatever about mass murders. It refers to culpable homicide and manslaughter which, with all respect to the noble Lord, seems inconsistent with the basis on which he invites us to support the Bill.
He said that we should rely on the good sense and fairness of the prosecutor. I agree; we always do. But there is a vast difference between the point of view of a prosecutor who has spent months getting together a case, weighing the evidence, investigating further and deciding whether or not to go ahead, and that of the impartial observer who may well be a judge.
Finally, he said that judges have inherent power to stop trials which are unfair. As a general proposition, that is undoubtedly true. But all judges have been brought up to believe, to accept and to know that their duty is to subordinate their personal views to the instructions of Parliament when Parliament's instructions are reasonably clear. Under this Bill, Parliament's instructions would be reasonably clear. It states that,the judge shall dismiss a charge … if it appears to him that the evidence against the applicant would not be sufficient for a jury properly to convict him".It is not open to the judge to go outside that and to say, "The evidence is entirely sufficient for a jury properly to convict him, but the unfortunate defendant has no opportunity of producing any evidence to counter it. In those circumstances I decline to let the trial go on".
711 If he did that he would be accused of flouting the will of Parliament particularly as, although we have strict rules about not referring to Hansard in the courts, any judge would be thought to be wholly out of touch with reality if he did not know that this sort of thing had been debated in detail in your Lordships' House, if not in another place.
I have listened to other noble Lords and have been bidden not to precipitate a constitutional crisis. For my part, if it is a question of conscience I have no trouble at all about precipitating a constitutional crisis. Nor do I have any trouble about hastening the end of this House, particularly when I saw for the first time today the strange terms of the Parliament Act 1911 which contains a preamble of special significance. Although it is not directly relevant, I cannot forbear just to remind your Lordships of it:Whereas it is expedient that provision should be made for regulating the relations between the two Houses of Parliament:And whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation".We have been on probation for a very long time.
I was still minded, despite all those considerations, to protest that really, when one gets down to it, the Bill is designed to bring a small handful of defendants to court but not to justice. Then I listened to the speech made by my noble and learned friend Lord Bridge of Harwich. I had no fore-knowledge that he was going to make any such speech or had any such thing in mind. He brought out the fact, which again I had overlooked, that if we deny a Second Reading to this Bill the result will be that this House and not the other place will invoke the Parliament Act, because under the terms of the Parliament Act if we reject a Bill on the second occasion on which it is considered by this House there is an automatic reference to Her Majesty for Assent subject only to a certificate by the Speaker, which the Speaker would be bound to give. It is only if an initiative is taken, presumably by the Government in the other place, that there is any possibility of the Parliament Act provisions not applying.
Let there be no doubt that if we reject a Second Reading today we shall ourselves be saying that we wish the Parliament Act provisions to be invoked. I venture to suggest that the result will be that Members of the other place will go on their way if not rejoicing at least saying that justice will now be done despite the efforts of the House of Lords.
In considering the amendment of my noble and learned friend, we should not lose sight of the possibility—remote though I believe it to be—that there may be cases in which identity is not in issue. There is perhaps some little justification for that because the other day I was reading that in Scotland a gentleman sued The Times for libel on the footing that he was alleged to be a war criminal; his identity was not in dispute, only the nature of his activities. I 712 believe that there was at least one other case—I do not suggest that any of these people are contemplated for prosecution—where identity would not be in dispute in a prosecution but merely a dispute as to what actually happened.
There may be a situation—though I find this more difficult to conceive of—in which it can truly be said that the resources available to the defence are the equal of those available to the prosecution so far as is relevant to the facts of that case. If that situation existed, are we right to say that although justice can be done by definition there should be no way of bringing those people to justice? I doubt that.
I come back to my noble and learned friend's proposal as regards how we should proceed. Why should we not amend the Bill? We should not produce a whole mass of small amendments so that it can be thought by anybody that we are trying to wreck the Bill. Let us focus on the fundamentals; namely, that there must be no prosecution without the full security of ensuring a just trial.
Let us by all means give to a judge the power to decide, with the right of appeal to the Criminal Division of the Court of Appeal and, if it is so wished, to your Lordships' House. I was saddened by the comment made by my noble and learned friend Lord Ackner that that is a responsibility which judges would not want. I do not believe that for one moment save in the sense that judges never want—and I stress the word "want"—onerous responsibilities; but that is what they are there for and that is what they are trained and chosen for. No judge worthy of his salt would decline to exercise such a responsibility if asked to do so by Parliament.
With that precaution, I believe that it may well prove that no case could ever be tried. However, that is the gravamen of the complaint made by those who support the amendment of the noble Lord, Lord Houghton. They may be wrong. Let us put that to the test. If no case can be tried, we shall have wasted a little time and perhaps a little money but we shall have demonstrated to the world that while we uphold justice, we are not protecting people who can, if there be such people, be tried with justice.
If we do that and the other place chooses to reject those protective amendments, then that will be the responsibility of the other place. Furthermore, it will be the other place and not this House which invokes the Parliament Act because the Speaker must submit the Bill to Her Majesty on the footing that the Parliament Act applies because the other place declines to agree with amendments which this House considers essential.
If that happened, I should believe that I had done my duty and that my conscience was entirely clear. I hope that in the special circumstances, and in the light of the inspirational speech—and I use that word literally—of my noble and learned friend Lord Bridge no one will approve of the Bill this evening, because it is a dreadful Bill, but that it will be given a Second Reading.
§ 10.13 p.m.
§ Lord Mayhew
My Lords, the devastating attack which the noble and learned Lord made in the first half of his speech, on both the principles and the practice of the Bill, led to a rather surprising conclusion. My noble friend Lord Russell will answer that in due course. There has been no relevant change on thi3 issue since our last two debates. I spoke in both of those and, therefore, I shall confine myself to a very brief attempt to persuade Ministers that they are mistaken on two particular points of fact.
First, they are mistaken in their constant assertion that the post-war Government were unaware of the possibility of war criminals taking refuge in the United Kingdom. Some Members of the House may remember that last week at Question Time I began the refutation of that by stating that in 1945 a Cabinet discussed the question of how to handle war criminals in this country. The noble Earl, Lord Ferrers, contested that and gave us a detailed and interesting account of a 1945 Cabinet at which the question of war criminals in Britain was not discussed.
I do not deny that there were many such Cabinet meetings. To make sure I was right, I visited the Public Record Office and I confirmed that on 12th March 1945 the Cabinet, attended by Attlee, Bevin and the Labour leaders, had as its principal item on the agenda the handling of war criminals in this country. The discussion centred on a Foreign Office paper laying down the conditions under which we might be prepared to extradite war criminals from this country. The paper ended specifically in the final paragraph with the words,The above observations relate to persons who are, or may be, in the United Kingdom".It is inconceivable that after that discussion Attlee, Bevin and the other Labour Ministers could be unaware of the possibility that war criminals may be in this country.
In addition, they had soon to deal with suspects who had been found in this country. Last week I referred to one Pole whose case went to the Foreign Secretary, the Home Secretary and the Lord Chancellor. I answered a Question about the matter in the other place. Thirteen suspects in this country were named by the Soviet Union. The Foreign Office had to demand from the Soviet Government prima facie evidence.
I do not deny that Ministers at that time were more concerned with the thousands of suspects for whom we were responsible in Germany and Austria than with the incomparably smaller number of suspects who might be in Britain. But to say that Ministers were unaware of the possibility, in view of those facts, conflicts both with the records and indeed with common sense.
The importance of that point is that the Government argue that that was the reason the post-war government did not legislate to try such people:in this country; they have said that many times. But that is the second myth. It is true that in 1944 the proposal to legislate was put to the Cabinet by the then Lord Chancellor, Lord Simon, and was rejected. I am as certain as I can be that the idea was never put 714 to the post-war government. If it had been, it would have been rejected. Whenever the post-war government were considering the question of war criminals in this country they thought in terms of extradition. If it been put to the post-war government they would have made the same objections as have been made so often against the Bill today—objections of a legal, constitutional and practical kind. The then government would have ruled it straight out.
The Ministers have constantly said that there is no evidence of a collective decision by the post-war government not to legislate. But the truth is simple; the truth is that this was such a bad idea that Ministers never gave it a moment's thought. That is the position. In 1948 the attitude of the British Government towards suspects in the United Kingdom was the same as their attitude to suspects in British-controlled territory in Germany and Austria. How could it be otherwise? How could we have had one policy for Britain and the colonies, and another for British-controlled territory in Germany and Austria?
The attitude was the same in both cases. Three years had been spent securing executions and imprisonment through the Nuremberg system and by British trials in Germany which were responsible for over 200 executions and innumerable sentences of imprisonment. On top of that, there were the extraditions, after very careful screening, of suspects to their almost certain death in other countries for which we were responsible.
After that an enormous groundswell of opinion grew up that we had made a sufficient example and that the time had come to stop. Churchill and all kinds of people in every political party can be quoted as saying the same thing then. Everyone agreed. When the matter was debated in this House seven speeches were made. All seven speakers supported the government's policy of ending retribution. In the other place I made a statement announcing the first stoppages of extraditions. There was one objection to that idea in the form of a supplementary question from one of our two communist MPs following, as usual, Stalin's view on war crimes trials. Not a single Conservative, Labour or Jewish MP objected to the policy of the government at that time.
Now, 43 years later, we are being told that we were wrong. I say to the noble and learned Lord, Lord Donaldson, that the Parliament Act rightly requires us in the end to yield to the other place, but it requires us neither to agree with the other place nor to gloss over with amendments the fact that our disagreement is profound and a matter of principle. Therefore I am strongly in favour of supporting the amendment of the noble Lord, Lord Houghton. Nothing of substance has changed on this issue to justify reversing the clear-cut decision taken by Attlee and Bevin with the consent of a united parliamentary Labour Party. A vote for this Bill tonight is a vote against the handling of the war crimes issue by our admirable post-war government. The decision that they took was the wise decision. We should support it with our votes tonight.
§ 10.22 p.m.
§ Lord Templeman
My Lords, I rise to commend to your Lordships the suggestions made by my noble and learned friend Lord Bridge of Harwich—that is to say, that we should pass this Bill at Second Reading and then amend it in Committee. One matter is abundantly clear. If the amendment proposed by the noble Lord, Lord Houghton of Sowerby, is passed, the Parliament Act will take effect.
When the debate was opened there was a good deal of criticism of the Government; an institution towards which I bear an attitude of strict neutrality. On this occasion the Government were much maligned. They were accused of invoking the Parliament Act and of mobilising and operating the machinery of that Act. The fact is that the Parliament Act 1911 provides that,on its rejection [of this Bill] for the second time by the House of Lords, unless the House of Commons direct to the contrary, [the Bill shall] … become an Act of Parliament".Therefore, if we reject the Second Reading we shall get the Bill, the whole Bill and nothing but the Bill.
§ Lord Houghton of Sowerby
My Lords, the noble and learned Lord must take into account that the Bill cannot become law until it is presented to Her Majesty. The Act says that the Bill shall be presented unless the House directs to the contrary. There is that proviso in the conditions. It is not compulsory. It can be decided to the contrary. Moreover, the word "shall" does not mean tomorrow morning. No Ministers do things under that kind of imperative command.
§ Lord Templeman
My Lords, I was about to come to the question of,unless the House of Commons directs to the contrary".Think what that would mean. It would mean the Government going back to the House of Commons and saying, "You passed this Bill once as a matter of conscience and because you believed that it was terribly important. The House of Lords disagreed. The second time you considered it and the second time you passed it by a large majority on a free vote. Now the House of Lords has thrown it out for the second time. We hear the trumpets of the Duke of Omnium. We come to you with our whips and say to the House of Commons, 'You may be the only elected representatives, but you had better do as you are told by their Lordships in another place'." No government can try that. If this Government did, I confidently expect that no House of Commons would allow itself to be dominated by the Whips. The fact is that if this Bill is not given a Second Reading tonight we shall get the Bill, the whole Bill and nothing but the Bill.
Then it is said—here again we get the Duke of Omnium—that this was not intended under the Parliament Act and that the Parliament Act was intended only for Welsh disestablishmentarianism and Lloyd George's pensions. The Parliament Act is perfectly clear. It was passed to govern the relationships between the two Houses.
It was said:We shall no longer have an impasse and if there is an impasse the will of the lower House shall prevail as the lower House is elected. The upper House, because it is terribly 716 useful, will not be touched for the time being. If there is a clash after these two meetings then the will of the lower House shall prevail".It is perfectly true that the House of Commons never has used the Parliament Act 1911, and I hope it never will except to get through a matter on which it feels passionately. This is a matter on which we must accept that the lower House feels passionately. It has voted twice by a free vote. It has voted overwhelmingly. It is not democratic to say in the face of a large majority that they do not mean what they say and that if you ask them they will say something different. We have to accept that they have voted twice by a large majority and that therefore the Parliament Act will take effect.
For my part, I do not accept the comments that have been made that the Parliament Act is only there to get through government business and government arrangements, as though the Parliament Act is a sort of guillotine to be kept in the Whips Office to be trotted out by the Government. It is not. It is there to enforce the will of the Commons and we know in the present case what that will is.
Then it is said, "You can't make any good amendments". Let us look at the amendments which my noble and learned friend is drafting. Let us see how we will be able to preserve the principle of the Bill upon which the House of Commons insists, and yet to give it amendments which I hope the House of Commons would be only too ready to accept because they are amendments designed to see that there is a fair trial.
§ Lord Campbell of Alloway
My Lords, I am much obliged to the noble and learned Lord for giving way. Does he accept that these amendments were sent to the Government in draft with a note on amendments before the procedural Motion and before the Second Reading, and that the Bill has been returned to us without any amendment at all?
§ Lord Bridge of Harwich
My Lords, I intervene to say that as I have not drafted the amendments they could not have been sent to the Government.
§ Lord Templeman
My Lords, we must deal with the facts. The facts are that the House of Commons, on a free vote, has twice said that the Bill shall go through. The Parliament Act 1911 says that if the House of Commons says that, there is an end to it. We cannot deal with all these vague rumours. We are faced with the present position. If we reject the Bill tonight we shall have the Bill and we shall have no amendments.
As I was saying before I was interrupted, I hope that the House of Commons will accept sensible amendments. If they do not, then, as my noble and learned friend the Master of the Rolls said, that will be a matter for them. The onus will be on them for having turned down amendments. It will not be on us.
I can see no good to come out of our not giving this Bill a Second Reading. I can see great harm because we shall have a Bill which is bad in every particular. I can see great merit in giving it a Second Reading without resiling from the view we have expressed in this House about the principle. We can still give the 717 Bill a Second Reading and then we can propose amendments which will improve the Bill. We shall have done our duty in that way.
§ 10.29 p.m.
§ Lord Beloff
My Lords, it is just 10 years since I first addressed your Lordships' House. This has been the unhappiest day I have spent in your midst, except possibly for 4th June last year.
I find myself in an extraordinary position because the speeches which reflect what I think and feel affect me painfully. I refer to the speech of the noble Lord, Lord Jakobovits, the remarkable speech of the noble Baroness, Lady Ryder of Warsaw, the speech of the noble Lord, Lord Kagan, and especially that of the right reverend Prelate the Bishop of Ripon. All those speeches certainly raise one's hopes that the immense moral importance of not appearing to dissent from condemnation of the events about which we are talking is appreciated widely. However, it means recalling these events which, like other members of my race, I have personal reasons for recalling—and also the indifference that I, and perhaps others, showed at the time. It is perhaps painful to have it made clear that what we are doing is reinvestigating our own consciences.
The idea that some noble Lords appear to favour—at least, it seems so from their speeches—that the question of conscience only affects those who are opposed to this Bill, seems to me to be presumption. However, I am equally and perhaps even more disturbed by some of the speeches which have been made against the Bill.
The noble Lord, Lord Mayhew, on this as on other occasions, has made himself one of the spokesmen for the opposition. The main burden of his case appears to be that the all-seeing and all-wise government of the immediate post-war years must be regarded as having said the final word on everything and that we are presumptuous in our generation if we believe that these matters could be reviewed again.
The noble Lord, Lord Mayhew, has more than once referred to his ministerial position. He was an adjunct of the then Foreign Secretary, Mr. Ernest Bevin. If Mr. Bevin was not particularly concerned about the advent of war criminals into this country—I accept the noble Lord's view that he was not—he was massively concerned with preventing the survivors of the Holocaust from reaching their only safe haven; namely, Palestine as it then was. To ask us to forge the record of that government in relation to the persecuted seems to me to be a curious way of asking us to accept their view of how the persecutors should be treated.
After all, it is a question of the future. It is the impact which our decision is likely to make. My noble friend and fellow professional historian—if I may be so bold—Lord Dacre of Glanton has already said that he and I disagree about the effect that the passage of the Bill I through this House would have on the Jewish position and on the reputation of the Jewish community. I am glad that he has brought that issue into the open, even though he and I disagree.
718 Several noble Lords, including the noble and learned Lord, Lord Shawcross, referred to correspondence which they received after our debate last summer. I received a good deal of correspondence. All of it abused me for having taken up the cause of the persecuted and all of it—to put it in moderate language—was of a neo-Fascist or neo-Nazi nature. In other words, it was considered that to support a Bill of this kind was to fly in the face of what those people, at any rate, regarded now as being perfectly normal.
Noble Lords may be aware that the noble Viscount, Lord Tonypandy, whose speech I admired, has recently added to his offices that of president of an international association of parliamentarians dedicated to fight against anti-semitism. It seems almost unbelievable that, as we are constantly told, nearly 50 years after the defeat of Hitler, it should be necessary for parliamentarians from many of parts of the world to unite against at least one scourge that we believed the war had brought to an end. So I find it difficult to believe - I think that those who have read the debate in another place with the attention that I paid to it will find it difficult to believe - that it is worth sacrificing one's own opinions about what should be done in relation to the Bill because those who are bigoted already might find a new reason to remain as bigoted as they were before. It is a risk—I agree with my noble friend Lord Dacre—but it is a risk which those of this evening who have spoken as Jews—there are only two or three of us, alas!—are, and should be, prepared to take.
I should also like to repudiate in the strongest possible terms the attempt to confuse the notion of justice with the notion of revenge and retribution. I do not believe that Mr. Wiesenthal is some kind of maniac, rushing about the world searching for war criminals. It is not a nice job. There are the documents that he and his colleagues have to study; the photographs that they have to study, as the right reverend Prelate reminded us; and the people whom they have to interview. There are many nicer ways of pursuing scholarship. People who do that do not do it because of revenge. They do it because they feel, as I should have hoped the House would feel, that there are events about which we should know, which we cannot pass unnoticed, and about which when we have a chance, in some minor way even, to demonstrate our horror, we take it.
That does not and could not mean that I reject the assessment of the difficulties which the noble and learned Lords have put before us about the processes of cases should they come to trial. No doubt it can be plausibly argued that the scales could be weighted in favour of conviction, although it seems to me that some of the arguments that have been put forward, especially in relation to Canada, suggest that the weight would have to be very heavy to persuade a jury to convict after all this time. I should willingly accept, and I believe that those who think with me would willingly accept, the kind of proposals that the noble and learned Lord, Lord Bridge, supported by two of his noble and learned friends, has put before us. If the Bill can be improved, and if it can be made even clearer that the purpose is justice and not retribution, 719 no one who feels as strongly on the matter as I do could possibly gainsay that intention. It is helpful and useful that even at this late hour the possibility should be brought to our attention.
I have no pleasure in this. It would have been easier for many of our consciences if these searches had been unsuccessful, but they were not. We are faced with a fact. We must take the differences between the two Houses which the noble Lord, Lord Acton, referred to in his brief remarks. He suggested that the reason for the different outcome was a difference in age. I have never thought that to be plausible and it would be hard to demonstrate beyond peradventure. It is not a question of generation but of the feelings of the ordinary person. Without disrespect to the other place, it is full of ordinary people. The difference in what they feel when confronted with a moral issue—and this Bill is a moral issue, whatever the members of what was once the great Liberal Party may think now—is that the House of Commons in its majority believes it to be a moral issue.
In your Lordships' House a great deal has been said to give the impression of superior judgment, superior wisdom, superior knowledge of the law. On the whole, I believe that we would be right to assume that in this respect the other place is more representative. Of course efforts are being made to destroy the representative nature of its votes. We are told that only a part of the House, about half, was present. However, it is a principle of statistical analysis that unless one can show a reason why those who vote do not represent proportionately the whole, one must assume that they do. No one has produced any evidence to suggest that those who stayed away from the vote in the House of Commons did so because they disapproved of the Bill. If they did so with a passion which some noble Lords appear to hold in respect of the Bill, there was nothing, so far as I know, to stop them voting.
The last point I make is that there has also been a reference to the fact that our present Prime Minister voted against the measure when it was first discussed. Noble Lords may have failed to realise that when our present Prime Minister voted in that way he held an office in the Government—as Chancellor of the Exchequer, I think—which would not have entitled him to see the second part of the Hetherington-Chalmers Report. We know from the noble Lord the Leader of the House and his successor and predecessor as Home Secretary how important that accumulation of detailed evidence has been in making up their minds. I have no reason to doubt that it was acquaintance with this body of evidence that made our present Prime Minister change his mind and agree with his predecessor who had seen the relevant evidence.
§ Lord Bonham-Carter
My Lords, I hesitate to interrupt the noble Lord, but none of us has had the opportunity to see the second half of the report. Is the noble Lord telling us that we should change our view because of evidence which has not been made available to us?
§ Lord Beloff
My Lords, I can imagine the outcry from the noble Lord if it were announced that the second part of the report was to be published tomorrow. Then we would be told that it was impossible to conduct fair trials. I should have thought the fact that senior government officers—Prime Ministers and Home Secretaries—have declared themselves to be affected by the report is significant. I was affected by that fact. That may seem unconvincing to the noble Lord, Lord Bonham-Carter, and others who, for reasons that I shall not attempt to investigate now, seem to think that this necessary measure is somehow a violation of the British sense of justice. In my view, it is the contrary.
§ The Duke of Norfolk
My Lords, before the noble Lord sits down and with the leave of the House, I hope I may say, in connection with the beginning of his speech, that if I vote for the amendment of the noble Lord, Lord Houghton, I am not voting as a neo-Nazi or as a neo-Fascist.
§ 10.45 p.m.
§ Lord Shaughnessy
My Lords, the Canadian legislation on war crimes and crimes against humanity has been cited on numerous occasions in the debates that have taken place in this House in connection with this Bill, sometimes in partial justification of the Bill itself. I do not propose to weary your Lordships with a long recitation of what has happened in the Canadian experience. However, I wish to make a few points.
The noble Earl, Lord Cork and Orrery, mentioned the trial of Mr Imre Finta, who was the first person charged under the Canadian legislation and the first to come to trial. After a trial lasting eight weeks, during which evidence was presented by witnesses in person and also by videotape, Finta was acquitted on all counts by a jury on 25th May 1990. It is significant that in the course of fighting the charges against him Finta, who is now 78 years old, lost his business and his home.
That is not the end of the story. Canada is one of the few jurisdictions under the British system of criminal law where the Attorney-General can appeal against an acquittal by a jury. That was mentioned by the noble and learned Lord, Lord Hailsham, at the beginning of this debate.
Some three weeks after Finta's acquittal, the Crown entered an appeal to the Ontario Court of Appeal asking for a new trial on the grounds that the presiding judge had erred in allowing an "inadmissible hearsay statement" to be read on behalf of the defence. The appeal was heard on 25th January this year before the Ontario Court of Appeal and up to today no decision has been rendered. Hence after a lengthy trial, the loss of his livelihood and his home, Imre Finta still has these charges hanging over him.
Although Finta was the first to be tried, he is not the only person to be charged under Canadian war crimes legislation. Stephen Reistetter, who is 76 years old and an automobile worker in Ontario, was charged in January 1990 with helping to send 3,000 Jews to Nazi death camps in 1942 when he was an 721 official in the Berdejov district of Slovakia. Last March, after several evidence gathering trips to Europe by rogatory commission and the recording of videotaped testimony, a Crown prosecutor told the Ontario Court General Division that the charges against Reistetter were being dropped, because a key witness had died and another was unwilling to testify. He said that the recorded evidence of other witnesses raised doubt that a reasonable case could be presented.
Finally, there is the case of Michael Pawlowski, a third Ontario resident who was charged in December 1989 with the death of 490 people in Byelorussia in 1942. Pawlowski has not yet come to trial. Certain evidence gathered by a commission in the Soviet Union was found to be faulty and of 20 witnesses interviewed 10 refused to testify. Part of the evidence was gathered by video tape and there was a problem about certain affidavits acquired by an RCMP police officer.
As a result an Ontario judge has ruled that a fair trial cannot proceed at this time based solely on video-taped evidence of Soviet witnesses. Nevertheless, the Canadian Justice Department has said that it will send a new team of lawyers and Royal Canadian Mounted Police officers to the Soviet Union in an at tempt to iron out the procedural difficulties. It is anticipated that a trial will start within the next year, more than two years after Pawlowski was originally charged.
That, in summary, is the current situation in respect of war crimes prosecutions in Canada, and a sorry record? t presents. Depending on the judgment of the Appeal Court, Imre Finta could be tried again. Michael Pawloski still awaits the resolution of procedural matters.
I appreciate the understandable desire of the proponents of this Bill that even after 45 years the enormity of the crimes committed, on a terrifying scale, should not go unpunished and that justice should be done. But in view of the dismal Canadian experience there is a frightening doubt as to whether that objective can properly be achieved. If we set out on a similar questionable course with results comparable to those in Canada, I ask your Lordships: who can call it justice?
I have listened to the interesting and unusual difference of opinion as to the handling of the Bill expressed by noble and learned Lords, who apparently do not agree on how we should go forward. For my part, I stand with the noble and learned Lords, Lord Ackner and Lord Wilberforce. I put the integrity of this House above any pragmatic considerations, and I shall vote for the amendment.
§ 10.54 p.m.
§ Lord Selsdon
My Lords, when the last Second Reading; of the Bill took place I came to your Lordships' House not to speak but to listen, convinced that at tie end of the day I would vote in favour of the Bill. However, after listening to your Lordships and recognising the depth of experience and knowledge, the logic was so overwhelming that I voted against the Bill. That was a logical and pragmatic vote.
722 Today I came to participate in the debate and to see whether I could vote on the basis of conscience alone, recognising that the sword of Damocles hanging over us was unjust, unfair and might bias the debate. I realise that I have not the experience of your Lordships. Although age may not come into it, it may interest noble Lords to know that of those speaking today, the average age is around 69 and that over 70 per cent. of your Lordships were adults at the start of the last war. Of those in the Commons very few were adult at the time. It is interesting to note that in general those voting against the Bill in the Commons had more experience of the war, although I do not believe that age comes into it.
Those of us of younger generations have been influenced by hearsay and other people's views rather than our own. I wondered whether I myself had any views. I thought back in my own life to times that I thought I would forget. I was two years old at the start of the war and, like many children, I was evacuated to Canada and left in a school there without my parents for five years because the Germans were coming to England.
I returned to England after D-day because the Germans were not coming to England. I arrived by boat and, with a label round my neck to identify me, ended up at a station in London where hundreds of mothers were looking for their children, many unable to recognise them. I met my mother to whom I introduced myself. There was an air raid and I went to stay with my grandfather somewhere in the country, I knew not where.
Next morning I was introduced to members of the family and people who knew me, although I knew none of them. Then, having some knowledge of languages, I recognised that German was being spoken. There were many Germans around. They were working there. They were German prisoners of war, but I did not know that at the time. I thought that the Germans had come. Within a few days I found that Germans were living in many houses around the estate. I remember my sister and I crawling through the shrubbery and peering in the windows because we were convinced that they were German spies. We went back to tell our grandfather with whom we lived and he said, "No, those are German-Jewish immigrants, poor people. We are looking after them".
I found from my grandfather that, before the war, my great uncle, Stafford Cripps, had asked him, as he was a great lover of Germany and had a great knowledge of it, whether he would assist in the screening of Jewish immigrants coming over here. I think that they worked out of Woburn Place. My grandfather, with his great affection for Germany, did what he could to help. Apparently, what was so interesting was that the immigrants at that time were all basically academics, teachers and those who perhaps had the minds to see what was coming. But even they may have had fear of pronouncing what they thought would happen in the end.
They were living in cottages vacated as a result of all able-bodied men having gone to war. So there I was with German prisoners of war, German-Jewish immigrants and, of course, the land girls. To my 723 surprise, the only British farm workers were all what were called conscientious objectors. I thought that they were spies too. Finally, at Newbury we had the Fourth Airborne Division of the American forces.
I grew up as an inquisitive seven year-old child in that strange environment where we all worked together in the gardens producing food for London with no worries at all. In the evening I would talk to those people. I wanted to know what was the difference between the people who lived in the houses and those who were in prison, because all of them were Germans. If I recall correctly, they said, "You see, the leaders in Germany did not like us and were planning to lock us all up, so we came here". I could not understand why and thought about it for many years. Those people became our friends.
At the time of Arnhem the Fourth Airborne Division took off from Greenham Common and we waved goodbye to friends, many of whom never came back. I had no knowledge of death other than death by war.
Gradually, as the war drew to an end, I came to know people well. My governess was a small, crippled Jewish teacher called Miss Moses who later taught at Newbury High School for many years. We had another governess called Miss Scheer whose family had been doctors to the Tsar and who recited to us the problems and persecution that followed the revolution. I still hardly knew my parents.
In that environment I gradually began to understand that there were not only differences between races, but differences between creeds. When the news began to emerge from Germany that those friends had lost their families, no one knew what had happened to them. I realise that at the time probably no one knew. I have thought about it often and we discussed it in later life. I helped them write to the German authorities so that they could get their pensions. Many of them did; the German authorities seemed to behave extremely well.
I learned a lot from those people. There was no vengeance or bitterness. Perhaps their academic minds had a great understanding. There was no further desire for punishment. They accepted that things had happened which perhaps they should have seen beforehand and themselves have stopped when the rest of the world was denied knowledge. I remember asking what should be done and someone saying, if my German is still up to it: "Mach mal kein Hechmech. Lass dass sein." It means, "Don't make a fuss. It's all happened."
When I search my conscience I do not believe that there is a reason to pursue the matter further. I do not see what good the Bill will do. In order to find out whether I was right I spent the last months when I had the opportunity in Germany, Italy, France, Belgium and Holland talking to friends of different ages and asking what they thought. Almost to a man or woman they expressed surprise that we were planning to bring forward this legislation. They did not see the point. They or I may be wrong. I do not see the point of pursuing this matter any further.
There is however a side benefit. We cannot ever 724 forget and must continue to draw attention to these problems and situations. Maybe one of the best ways of drawing attention to them is not to pass the Bill on Second Reading but to oppose it and see what happens constitutionally. I am afraid my conscience says that I must vote against the Bill.
§ 11.2 p.m.
§ Lord Morris of Kenwood
My Lords, much has occurred since 1986 when the first allegations emerged that there were Nazi war criminals living in this country. In 1988, the Hetherington-Chalmers inquiry was set up. Who could have imagined the strength of its conclusions; namely, that there are a number of individuals living in Britain against whom there exists powerful evidence of involvement in the murder and manslaughter of innocent civilians? Surely those who have been given the high privilege of British citizenship and have enjoyed the freedoms which go with such privilege must not be excused the liabilities.
Since 1861 a British subject who had allegedly committed murder overseas would be liable for prosecution. If we knew then what we know now, would we have granted such people British citizenship? I suspect not. People who committed war crimes after 1957 are already punishable under the Geneva Convention of that year. Prosecutions for wilful killing and torture may take place in the United Kingdom wherever in the world the offence was committed and whatever the nationality of the alleged offender at the time.
Why does the legislation not extend to crimes committed in the Far East during the Second World War? It is simple. As the Government have stated on numerous occasions, there exists no evidence against any person living in this country of involvement in such crimes and nor is there likely to be any such evidence.
Would there inevitably be show trials? As in all criminal cases in the United Kingdom, the standards of evidence would be of the highest quality. Any evidence, where it appears that the accused has suffered prejudice from the circumstances in which the evidence was obtained, can be excluded by the judge. If the accused is unfit to mount a proper defence, and if the judge is not totally satisfied that the accused had every opportunity to defend himself, the case will not proceed.
The crimes under consideration were committed out of the heat of battle, often hundreds if not thousands of miles from the war front. These are cases of premeditated mass murder of men, women and children. During the debate last year in this House, it was said that the crimes that we are considering today were committed as acts of state and seen by the Germans as part of the war effort.
With your Lordships' permission, I should like to quote Kitty Hart, a survivor of the notorious Auschwitz concentration camp and a witness in 1989 at the trial of Gottfried Wiese in the High Court at Wuppertal, Germany. She stated:Of the thousands who started the journey, only a few hundred were still alive at the next destination. Anyone who 725 lagged behind was shot or clubbed to death. I was lucky in that I only received a depressed fracture of the skull from a rifle butt, and still have a hole in my head to prove the pointAnother example of their handiwork took place in the Lublin ghetto during one of the many round-ups. I was merely thrown down the stairs, but others, including children, were dropped from windows. From the ground the dead and the wounded were hurled into lorries like meat. The living were sent as usual to the killing centres or concentration camps. The availability of volunteers from the indigenous population of Eastern Europe was a significant factor in the decision to site the concentration camps in Eastern-occupied territories. Without the assistance of these men it would not have been possible to produce a killing system on a massive scale as was eventually achieved.Criminal trials remind us that it is individuals who commit crimes, not nations. Individuals are responsible for their own actions, and should be held accountable for their own crimes. The Nuremberg trials after the war taught us that "superior orders" are no defence. It is an irony that a regulation existed in every German soldier's pay book: "Never obey an illegal order".
All the Bill does is to give the prosecuting authorities in this country the opportunity to study the evidence; available. If there is sufficient evidence to merit a prosecution, then it would be a travesty if such a case could not proceed because the mechanism for such a trial did not exist. I urge your Lordships to give the Bill a Second Reading.
§ 11.7 p.m.
§ Lord Monkswell
My Lords, I did not speak in the debate last year on 4th June. However, I listened to the debate and was enlightened. I learned a lot from old men—men who had experienced the period about which we speak. I learned from wise experts in the law and in the field of human relations. That debate was the House of Lords at its best. At the end of the debate I voted against the Bill.
In this debate, I wish to speak about duty and about anti-semitism. First, we in the House of Lords have a duty to come to our own decision without fear or favour of the House of Commons. Otherwise there is no point in our very existence. Secondly, on anti-semitism, many speakers in the debate have been very concerned about the fairness of any trial that might result from the provisions of the Bill. They worry, quite legitimately, about innocent men being found guilty. But it is not just innocent men who might be found guilty and punished. The children of those innocent men would suffer the greatest punishment.
However, I worry that men guilty perhaps by their own admission of horrendous war crimes—crimes against humanity—under the system of British justice could be declared innocent by a jury, not because the jury thought they were innocent but because the jury thought that the Bill was unfair and because the Bill is perceived to be selective and partisan; the product of the Jewish-Israeli lobby. We need to advise the Jewish community that it does its cause no good by the promotion of this Bill.
Effectively, we are asked to say that there was a specially nasty relationship between the Germans and the Jews between 1939 and 1945. I am sure we all agree that in that period the relationship between some Germans and Jews in Europe was absolutely horrific, 726 but it would be to misstate the truth, because the reality is slightly different. It was not the Germans but more correctly the Fascists, and not just the German Fascists but Fascists in other countries in Europe as well, who were nasty to the Jewish population. But they were also nasty to many other people. Twenty million Russians died in that war, largely because the Germans thought of the Russians as Untermensch; second-class citizens, or people with no citizenship rights at all.
My Lords, perhaps the noble Lord will give way. Is he aware that because of that very point the crimes were not just against Jews? It is quite unfair to suggest that it is only the Jews who are concerned about prosecution.
§ Lord Monkswell
My Lords, I take the noble Viscount's point perfectly. The problem is that we are talking not in terms of reality but in terms of perception. I agree that we need to talk only in terms of the period 1949–1957, because the following period is covered by different legislation. However, we should remind ourselves that since the war Fascists of various nationalities, including Jewish Fascists, have been nasty to the people who they thought were second-class citizens.
Several speakers have mentioned the fact that there are other ways of dealing with this problem of war criminals. I hope that the Government will listen to those arguments and find a way of dealing with the problem facing us without interfering with the good standing of British justice and without causing a rise in anti-semitism.
I had intended to talk about the amendment suggested by the noble and learned Lord, Lord Bridge, but I think the hour is too late for that.
It has been suggested that this House is a revising Chamber; that we are here to revise that which the House of Commons has determined. I argue most strongly against that. We are all summoned here to give advice. If one reads the words of the Summons, it is to advise the Sovereign. We are not summoned here to revise that which the House of Commons has determined. We are asked to give our considered advice. We must do that on the basis of our individual consciences; otherwise we should not be true to ourselves or to our Summons to Parliament.
I shall vote against this Bill tonight. I hope that there will be a majority for that position; to defend the good standing of British justice and to prevent fuelling of anti-semitism. For those reasons, I also hope that the Government will not use the Parliament Act to ask the Sovereign to sign this Bill into an Act.
§ 11.15 p.m.
§ Lord Monson
My Lords, when one rises to speak as the 49th speaker in a debate, normally one is obliged to admit that almost everything one had intended to say has been said already by earlier speakers. Unfortunately that does not appear to be the case this evening although, obviously, I have not been able to listen to every single speech.
As one understands it, most of the crimes with which we are concerned took place in 1941; that is, 50 727 years ago. As my noble and learned friend Lord Wilberforce pointed out when we debated this matter on an earlier occasion, any trial resulting from this Bill would take two years to prepare. Therefore, as one of the distinguished historians who graces the Conservative Benches, the noble Lord, Lord Thomas of Swynnerton, and I happened to suggest independently on the last occasion, one risks putting on trial individuals who are almost certainly different mentally as well as physically from the individuals they were 52 years earlier. That is nothing to do with their age, but is more a philosophical doubt as to whether one is putting on trial the same people who did those terrible things many years ago.
Can it really be claimed that a man of 70 is the same person as a youth of 18, who may have behaved with extreme brutality while still in his teens, having possibly been indoctrinated at school or by a youth movement with a fanatical suspicion of other peoples? Is a man aged 81 the same person as he was when aged 29? Many of us believe not.
Should your Lordships disagree with that, consider this. Any punishment which the courts can inflict on an individual convicted as a result of this Bill can last on average only five years before death or senility intervenes. The people who will really be punished will be the individual's wife or, as the noble Lord, Lord Monkswell, said, his children, his grandchildren and possibly his great grandchildren.
They will be objects of press attention and, quite possibly, public hostility for years if not decades. That hostility is likely to persist even if the accused is acquitted, since most people tend to imagine that there is no smoke without fire. In other words, the punishment will largely miss its target and hit the wrong people. I agree that on its own, that is not a conclusive argument for rejecting the Bill, but it is a factor worth bearing in mind.
What of the other so far unvoiced arguments? It must never be overlooked that we are not dealing with German or Austrian Nazis or their hangers-on, nor with Flemish, French or other Western European collaborators, none of whom could have the slightest genuine grievance against those whom they persecuted and, in some cases, massacred. On the contrary, the Jews in Germany were among its most patriotic and worthy citizens during the First World War, fighting bravely for their country and winning many Iron Crosses in the process.
However, we are dealing not with those people but with the people from Eastern Europe, people whose family and friends may well have suffered horribly at the hands of the Communists, in whose ranks, unfortunately, a particular ethnic group was very heavily represented. The Hetherington report makes that quite plain.
Anybody who has travelled in Eastern Europe in the past 10 years—in other words, since the time at which people started to feel able to speak freely—will know that that fact is very much in the forefront of peoples' minds there, quite excessively so in my opinion. I am not an expert in the history of the period, but I suspect far too much blame for the 728 horrors of Communism has been heaped on the shoulders of one particular group. However, that is a reality and the belief—misconception though it may be—is widespread in Eastern and parts of Central Europe. Is it wise to stir up that hornets' nest at this time? May that not be counter-productive and even dangerous, as the noble Lord, Lord Dacre of Glanton, suggested? This is not to argue that reprisal murders—random murders of a sectarian or political nature—are in any way justified, either legally or morally. Of course they are not. But looking back over the past 75 years, one sees that they have occurred on every single continent, with the exception of Australasia, in every single decade; in other words, we are not talking about something exceptional.
If, after so many years, one is going to resurrect one lot of dreadful crimes, then in justice and consistency we should resurrect them all. Here I very much agree with the noble Lord, Lord Kennet. The last time we debated this Bill the noble Earl, Lord Onslow—who I am sorry to see is not now in his place—who commendably rarely hesitates to call a spade a spade, described the Bill as a racist Bill. Given the selective or targeted nature of the Bill, as my two noble and learned friends on these Benches have respectively labelled it, the noble Earl, Lord Onslow, was surely accurate. It is racist in so far as it effectively implies that it is not just wicked—of course it is—but significantly more wicked for an individual to murder 10, 100 or 1,000 people of one particular ethnic group than it is to murder 10, 100, or 1,000 Kulaks, Cambodians or Kurds, to name just three groups at random.
If that were not so, the Bill would not confine itself to crimes committed on German-occupied territory. For a start, it would extend to Russian-occupied territory, as well as Japanese; it would not confine itself to Second World War crimes or indeed purely to crimes committed in times of war in general. Why should the millions murdered by Stalin's henchmen and Chairman Mao's henchmen—in peacetime technically speaking—be totally ignored?
Running like a thread through the speeches of so many of those who support the Bill seems to be the subconscious assumption that those against whom the Bill is targeted were, by definition, privy to and even planners of the monstrous secret scheme to perpetrate terrible acts of genocide in Europe. What noble Lords seem to have overlooked is that they have the benefit of speaking with hindsight. Most of the acts we are debating took place before the notorious Wannsee Conference, or at least before the scheme was known of by other than an extremely small number of people. British and American intelligence were not fully aware of the Nazi leadership's genocidal plans until well into 1944; how much longer would it have taken for very junior cogs in the German war effort, belonging to what the Nazis considered to be inferior nationalities, to become aware of it?
We are not debating a Bill targeted at the planners of genocide, the big fry; in other words, the leading Nazis. If we were, I would have no hesitation in voting for it despite any minor reservations I might have. We are debating a Bill targeted at people alleged to have 729 done terrible things, certainly, but deeds which regarded on their own are, unfortunately, by no means unique as has been alleged. Parallels can be found all over the world throughout this bloodstained 20th century. The selective nature of the Bill is its most objectionable feature, though there are a great many others. Therefore I shall be obliged to vote against it.
§ 11.23 p.m.
The Earl of Lindsay
My Lords, when this Bill was before us last year, I had intended to speak. However, I was 2.dvised that with nearly 70 speakers already tabled, many of them drawing on considerable knowledge and experience, there would be few points or conclusions untouched by expert hands. There would also be little merit in delaying the vote yet further for the sake of repetition. Thus myself and some other younger Members of your Lordships' House either did not table our names or withdrew during the debate. However, that has been the cause of some regret and I shall briefly bring two points to your Lordships' attention.
First, the comparative silence of younger Members last year encouraged an erroneous conclusion to be put to your Lordships in the summing-up. The noble Lord, Lord Mishcon, in considering the different treatment given to this Bill in another place, confidently stated that with the average age of the Commons being around 40, and with most of those who spoke in last year's debate in this House being above the age of 60, one's response to the Bill was symptomatic of the generation to which one belonged. He gave us to believe that the younger generation was clamouring for its enactment. But many people both within and beyond this House know that assumption to be misleading and incorrect. There is widespread unease among the younger generations at the nature and detail of the Bill. That general unease is more accurately reflected by the vote recorded here than by those votes recorded in another place. I go further and suggest that while this House recorded a near three-to-one majority against this Bill last year, opinion beyond Westminster appears to be that it is opposed by perhaps seven or eight-to-one, if not more. That is not a glib assumption but is based on deliberate inquiry among a wide cross-section of my own generation.
The two principal objections expressed are: first, the possibility of an unjust conviction—the passage of time having eroded the reliability of eye witness identification; and, secondly, the partiality of a piece of retrospective legislation that sets out to catch a small and highly specific number of people without reference to similar crimes that have been perpetrated so many times since. What about opinions among tomorrow's generation; namely, those graduating or who have recently graduated from university and college? Living just outside the university town of St. Andrews and close to the colleges at Kirkcaldy and Cupar, provide accommodation, job opportunities and various recreational activities for students and graduates alike.
They are a diverse bunch with enthusiastic ideals. Yet it is surprising how few support this Bill and how 730 many entertain reservations. Those in their mid-20s today, incidentally, are probably not dissimilar in age to the suspects targeted by this Bill at the time of their alleged crimes. None can be certain that they would have had the courage, as lower ranking officers, to disobey orders and risk not only their careers and families, but probably their own lives in front of a firing squad. Few of this age group, I would stress, doubt that the subordinate who obeys orders is no less responsible than the architect who devises them. But most question whether the subordinate provides sufficient justification for the legal risks and moral doubts involved in quite such belated and selective pursuit.
Thus the suggestion put to your Lordships that the views of this House on this matter are out of touch with those of younger generations is not true. I cannot fail therefore but to comment on the noble Lord's other assertion when analysing the response of another place. According to the noble Lord, its Members were "listening to their constituents"—the implication being that they were representing a majority opinion from those constituencies. I doubt the extent of the alleged consensus in support of this Bill. I do not doubt that Members of another place were listening. As is often the case however the articulate and well-lobbied convictions of a minority can be easier to hear and more awkward to ignore than the general disquiet of a less voluble and less co-ordinated majority.
Surely one of the distinctions of this House is that lobbied opinion can be listened to and considered dispassionately and not within the context of constituency politics. I am not an expert on the legal, historical or constitutional aspects raised by this Bill. However, I can speak for a generation whose views have been misinterpreted and whose doubts are more closely aligned to those expressed in this House than another. That there should be general legislation against war crimes is not disputed. That the specific details of this Bill are compatible with the fundamental legal traditions and Christian principles of this country most certainly is disputed.
§ 11.28 p.m.
§ Lord Sherfield
My Lords, I gave my views on this Bill on the first occasion that we had a Second Reading of the Bill. I shall not repeat them now. I see no reason to change them. I rise merely to raise one point which I did not address previously. I refer to the constitutional point. We are urged to avoid confrontation with the other place. Personally, I do not feel that urge. My reasons are simple and, perhaps as a result of what we have heard in the past two or three hours, they are too simple. The Parliament Act, as amended in 1949, is on the statute book. It ensures the primacy of the other place. It is there to be used. I for one do not see any cause for concern if it is used. I am not sure how much it matters where the responsibility for its invocation may, in retrospect, be held to lie.
It seems to be quite natural that occasionally—perhaps once in every one or two decades—an issue will arise of conscience or of principle on which the 731 two Houses will disagree; particularly if it is an issue that has not been before the electorate and which merits a free vote in both Houses. Therefore, I do not see any reason for this House to be deterred or to reverse itself on constitutional grounds.
I must also say a few words about the amendment issue. We have heard some very persuasive arguments in favour of passing the Bill so that it can be amended. We have heard powerful speeches on the other side of the argument. It is a difficult issue, but I come to the same conclusion as the noble Lord, Lord Shaughnessy; and for the same reason I support the amendment.
§ 11.32 p.m.
§ Earl Russell
My Lords, this has not at any stage of the debate been a party issue. I have only one thing to say on behalf of the Liberal Democrats. We have a free vote, and when we say that we have a free vote we mean it. Noble Lords may find no difficulty in believing that Pierre Laval was not my parents' favourite politician. I can still remember one morning when I was eight finding my parents sitting over The Times at the breakfast table looking absolutely thunderstruck. I discovered that what had so dismayed them was that the night before his execution Pierre Laval had taken prussic acid and been revived with a stomach pump, in order that he should be made sufficiently recovered to be shot.
At the age of eight I found that entirely incomprehensible and unacceptable. I regret to say that I do not find it as incomprehensible now as I did then, but I find it as unacceptable. I say to the noble Lord, Lord Beloff, that we agree that this is a moral issue, but it is a moral issue on both sides of the debate. One of the reasons why I am anxious about war crimes is the potential effect the process may have on those involved in the prosecution. That story of Pierre Laval may help to illustrate why.
This is extremely emotive material. I was grateful to the noble Lord the Lord Privy Seal for not dwelling in greater detail on its emotive qualities. It is something like nuclear radiation or deep sea diving: our exposure to it should be severely limited. The desire for vengeance is one that cannot be ruled out altogether. It is a deep human emotion. If it is not satisfied, then trouble follows. There are circumstances in which there is a case for giving way to that impulse.
After the Second World War, it was right that some war crimes trials were held. However, my noble friend Lord Mayhew pointed out that there were more than 200 executions. The decision taken by the Cabinet after the war was a sound one. As there has been some argument about the text of the Cabinet minutes, I thought I might, by leave of the House, quote from the Cabinet minute for 4th November 1946. Discussion showed that it was the view of the Cabinet that we should do nothing to support the holding of a second international trial and, in general, should advocate a policy of discontinuing trials for war crimes. The noble Lord the Lord Privy Seal was technically completely correct to say that the Cabinet did not take a specific decision about trials of war criminals in this 732 country. But I think that the words "in general" should be interpreted in their normal sense. I believe that it was within the scope of their intention.
The desire to put a limit to vengeance is a very proper one. When the noble Lord, Lord Gridley, said that we should let it rest, he was referring to something which is an essential part of the political healing process. Some scope for the desire for vengeance after something of this horror is necessary. The horror is something upon which we are all agreed in all quarters of the House. But there must be a limit to it.
The doubts expressed about the possibility of a fair trial go very deep with me. When I was listening to the noble and learned Lord, Lord Shawcross, with whom I was much impressed, it occurred to me that it is worth wondering what the reaction of this House would be if we were to receive an application from noble Lords much occupied with business in other places—as many of us are—to address this Chamber on video tape. I think that we would lose something in the proceedings of this House which would be very hard to describe with precision but which, nevertheless, is of considerable importance.
The issue of identification sticks with me. I should like to describe an incident which took place in this Chamber last Thursday. A noble Lord with whom I was at school rose to address the House. The last time I had had much to do with him was at the school debating society in, I believe, 1953. On that occasion we defended your Lordships' House which, on this day, has done a great deal to validate the arguments which he and I developed. However, to my shame, I must confess that when that noble Lord rose to speak I did not recognise him. That concerns a shorter period of time than that which applies to the cases with which we are dealing. I identified him while reading the Official Report the following day. As soon as I did so, I could immediately see in his face the lineaments of the schoolboy with whom I had debated. That is a very good example of how easily a witness can be led in matters of identification.
I listened with a great deal of care to the noble and learned Lords, Lord Bridge of Harwich, Lord Donaldson of Lymington and Lord Templeman. However, I must confess that I found the arguments of the noble and learned Lord, Lord Ackner, more persuasive. I entirely agree with him that we are by those amendments proposing to expose the judge to a great deal of media flak for doing something which we do not have the courage to do ourselves. I agree that the directive to be careful of identification evidence is one which a judge has to give in any event. It does not add anything new of great significance.
The noble and learned Lord, Lord Donaldson of Lymington, said that if we are not satisfied that any fair trials could take place under the Bill, we should vote against it. I am not satisfied. I say that because between the prejudice of publicity and the difficulty of getting equal facilities for the defence, I believe that it is the balance of probability that, in every trial brought under the Bill, a fair trial could not take place. Therefore, I propose to take the leave of the noble and 733 learned Lord, Lord Donaldson of Lymington, to say that i those circumstances the Bill cannot be acceptably amended.
We have debated at some length the consequences of throwing out the Bill. I accept that the Parliament Acts are an important part of our constitution. I know that "never" is not a political word, but I find it hard to imagine circumstances in which I would vote against the Second Reading of a whipped government Bill.
But this is a free vote. When I am offered a free vote, I find a free vote followed by a Parliament Act a repugnant combination. It sounds a little like the picture of Charles II in 1066, And All That, passing a declaration of indulgence saying that everyone could do whatever they liked, followed by a test Act to find out whether they had done it and, if so, what.
When we think about the effect of what we do, I think or the story of a man who was on trial for his life before the King of France in the middle ages. He was convicted. He was sentenced to death. He pleaded for a stay of execution. He said, "If the King will spare me, within a year I will make the King's horse speak." The King said, "If you can do that within a year, you will be spared. If not, you will be executed." His friend said to him afterwards, "Why did you do that? You can't make the horse speak." The man said, "Within a year, the King might die, or the horse might die, or I might die, or the horse might speak."
So, if we throw out the Bill, while the procedures of the Parliament Act are going through the Government might die, the Parliament might die, the suspects might die, or the Government might change their mind!
§ 11.41 p.m.
§ Lord Irvine of Lairg
My Lords, I had the privilege of winding up from these Benches on 4th December 1989, and opening on 4th June 1990. I have never concealed from your Lordships my grave reservations about the Bill; that the enormity of the crimes should not lead us into debasing our system of justice if the best judgment is that the inherent, inescapable circumstances of these cases today make a fair trial, by our existing standards, in the highest degree question able. I have been opposed to allowing our standards of justice to become the casualty of those awful events nearly half a century ago.
I confess that when the Hetherington-Chalmers inquiry was set up it occurred to me that the Government might have felt that they had no choice because of the gravity of the allegations that had come out of the Simon Wiesenthal Centre and then were perhaps somewhat taken aback when the report recommended that we move forward.
The report described evil on a vast scale. No one of your Lordships who heard the notable speech of the noble Baroness, Lady Ryder of Warsaw, could have failed to have been moved by it. If it were possible to secure justice today, the kind of evil that the noble Baroness described surely cries out for punishment. It is that sense, so eloquently articulated by the noble 734 Lord, Lord Beloff, that must explain the overwhelming view of another place which was contrary to the view that has so far prevailed in your Lordships' House; that is, that the Bill should go forward.
However, when I read the report—the work of two distinguished former heads of criminal prosecution departments, respectively, in England and in Scotland—I became convinced that there was a central gap in its reasoning. It was one which was perhaps to be explained by the fact to which the noble and learned Lord, Lord Ackner, alluded - that its authors were asking but one question, and that from an exclusively prosecutor's standpoint: is there evidence which would give a reasonable prospect of conviction? They concluded that in some cases there was. No doubt that is a sufficient question when it is contemporary allegations that are being addressed. It is difficult, however, to see how it is sufficient from the standpoint of the defence when events 40 or 50 years ago in the Baltic states are being addressed and when witnesses must come from there if there is to be a fair trial.
There is surely a key question: is it conceivable that the defendants to these charges will, in practice, enjoy the same facilities as the prosecution from within the Soviet Union to enable them to bring evidence in their defence before a British court? In many cases the key issue will be identification. The report recognises that. Think of the practical difficulties. Many witnesses to these atrocities were themselves killed. Where witnesses exist many will be unwilling or unfit to come to give evidence. I doubt whether the courts will admit statements from witnesses, now dead, taken just after the end of the war. Mistaken identity is unquestionably the single greatest cause of wrong convictions. It is not a matter of trusting the judge or trusting the jury, that is too glib. It is a matter of asking whether the task of doing justice between victim and accused can sensibly be imposed on a British jury today. If trials proceed I doubt whether we will see many witnesses from the Soviet Union. I have the greatest doubts whether evidence from abroad could fairly be given in these cases through a live television link or through video links.
Bearing in mind how long this debate has taken and how distinguished it has been, the best service I can do your Lordships at this hour is to abstain from repeating at any great length arguments that have been made so fully on previous occasions as well as today. What is striking is the stark difference between the collective view of your Lordships' House and the other place. The two places disagree, but neither is perverse; there is much argument on both sides. At the outset we were told most eloquently by my noble friend Lord Houghton of Sowerby that the issue now at stake for this House is the maintenance of its honour and integrity and the need to demonstrate a mind of its own. However, I translate that, in the circumstances which face this House tonight, into another question: does this House stand out to the bitter end? Does it maintain principle to the point where the principle is lost absolutely—to register in the name of principle what is in substance a protest vote—when the Bill will relentlessly pass into law via the Parliament Act?
735 We face the reality of the situation which was so clearly articulated in the speech of the noble and learned Lord, Lord Bridge of Harwich. I too confess to being guilty of the sin of pragmatism. I wonder, in common with the noble and learned Lord, whether pragmatism, in the situation which faces this House, has a respectable role. I am not sure that there is not another principle apart from the consistency, honour and integrity of this House. It is that we have a public duty to achieve the best that we can in the practice of politics. As I understand it, we have some kind of undertaking from the noble Lord the Leader of the House that our amendments would be considered. That would of course be exclusively a matter for the other place which, as the noble Lord, Lord Blake, pointed out, could simply say no.
§ Lord Harmar-Nicholls
My Lords, is the noble Lord asking the Leader of the House to give an undertaking that he will pay heed to any amendments, or is the noble Lord saying that the Leader of the House has already offered to do that? I did not hear the Leader of the House make any such comments and I have been present throughout the whole debate.
§ Lord Irvine of Lairg
My Lords, I have not conversed with the Leader of the House. In the comments that I have just made I placed an interpretation upon remarks made by the Leader of the House when he opened the debate. The Minister will soon reply for himself, when it is time to do so.
I submit to the House that the most crucial amendment that this House could table for the avoidance of any doubt would be that the judge should have a discretion to refuse a prosecution and to prohibit a prosecution where the combination of delay and the circumstances affecting a defendant in attempting to prepare his defence are such that the judge cannot be satisfied that a fair trial is possible.
The noble and learned Lord, Lord Bridge of Harwich, canvassed two other possible amendments. I am sure that your Lordships' House would be assisted by knowing whether the noble Lord, Lord Waddington, would himself favour and would recommend this House placing such amendments on the face of the Bill. I also feel that your Lordships' House would be assisted if the noble Lord could inform us whether he has successfully engaged, or has attempted to engage, in any consultations with his colleagues in another place—this follows the intervention of my noble friend Lord Callaghan of Cardiff—which allow him to say anything of an encouraging character to this House on the subject of the amendments contemplated by the noble and learned Lord, Lord Bridge of Harwich.
I put the question directly. Can this House have any assurance that the amendments that have been canvassed will find favour with the Government not merely in this House, but where it matters most—in another place? In theory there are three options before this House, though in substance they are reduced to two. They are: the Bill as it stands; no Bill at all; or the Bill carefully amended in this Chamber. In reality, those three options are reduced to two. If the 736 amendment of the noble Lord, Lord Houghton of Sowerby, is accepted, we shall end up with the Bill as it stands because it is inconceivable that the House of Commons will decide that there is to be no Bill at all. Therefore, the second option is theoretical only. Alternatively we can amend the Bill economically and with care here. I hope that we shall be encouraged to follow that course if we can gain some confidence from the reply to the debate of the noble Lord, Lord Waddington, that those amendments might be accepted by the Government not merely here but in another place.
On these Benches there is a free vote, but the recommendation of this Front Bench is either to vote for the Bill or to abstain.
§ 11.54 p.m.
§ Lord Waddington
My Lords, I have been present in the Chamber throughout almost the whole of the debate, which has been memorable. As a very new Member of the House, I hope I may say that it is a debate of which the House can be proud. We have been debating a most difficult issue. I believe that everyone who has followed the debate will have been impressed by the clear determination of all who have taken part to do what is right, whichever side of the argument they have supported. The spirit in which your Lordships have dealt with the subject, together with the lucidity and the informed nature of the contributions made, are, I am sure, in the best traditions of the House.
I ought to start by saying a word or two about the notable maiden speech made by my noble friend Lord Cochrane of Cults. I hope that we hear a lot of him. As a business manager, I hope that I also see a lot of him even if on this particular occasion he does not feel able to support the argument which I have advanced in this debate. He gave a graphic description of how far we are now from the events in question and cautioned us about the difficulty of identification, a point to which I shall return.
The debate started with a fascinating speech by the noble Lord, Lord Houghton of Sowerby. I did not think that I would ever meet anybody who was in at the birth of the Parliament Act 1911. All of us thoroughly enjoyed his historical allusions, and they will be long remembered.
After we had enjoyed his speech we got a cold douche from the noble and learned Lord, Lord Donaldson of Lymington, who reminded us, perhaps a little tactlessly, of the preamble to the Parliament Act 1911. If any of us needed sobering up, that should have done it.
However, I disagree with those who tried to elevate this into a great constitutional issue. I do not think that it is. One has to go back to the origins of the War Crimes Bill. As we all now know, the position is that after a vote had been taken in the other place on the principle of legislation the Bill was introduced. The Bill received a Second Reading, with an enormous majority—such as I never experienced when I was Chief Whip in the other place—and found its way here. Having been rejected here on Second Reading, the Bill was reintroduced in another place.
737 That is the first point that I would make, because harsh words have been spoken about the Government. There has been talk about abuse of power and of it being repugnant to bring the Bill back. However, most noble Lords will understand why the Bill was brought back. If one has a free vote in the other place, which supports the Bill so strongly, it would indeed be extraordinary if no opportunity was given to the other place to say once again, after the Bill had been rejected here, that it wanted this House to think again and bear in mind the strong endorsement that had been given to the Bill in another place.
Therefore, it is not right to talk about abuse of power. It is not right, as has been pointed out by the noble and learned Lord, Lord Bridge, the noble and learned Lord, Lord Donaldson of Lymington, and the noble and learned Lord, Lord Templeman, to talk about a threat to use the Parliament Act. It is not a question of a Parliament Act being held as a threat over your Lordships tonight. We all know that it is a matter of fact that if this Bill is rejected by this House tonight the Parliament Act comes into play by operation of law. It is in those circumstances that I have to do my best to advise the House as to how to approach the amendment in the name of the noble Lord, Lord Houghton.
It cart surely only be to reject that amendment, not because there is a constitutional issue before your Lordships but because, if the noble Lord's amendment is accepted by the House, the only result of that acceptance will be that this House will lose its opportunity to improve the Bill.
I listened very carefully to the speech made by the noble and learned Lord, Lord Bridge. The noble and learned Lord, who said that he did not like the Bill, also told this House that in his opinion the Bill could be improved by amendment. I can help the House to some extent. There would still be a free vote in another place, so an amendment approved here would have to be approved there on a free vote. However, I can say with some confidence, because that has been the tone of all the debates that have taken place in another place, that there will be no reluctance to consider sympathetically amendments designed to ensure fairness to the accused.
Noble Lords will remember that in my opening speech I said that it has certainly always been the intention that the Bill should preserve intact the court's inherent jurisdiction over. the fairness of proceedings and the right of the court to terminate a trial if that fairness could not be assured. However, I was corrected by the noble and learned Lord, Lord Bridge, who pointed out to the House that the unamended Act might not leave that power in the hands of the court. Therefore, the Government would be open to proposals to put beyond doubt that the inherent jurisdiction of the court to stay proceedings in the interests of a fair trial is unaffected by the Bill, because that has always been our intention.
However, if your Lordships pass the Bill today and were dissatisfied with the Government's treatment here of amendments proposed, or the House did not receive adequate undertakings here of Government support for amendments in another place, the House 738 could always reject the Bill on Third Reading and make quite plain that it did not feel that the Government had made any proper attempt to meet the points made by the noble and learned Lord, Lord Bridge.
Although I am unable today to give a positive response to the other suggestions for amendments put forward by the noble and learned Lord, Lord Bridge of Harwich—and I have to tell my noble friend Lord Campbell of Alloway that I have never seen them—I am sure that the House will understand that. Surely the best course may be to give the Government time to consider what is proposed rather than reject the Bill tonight and close off all chances of amending and improving the Bill.
Many issues have been raised and it has been such a long debate that it would be discourteous to bore the House with a long speech. However, perhaps I may quickly identify some of the main issues raised. Could a trial be fair after such a lapse of time? Further safeguards might be written into the Bill, specifically on evidence of identification. The House will remember the speech made by the noble Baroness, Lady Ryder, who concluded by saying that people face to face with their persecutors do not forget.
The House may also bear in mind that identification would sometimes not arise as an issue. That was a point drawn to the attention of the House by the noble and learned Lord, Lord Donaldson of Lymington. The defence might for instance be, "I was involved, but I was acting on superior orders. I had no option but to act as I did". I therefore cannot agree with the noble Lord, Lord Jenkins of Hillhead, that all cases will necessarily turn on identification. Strong views were expressed about the dangers which could undoubtedly arise. Certainly, strong views were expressed by the noble and learned Lord, Lord Shawcross, about the difficulty for the accused in finding evidence. There was the contribution made by the right reverend Prelate the Bishop of Southwark who said that no statutory limitation for murder exists in this country and there is no reason for having one. It was a point also made by the noble Lord, Lord Glenamara. But he went on to say that he would prefer to deal with the problem by means of extradition. I remind the House that that was a point considered by the Hetherington-Chalmers inquiry and was rejected because it was said by them—and I think that most in the House would agree—that the systems of justice in the countries to which these people would be returned is not up to the standards of the system of justice in this country.
There was a big debate as to whether the book was closed. There is clearly a big conflict of view. Certainly the book was closed so far as the Nuremberg trials are concerned. But I remind the House that the Hetherington-Chalmers inquiry found no evidence, having examined the records, that there was a positive decision not to prosecute a war criminal if one turned up here. I remind the House, because some of these facts emerged during Starred Questions the other day, that when the noble Lord, Lord Mayhew, referred to the Statement which he made in the other place in 1948, the Statement was about extradition of alleged 739 war criminals to Yugoslavia. It was not a Statement about the policy of the Government so far as war crimes trials were concerned.
The noble Lord, Lord Mayhew, referred to another document which he had the opportunity of examining. From the date that he gave to the House, I think that he was quoting discussions which took place in March 1945, which was even before the setting up of the Nuremberg tribunal. So there certainly could not have been a decision at that time about the future of war crimes trials. The other Cabinet minute referred to was one in 1946. That again had nothing to do with the question of war crimes trials here in this country. It was about a proposal to surrender to the American authorities in the American zone in Germany five German industrialists. In fact the decision was made to surrender them to the American authorities.
There is the whole question of whether the legislation should be stigmatised as retrospective and condemned for that reason. I cannot help the House further on that. Various views have been expressed. The noble Lord, Lord Dacre, said that the issue did not excite him, although for other reasons he was firmly opposed to the Bill.
There is the whole question of selectivity, mentioned by the noble and learned Lord, Lord Ackner. I believe that I dealt with that matter in my opening speech. We are dealing with a Bill limited to crimes in German occupied territory, because that was the matter investigated by the Hetherington-Chalmers inquiry. It would have been very strange if legislation had been introduced to deal with a non-existent mischief, there never having been any evidence of war criminals in Japan, for instance, being in this country.
Lastly and above all, there is the immensely difficult question of whether justice and not vengeance demands action. The noble Baroness, Lady Ryder of Warsaw, made a most moving speech, urging on us that the passage of time in no way lessens the guilt. The right reverend Prelate the Bishop of Ripon gave us his guidance on what is undoubtedly a moral issue. How can I have the temerity to try to help your Lordships further? I just hope that noble Lords will give the Bill a Second Reading.
§ Lord Callaghan of Cardiff
My Lords, before the noble Lord resumes his seat, I think that he has gone some way to meet us this evening by what he has said. It certainly makes trying to come to an accommodation a little easier. I only wish that such accommodation had been attempted earlier instead of waiting until the 59th minute of the eleventh hour.
What will be the attitude of the Government, for example, if one of the amendments of the noble and learned Lord, Lord Bridge, is put to the House and the Government oppose it but it is nevertheless carried? Will they then recommend it to the Commons or will they maintain their initial opposition? That is a very important matter.
Lord Waddington: My Lords, it is certainly a hypothetical question. As a result of what has been said by the noble and learned Lord, Lord Bridge, I envisage that he would put to the Government one 740 amendment at least which must almost certainly be acceptable to the Government because it is designed to make absolutely plain on the face of the Bill that the inherent jurisdiction of the court's stay proceedings is safeguarded and maintained in spite of the terms of the Bill. That surely should be some assurance to your Lordships on one amendment at least.
I can only tell noble Lords that having taken part in two debates in the other place, there has never been a reluctance on the part of advocates of the Bill in another place to examine all ways in which the interests of an accused person, and the fairness of his trial, can properly be safeguarded. I shall certainly look with sympathy at the amendments which have been suggested by the noble and learned Lord, Lord Bridge. If they are carried in this House, that of course will carry considerable weight with the Government.
§ 12.10 a.m.
§ Lord Houghton of Sowerby
My Lords, what a pity it is that we are driven to the wall at 10 minutes past 12 to try finally to resolve the differences between the two Houses. Why were we hectored so much earlier on when we were giving our opinion so firmly to the other place? Why was the recent answer from the House of Commons so brusque that they shortened their proceedings especially to get the debate over and get the Bill back to us? We should have received the Bill earlier but for the conditions of the Parliament Act 1911 which requires a lapse of one month before the Bill could be returned.
None of us in the House at present has ever been through this experience before. Reference has been made to precedents and conventions. It is a quite exceptional occasion. It seems to me that we can find our way out of it in our own way and not in the manner suggested by the noble Lord. He said to the House, "Give us the Second Reading, and your conscience and your comfort will be safe in our hands". We are not on equal terms on that basis. We are asked to sacrifice the principle before we see the terms of the amendments. In any case, I believe that we are prohibited from raising again the principle when we begin to discuss amendments. The Second Reading presumes that we accept the principle of the Bill.
The amendment is the soft answer, and nothing more. I thought that the soft answer might turn away wrath. We gave the House of Commons a firm rejection on the first occasion. However, on the second, it seemed to me that it would be better to put down a delaying Motion. I am sorry now that I did not try a new adventure in our conventional life and substitute six weeks for the six months referred to in the amendment. Then we might have gained a breathing space before the final Second Reading of the Bill that we probably require to resolve our differences.
There is no crisis; and there is no need for any ill will. I believe that we can preserve the good relations between the two Houses while at the same time being quite firm about our position.
If the amendment is passed, the Government still have the means to overcome our difficulties. They are 741 not obliged to go straight to the Queen to ask for Royal Assent. There is no timetable on such a Bill under the Parliament Act 1911. There is a timetable for a money Bill but not for one such as this. It would be open to the Government to defer presentation of the Bill to Her Majesty while they explore further opportunities to overcome the difficulties between the two Houses. There is no difficulty about that. In any case, there is no other way of establishing our position firmly in relation to the other House except by deferring, as the amendment does, the Second Reading of the Bill for a further period. There is no occasion for us to hasten our way through these difficulties. I believe that we should be in a much stronger position to establish our role in the parliamentary system if we adopted the unconventional way—a way which nevertheless I think is open to us—to meet the difficulties arising from the other place. We are not being treated properly, and I think we are entitled to represent to the other place that it must try to meet the situation in a different way from the one suggested by the noble Lord.
I agree that we cannot claim to be representative. But we can claim to be the custodians of what rests more in this House than anywhere else. The monarch cannot do it. In many instances the Commons are not in a mood to do it. We are the custodians of anything that regard as approaching the standard of principle whether constitutional or concerning the propriety of a system of jurisprudence or criminal law. We are going wrong here and are likely to be dragged down the path of Canada and Australia. We shall find that there is nothing at the end except confusion and frustration. We are trying to fit into the fastidious structure of our system of criminal law the ragged and tattered remnants of the conflict of nearly 50 years ago.
On these occasions when we are discussing war crimes, an aura of guilt descends upon us as if in some way we were under a moral obligation to satisfy demands that are made upon our emotions and our actions because of the dreadful things done to the Jewish peoples in various parts of Europe. We fought a war to destroy the evil system of which they were the victims. If blood is crying out for vengeance, for acknowledgement or for retribution, that allows fallen men and women in the war to be taken into account. They are the people who perhaps paid a greater sacrifice in the war in numbers. So in being reminded of all the horrible things that happened we should not feel we are in some sense under a cloak of guilt that we have to shed in the course of our decision on these matters.
Therefore I hope that noble Lords will decide that they should still support the amendment. Otherwise, I fear our confidence is ebbing away and we shall finish up in a position in which we wish we had never put ourselves. Our message to the Commons is, "We are very sorry that we cannot go along with you on this as it is. We must have the opportunity of dealing with you on more equal terms which would occur under the amendment rather than by accepting the alternative offered by the noble Lord the Leader of the House".
§ Lord Waddington
My Lords, before the noble Lord sits down, I am quite sure that entirely unintentionally the noble Lord may have misled the House. From the Companion to the Standing Orders it is plain that the carrying of the Motion amounts to rejection of the Bill. After the rejection of the Bill, Section 2 of the Parliament Act comes into play. Therefore, there is no procedure whereby the Bill could return to this House after further consideration in another place.
§ The Lord Chancellor
My Lords, the original Question was that the Bill be now read a second time; since when an amendment has been moved to leave out "now" and at end to insert "this day six months". The Question I now therefore put is: that this amendment be agreed to.
§ 12.22 a.m.
§ On Question, Whether the said amendment shall be agreed to?
§ Their Lordships divided: Contents, 131; Not-Contents, 109.744
|Division No. 1|
|Ackner, L. [Teller.]||Gardner of Parkes, B.|
|Acton, L.||Gibson, L.|
|Aldington, L.||Glenarthur, L.|
|Allenby of Megiddo, V.||Grantchester, L.|
|Ampthill, L.||Gridley, L.|
|Annaly, L.||Grimond, L.|
|Ardwick, L.||Grimthorpe, L.|
|Armstrong of Ilminster, L.||Hailsham of Saint Marylebone, L.|
|Balfour of Inchrye, L.|
|Bancroft, L.||Halsbury, E.|
|Barber, L.||Hampton, L.|
|Belhaven and Stenton, L.||Harlech, L.|
|Benson, L.||Harris of Greenwich, L.|
|Bessborough, E.||Hertford, M.|
|Blake, L.||Holderness, L.|
|Bledisloe, V.||Hood, V.|
|Bonham-Carter, L.||Houghton of Sowerby, L. [Teller.]|
|Boyd-Carpenter, L.||Howie of Troon, L.|
|Brougham and Vaux, L.||Hutchinson of Lullington, L.|
|Buckmaster, V.||Hylton-Foster, B.|
|Campbell of Alloway, L.||Jenkins of Hillhead, L.|
|Camrose, V.||Johnston of Rockport, L.|
|Carlisle of Bucklow, L.||Keith of Castleacre, L.|
|Carr of Hadley, L.||Killearn, L.|
|Chichester, Bp.||Kinloss, Ly.|
|Clanwilliam, E.||Kintore, E.|
|Cobbold, L.||Lansdowne, M.|
|Cochrane of Cults, L.||Lauderdale, E.|
|Cork and Orrery, E.||Lindsay, E.|
|Craigavon, V.||Liverpool, B.|
|Craigmyle, L.||Lockwood, B.|
|Crathorne, L.||Longford, E.|
|Cross, V.||Lucas of Chilworth, L.|
|Cullen of Ashbourne, L.||Mancroft, L.|
|Dacre of Glanton, L.||Mayhew, L.|
|Darcy (de Knayth), B.||Merrivale, L.|
|Derwent, L.||Monckton of Brenchley, V.|
|Donaldson of Kingsbridge, L.||Monkswell, L.|
|Downshire, M.||Monson, L.|
|Elles, B.||Montagu of Beaulieu, L.|
|Falkland, V.||Moran, L.|
|Flowers, L.||Morris, L.|
|Foot, L.||Mountevans, L.|
|Fraser of Kilmorack, L.||Mowbray and Stourton, L.|
|Gainsborough, E.||Newall, L.|
|Norfolk, D.||Selborne, E.|
|Onslow, E.||Selsdon, L.|
|Orr-Ewing, L.||Sharples, B.|
|Palmer, L.||Shaughnessy, L.|
|Perth, E.||Shawcross, L.|
|Plummer of St. Marylebone, L.||Sherfield, L.|
|Pym, L.||Stodart of Leaston, L.|
|Raglan, L.||Strafford, E.|
|Rees, L.||Strathcarron, L.|
|Renwick, L.||Sudeley, L.|
|Robson of Kiddington, B.||Swinfen, L.|
|Rochester, L.||Swinton, E.|
|Rodney, L.||Thomson of Monifieth, L.|
|Romney, E.||Vinson, L.|
|Russell, E.||Walpole, L.|
|Sainsbury of Preston Candover, L.||Walston, L.|
|Salisbury, M.||Wilberforce, L.|
|Saltoun of Abernethy, Ly.||Winchilsea and Nottingham, E.|
|Savile, L.||Windlesham, L.|
|Seear, B.||Winstanley, L.|
|Addington, L.||Dudley, E.|
|Annan, L.||Eccles of Moulton, B.|
|Barnett, L.||Elliot of Harwood, B.|
|Beaverbrook, L.||Elliott of Morpeth, L.|
|Beloff, L.||Ferrers, E.|
|Belstead, L.||Fitt, L.|
|Birk, B.||Foley, L.|
|Blatch, B.||Fraser of Carmyllie, L.|
|Blyth, L.||Glenamara, L.|
|Boston of Faversham, L.||Goff of Chieveley, L.|
|Brabazon of Tara, L.||Graham of Edmonton, L.|
|Bridge of Harwich, L.||Gray, L.|
|Bridgeman, V.||Griffiths, L.|
|Brightman, L.||Haig, E.|
|Butterworth, L.||Hartwell, L.|
|Callaghan of Cardiff, L.||Havers, L.|
|Campbell of Croy, L.||Henderson of Brompton, L.|
|Carmichael of Kelvingrove, L.||Henley, L.|
|Carnarvon, E.||Hesketh, L.|
|Carnegy of Lour, B.||Hylton, L.|
|Carnock, L.||Irvine of Lairg, L.|
|Carter, L.||Jakobovits, L.|
|Cavendish of Furness, L.||Kagan, L.|
|Cledwyn of Penrhos, L.||Kennet, L.|
|Clinton-Davis, L.||Kinnoull, E.|
|Cocks of Hartcliffe, L.||Lane of Horsell, L.|
|Coleraine, L.||Lloyd of Hampstead, L.|
|Colville of Culross, V.||McAlpine of West Green, L.|
|Dean of Beswick, L.||Macaulay of Bragar, L.|
|Denham, L. [Teller.]||McColl of Dulwich, L.|
|Denman, L.||Mackay of Clashfern, L.|
|Dilhorne, V.||Mackie of Benshie, L.|
|Donaldson of Lymington, L.||Masham of Ilton, B.|
|Dormand of Easington, L.||Mersey, V.|
|Mishcon, L.||Strange, B.|
|Morris of Kenwood, L.||Strathclyde, L.|
|Mountgarret, V.||Swansea, L.|
|Nelson, E.||Templeman, L.|
|Norrie, L.||Thomas of Gwydir, L.|
|Northbourne, L.||Thurlow, L.|
|Oppenheim-Barnes, B.||Tollemache, L.|
|Prys-Davies, L.||Tonypandy, V.|
|Rea, L.||Trefgarne, L.|
|Reay, L. [Teller.]||Trumpington, B.|
|Renton, L.||Tryon, L.|
|Richard, L.||Ullswater, V.|
|Ripon, Bp.||Waddington, L.|
|Ryder of Warsaw, B.||Wade of Chorlton, L.|
|St. John of Bletso, L.||Wharton, B.|
|St. John of Fawsley, L.||Whitelaw, V.|
|Seccombe, B.||Williams of Elvel, L.|
|Selkirk, E.||Wolfson, L.|
|Serota, B.||Wolfson of Sunningdale, L.|
|Skelmersdale, L.||Wyatt of Weeford, L.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 12.30 a.m.