§ 4.24 p.m.
§ Debate resumed.
§ The Lord Bishop of Guildford
My Lords, in returning to the matter raised by the noble Lord, Lord Campbell of Alloway, I recognise that he and the noble and gallant Lord, Lord Bramall, put before us various legal and military considerations. Perhaps I may try to put forward some moral and social principles. In doing so, I shall not comment on the particular circumstances of the Falklands inquiry. An investigation is taking place; and until we have the results, it seems to me particularly difficult to comment on the particular circumstances.
§ Lord Campbell of Alloway
My Lords, please would the right reverend Prelate move nearer to the microphone? It is very difficult to hear. I hope that he does not mind my interrupting him.
§ The Lord Bishop of Guildford
My Lords, I apologise to the House. Not being able to hear me is not a complaint which I normally have.
For those Members who could not hear me, I was saying that I wanted to put forward some social and moral principles, but that in so doing I would not wish to speak to the particular circumstances of the Falklands inquiry because an investigation is taking place. Until we have the results, I would rather stick to the general principles, which may indeed have some bearing on the particular matters to which previous speakers have referred.
First, if any members of Her Majesty's Forces behave in cold blood in a way that is contrary to the Geneva conventions, such action should not be condoned. I am sure that military authorities and commanders would consider such actions to be a breach of discipline and would take appropriate action. There are codes of conduct which apply to Her Majesty's forces, including those on active service. We rightly 1380 expect high standards. Indeed, there are moral imperatives which take us beyond any military codes. I do not believe that senior officers would expect anything less than high standards; nor do I think that they would judge it to be in their interest, or in the interest of the nation as a whole, to cover up misconduct. We have seen the action of some soldiers in Northern Ireland rigorously investigated. That is right—primarily because it is in accordance with high moral standards; but it is also an important reassurance to society and to the nation as a whole that such high standards are expected and required in all circumstances.
Secondly, although we should require those high moral standards in the armed services as in other professions, we must beware of scapegoating. Where society is cohesive, and has clearly acknowledged and practised moral standards, there is a natural expectation that those standards will automatically apply in every profession and discipline. Where, on the other hand, society is weak, unsure of its own cohesion and subconsciously anxious that its own general standards are slipping, it is easy for society to look for scapegoats, and to require higher standards of others than society itself feels able to attain. A weak and unsure society grabs at such opportunities to blame others in order to divert attention away from itself. That "feel good factor" protects us from our own sense of weakness and failure and appears to allow us to do that on high moral ground. I have to say that we see such signs in our own society. Currently, for instance, demands are being made for strict moral behaviour on the part of public figures. That is appropriate—but not if it is merely expecting of others standards of behaviour which we ourselves, and society as a whole, do not and cannot attain.
Again, there are, currently, expectations that teachers should instruct the young in moral behaviour, telling them what is right and what is wrong and teaching them family values. That is undoubtedly appropriate, but not if it is just projecting onto teachers the responsibilities that we as parents and as a society have failed to fulfil. We are right to expect and require high moral standards, but that should be as the result of our own individual and corporate acceptance of such standards, not as a substitute for them.
I suggest therefore that though we should expect high standards of discipline and behaviour in the armed services, that should be a part of our own acceptance of such standards, and not as a substitute for them. We should not use the Army, or anyone else, as scapegoats.
Thirdly, if we train soldiers to face danger and death, and induce aggression in them to make them swift, decisive and effective in the heat of battle, then we should be expecting too much if at the same time we demanded that they engage in cool, detached thinking at critical moments. If they act irresponsibly in cold blood, there is no excuse. If they respond in hot blood, and in the heat of battle, we have to recognise that we have deliberately trained them to be aggressive, to get the adrenaline moving and to strike while the iron is hot. If that heat causes them to boil over, we recognise that it is we, as a society, who have fuelled the flames. We do 1381 not and cannot condone cold homicide, but we have to be much more considerate and understanding when people are under provocation.
My final point relates to the way we live in a society where our past seems able to hide for a time and then ambush us without warning. Should we not be concerned when events which can pass virtually unnoticed at the time can be brought forward years later as though they were fresh and recent? We must readily acknowledge that a crime remains a crime, whether it was committed yesterday or 10 years ago. There is no escape from that. We cannot "unhappen" the past. Yet is it right that any rumour, any anonymous comment or any published allegation about the past can be used to call in question people of today? If so, a grave responsibility lies in the hands of the publishing world.
I repeat that we cannot and do not condone criminal behaviour which took place now or even some years ago. But surely we do not want a society in which there is a continuing fear that any and every misjudgment of the past can be surreptitiously raked up to destroy the present. We should be free to make moral sense of today and not be haunted by yesterday.
The debate raises issues of concern about some particular events. I do not have the knowledge or information to comment on them. I have done no more than try to indicate some of the general moral principles which underpin our life as a society. I suggest that we need to keep those general principles in our mind as we consider the particular matters raised by the noble Lord, Lord Campbell of Alloway.
§ Viscount Ullswater
My Lords, it may be for the convenience of your Lordships to note that this debate will now continue until 21 minutes past six o'clock.
§ 4.32 p.m.
§ Lord Buxton of Alsa
My Lords, I do not wish to take up time, although I instinctively put down my name to speak in this debate and could have expected normally to go on for some time. Having raised the matter twice in your Lordships' House—I believe it was in April this year and again the other day—and having had interesting and important correspondence with my noble and learned friend the Lord Chancellor, as well as having had a great weight of mail on the subject, I feel that it would be greedy and unfair to take up time in a limited debate by speaking yet again. After the crystal clear analysis of the legal aspects given by my noble friend Lord Campbell of Alloway, I have nothing to add on that side; and after the brilliant contribution of the noble and gallant Lord, Lord Bramall, which I, as a seven-year veteran of the last world war, found absolutely stirring, I can add little that would warrant delaying other speakers.
I should like to make one point to underline some words of the noble and gallant Lord, Lord Bramall. He described very well the turbulent situation that arises during an engagement. It may be useful to enlarge upon that because I have drawn a conclusion from it. Such a turbulent situation is not like a football match which stops when the whistle blows and has a referee. One has 1382 no idea how long the situation will last or what the outcome will be. It is all chaos. Everyone is doing their best to achieve their objective, whatever it may be. But most of the time going through one's mind is the realisation that one is several thousand miles from home, one may never see one's family again, never see the English countryside again or one's home. There is no moment at which a man thinks, "I must not do that because it is against the rules". In the heat of such a situation it is completely impossible to take prisoners or to know whether they intend to give themselves up. When they have given themselves up, it is quite impossible to know whether they will be quiet. In numerous battles, as all people of my age must know, people get away and start all over again. I certainly would.
I should like to put the question to my noble and learned friend the Lord Chancellor. In the light of what the noble and gallant Lord, Lord Bramall, said, and what so many of my generation have experienced, I question whether the Director of Public Prosecutions (admirable though she or any Director of Public Prosecutions may be) and the investigators—none of whom knows anything about these matters or have had any experience of them—are in a position to make a judgment and a decision as a result of the investigation. That is an aspect of the matter which we might ask my noble and learned friend to look at and on which the Government might see a way of intervening.
§ 4.35 p.m.
§ Lord Chalfont
My Lords, I am most grateful to the noble Lord, Lord Campbell of Alloway, for giving us the opportunity briefly to debate this very important issue. I also apologise to him and to the House; because of the intervention of the very important Statement on Northern Ireland, I shall probably not be able to stay to the end of the debate. In that context, I am grateful for the precise indication that we shall finish at 21 minutes past six o'clock. I may have to have left your Lordships' House at that time. I apologise for that, and hope that it will not be regarded as discourteous. I resisted the temptation to remove my name from the List of Speakers because this is such an important matter.
The noble Lord, Lord Campbell of Alloway, suggested that this investigation serves no purpose and should be discontinued. I am in full agreement with the noble Lord. On first impression it beggars the imagination that the conduct of soldiers under fire in combat should be equated with a war crime. To me it is totally incomprehensible. We heard, for example, about a soldier shooting someone who was crawling towards his foxhole. When I was commanding troops under combat conditions, if a soldier under my command had not shot somebody crawling towards his foxhole, he would have been very severely disciplined.
There may be a slight philosophical problem about the use of force. We have been accustomed to hearing, in conditions of internal security and riot control, about the principle of the use of minimum force and all that goes with it. People forget that when one is in combat, 1383 one uses the maximum force at one's disposal. Otherwise, one is unlikely to arrive at a successful conclusion.
It seems to me that war crimes is a concept properly applied to circumstances such as occurred at Belsen, Dachau, the Katyn Forest, and the killing fields of Cambodia, but not to soldiers in close combat. That is a situation in which the concept of war crimes simply does not apply.
The noble Lord, Lord Irvine of Lairg, in his very thoughtful approach to the debate, mentioned that under international law and convention, the wounded, the sick and prisoners of war are entitled to certain special treatment. Indeed, they are. But it seems to me that in this investigation what we are considering has nothing to do with either of those situations at all. We are not dealing with the wounded; we are not dealing with the sick and we are not dealing with prisoners of war under the normal understanding of the term. We are dealing with soldiers in combat, some of whom were young soldiers and some who had never been in combat before.
The noble and gallant Lord, Lord Bramall, summed up the situation when he spoke about the atmosphere of the battlefield. No one who has not had experience of the battlefield and of being shot at, knowing that the man opposite is trying to kill you, can possibly understand the kind of pressures that soldiers are under in that kind of situation.
Sir John Hackett, a noted military historian and a gallant military officer, once referred to the unlimited liability —the unlimited liability being that when a soldier enters into combat his liability is unlimited. What he puts on the line is not his reputation or his integrity; it is his life. It is the unlimited liability. We all know the great joke of the football manager who said that the cup final is not a matter of life and death; it is more important than that. It is a good joke; but it is not true. There is nothing more important than life and death; and there is nothing more important to a soldier in battle than his life and the possibility of his death. It seems to me—I come back to my first remark—that it beggars the imagination that anyone can suppose that it makes sense now to have an investigation into the performance and behaviour of soldiers confronted with that kind of situation.
For my own part, I do not accept the argument that it is not for the Government and not for Parliament to decide how much further this investigation should go. This investigation is not some kind of natural force; it does not have a life of its own. Someone has directed that it should begin; someone is controlling it as it goes on; and someone somewhere can say that it should stop. I think that someone should say that now.
§ 4.41 p.m.
§ Lord Stoddart of Swindon
My Lords, I thank the noble Lord, Lord Campbell of Alloway, for putting this matter forward, and for his succinct and brilliant analysis of the issues involved. I also thank the noble and gallant Lord, Lord Bramall, for his moving and graphic explanation of a war situation. The House will have been very moved by that explanation.
I want to remind the House that these British troops 1384 were sent 8,000 miles on a hazardous expedition to return to British sovereignty the Falkland Islands, which had been illegally invaded by Galtieri and his fascist junta, and to rescue British citizens who had been mistreated and terrorised by Argentine troops. We should remember that. They did the job brilliantly and efficiently with the minimum loss of life not only to themselves but to the Argentine troops involved as well. Men whom we cheered as heroes 12 years ago are now being accused of war crimes by the very same government who sent them in the first place, and on the flimsiest of evidence from dubious sources.
No international body has called for this investigation. The United Nations has not asked for it. The Argentine Government themselves have not asked for it. Yet it is going ahead. Now we have had the spectacle—I call it that advisedly—of Scotland Yard detectives swanning off to Argentina of all places not merely to gather evidence but to incite former Argentine soldiers into coming forward to accuse British soldiers of ill-treatment of prisoners. Have you ever heard anything like that before? It is frankly a disgrace.
British troops under such circumstances are put in the same category as the Nazi monsters who slaughtered 6 million Jews and others. That is what we are saying—that they are war criminals. How a government—how anyone—can uphold something of that kind I simply do not know. Yet the real war criminals—Galtieri and his fascist junta—have not been brought to book. There is no suggestion that they should be brought to book for their violations of international law and human rights. It is they who must be held responsible for all the deaths and horrors of the Falklands War. Yet they are to escape censure and trial while British troops, doing their duty as instructed by the British Government, are now being harassed by their own Government—by a government which sent them to do a specific job which they did so brilliantly.
Indeed, we had better remember that had it not been for the success of British troops, Galtieri and his henchmen would still be lording it over Argentina—no doubt killing and torturing their political opponents or keeping them in prison without trial. No wonder President Menem is embarrassed by the whole disreputable episode of this war crimes investigation against ordinary British troops. He knows better than anyone else that if Galtieri had won that war he, Menem. would not now be president. He might instead be in prison or even dead. Unlike the British Government, he probably feels a debt of gratitude to the British troops.
There is a further point. Why, before our Ministers sanctioned investigations into allegations against British actions in the heat of battle, did they not insist that allegations against Argentine troops were investigated at the same time? Why was it so special that it was only British troops who should be put under investigation? Ordinary British people and British troops are bewildered by this investigation. What, one may ask, are British troops to do in a future war situation? Are they in the heat of battle to have a debate with themselves as to whether a particular action might lead them to be accused 12 years hence of war crimes? In such circumstances a lot more British soldiers will be dead 1385 while they are considering what they should do. Their own government will have put them into an intolerable position by this war crimes investigation.
I believe that this whole business is an insult to the British troops who were killed and injured doing our dirty work. I say "dirty work" because if the Government had been on the ball the Argentines would never have invaded. It is an affront to British troops who are not only brave but the most efficient—and indeed the most tolerant troops in the world. It has made the British Government a laughing stock. I do not mind them being a laughing stock; but, by implication, they have made the British people a laughing stock, too. That I very much resent.
I believe that the Government should be ashamed of themselves and they should now apologise to all those whom they have put under the stress of suspicion and to the British nation for embarking on such a foolish and damaging escapade. Above all, they should do everything possible to bring the whole sordid business to an end at the earliest possible moment.
§ 4.50. p.m.
§ Lord Burnham
My Lords, I rise with the diffidence felt by every maiden speaker who stands in front of your Lordships, allied to a sense of awe of the history of this place. Perhaps I may first inquire whether it is proper etiquette for a maiden speaker—probably it is not—to congratulate the noble Lord, Lord Stoddart, on his forceful and eloquent speech.
I rise with a second sense of diffidence because I come from a generation which is not entitled to wear any medal of any sort. I have not served in any of the fields of conflict in which this country has been involved for many years. If I were a few years older I would have served in the war; if I were younger I might have been in Belfast, the Gulf, the Yemen, in Aden, the Falklands or any one of a number of fields of battle. I do not even have a Coronation medal.
It should also be said that I missed Malaya, where my regiment was involved. Aspects of that campaign have also been commented on in recent years along the lines of today's debate. Much of my service was spent at the Guards' depot which, like Surtees' hunting, was,the image of war without its guilt and only five-and-twenty per cent of its danger".However, I hope I can avoid the naivety and lack of understanding of warfare which has accompanied so much of the writing on this subject and the actions which have been taken. In the preface to one of his books the distinguished military historian, John Keegan, confesses to a "guilty secret". He spent many years at Sandhurst analysing battles to young men who had a far better chance than he of finding out whether what he was saying was true. Because of his innocence of those matters he avoided passing judgment on the behaviour of men under circumstances that he had not had to meet.
That is precisely what those who commissioned the inquiry into alleged war crimes in the Falklands are doing. I am interested in the actions of those who have been investigating the allegations. I reiterate the surprise of the noble Lord, Lord Campbell of Alloway, and of 1386 the noble and gallant Lord, Lord Bramall, that General Hugh Pike has never been spoken to on those matters. That may well be the critical point of the allegations. Nobody suggested that Colonel Pike, as he then was, was personally involved in the alleged crimes, and therefore the methods and standards of policing did not find it appropriate that he should be spoken to on the matter.
Neither in the calm of your Lordships' House nor in the court rooms where the allegations will be analysed if charges are brought, is there any possibility of recreating the windswept heights of Mount Longdon or Tumbledown. In war there has never been such a possibility. We rightly regard war crimes as crimes, and some as particularly indefensible, usually because they were carried out in cold blood. There is nothing new about any of that. Henvy V, that paragon of English chivalry, at Agincourt ordered the slaughter of the French prisoners who had been taken to the rear. The fact that his soldiers largely ignored the order was probably due to the fact that they realised one could not get a ransom for a dead 'un, rather than to any feelings of mercy towards their fellow men.
At Agincourt it was fairly clear when the battle began and when it ended. Indeed it was ceremonially announced by the heralds. That is something which is seldom done today. Mount Longdon was a battle that lasted all night. Then for a further 36 hours fighting continued all around and the paras were under fire from the enemy still defending Tumbledown directly across the valley from the Scots Guards who were attacking. As so many noble Lords have said, at such a time it was totally unrealistic to demand the observance of the niceties of the Geneva Convention. They observed the rules of warfare—"Keep your head down and your weapon cleaned bright and slightly oiled".
Even so, the Argentine prisoners were evacuated as soon as possible to save further casualties. In the Falklands it is clear that the conventions were maintained to an astonishing degree in a vicious fight and it is the details of that fact which control the propriety of further and formal investigations. It would seem that those who commissioned the inquiry have been unable to accept the fog of war. I do not believe that anybody has considered or even alleged that there was a Stalag Luft 3 or an Agincourt in the Falklands. Certainly there is evidence to the contrary. When the liner "Canberra" took the prisoners back to the Argentine after the war, P&O presented the Ministry of Defence with a bill for £4,000 for champagne consumed. What is more, all the prisoners were home within a few weeks rather than the 17 years that it took so many to get back from Russia after 1945.
If all mankind was perfect there would never be any allegations of cruelty. But if we were perfect there would be none of the idiocy and bestiality of war. Only in H.G. Wells' Little Wars did six men, meeting four, lose two on each side and march the others to the rear as prisoners. Like so many others, I have only experienced the Little Wars of H.G. Wells. From what we read we know of countless cases where the enemy fought bravely and determinedly until the very moment when they were about to be overwhelmed. It is tempting 1387 for them to think that they will be immediately forgiven when they then raise their hands and look innocent. But it is unrealistic. Only the All Blacks at the back of their opponents' scrum think that they can get away with that—and there is no referee in war.
When things went wrong in the Falklands immediate action was taken. At Goose Green, shortly before the Mount Longdon battle, Argentine prisoners were forced to move unstable napalm—which was of course their own. That was wrong and after an on-the-spot investigation the officers concerned immediately had their knuckles rapped for not having read the Geneva Convention—one has to think of everything in war. The operative word is "immediately"; their knuckles were immediately rapped.
Events can only be judged by the standards and the conditions of the time. The title of this debate is,To call attention to the purpose and continuance of the Falklands investigation".I support the view that, because of its lack of realism and the 11 years which have passed since the events which are in question, the investigation should not continue.
§ 4.56 p.m.
§ Lord Mottistone
My Lords, it falls to me to congratulate the noble Lord, Lord Burnham, on his absolutely splendid maiden speech. It was humble, amusing and coherent. Though he tells us that he never went to war as a soldier, I do not believe him. I know that he was Director General of SSAFA—the Soldiers', Sailors' and Airmen's Families Association. The noble Lord shakes his head. I am sorry about that; that is what the Whips' Office told me—perhaps he ought to be. It is a great pleasure to congratulate someone who makes such a good maiden speech. I cannot remember having heard such a good one for a long time.
I wish to support strongly the Motion of my noble friend Lord Campbell of Alloway and the points made by most other noble Lords, especially those of the noble and gallant Lord, Lord Bramall, and the noble Lord, Lord Chalfont. I should like to add a perspective to the debate from a naval point of view. In general terms, naval attacks are directed at ships, aircraft and submarines rather than at their crews as individuals. So the sort of situation which is said to have arisen with regard to specific soldiers in the Falklands does not normally occur in sea battles. However, there are circumstances when warship captains or individual sailors may overstep the mark of what is reasonably acceptable in wartime. A well-known example would be of a submarine captain who did not take reasonable steps, when practicable, to see that the crew of a ship that he sunk had a chance of survival.
Rather than generalising, I can give an example of a personal experience rather closer to the subject under discussion. I spent most of World War II serving in ships escorting convoys and seeking to destroy submarines. I had the privilege to assist in the destruction of four submarines. One of them was detected on the surface and rammed. The crew abandoned ship. As the boarding officer I was lowered into a whaler—a pulling and sailing boat—to take my boarding party over to the submarine to capture 1388 confidential signal books and equipment, which, if we had been successful, may have included an Enigma machine. Sadly, we were not successful.
As it happens, the engineer officer of the submarine, after all the rest of the crew had left the boat, set the electric motors to slow astern and opened the sea cocks. Sadly, slow astern for the submarine was faster than my boat crew could row. So after pursuing it for as long as we reasonably could I gave up the chase and turned back to my ship. That meant rowing through the mass of swimming German sailors who were also endeavouring to get to the ship. Many of them appeared to be attempting to overpower us in the boat. Perceiving that they could easily do so and swamp it and have us all swimming, I fired a pistol over their heads to frighten them off. As far as I could see, that had the desired effect and no further action was necessary. The boat was safely brought back to the ship and hoisted on board. We also rescued all the submarine crew.
However, I have a query for your Lordships. Supposing that I had not felt that the German sailors had been sufficiently frightened by the shots over their heads, I would undoubtedly have shot them as individuals. Would that have been justifiable in the circumstances? I believe that it would, but I can think of many people nowadays who would portray it as unjustifiable homicide, especially people who have never been to war.
In terms of the events that we are discussing, a junior sailor could easily several years later, some time in the 1950s, have invented a story which might have incriminated me. That cannot be right. We hear from the noble and gallant Lord, Lord Bramall, that this story was all hearsay and not direct experience. The Falklands war was a fine feat of arms by all three services, and especially by the soldiers who fought the final battles of which we are now speaking. We must not let its reputation as this country's best feat of arms since the Second World War be tarnished—and we must not let the reputations of its participants be tarnished—by prolonged reference to a bitter money-grubbing book. Too many books these days are clearly written simply to make money. It makes one sick and it does not need support in the form of government action which might make others think that there is anything right about it. The Government must call a halt to this inquiry.
§ Lord Buxton of Alsa
My Lords, perhaps I may intervene in support of my noble friend to say that that particular paperback has been translated into Spanish and has made an absolute killing in Argentina.
§ 5.2 p.m.
§ Lord Craig of Radley
My Lords, I rise to speak in support of the objective that was so clearly stated by the noble Lord, Lord Campbell of Alloway, at the start of his speech. I agree and support what has been said by those most qualified to speak about the law on war crimes and by those who have personal experience of the battlefield. I am clearly not alone in questioning whether we are getting the best value from scarce police resources when a number of senior Metropolitan Police 1389 detectives are away for weeks in the South Atlantic rather than at home seeking to resolve many of the serious crimes in and around London.
I should like to confine my remarks to two points which have not yet been touched on but which I think are relevant. First, when considering these very difficult issues, issues about alleged events which were said to have taken place many years previously, should we not adopt a similar principle to that which has been followed when proposals have been made, often after many years, about bravery and other wartime awards and campaign medals?
Over the years since World War II there have been a number of strongly pressed cases: for example, to enhance honours bestowed on some wartime commanders; or to extend the periods of qualification for campaign medals; or to award a special medal for the aircrews of Bomber Command, who sustained a horrifying 55,000 casualties during the bomber offensive against the Nazis. I can well remember Marshal of the Royal Air Force Sir Arthur Harris expressing to me his anger and frustration that the valour and sacrifice of his bomber crews had not been given any special recognition by the nation.
As recently as 1984, the noble Baroness, Lady Thatcher, who was then Mrs. Thatcher and Prime Minister, replied to a letter about a Bomber Command medal stating that, while she appreciated the hardships and risks faced by those who served in Bomber Command, she had to point out that,in 1946, the Government of the day decided that no further retrospective awards should be made for wartime service, and successive governments have adhered to that policy".In this, and in all the cases of which I am aware, the official refusals to vary the original decisions have in effect been based on the argument that those best able to make the right judgments were those who held the responsibility at the time the awards were first considered. To depart from that principle could only serve to raise questions about all awards, when the benefits of hindsight, and sometimes differing emotions about the relevant events, might lead to a variety of new and perhaps inconsistent conclusions.
I believe that we would do well to adopt a similar policy for cases of alleged wrong-doing during past conflicts. If sufficiently serious, they should have been brought to the notice of superiors and considered at the time in the light of all the prevailing circumstances. There seems to me to be something intrinsically wrong and alien to our concepts of fair play to try to return, in cold blood and after many years have passed, to actions which occurred in or around the heat of battle and at a time of great mortal danger. Anything which threatens to undermine the valour and commitment of members of our armed forces to risk all for their country must surely be avoided.
My second concern flows directly from the way that this investigation has apparently been triggered. One does not need to be a very ardent follower of the wiles of conspiracy theory to question how much some authors and publishers may seek, by spicing their products with allegation and innuendo, to encourage 1390 controversy and publicity. One of the outcomes of this current sorry approach to an alleged incident over 11 years ago, particularly if it continues to court, may be to spawn a number of dubious and outrageous publications about the Gulf or Bosnia or Northern Ireland, or anywhere else that we have had our forces on active service.
War, as many of your Lordships have so eloquently said this afternoon, and know far better than I, is a harsh and cruel business in which our servicemen are under orders to fight and to risk their lives. We should be very wary of attempting to judge by other than the perceptions at the time whether wrong may have been committed and must be investigated. If we are to continue to look for volunteers to serve in the armed forces, we must sustain their confidence that military superiors and the politicians who set the objectives to be achieved by force of arms will not be tempted in future years to reopen contemporary investigations. An even-handed approach to acts of valour or, if necessary, to wrong-doing in the prosecution of war would seem reasonable and would be welcomed by servicemen and, I hope, by your Lordships.
§ 5.9 p.m.
§ Viscount Slim
My Lords, I should like to re-emphasise a point that has already been made in this debate because I hope that it will attract some notice outside your Lordships' Chamber. The British soldier, airman or sailor is not a thug. We would not win our wars if he was like that. He may have been a pretty tough chap. In the days of Wellington, he may have had to forage and loot, but today he is highly trained, highly skilled and has a self-discipline which I have not seen in any other army in the world. That is the important thing to remember, as is the fact that when a government declare war and send their forces to fight, they are expected to win. They are expected to win because that is what they have been trained for, and with their loyalty and expertise they go about doing that. We do not always win, but we have to start and to go on to win.
I have to say that sniffing around the Ministry of Defence I am greatly perturbed. Within the armed forces and the Ministry of Defence there is organisation second to none, experienced in every type of inquiry that one can think of and courts of inquiry. Within the Ministry of Defence there is the expertise to discover whether what happened happened during the heat of battle or was something more in the nature of a war crime. There are good police investigators inside the MoD; there are judge advocates generals; there are legal departments; there are directors of personnel and adjutant generals, and all sorts of other people tailor-made and experienced to carry out such investigations. They do it frequently, but when I looked at this problem I saw that it was "push to leg"; it was passed off; the buck was passed somewhere else as fast as it could be.
To put it mildly, I am greatly disappointed by the political directorship of this matter; by the attitude of senior civil servants and of the generals, who should not have allowed it to escape from the MoD unless it became obvious that it was something with which they could not cope. What has happened is that the average 1391 officer and man, especially in the Army, has lost a great deal of faith in that organisation. He is not happy. He wonders what will happen to him the next time he fights. So there is a bit of mending to be done there.
Noble Lords may have the advantage over the other place because of our seniority and age. We may understand the heat of battle, active service, war, close quarter battle and hand-to-hand combat better than those in another place. We have a Cabinet. With great respect, the noble and learned Lord the Lord Chancellor is part of it. Its members have never had their hair parted by a bullet; I hope that they never do. They have been brought up at a time when, apart from one or two, they have done no national service. They have been brought up also with other types of military operations where one has a yellow card in one's pocket and one acts with both—or at least one—arms tied behind one's back. So the whole scene of war is beyond their ken. I hope that they never have to experience it.
I should like to think that the noble and learned Lord could ensure that we have a Cabinet that stands up for and stands by its armed forces. It is pretty good at cutting the numbers in half, but those that are left had better be looked after and supported properly. It has also been reported to me that, since all these great cuts and Options for Change have come about, there has been a dearth of visits by Members of another place to the armed forces. That is sad. This is a time when parliamentarians—I am not talking in a party way—should get about and give confidence to the armed forces. They will be needed. We do not have to look too far outside these shores to know that they will be needed again and again during the lifetime of most noble Lords here today.
I hope—I am not saying this as a criticism; I am trying to be helpful—that MPs will remember this and be seen among the armed forces. They will learn what the heat of battle is when they talk to soldiers, sailors and airmen who have had ships knocked from under them and aircraft blown out of the skies and been wounded in the heat of battle or seen their comrades killed. They would learn a great deal and would then take a different view of the war.
This investigation has troubled me from day one. As I have intimated, it is not being done, in my humble opinion, by those who should do it. Twelve years from the battle, with everything that goes on in an army, navy and air force, it is too late to get to the truth. Like many noble Lords, I am dubious about asking the enemy for its opinion. I have never heard of anything like that before. I am absolutely astounded that a government could even contemplate such action.
Governments of any colour, Members of Parliament of any colour and the young Members of your Lordships' House must understand that when we send our forces to war, battle is different from a slanging match across the two Dispatch Boxes where everyone insults everyone else. I ask the Government to cease at once this farcical investigation.
§ 5.17 p.m.
§ Baroness Strange
My Lords, we are all very grateful to my noble friend Lord Campbell of Alloway for so usefully initiating this debate, and to all noble Lords who have spoken, particularly the noble and gallant Lords, Lord Bramall and Lord Craig of Radley. I should like to congratulate the noble Lord, Lord Burnham, on his maiden speech which was so amusing. I hope that we shall hear him often.
I should like to make a brief contribution on behalf of the War Widows Association of Great Britain, and, in particular, of the widows, orphans and parents of the men who died in the Falklands. Although I have no personal experience of war, my only brother, who was awarded the Croix de Guerre, was killed in Holland in 1945; my husband was awarded the Military Cross in the war; my son served in the Falklands campaign. I shall never forget standing on the quay at Southampton, waving a Union Jack, while the QE2 steamed slowly out to sea with everyone waving from the deck and the bands playing.
Nobody glorifies war. We are all against it. But sometimes it is necessary. And those of us who do not go out to fight owe a great debt to those who do. So to start muck-raking, as we have been doing over the past year, on the say-so of a second-rate writer out to make a quick buck for himself, seems totally wrong. When the war is over, it is over. It is up to those of us who are left to express our debt to those who fought in it on our behalf, and to honour them, to succour the wounded in body and spirit, and to support the widows and orphans.
I have spoken to some of the widows of No. 3 Para whose husbands fell on Mount Longdon, to the parents of some of our young men who were killed there, and to Mr. Keoghane, chairman of the Falklands Families Association. I should like to quote from a letter received from one of the widows, which may give your Lordships some idea of how this inquiry has affected them.
She writes:People don't mean to be unkind … but … some have gloated, some have condemned us, some have simply said, 'Never speak to me again', some have scornfully said, 'Your friends' (referring to my husband and his comrades), some have just looked the other way when they see us. This was all during spring and summer when the media started to say my husband's Regiment were accused of war crimes … It has lost us many friends, raked up many memories, devastated our lives a little more than a bit, made us lose a lot of confidence—why do people believe all they read? I am telling you all these things so you know a little of what it is like but in no way do I want to hurt these people back—it's their ignorance which speaks and it no longer happens as the boys and I stay indoors much of the time and try not to see anyone. So please don't try to make anyone feel ashamed as they have tried to make us feel ashamed, no one else should be put through that[...]. I hope that 3 Para's honour will shine through at the end of the day.During the last year many who took part in the battle have been interrogated, some to the point of causing extreme, emotional distress by making them relive such a terrible ordeal. The publicity this investigation has created and the media attention which is likely to follow … will cause much heartache for those, both British and Argentinian, who lost loved ones during the battle and be detrimental, not only to the Regiment and those who served in it, but also to the Argentinian survivors as well as the Falkland Islands and its people. It will damage the morale of everything this country believes in.1393The 3rd Battalion of the Parachute Regiment fought a long and bloody battle in which soldiers from both sides died honourably and many were horribly wounded, both physically and mentally. Many still bear the scars and many, as is so often the case with other conflicts, have been too quickly forgotten.On Mount Longdon our soldiers were up against, not conscripts, but professional soldiers consisting of the Argentinian 7th Regiment, reinforced by specialist elements and snipers from their 601 Company together with Argentine Marines. The enemy having had two months to prepare their sangers and bunkers, had far superior equipment—nightsights, ammunition which did not fail, even better boots and food.My boys, as all those who lost loved ones in that conflict, need to know and continue to know that their father and his fellow soldiers were heroes. Please don't let anyone, no matter who they are, undermine that fact.Among others, I spoke with the mother of Private Neil Grose, who was killed on Mount Longdon the day after his 18th birthday. He was cold and hungry and his feet were sore. He was hit in the arm by a bullet but went on fighting. Then he was hit in the chest. His friend who carried him down the mountain was also killed. What are we doing? Why are we making the brave and innocent suffer? Is it not time to stop this forthwith?
When I laid a wreath at San Carlos in the Falklands four years ago, in that quiet place surrounded by a circular stone wall just above the sea, in the soft falling rain, I was very moved. Coming back in the helicopter to Mount Pleasant, I scribbled down a short verse:Round worlds, round grave,Here lie the braveIn freedom which they died to save. Seas blue and deep,Quiet grazing sheep,God's rain and sunshine while they sleep.".The dead are asleep and in the hands of God. It is the living for whom we must care.
§ 5.24 p.m.
§ Lord Ackner
My Lords, I must confess to having experienced considerable hesitation before adding my name to the list of speakers. In fact, I did so only yesterday afternoon. I wish to make perfectly clear the reasons for that hesitancy. It was not in any way because the Motion does not raise an important and a significant subject. Clearly, it does. It was not because I have any affection for futile war crimes prosecutions. I made that clear to your Lordships in the debate and on Second Reading of that unfortunate Bill. It was not because I am unacquainted with this subject; during the war I spent several years in the naval law branch of the Admiralty being concerned with the safety and repatriation of naval prisoners of war and the protected personnel. I hesitated because I share the same inhibition as the right reverend Prelate the Bishop of Guildford; namely, that in this debate we are inhibited by the absence of facts. That is why he kept off the intrinsic subject matter and dealt with important points of principle.
Perhaps I may rehearse what we know. We know that the Secretary of State for Defence has referred allegations to the Crown Prosecution Service. We do not know what those allegations are. We do not know whether they were triggered off by these third-rate, fifth-hand suggestions that have been referred to, which then led to further inquiries. We do not know why the Secretary of State did not refer the matter 1394 immediately—perhaps he did—to the Advocate-General's Department for its comment. We know, because we were told by my noble and learned friend the Lord Chancellor on 6th December, that the Director of Public Prosecutions directed that there should be a report or inquiry. We do not know what was the basis of her decision. Both the Secretary of State and the Director of Public Prosecutions are on the one hand an experienced and able politician and on the other hand an experienced and able lawyer.
If the material upon which they acted was as inadequate as has been suggested in this House, I should be the first to join with those who have condemned the action in raising the whole matter. But I do not know and having been brought up —in later years at least—to adhere to the rules of natural justice, I am not prepared to condemn them without hearing what their reasons were.
What else do we know? We know that the inquiry undertaken by the Metropolitan Police started more than a year ago. We do not know why it is still going on. There may be bad reasons for the delay; there may be good reasons for the delay. I just do not know. Having spent quite a bit of my life being critical, I am frustrated by the inability to comment one way or the other as to whether the delay is justified or open to censure. We do not know, as and when the Director of Prosecutions sees the report and consults with the Attorney-General, whether there will be proceedings and if so how long it will take them to reach a decision. We cannot embark upon criticism of the time that that will take since it has not yet begun.
Those are the reasons for my hesitancy. I now wish to give your Lordships my justification for overcoming the hesitancy and wearying you with my intervention. It is simply this: it has been suggested in correspondence and to your Lordships that it is not in the public interest that the investigation should have started or, having started, that it should continue. The only speaker who has referred to whether or not "the public interest"—almost as unruly a horse as "public policy"—can operate in this case is the noble Lord, Lord Irvine of Lairg, because the existence or absence of a discretion (assuming that what was laid before the Secretary of State justified some inquiry) to start or stop is to be found, and only to be found, in the Geneva Convention of 1949, to which we are signatories.
I repeat what the noble Lord read out because it is short but it is, unfortunately for those who would call off the inquiry, extremely relevant. It reads as follows:Each High Contracting Party",which of course includes us,shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts".It is common ground that if—I emphasise the word "if"—a prisoner, having been taken into custody and clearly having achieved the status of prisoner of war, is shot in cold blood, that is indeed a grave breach. In that situation, the Government have a positive duty laid down in Article 129, to which I have just referred, to search out and bring to their courts, assuming there is sufficient evidence, such a person or persons.
1395 I deeply hope, as we all do, that the investigation will show either that there is no basis at all for asserting that there has been a grave—or indeed any—breach of the Geneva Convention or that the evidence is so tenuous and unreliable and time has gone by to such an extent that it would be quite inappropriate to prosecute. But that hope must not be used as a justification for ignoring our obligations firmly set out in a convention to which we became a party many years ago.
§ 5.32 p.m.
§ Viscount Caldecote
My Lords, at this late stage of the debate, virtually all that could and should be said has been said in many powerful and moving speeches.
I have nothing approaching the battlefield experience of the noble and gallant Lord, Lord Bramall, but I know enough of war to know that it is a very ugly affair and that there is nothing like the violence or passion of the battlefield. That has been a consideration running throughout the debate.
It seems to me that there are three questions which we need to answer: is it fair and right to consider prosecuting soldiers for action taken on the battlefield; is it wise to continue this investigation; if it is thought to be wise, should the investigation and possible prosecution be undertaken by the civil or military authorities?
The answer to the first question as to whether it is fair and right to consider prosecuting soldiers taking action in the heat of battle has been so well answered by the noble and gallant Lord, Lord Bramall, that there is no need for me to make any further comment. As was said—and the noble and learned Lord, Lord Ackner, made this clear—it depends where the alleged offences are committed, whether in the heat of battle or against defenceless people behind the lines. I am sure that we all agree with the noble and gallant Lord, Lord Bramall, that in this case, the alleged acts were committed in the heat of battle, and there is no more to be said.
Should the inquiry continue? Surely it should continue only if there is a clear prima facie case of inhuman action. Again, the noble and gallant Lord, Lord Bramall, made it clear that that is not the case. It is not the case that there has been any inhuman action against a defenceless enemy.
Even if there were a prima facie case, the inquiry should not have been put in hand after such a long time has elapsed since these events took place. Therefore, it is extremely difficult to obtain reliable information, particularly from first-hand witnesses to the alleged offences. I believe that the obligation to which the noble Lord, Lord Irvine, and the noble and learned Lord, Lord Ackner, referred, should have been satisfied long ago, and it is far too late for the inquiry to continue now.
As regards who should conduct the inquiry, if the answers to the first two questions are yes, should it be handled by the military court under military discipline or by the civil court? It should surely not be handled by the civil court, with all the benefit of hindsight and, as I say, the minimum of first-hand witnesses. Again, the noble and gallant Lord, Lord Bramall, and the noble Lord, Lord Chalfont, brought out those points.
1396 For those reasons, I believe most strongly that it is unwise and wrong to continue the investigation. For the future, if similar situations arise, they should be handled by the military courts under service discipline. But now, I hope that my noble and learned friend the Lord Chancellor will represent most forcefully to his right honourable friends the virtually unanimous view of this House that the inquiry should not continue.
§ 5.36 p.m.
§ Lord Mayhew
My Lords, I begin by adding my congratulations to the noble Lord, Lord Burnham, on his admirable maiden speech. He began by saying modestly that he had never been under fire but before he finished speaking we were convinced that, if he ever were under fire, he would conduct himself in the best tradition of the Guards. We enjoyed his speech and look forward to hearing from him again.
It has been a fascinating and difficult debate. With the grave exceptions of the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Irvine, and the possible exception of the right reverend Prelate, the Bishop of Guildford, the overwhelming feeling has been that it was thoroughly wrong to set up the inquiry and that it should be ended at once. Plainly, on the evidence assumed by those speakers, that must be so. But all the time I was asking myself, as I believe was the noble and learned Lord, Lord Ackner, on what evidence those speakers were proceeding.
I have read this book, or at least the relevant parts of it. It is a disgraceful publication. It tries to be sensational; and it succeeds. It is obviously vastly exaggerated and over-coloured. I should not believe a word of it. But is that the only evidence on which the Government decided to institute an inquiry? We do not know. We do not know whether the Government have more evidence but they have hinted that they have by not putting the inquiry under the Adjutant General but into civilian hands.
I feel emotionally committed to everything that has been said against this inquiry; and yet I am held back by the fact that the Government have not had their say. We do not know why they have done what they did. I am told that the company commander concerned reported to his superior officers at the time and that a report went to the then Secretary of State, Mr. King. That was before the book was written. They decided to do nothing.
Perhaps I may part company for just a moment from our distinguished lawyers. The fact that the Geneva Conventions oblige the Government to take action on breaches presupposes that the evidence is there for such action to be taken. But where is that evidence? Are we to rely on the book for it? I should not rely on anything in that book. Is that the only basis on which the Government have acted? I hear that before making his decision—this may be wrong—the current Secretary of State for Defence consulted the special investigations unit of the military police. Is that true? Moreover, did the unit confirm that an inquiry should be held? I must say that such matters worry me.
I feel so warmly what was said by the noble and gallant Lord, Lord Bramall, and others, about the stress of battle. We assume that it was due to the stress of 1397 battle because it was mentioned in the book; and, indeed, I have not heard any other reason for it. However, several speakers spoke about the stress of battle and it is very hard, even for those who have themselves been under fire, to imagine what it is like.
As we all know, a man's reason can be virtually suppressed altogether by the violence of his emotions. I ask: when soldiers are physically exhausted, when they may have seen their friends wounded or killed and when they may be in considerable fear, how long is it before we think it fair to get them to switch from a resolute determination to kill their enemies to a resolute determination to spare them? How long should that be? One only has to imagine the situation to understand. I entirely endorse everything that was said about action in the stress of battle.
However, what were the circumstances of the case? We really do not know. We shall know in due course if—as we hope will not be the case—a prosecution is launched. But we really do not know what the circumstances were. When the inquiry report is received by the CPS, those concerned will know and will be able to make a judgment. Of course, if the evidence resembles in any way that assumed to be true by the majority of speakers in the debate, the CPS will not have the slightest hesitation in dropping any question of a prosecution. In such circumstances, it is inconceivable that it will proceed. Quite apart from the public service point of view which was mentioned by the noble and learned Lord, Lord Ackner, there is also the public interest aspect, which is most important. For example, it can hardly help our relations with Argentina to have a trial with a long drawn-out description about the shooting of prisoners, or if the evidence is based on the stress of battle. All the arguments put forward by noble Lords today will be available to the CPS. In those circumstances, it cannot possibly be true that it would call for a prosecution.
I turn now to the inquiry. It may have been wrong; and, indeed, on the evidence that I have seen, it was wrong to start the inquiry. However, it cannot be right at this stage to end it. Some people will say, "If you end it now it will reinforce the belief that it should never have been started". But many other people, especially those abroad, will say that it has been ended because the evidence was too damning and was suppressed by politicians and the media. Now that we have got so far with the inquiry, and having had over-meticulous investigations carried out in Argentina, surely it is better to let the report go to the CPS.
We can fervently hope that the CPS will take into account all the points that have been made in today's debate. If it does, I am quite sure that there will be no question of a prosecution. However, I believe that we should let the CPS decide. Although we can fervently hope that it decides in the right direction, I think that we should suspend our verdict for the moment.
§ 5.43 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I listened with care to all the eloquent speeches that were made during the course of the debate and to none with more pleasure than the maiden speech of the noble Lord, Lord Burnham.
I should like to begin by making it clear that I believe I speak not only for myself but also for Her Majesty's Government as a whole in being second to none in my admiration for our armed forces and, in particular, for those who so gallantly recovered the Falkland Islands. Indeed, as one of my noble friends referred to them returning to England, I should like to underline the fact that among the most gallant feats of that conflict were those of the Scots Guards. They were feats for which some of those who took part paid with their lives in a situation which merited the highest distinction that can be afforded. I speak with particular feeling because of the name which was held by one of those whom I have in mind. That was a very singular triumph. Nothing that the Government are doing now in any way seeks to detract from that or from our appreciation of it.
The situation that has arisen is that allegations have been made of breaches of the Geneva Convention in the book to which reference has been made. When those allegations were brought to the attention of the Secretary of State, he instituted an investigation by the group within the Ministry of Defence over which he had control in his own responsibility. That was a preliminary inquiry by the Special Investigation Branch of the Royal Military Police. The result of that investigation—which, as I said, was preliminary—was inconclusive; in other words, it did not provide a sound basis for refuting the allegations nor for confirming them.
In that situation, my right honourable friend the Secretary of State for Defence thought it right to consult my right honourable and learned friend the Attorney-General. After consulting my right honourable and learned friend, the Secretary of State for Defence referred the matter to the Director of Public Prosecutions. When it was referred to the DPP, the director also consulted the Attorney-General. As a result, the Director of Public Prosecutions requested the police to undertake an investigation.
I think that it would be quite unwise and, indeed, improper for me at this juncture and at this time to speculate in any way on the matter.
It appears that some of my colleagues are experiencing some difficulty in hearing me due to a constant whistling noise. I should point out that that is not directly my responsibility; nevertheless, it is a whistle which, on the whole, I would prefer to have stopped. I am most grateful: the whistle seems now to have stopped. That is most helpful. It will enable noble Lords to follow my speech more easily.
I am clearly inhibited from speaking at this stage about the evidence which is available at present on such matters. Surely it is a cardinal principle that I of all Members of Her Majesty's Government should do nothing in any way that could prejudice a fair trial if—and I emphasise the word "if"—a prosecution were 1399 launched. Therefore, I do not propose to do more than explain the course of events in the way that I have done. However, I shall make some comments on what has been said.
It is the general convention, as I understand it, that in considering whether or not a person should be prosecuted, the Attorney-General is regarded as having the sole responsibility. It is a long-established convention that neither the Cabinet nor the Houses of Parliament would seek in any way to prejudge that decision. The responsibility for prosecutions remains with the Attorney General and the Director of Public Prosecutions. Of course there are other possible prosecuting agencies but I am speaking primarily here on behalf of the Director of Public Prosecutions who acts under the superintendence of the Attorney General.
This situation is one which was certainly not entered upon lightly. As I have explained, both my right honourable friend the Secretary of State for Defence and the Director of Public Prosecutions thought it right to consult my right honourable and learned friend the Attorney-General. I believe that my distinguished colleague, the Attorney-General, is one who takes extremely seriously the responsibilities of his high office and has done everything in his power during his term of office to maintain the high traditions of the Law Officers. I know that in giving his advice on these matters he considered them carefully.
I wish now to make a few comments on some observations that have been made in the course of this debate. First, I wish to emphasise as strongly as I can that the noble Lord, Lord Stoddart of Swindon, is not correct in suggesting that charges have been made against anyone by the Government. The present stage we are at is the stage of investigating whether or not it is right for the prosecuting authorities —who of course act on their own personal responsibility—to prefer charges against anyone. A decision on that matter cannot be taken properly except in the light of the full circumstances disclosed by the investigation.
My understanding is that the police expect to complete their investigation and report to the Director of Public Prosecutions early in the New Year. I have no information to suggest that the members of the Metropolitan Police who have been undertaking this inquiry have been inciting anyone to give evidence. It would be quite wrong, and certainly out of the line of police duty, for a police officer to incite someone to give evidence in the sense of seeking to elicit from that person evidence which that person was not motivated to put forward.
§ Lord Stoddart of Swindon
My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for giving way. I understand that when Scotland Yard officers went to Argentina they actually put out a broadcast asking former members of the Argentine forces to come forward with any evidence they had. Perhaps my words were rather harsher but I still call that incitement.
§ The Lord Chancellor
My Lords, noble Lords are familiar with notices at the scenes of accidents inviting people who have evidence to come forward. I think it 1400 would be a slight extension of the ordinary use of the word "incite" to suggest that that amounts to incitement. Precisely what steps the police took is a matter that would be open to question in the course of any subsequent trial. However, my understanding certainly is that what they did was simply to seek to put themselves in contact with anyone who could properly help them in carrying out their inquiry.
I wish to emphasise one more point in relation to what has been said. Your Lordships may take it that neither the Attorney-General nor the Director of Public Prosecutions would seek to commence a prosecution on the basis of what is written in a book, and certainly not on the basis of the second-hand account of someone who "danced with the Prince of Wales", to use the words of the noble and gallant Lord, Lord Bramall, as he sought to characterise the exaggeration of the claims the book purports to record. Your Lordships may take it, without any fear, that the prosecuting authorities in this country will prosecute only if there is acceptable evidence—which they think it likely a jury would accept—that an offence under the relevant statutory provisions has been committed by the person whom they seek to charge with the offence. The stage at which it is proper to decide that is at the completion of the inquiry. As I have said, I believe that is fairly near. I also believe it is right when an inquiry has been launched in this way that the inquiry should be properly terminated. I accept as correct the particular formulation of that which the noble Lord, Lord Mayhew, mentioned. As far as I am concerned, the investigation at this stage is an investigation which ought to be completed.
I should add a further comment about the general considerations that have been advocated in this debate. It is absolutely apparent that no offence is committed against the Geneva Convention in the heat of battle. The noble and gallant Lord, Lord Bramall, is perfectly correct in that. Your Lordships may take it that, if the circumstances disclosed by the report show that any killings that took place took place in the context of a battle in that sense, then again no prosecution would ensue.
I believe that in the circumstances in which we are now placed the right thing is for the investigation to be completed. That discharges our obligations under the Geneva Convention to the extent of giving proper consideration to whether or not a prosecution should be taken. In the light of these investigations a decision will have to be made by the prosecuting authorities. When that decision comes to be made, as I have said, it would obviously be right that all the considerations—which your Lordships with great experience of martial operations have mentioned—should be taken into account. I believe that they certainly will be taken into account. However, I do not believe it would be right to prejudge, one way or the other, without full knowledge of the facts, how precisely these principles might apply in the circumstances of this case.
The prosecuting authorities often require to carry out duties which are demanding. This is a particularly demanding situation in which properly to conduct themselves. I believe that they seek to conduct themselves with fairness and with proper consideration 1401 for the good name of our armed forces which, I entirely accept, are second to none. One of the aspects of that good name is good discipline, as has been said, and good discipline carries with it the need to investigate, where allegations are made, sufficiently to decide whether or not those allegations are made out.
I should also like to say a word about the time factor. The question of time is not really in the hands of the prosecuting authorities. The time depends on when the allegations are made. Obviously one has to start from that premise. The time which has elapsed since an alleged event is supposed to have taken place can have a great effect, first, on whether a fair trial is possible—a consideration which has been adumbrated in your Lordships' House in another context—and, secondly, in relation to the reliability of the evidence. That will also be an important factor in the ultimate decision. The source of any evidence which is available will be very much taken into account in that connection.
I believe that, having tendered advice, your Lordships would be right to leave the matter in the hands of the prosecuting authorities with confidence that they will properly discharge their difficult responsibility in relation to the circumstances, not as disclosed in any book but as brought to their notice as a result of a proper and careful police investigation.
§ Lady Saltoun of Abernethy
My Lords, before the noble and learned Lord sits down, perhaps I may ask a question. A noble Lord asked what the inquiry has cost to date. Would it be possible for us to have an answer to that question?
§ The Lord Chancellor
My Lords, certainly. Perhaps I should have done so. I thought that the question of cost, although important, was subsidiary to the main question of principle, which is the primary matter which has been raised. It has already been explained to Parliament that police expenditure to the end of October 1993 was £98,000 and that the estimated police costs are in the region of £3,800 per month for the investigation as it continues. Of course the prosecuting authorities incur costs over and above those, but those are the police costs.
§ 6.1 p.m.
§ Lord Campbell of Alloway
My Lords, I thank my noble and learned friend the Lord Chancellor for the information that Mr. Attorney was consulted by the Secretary of State for Defence in August 1992 before he set up the investigation. I accept from my noble and learned friend that that is so, but we did not know that before. That makes it all the more important that the overwhelming view of your Lordships' House should be brought to the attention of Mr. Attorney and not to the CPS. I respectfully ask that the overwhelming view of this House is conveyed to Mr. Attorney so that he may consider whether to end these investigations for the reasons that I have given.
I should like to thank all noble Lords who have spoken in this debate. It seems that the sense of the House is divided approximately 18 to 4, the four being the noble and learned Lord, Lord Ackner, the noble 1402 Lord, Lord Irvine, the noble Lord, Lord Mayhew—up to a point—and my noble and learned friend the Lord Chancellor. However, the principle of democracy applies here. The noble and learned Lord will have heard what has been said from all sides of the House, and that should be conveyed to Mr. Attorney.
There is a fundamental flaw in the approach of the four. My noble and learned friend the Lord Chancellor said that no offence is committed in the heat of battle. We start on common ground. The noble and gallant Lord, Lord Bramall, explained that this was the heat of battle. That was an authoritative account but was totally disregarded by the four who went against the majority view of this House. The four seem to assume that the rules of war under the Geneva Convention as regards according PoW status until release or repatriation apply on a battlefield.
§ Lord Ackner
My Lords, I ask the noble Lord to give way. Speaking as one of the four, no such assertion was ever made. The reason for the four taking that view is that we do not know the facts. The point that I made was that, if the person had surrendered and achieved the status of a prisoner of war and was thereafter shot, that would be a grave breach of the convention. I had assumed that to be common ground until the noble Lord rose to reply.
§ Lord Campbell of Alloway
My Lords, the noble and learned Lord merely restates what he said before. There was no misunderstanding. I cannot understand why he took it upon himself to intervene at this stage of the proceedings.
I return to this issue because it is the crucial false point taken against us by the four. In this case there was mortar fire on the battlefield, artillery fire on the battlefield and sniper fire on the battlefield. It is idle to pretend that it was not the epicentre of a battle. We have to start with that. There is no way that one can duck that. There is probably only one person in this House who has been in a position which enables him to inform your Lordships on that matter. I hope that your Lordships will accept that from him. These acts occurred in a battle on a battlefield. As the rules do not apply, these investigations should never have been set up. The whole thing was a misconception.
There is another aspect. The noble Lord, Lord Mayhew, asked: where is the evidence? Well, where is it? Inquiries have been taking place since August 1992. If we do not have the evidence now we should pack it in. Why should we sanction a formal investigation of this nature? How long are we to leave it to the Crown Prosecution Service, which has many duties, to deal with this matter?
Those points were accepted by your Lordships' House as the reason for sending a message to Mr. Attorney.
Some noble Lords said that there was clear prima facie evidence of a case. Is there really any clear prima facie evidence of a case? We still do not know. Is the allegation based on the book? Are there any other allegations? We have not been told of any. If they are contained solely in the book it is incredible that these investigations should have been set up on the basis of 1403 that quality of evidence. It is all very well for those sitting in an armchair miles away from the battlefield, years after the event, to pontificate as to what putative breaches of international law may have taken place on a battlefield. The whole scenario is unsatisfactory.
In conclusion, perhaps I may wish all noble Lords, those at the Table, and the doorkeepers a very happy Christmas, in particular Mr. Bassett of the Royal Marines and Mr. Carpenter of the Royal Navy, who, I believe, retire tomorrow after 20 years' service. I hope that the good wishes of Christmas may also be extended to those who are at the rough end of these wholly untenable investigations.
§ The Lord Chancellor
My Lords, before my noble friend indicates what he wishes to do on the Motion, perhaps I may say that, of course, I speak primarily in this Chamber on behalf of the Attorney-General. Therefore my right honourable friend, I am sure, will read with close attention all that has fallen from your Lordships' lips.
§ Motion for Papers, by leave, withdrawn.