COMMONS AMENDMENT (Hansard, 25 March 1993)

§ Lord Fraser of Carmyllie
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5.
As your Lordships will be aware, the provisions in Clause 32 will enable a witness who is outwith the United Kingdom to give evidence to a Scottish court in trials under Solemn Procedure by way of a live television link subject to certain safeguards which will protect the interests of the accused. That provision will bring the law of Scotland in that respect into line with provisions which have been in force in England and Wales for more than two years.
When the clause was previously before your Lordships an amendment was successfully moved to disapply any war crimes trial in Scotland from the ambit of the clause. As a number of your Lordships who were present then will recall, there were those who spoke in that debate with deep conviction and passion in favour of that exclusion. On a Division the amendment was substantially carried.
When the matter came before another place the issue was not debated in Committee upstairs but rather it was, by agreement, left until the Bill came to the Report stage. It was thus debated on the Floor of the House. The amendment which I invite your Lordships to agree was moved in the other place by my right honourable friend the Secretary of State for Scotland himself. There was no opposition to the amendment and Members from all sides of the House 438 took part. Those included the Liberal Democrat Member of Parliament for North-East Fife, Mr. Menzies Campbell, QC, who, in his speech in another place, made it quite clear that he had voted consistently against the passage of the War Crimes Act but took the view that it was wrong in principle to exclude the provisions of Section 32A from application to war crimes and that the amendment made in your Lordships' House should be removed.
There were two other contributions in the early evening during the debate. Both followed the line that Mr. Menzies Campbell had taken. When the Secretary of State for Scotland concluded the debate after those contributions, he first reflected on what had been the calm and measured tone of the debate. He stated: I hope that the unanimity of those taking part in this short but important debate will not be lost on their Lordships in another place and that they will recognise the view of this House on an important matter".— [Official Report, Commons, 16/12/92; col. 495.] There was no Division following that debate.
I do not propose to rehearse the arguments on this proposal again. On a number of occasions there have been full and detailed discussions of the proposal. I believe that the arguments are well known to your Lordships. I have no doubt that the views that were expressed with strong conviction on previous occasions will in many cases, if not all, remain. However, I am bound to say to your Lordships that I agree with the sentiments expressed by the Secretary of State and I hope that on reflection your Lordships will agree that in the circumstances it would be inappropriate to disapply those provisions to this area of the law in Scotland. Accordingly, I urge your Lordships to agree with the Commons in this amendment.
Moved, That the House do agree with the Commons in their Amendment No. 5—(Lord Fraser of Carmyllie.)

§ Lady Saltoun of Abernethy
My Lords, those of us who have consistently opposed changing the law in order to permit war crimes trials have done so because, among other reasons, we did not believe that it was possible for anyone to receive a fair trial where the evidence was some 50 years old. Three times we asked the Government to think again; and three times they refused. With a view to damage limitation, we considered that the rules of evidence should in those cases be no less stringent than they are now—that is to say, that witnesses should have to attend in person and be able to be cross-examined in the flesh, face to face, not through a television link. So we twice asked the Government to think again about making video-linked evidence acceptable in war crimes trials and they refused.
Therefore five times now we have asked the Government to think again about an exercise which some of us consider to be both obscene and costly and an exercise on which I understand that more than £36 million has been spent to date at a time of financial difficulty, when our Armed Forces are being reduced 439 to a dangerously low level, when poor people will have to pay tax on fuel and electricity, and cheese-paring is the order of the day. It seems to me quite senseless.
However, since it is quite clear that nothing that this House does or says will make the Government come to their senses, I see no object in continuing to fight them on the issue. It will lead only to prolonged friction between the two Houses, with the Government invoking the Parliament Act once again in order to get their way. Therefore I will agree with the noble and learned Lord, Lord Fraser of Carmyllie, that this House should agree to the rejection by the Commons of our amendment and I shall not insist on it. If any other noble Lord attempts to do so, I shall not support him but shall abstain.

§ Lord Campbell of Alloway
My Lords, since we come to consider the amendment, an amendment which reverses the opinion of your Lordships expressed by a very substantial majority on two Scottish Bills, your Lordships may feel a sudden rush of renewed sympathy for the burghers of Calais. I do not propose to reopen the argument. There is no point in doing so. But even so, the essence of the disagreement between the two Houses is not on a question of fundamental principle such as whether those trials should ensue at all, but on a matter of procedure as to how a fair trial may be ensured.
Your Lordships have taken the view that it is essential to secure a fair trial to exclude the evidence. Another place has taken the view, relying incidentally upon an amendment introduced by your Lordships, that it is perfectly proper that this exclusion process should be achieved by the exercise of judicial discretion. It is the settled will of another place, as is the constitutional entitlement, to insist and to continue to insist. This amendment, as your Lordships remember, was carried with the purpose of affording another place an opportunity to think again. It is now plain that another place will not think again; that there is no scope for accommodation; that to debate is wholly idle; that to oppose is to no constructive purpose; and that to exercise our constitutional entitlement to disagree would be but a futile and barren gesture.
It is perfectly plain from two aspects. The first is that on the very day that your Lordships carried the amendment, a Secretary of State shot from the hips and said, "We shall reverse it". Then later my right honourable friend the Secretary of State for Scotland undertook in another place to reverse it on Report. Each noble Lord takes his own stand according to his convictions. I do not follow the way in which the noble Lady, Lady Saltoun, sees it. I am unable to agree with the Motion. But as there is no prospect of accommodation with another place, I do not wish to oppose it. I shall decline therefore any invitation to enter the Lobby, and sit in my place to mark my dissent, knowing that the Government would have their Bill on the volt of those who are content.
I refer to the hope expressed by my right honourable friend the Secretary of State in another place at col. 495 of the Official Report on 16th December 1992, to which my noble and learned friend referred, that the view of another place would be 440 recognised on this important matter. Perhaps the preservation of amity between the two Houses transcends the importance of any disagreement on the matter.

§ Lord Macaulay of Bragar
My Lords., I do not believe that I need to remind any Members of your Lordships' House who participated in debates relating to war crimes that this is an extremely emotive issue. As the noble Lord, Lord Campbell of Alloway, indicated, each and every one of us had our own separate views as to the appropriateness of proceeding, first, to prosecute war criminals and, secondly, of the method by which evidence should be obtained and presented.
This is basically a non-party issue which has been decided on a free vote. In any prosecution of someone for war crimes and, I suppose, in any piece of legislation, there have to be winners and losers. In my submission, your Lordships' House should accept that it has lost the battle in this case. Noble Lords who spoke before me, including the Minister, accepted that and they would be disappointed if any Member of your Lordships' House were to take a contrary view, having regard to the constitutional importance of taking that step.

Lord Campbell of Croy
My Lords, I wish to support what the noble Lady, Lady Saltoun, said. I am sure that she is right, as is my noble friend Lord Campbell of Alloway. I wish to comment, however, on something that the noble Lady said. She stated that several times this House had attempted to make the Government change their mind and she was then rather critical of the Government in terms which I shall not repeat. However, I must remind her that it was another place which passed by huge majorities, when the votes were taken, the principles of the War Crimes Act 1991. So it was not just a matter of the Government not listening to what was said in this House; it was perfectly clear that the other place, the elected Chamber of our Parliament, had in that way shown what they required to be done. The Government would have been foolish not to have heeded it. I hope that I have made that point clear because it was the other place that held that strong view.
I respect the strongly held views which were expressed in your Lordships' House at the time of the debate here. I also think that, having spent many years in the other place myself, it was absolutely right for the Government to take the point at Report stage and not in a Scottish Standing Committee upstairs. That enabled Members of the other place from all parts of the country, not just Scotland, to indicate their views and object if they wished. I hope that the House will do what my noble and learned friend the Minister of State has proposed.

§ Lord Wilberforce
My Lords, I wish to associate myself entirely with what was said by the noble Lady, Lady Saltoun. It is important to bear in mind that two considerations are relevant to this piece of legislation. The first is, as the noble Lady said, the consideration that a person accused of a serious crime should have 441 a right to come face to face with his or her accusers and not to be confronted through an indirect television or video link. That is the first principle.
The second principle which is equally valid and which weighed very much with me and, I believe, other Members of the House when we discussed it, was the inappropriateness, the wrongness of changing the rules of procedure after the alleged crime had been committed, retrospectively. That is changing the rules of the game in order that a particular trial should take place. So far as I am concerned, those considerations remain equally valid today as they did at that time. However, having regard to what was said by the noble Lady and other speakers, I am content to follow them in the course which has been proposed.

§ Lord Mackie of Benshie
My Lords, of course, as I have said in previous debates, the Commons are absolutely right in expressing both the principle and the will of the nation.

§ Lord Fraser of Carmyllie
My Lords, I wish briefly to reply that, as I believe I accurately predicted, the strength of convictions that were expressed on the previous occasion remain undiminished. However, following the clearly expressed view of the other place, I am very grateful to all those who have contributed to this short debate for accepting that the Commons amendment should now be agreed to.