| Home Page |
Column 889
Orders of the Day
War Crimes Bill
Order for Second Reading read.
Mr. Speaker : I have to announce to the House that I have not selected the reasoned amendment on the Order Paper.
3.32 pm
The Secretary of State for the Home Department (Mr. David Waddington) : In view of the debate on 12 December last year, I am sure the House would not wish me to go through the sequence of events which has led to the introduction of this Bill. But let me just remind the House of the central finding of the war crimes inquiry. This was that, on the basis of the inquiries it had undertaken, there was reason to suspect that, among the vast majority of worthy and entirely blameless individuals from eastern Europe who settled in this country at the end of the second world war, there were some who had committed the most dreadful of crimes but who, on the basis of the law as it stands today, cannot be called to account for their actions.
The inquiry therefore recommended that the law be changed to enable the courts in this country to try offences of murder and manslaughter committed as war crimes in Germany or German-occupied territory during the period of the second world war.
Dr. Alan Glyn (Windsor and Maidenhead) : The Home Secretary has used the words "Germany or German-occupied territory". Does he agree that there is room here for some anxiety? He will remember that, during the war, occupying powers changed. For instance, at a particular time, certain territory was occupied by the Soviets. It may have been German territory, but, as it was occupied by the Soviets, technically it is completely outside the jurisdiction of this Bill.
Mr. Waddington : My hon. Friend and all other hon. Members will have an opportunity to debate that matter at length. The point is that we are implementing the recommendations of the
Hetherington-Chalmers report. I do not think that many hon. Members would wish us to take any more jurisdiction than is necessary to meet the mischief that is identified in the report. That is the short answer to my hon. Friend's point.
The inquiry made a number of related evidential and procedural recommendations concerning the holding of trials. During the debate that took place here on 12 December, a wide range of views were expressed by right hon. and hon. Members, who recognised well that the decisions we are being asked to take not only touch on the liberty and rights of people who fled to Britain to escape tyranny and enjoy liberty, but raise important wider issues. Some asked whether it was really desirable for us now to try to examine events which took place so long ago. Others stressed the impossibility of our ever forgetting the horrors of the war, and therefore of our being able to re-bury the evidence of atrocities which we are told has now come to light. But at the end of the day the House--after, I know much conscience searching--gave a decisive vote in favour of legislation.
Column 890
Since then, the Government have been considering carefully what form such legislation might take. In particular, we have looked closely at the evidential and procedural recommendations made by the inquiry, to decide to what extent they should be implemented. We recognised that among those--both in this House and in another place-- who disagreed with the inquiry's conclusions, there were many who did so out of the conviction that implementing those conclusions would involve establishing a special procedural or evidential regime for war crimes trials alone, and felt that it would be wrong to do so. Indeed, among those who spoke in favour of the principle of extending the jurisdiction of the courts, there were some who at the same time expressed strong doubts about the case for implementing the inquiry's other recommendations. The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) was among their number.In those circumstances, I am glad to tell the House that, as I see it, only one of the inquiry's ancillary recommendations would, if accepted, break new ground--that is, the suggestion that documentary evidence from foreign archives should be admissible in evidence if the source of the evidence was authenticated by the archivist. To implement that recommendation would certainly involve new legislation, and I do not think it would be right, for war crimes cases alone, to take that step--and we do not propose to do so. All the other proposals of the inquiry either require no change to our existing law or are consistent with steps that Parliament has already approved in other contexts. It may be helpful if I describe them in turn.
First, the inquiry recommended that witnesses in war crimes trials--who may be elderly people living abroad, possibly in indifferent health--should be able to give evidence through a live television link. Parliament has already accepted that principle. Legislative provision for live television evidence already exists for trials for other offences in England and Wales under the terms of section 32 of the Criminal Justice Act 1988. That provision was included in the 1988 Act principally for use in serious and complex fraud trials, but it would not be sensible to limit its application to that area alone and to exclude its application in the most serious of all types of case--those involving the taking of human life. We therefore intend to bring section 32 into effect in respect of murder, manslaughter, and serious and complex fraud. But section 32 does not apply to Scotland, and to extend the power to Scotland an amendment has been tabled in another place to the Law Reform (Miscellaneous Provisions) (Scotland) Bill.
Secondly, the inquiry recommended that it should be made possible for evidence to be used in war crimes trials to be taken on commission in the country where witnesses are living, and that video recordings of evidence taken in that way, or in response to a letter of request issued by a court in this country to an overseas authority, should be admissible. There is, however, no need to legislate to achieve that effect. As the House will be aware, section 29 of the Criminal Justice Act 1998 provides for the issue of letters of request direct to an authority exercising jurisdiction outside the United Kingdom.
Mr. Patrick Cormack (Staffordshire, South) : Is my right hon. and learned Friend saying that aged people in countries far removed from the United Kingdom can be
Column 891
interviewed on video, and that those videos can be brought back to this country ; that such witnesses need not go anywhere near the court of law that is to deliberate on the matter ; and that such evidence will be entirely admissible?Mr. Waddington : It is certainly the case that we took powers in the 1988 Act for the issue of letters of request, and there is no doubt that under our existing law it is possible, as a result of the issue of such letters of request, for evidence to be taken abroad, subject to numerous safeguards for the accused, such as the ability to cross-examine the witness. That is the present law and we are breaking no new ground by taking the view that it should be extended to war crimes trials.
Mr. Roy Hattersley (Birmingham, Sparkbrook) : Can the right hon. and learned Gentleman confirm--as it is in his departmental handout--that he is hoping to break new ground for Scotland? All that he has just said applies to England and Wales, and as I understand it, the law is being amended for this specific purpose to cover Scotland.
Mr. Waddington : I started off by dealing with section 32 of the 1988 Act. Undoubtedly it is the case that, as far as live television is concerned, section 32 does not apply to Scotland. We have already tabled an amendment in another place to the Law Reform (Miscellaneous Provisions) (Scotland) Bill to bring Scottish law in line with our own.
I was careful in the use of my words earlier on. I did not suggest that some legislative changes were not to be made. I made it plain that in no way are we breaking with precedent or breaking new ground. All the powers certainly already exist in one of the jurisdictions.
Mr. Peter Archer (Warley, West) : Can the right hon. and learned Gentleman say whether the proposed amendments to the law for Scotland will be confined only to war crimes?
Mr. Waddington : No, I do not think that for one moment. The amendment to the Law Reform (Miscellaneous Provisions) (Scotland) Bill will apply to serious and complex fraud trials. We are concerned to bring the law in Scotland in line with the law which already exists in England.
At that stage, I was dealing with the question of live television evidence by video link. I then went on to deal with the separate situation in which evidence can be taken abroad, as a result of letters of request, and that evidence can be admissible in a court of law in this country. That power already exists under section 29 of the Criminal Justice Act 1988.
The statutory provision is now being broadened in one small respect--the context of general mutual assistance between jurisdictions, in clause 3 of the Criminal Justice (International Co-operation) Bill, which is now before Parliament. My understanding is that the broadening there merely amounts to the possibility of letters of request being issued before proceedings are commenced, at the investigatory stage, rather than after an arrest has been made.
Mr. Ivor Stanbrook (Orpington) : Does my right hon. and learned Friend agree that the procedures that he has mentioned, which already apply to some extent in this
Column 892
country, will not provide an opportunity for the defendant to cross-examine any witnesses in Russia, because the defendant will not be allowed to go there?Mr. Waddington : If one considers the safeguards in the 1988 Act--in sections 23 to 28--one sees that there is not the slightest doubt that the evidence would not be admitted if there was no opportunity for the representatives of the accused person to cross-examine the witness in question.
No further action is needed on video recordings as far as England and Wales are concerned, because part II of the Criminal Justice Act 1988 provides for the admissibility of documentary evidence, which for that purpose can include video recorded evidence subject to specific safeguards. That power arises because of paragraph 5 of the second schedule to the 1988 Act, coupled with section 10 of the Civil Evidence Act 1968. In this area, too, there is therefore no question of inviting Parliament to sanction a new departure, purely with war crimes trials in mind.
As to Scotland, it is unclear whether documentary evidence of this kind can be admitted in Scottish law. There are two views on it. It is obviously right that this lack of clarity should be removed. That will again be achieved by amendments to the Law Reform (Miscellaneous Provisions) (Scotland) Bill.
Third, the inquiry noted that section 23 of the Criminal Justice Act 1988 already provides that a statement made by a person in a document shall be admissible as evidence of any fact of which direct oral evidence would be admissible if the person were dead. However, the Act goes on to say that such a statement is not to be admitted in evidence if the court is of the opinion that in the interests of justice it ought not to be.
The court is required in reaching a conclusion to have regard, inter alia, to any risk, having regard in particular to whether it is likely to be possible to controvert the statement that its admission or exclusion will result in unfairness to the accused. The inquiry concluded that, in view of those strict criteria, it was very questionable whether a court would rule the statement of a dead witness of sufficient substance to be admissible. However, in spite of that, it did not make any recommendation for amending legislation ; nor do we propose any such legislation to the House.
Sir John Stokes (Halesowen and Stourbridge) : I am not a lawyer, so if I am mistaken I am sure that my right hon. and learned Friend will tell me, but he seems to imply that this special Bill means that there will be no change whatsoever in English law and in existing procedures. If so, why is he going forward with the Bill?
Mr. Waddington : My hon. Friend will recognise that the key proposal in the Bill is that jurisdiction should be conferred on the British courts to try here people who are alleged to have committed war crimes during the 1939-45 war who would not otherwise be triable because they were not British citizens at the time that the alleged offences were committed. I am dealing with consequential proposals made by the Hetherington- Chalmerscommittee, which a number of my hon. Friends and Opposition Members were worried about when the matter last came before the House. I am merely, I hope, assuaging the fears of some right hon. and hon. Members by pointing out how minimal need be the consequential changes.
Column 893
Mr. Nicholas Bennett (Pembroke) : Does my right hon. and learned Friend not recognise that many Conservative Members are concerned that the law is being changed in order to bring to trial a small number of people and that juries are bound to infer that, if the law of the land is being changed by Parliament, these men must be guilty?Mr. Waddington : I have far more respect for the good sense of British jurors than that.
Mr. Ian Bruce (Dorset, South) : I am grateful to my right hon. and learned Friend for the clear way in which he is setting out the consequential matters that would arise within the law if we were to bring a certain group of people within the jurisdiction of the British courts. Why did the Government decide not to include all war crimes, including those that took place within Japanese territory? If we are considering crimes that were committed in previous wars, why do we not take powers so that we shall be able to take action against war criminals in any future wars who come to this country to settle?
Mr. Waddington : On my hon. Friend's last point, we do not have to take powers. We have those powers as a result of an Act that was passed by the House in 1957. The answer to my hon. Friend's first point is that I know of no allegation that there is anybody resident in this country who during the 1939-45 war was guilty of a war crime in the war against Japan.
Today we are discussing whether we should implement proposals made by the Hetherington-Chalmers inquiry as a result of evidence which they discovered and what was put before them which tends to show that there are now people in Britain who were not blameless during the 1939-45 war, who were guilty of the most terrible war crimes and who were not British citizens at the time those crimes were committed and therefore cannot be tried here under our present law.
We do not propose that any changes should be made in our law as to the possible admission of a statement by a person who has since died. We are content that it should be left to the trial judge to decide whether the statutory criteria are met, whether the evidence should be admitted. If such evidence were admitted in a war crimes trial, the weight attached to it would still be a matter for the jury. The inquiry did not say that there was some doubt whether, in Scotland, the recorded statement of a person now dead, made before any proceedings had been commenced, would be admissible, and suggested legislation to clarify the matter. My understanding, however, is that such a statement would be admissible, and the Government do not intend to carry out the inquiry's suggestion. That leaves but one recommendation made by the inquiry--other, of course, than the basic recommendation to confer jurisdiction on our courts--to be dealt with ; the House will see that the schedule provides for the use in war crimes trials of the procedure for transfer to the Crown court without committal proceedings, which is already available in serious fraud cases.
Mr. John Gorst (Hendon North) : Before my right hon. Friend leaves the previous section, can he say, on a practical rather than a legal point, whether there has been any change in the situation since Hetherington made his inquiries before producing his report? At that time, events in the Baltic states had not developed in the way that they
Column 894
have now, and the Soviet Union was clearly ready to facilitate evidence and witnesses being brought forward from that part of the world. Events have now changed ; have they changed sufficiently for there to be any doubt as to whether witnesses and evidence might now be available?Mr. Waddington : That is an extremely valid point, but when one looks at the Hetherington-Chalmers report, one has it forced upon one that the people who are suspected of those crimes do not all come from the Baltic states. A large number of them are said to have come from Byelorussia or from the Ukraine, so even if there were speedy progress towards democracy in the Baltic states and the setting up of a system of justice in which we could have complete confidence, it would not meet the case, because we would still be faced with the terrible problem of whether we could extradite, or deport to Russia proper, people suspected of those crimes.
The procedure for bypassing committal proceedings was introduced for serious fraud cases because of the complexity of such cases, and the House will appreciate that it will be available only for war crime trials which are of similar complexity, because my right hon. Friend the Attorney- General has to be satisfied that there is complexity before the procedure can be invoked.
If right hon. and hon. Members analyse the contents of that very involved schedule, they will see that paragraph 1(1)(b) makes it quite plain that the procedure of bypassing could not be invoked unless my right hon. and learned Friend was of the opinion that he was dealing with a case of complexity. The wording of the schedule follows that in sections 4 to 6 of the Criminal Justice Act 1987 and makes it possible for a defendant to apply to the Crown court to have the case against him dismissed before it comes to trial on the basis that there is insufficient evidence on which to base a conviction. In the debate on 12 December, the House was clearly and strongly supportive of the view that we should take action. Since then, we have attempted to devise a package of measures to ensure that any trials that may take place here will be fair to the defendant and that the procedures followed are fully in keeping with the traditions of British justice. I hope that the House will agree that we have succeeded in those aims.
Mr. Ian Gow (Eastbourne) : My right hon. and learned Friend gave a ringing justification for what he sees as the new legal process described in the Bill. Why did he not discuss that with the then Attorney-General, my noble and learned Friend Lord Shawcross--the chief prosecuting officer at the time and one of the most eminent lawyers of the day--who would have been able to offer my right hon. and learned Friend advice diametrically opposed to the advice that he has just given the House?
Mr. Waddington : I have the greatest respect for the noble Lord, but the Government must make these difficult decisions. They cannot shovel responsibility on to anyone else or say, "We are not brave enough to make the decision ; we shall make it only if we are backed up by a noble Lord in the other place." We must take decisions, and I think that we have taken the correct one.
Mr. Archer : Does the right hon. and learned Gentleman believe that the proposed procedure is much fairer to the defence than the existing alternative procedure of a voluntary Bill?
Column 895
Mr. Waddington : I agree entirely with the right hon. and learned Gentleman.
Some have urged us to make no procedural changes, but this is an important point--I am sure that, when the House voted in favour in December, it was not just making a fine gesture with no substance. It was not willing the ends while at the same time making it clear that it had no intention of willing the means. It would be pretty contemptible if we were to grant jurisdiction to the courts but at the same time refuse to take any steps that would make the bringing of prosecutions against individuals, in respect of whom there is evidence, a realistic possibility.
Some opponents of the Bill say that, after so long a gap in time, when memories must have faded, it is impossible to guarantee a fair trial. I cannot agree. What could be more proper than that we should leave these matters to the independent prosecuting authorities to decide whether to bring charges, and to the good sense of British judges and juries to determine whether it would be safe to convict on the evidence presented in any individual case?
I believe that the House would expect me to add a few words about how we envisage that the process of investigation and prosecution will be pursued, if the Bill is passed. In Scotland, the initial work of investigation and the responsibility for any subsequent prosecutions will be the responsibility of the Crown Office. In England and Wales, the general responsibility for investigation of crime lies with the police, while the conduct of prosecutions is for the Crown prosecution service.
With that in mind, we plan to establish a central policing unit to pick up and to continue the investigatory work begun by the inquiry. It will be operationally responsible to the Commissioner of Police of the Metropolis, and in the first instance it will consist of nine police officers and their supporting staff. Obviously, as its work develops, it may be necessary at a later stage to review its size. The task of investigating alleged war crimes is without precedent in the work of the police, and the Government accept that the performance of this task should be funded entirely by central Government. I must make it quite clear, however, that that does not mean that the work of the unit will in any way be subject to central Government direction. It will be subject only to the operational control of the Commissioner, and it will carry out its investigations in the same way as investigations are carried out by the police into any other criminal activities.
The work of the police investigation unit will need to be conducted in close liaison with the Crown prosecution service, which will in due course take over responsibility if the stage is reached at which prosecutions are brought. There will also be a need for those conducting both investigations and prosecutions to be able to call on the expert assistance of historians and linguists.
Sir Anthony Buck (Colchester, North) : Could my right hon. and learned Friend give us a little more information about who will head up the unit, what his background will be, what rank the unit will have--
Sir Anthony Buck : --and, as my hon. Friend says, on the costing and funding of the unit.
Mr. Waddington : I have made the position on funding clear. We accept that it must be the responsibility of
Column 896
Government. My hon. and learned Friend will see that there is a clause in the Bill which deals with that matter. There will be a money resolution consequential upon it. I cannot say more than that the team will be responsible to the Commissioner of Police of the Metropolis.Mr. Merlyn Rees (Morley and Leeds, South) : The Home Secretary mentioned clause 2, which refers to the amount of money to be provided. My point is probably a matter for the Committee, but the Home Secretary said the Government intended to set up a unit which will be operationally under the control of the Commissioner. Could we, perhaps not today but certainly by the Committee stage, have more information about the unit, which after all will be decided by the Commissioner, not by us? Will it have contact with a similar unit in Australia? The unit will be different. It is not enough to leave it to the police, even though it is their job. We should know more about it. Could we have more information in Committee?
Mr. Waddington : The right hon. Gentleman has a good point. I shall give him all the information that I can, but I should make one point absolutely plain. We have concluded that it would not be right to proceed with these matters unless and until the Bill receives Royal Assent. We do not believe that it would be proper in the particular circumstances of this case to take the view after Second Reading that we can go ahead with setting up the unit. My hon. and learned Friend the Member for Colchester, North (Sir A. Buck) and other right hon. and hon. Members will have ample time to advise us on what sort of unit it should be, how it should operate and how it might liaise with other units overseas.
In the debate on 12 December, I offered my personal view on these matters. I said then, and I say again, that nobody would have chosen to address these issues so long after the event. It is so long since the war, and the instinctive wish of most of us is to get on with our lives in peace and not to rake over the past, let alone the pasts of men who have lived peacefully in this country since before many hon. Members were even born ; but sometimes one is brought face to face with facts that cannot be buried, with deeds so terrible that they cannot be forgotten, and as long as one of those responsible survives, the world will cry out for justice.
In nothing that I have said have I shown any lack of respect for those who do not believe we should legislate--quite the contrary. But the vote in December showed clearly that the House wanted the Government to legislate. That is why we have acted and why the Bill is before the House today. I cannot say whether the outcome of the Bill's passage will be prosecutions, trials and convictions. Such matters will be the responsibility of the police, the prosecuting authorities, and, ultimately, the courts. I just feel that we must do our duty to the memory of those who suffered and that this is just one way in which we can carry out that duty.
4.3 pm
Mr. Roy Hattersley (Birmingham, Sparkbrook) : Tonight my right hon. and hon. Friends will vote according to their conscience, for each of us is required to make judgments about the merits of the Bill, which, in my view, raises fundamental moral principles. Because of that, it would be impertinent of me even to offer advice about how votes are cast tonight. I understand that the
Column 897
Government have a duty to do exactly that, but only the Government are placed in the position of believing it necessary to make a recommendation. I do no more than to describe the conclusion to which I have come and the way in which I have reached it.My difficulty in coming to a firm conclusion is my second reason for not presuming to give advice--even now my doubts remain. When we debated the principle of war crime prosecutions in December I marvelled, and I marvel still, at the certainty with which hon. Ladies and hon. Gentlemen on both sides of the argument held the position that they then took up. For me, it remains a matter of doubt and it is a subject about which I come to a conclusion on balance, even then with great reluctance.
My fundamental view on this subject was best expressed by Sir Winston Churchill, speaking in the House on 28 October 1948, when he proposed
"to draw the sponge across the crimes and horrors of the past--hard as that may be--and look, for the sake of all our salvation, towards the future."-- [ Official Report, 28 October 1948 ; Vol. 457, c. 256.]
Today, the horrors and crimes of the past have been put back on the parliamentary agenda by the Hetherington-Chalmers report, the debate in the House in December and the Bill before us. Whether that was wise or desirable is now of academic interest. We must decide the issue before us-- to prosecute or not to prosecute--and we must decide it against the background of an assumption that war criminals took refuge in this country. That assumption was clear from the Home Secretary's speech, but without it, we would not be debating or contemplating such a Bill. In my view it is a highly dangerous assumption, but it is the assumption--or should I say conclusion?--of the Hetherington-Chalmers report.
The report, which paved the way for the Bill, refers to 10 named alleged war criminals whose names were supplied to it by the Wiesenthal centre. Scottish Television screened a programme that named names, and the final paragraph of the Hetherington-Chalmers report referred to the age of known suspects. There is no doubt that we are considering this Bill against the background of the assumption that the people are here and that some people believe that they know who they are.
The legislation is undoubtedly aimed at known suspects. I should have much preferred the Government to introduce more general legislation, ideally in the terms of the 1949 Geneva convention, which would have made it clear that any war criminals from any war, in any sector, in any continent, at any time, who might come to Great Britain and hide here would be covered by the full powers of that Bill. The Government have rejected that option, and we are left with what amounts to the Hetherington-Chalmers principle, if not all the Hetherington-Chalmers methods of pursuing the prosecutions that their report proposed.
Against that background I thought it right to ask myself two questions. First, is it right, in any circumstance, to proceed with prosecutions for offences committed almost 50 years ago? Secondly, if the notion of prosecution is acceptable, is the method by which the prosecutions are to proceed consistent with the rules of law and the principles of our judicial systems? I say "systems" because of the likelihood of prosecutions in England and Scotland. That is a special problem to which I shall return in a moment and one to which the Home Secretary did less than justice.
Column 898
The crimes to which the Bill relates are described by the Hetherington-Chalmers report as"so monstrous that they cannot be condoned'.
I do not believe that there is a single hon. Member who would argue with that definition. As the debate continues, some will say that equally monstrous crimes have been committed more recently in south-east Asia and elsewhere. I have no system of values that enables me to say whether the crimes that we are discussing worse than those. They are all so monstrous as to be almost beyond our comprehension. It is important not to be too specific about them until there are prosecutions and convictions, if that happens. We have to hypothesise about their nature and how they might apply to individuals who come before the British courts. They seem to be so monstrous that however we envisage and hypothesise them they could not be subject to any statute of limitations.
It would be absurd for us to say that, as people have escaped punishment for half a century for crimes of such enormity, time itself absolves them from any judicial action now and in future. Therefore, the simple passage of time is not an argument for voting against the Bill and certainly does not dissuade me from supporting it. I understand the point about looking at evidence after such a period, and shall return to that. If it is possible to proceed, and the principle is accepted despite the passage of time, it is necessary to consider why we might wish to proceed with prosecution, possible conviction and eventual punishment.
Such an action has five main purposes : the deterrence of other potential criminals, the reformation of those guilty of crime, the protection of society against the repetition of the offences, retribution and a demonstration of the revulsion that society feels towards the crime and those who committed it. Only one of the five purposes can be fulfilled by the Bill.
If we had meant to deter all war crimes, the Government would have chosen, and the House supported, a general rather than a specific Bill. I suspect that the mentality of those who behaved as it is alleged some men now taking refuge in Britain behaved would not be susceptible to the pressures that come from rational considerations such as deterrence.
Mr. Gorst : Could it not be argued that, if we deny criminals a haven in any part of the world, that will be a deterrent?
Mr. Hattersley : Exactly ; that is why I would have preferred the Government to introduce a Bill that would deny haven in this part of the world to any war criminals.
Mr. Waddington : I hope that the right hon. Gentleman will not lose sight of the Geneva Conventions Act 1957. The account given by the right hon. Gentleman was not particularly good, because from 1957 all war crimes were triable in this country, whatever the nationality of those concerned.
Mr. Hattersley : I said in the debate on 12 December that the Geneva decision of 1957 legitimised the basic proposal that the Government put before us. I held that view then, and still do now. I do not believe that deterrence is the justification for the Bill. Were that the case, we would want a Bill that applied automatically and, by its declaratory effects, deterred any war criminal who might think, rightly or
Column 899
wrongly, that he or she could take refuge here. The Bill has to meet special circumstances and, by definition, cannnot be seen as a deterrent.It canot be argued that conviction and imprisonment are likely to rehabilitate the offenders, prepare them to live useful lives and send them back improved into the community. Clearly, we are not locking them away to ensure that they do not repeat their offences. Those three justifications do not bear a moment's examination. Retribution is far too near vengeance to be a good reason for introducing the Bill.
Therefore, we are left with one possible justification : the demonstration of our abiding revulsion at the conscious and premeditated slaughter of the people whom it is suspected were slaughtered and its relationship to a policy of calculated genocide against the whole Jewish race. After some doubt and difficulty I came to the conclusion that this single justification--the demonstration of revulsion--was enough to warrant support for the principle of prosecution.
Mr. Stanley Orme (Salford, East) : My right hon. Friend will be aware that there are groups of people in this country and elsewhere who deny that the holocaust took place. They are trying to repeat history now. If there are people who have committed or been convicted of such crimes, it is incumbent upon us to ensure that this and future generations be made aware of the monstrosity of their crimes.
Mr. Hattersley : I agree and disagree with my right hon. Friend simultaneously. I doubt whether we should want to legislate if it were done simply to make a point to the strange groups of reprehensible and, I suspect, psychotically disturbed people to whom my right hon. Friend refers. However, there is a wider problem that requires us to demonstrate our revulsion at the acts that undoubtedly took place. Jews all over the world are again expressing genuine fears about renewed outbreaks of anti- semitism in some places in Europe--indeed, in the very places in which it is alleged that some of these crimes took place. It would be disastrous if today we gave the slightest impression that we have forgotten what happened 50 years ago. So I come to the firm conclusion that, on the principle, we should proceed.
For me, at least, supporting the principle of prosecution was the easiest part of today's decision. My difficulty concerned how the prosecutions are to be carried out. I ruled out almost without question the choice of deporting suspects to the Soviet Union, for, despite the near-miraculous progress that has been made towards democracy in that country and in the Baltic republics, and the improvements in civil liberties, it seems to me that the words of the Hetherington-Chalmers report are still true : the system of justice there is not comparable with that in this country and we should not be guilty of deporting British citizens--citizens by nationality and registration, but nevertheless citizens--to such a system. In any event I could not support the deportation of those accused of murder to a state that still retains capital punishment. I therefore concluded that, if the men are to be tried, they must be tried here, convenient an option though it would
Column 900
be simply to ship them somewhere else and allow the process to go on, for better or for worse, in a different judicial system. I know that to prosecute requires retrospective change, not in the law--I would not support that, and nor would the House--but in the jurisdiction of the courts. That, too, I am prepared to support. As I understand the Hetherington-Chalmers report, had the individuals who may have committed these crimes been British citizens when the alleged offences were committed, they would have been triable in British courts irrespective of where the offences had been committed. Had they remained in their country of birth, I have no doubt that they would have been tried very soon after the war concluded. There may be some forms of prosecution from which a change of nationality provides exemption, but I cannot believe that the crimes with which this Bill deals are such that they could be reasonably put in that category. I am not suggesting for a moment that the change in jurisdiction is merely a technicality. I am suggesting and admitting that it is a big step, but it is a change which, in these circumstances, is wholly justified.I turn, almost finally, to the rules of evidence that will apply to trials under the Bill. The proposal of transfer to Crown courts without committal proceedings in schedule 1(1) seems sensible and right. I have no reservation about that, but four other changes proposed in the Hetherington -Chalmers report need closer examination. The first was the inadmissibility of evidence from people who are now dead. The Government rule that any changes in that area are unnecessary, so that is no cause for complaint. The second was the authentication of archives without oral testimony, and the Government rule changes in that area undesirable.
Since those two proposals have been dropped as unnecessary or undesirable, we can conveniently forget about them. As the Home Secretary was kind enough to recall and remind the House, it was on this point that I had my greatest difficulty three months ago. I still retain the gravest reservations about the two innovations to Scottish law which by definition are being proposed. I also retain the gravest reservations about the way in which they are to be introduced. I shall deal with them briefly but individually. Live television evidence from abroad is to be made admissible in Scottish courts. Scottish lawyers in the House will say whether Scottish law reformers have been clamouring for that change for the past five years. I understand that Scottish courts and those in England believe that the extension of television evidence in trials involving children is necessary and desirable. However, the Home Secretary is being disingenuous if he suggests that this change in Scottish law is for any reason other than to facilitate prosecutions under the Bill.
Mr. Greville Janner (Leicester, West) : It is not.
Mr. Hattersley : Someone says, "Why not?" I would be wrong to be deterred by a comment which I did not fully hear and do not fully understand. Let me make it clear, if that thought is in anybody's mind, that I am concerned about changes in law designed to help specific convictions because, however trivial or marginal they are, they set a highly undesirable precedent.
The Hetherington-Chalmers report proposed that evidence taken on commission abroad and video recordings made abroad, unless on letters of request,
Column 901
should become admissible as evidence in Scotland. In its handout the Home Office says that these changes are to be made to clarify Scottish law. Scottish lawyers in the House will correct me if I am wrong, but I searched in vain for any demand for that clarification until the Hetherington-Chalmers report was produced. There is no doubt that the proposals were introduced to meet the needs of the Bill and to faciliate prosecutions under the Bill.Those changes will be made, but not in the Bill. That seems a rather devious way to proceed, although not in the sense of being disguised from anybody ; the Home Secretary could not have been more frank about the matter. We all know that one problem that the Government will find with the Bill in the House of Lords will be the changes in the rules of evidence. This manages to introduce the principle while letting the rules of evidence tag on Christmas-tree fashion, as American legislators would say, to a quite different Bill. They are to be attached to a Bill now going through the House of Lords. That Bill is notable for proposing changes in the licensing laws and the laws on divorce and the rights of Scottish solicitors to have audience in minor courts. To introduce these as well is a wholly undesirable step. I wish that the Home Secretary had not taken that step and I wish that he would drop these proposals.
Mr. Archer rose--
Mr. Robert Maclennan (Caithness and Sutherland) : I fully agree with what the right hon. Gentleman says about Scotland. His view about the Government's attitude is considerably fortified by the total absence not only of a Scottish Minister or a Scottish Law Officer, but of any Scottish Conservative Member.
| Next Section
| Home Page |