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Orders of the Day

War Crimes Bill

Order for Second Reading read .

Mr. Speaker : I have not selected the amendment in the name of the hon. Member for Orpington (Mr. Stanbrook) and his hon. Friends. However, the arguments that they have advanced in the amendment may be raised in the course of the debate.

I intend today to give some precedence to the hon. Members who were not called on 19 March last year--not total precedence, but some precedence. In view of the many right hon. and hon. Members who wish to participate in the debate, I propose a limit of 10 minutes on speeches between 6 pm and 8 pm.

3.36 pm

The Secretary of State for the Home Department (Mr. Kenneth Baker) : I beg to move, That the Bill be now read a Second time.

The Bill needs little introduction to this House. It is the same Bill which was considered and emphatically endorsed by this House last Session, and hon. Members will be familiar with the circumstances which led to its subsequent defeat. I should like to remind the House of the background to the measure and why the Government have decided to bring it back for further parliamentary consideration.

In February 1988 the then Home Secretary decided to establish an inquiry to consider the allegations that were then circulating to the effect that some perpetrators of war crimes committed during the period of the second world war had taken refuge in this country. The inquiry's task was to consider what substance there might be to those allegations, to assess the strength of the evidence that might be brought before a court of trial, and to recommend whether the law should be changed to establish jurisdiction over those cases.

Dr. Norman A. Godman (Greenock and Port Glasgow) : I am grateful to the Secretary of State for his characteristic courtesy in giving way. Can he estimate the average age of those who may be proceeded against if the Bill is successful? Also, has he been given an account of the number of such persons resident in Scotland?

Mr. Baker : The inquiry covered those points. In the second part of the inquiry, which has not been published for the obvious reason that it would not be right to publish it because it contained allegations against certain people, there was reference to the numbers involved. The inquiry looked into just over 300 cases. Of those, it recommended that 75 should be accorded further investigation. The inquiry then came to the conclusion that there were three individuals against whom evidence to mount a prosecution existed and another three cases were considered to merit further detailed investigation.

The House will recall that the inquiry reported in June 1989. Its findings may have surprised some people, for it concluded that among the very many innocent and decent people who had taken refuge in this country at the end of the war there might have been some who had committed the most terrible crimes. In respect of a few of the cases


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that the inquiry was able to consider in detail, it considered that there was already sufficient evidence available to mount a criminal prosecution. The inquiry satisfied itself that the actions in question were in clear breach of international law as it stood at the time when they were committed. That was important if any new jurisdiction were not to be retrospective. But with that important point having been established, the inquiry concluded that the courts in this country should be given jurisdiction in respect of the offences in question even though the offences took place almost 50 years ago, and in other countries.

The Government decided that Parliament should be given an opportunity to express a view on the inquiry's report. Debates were accordingly held in the two Houses of Parliament in the autumn of 1989, with this House indicating on a free vote its decisive support for the principle of legislation by 348 votes to 123. To implement that decision, the Bill was introduced on 8 March 1990, when the Bill was passed by 273 votes to 60 on a free vote.

Mr. Tony Marlow (Northampton, North) : Will my right hon. Friend give way?

Mr. Baker : In a moment. Perhaps my hon. Friend will forgive me for not giving way now.

Though a short Bill, it was extensively considered in Committee and on the Floor of the House, and was sent unamended to another place. There the Bill was refused Second Reading on 4 June, by 207 votes to 74.

The Government obviously needed to reflect upon the arguments which had been advanced and the votes which had been cast--not only in the other place, but also in this House. Clearly this issue is a matter principally for individual conscience.

Two considerations weighed heavily with the Government, and I should now like to outline them to the House.

Mr. Marlow : Will my right hon. Friend give way?

Mr. Baker : I shall give way to my hon. Friend in a moment. One was the decisiveness of the Commons vote. I do not believe that it would be right to ignore the clearly expressed view of the elected Chamber. There must be an opportunity for these issues to be considered again, to see how far views have modified or changed over the months since the Bill was last considered, and whether any accommodation between the two Houses may now be possible. That was the first consideration. Views may well have changed. Tonight's vote will show whether that is the case.

The second consideration was the Bill's particular subject matter, and the nature of the evidence disclosed by the inquiry. The inquiry's published report tells a chilling story of cold-blooded murder on a horrendous scale- -killings not committed in the heat of battle, but of civilian populations in circumstances that had no possible connection with military objectives. The inquiry also showed that there is evidence of some of the perpetrators of these crimes actually living in this country. The inquiry argued that our courts should have jurisdiction over such offences, in circumstances where extradition to the scene of the crime is impossible for whatever reasons, and the Government agree with that conclusion. What we are doing is to allow the courts to consider the available


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evidence, and to decide for themselves on the question of guilt or innocence. That is a jurisdiction which the Government believe should exist in this country.

Mr. Marlow rose --

Mr. John Gorst (Hendon, North) : Will my right hon. Friend give way?

Mr. Bruce Grocott (The Wrekin) : Will the right hon. Gentleman give way?

Mr. Baker : I shall give way first to my hon. Friend the Member for Northampton, North (Mr. Marlow).

Mr. Marlow : I am grateful to my right hon. Friend. He says that inquiries have come to the conclusion that we ought to look at these issues --and they are very important issues and terrible things have been done ; there is no doubt about that. But why does the Bill restrict itself to 1939 -45? Why does it restrict itself to parts of the world that were part of Germany or under German occupation? Why can it not be extended, for example, to Japan or land under Japanese occupation? Why can it not be extended on a more general basis, for example, to Palestine after the war? Why is it restricted? One has the feeling at the back of one's mind that we have been heavily mugged in this House by some strong lobby. Can my right hon. Friend assure the House that that is not the case?

Mr. Baker : I can assure my hon. Friend that that is not the case. There are several reasons why the Bill does not cover, for example, Japanese war crimes. First, they were outside the inquiry's terms of reference and, as my hon. Friend has said, would similarly fall outside the terms of the Bill because there is no evidence to suggest that any Japanese war criminals have entered the United Kingdom. Many hundreds of allegations were sent to the war crimes inquiry, but none claimed that a Japanese war criminal was now living in this country.

Mr. Grocott : The Home Secretary said that one consideration would be whether tonight's vote showed that opinion had changed since the Bill was last debated in the House. Can he give us an absolute assurance that there will be no tortuous analysis of tonight's vote if the majority is different? Does he agree that the only thing that matters is whether the House reaffirms its previous decision and that, if it does so, it will be absolutely clear that the will of the House is that the Bill should become law?

Mr. Baker : On issues such as this I trust to the judgment of the House of Commons. There are certain big issues. This is a big issue ; I do not underestimate its importance. At the end of the day, each Member of the House of Commons, irrespective of party, must make up his or her mind about the Bill. I am absolutely clear about one thing. People hold strong views on both sides of the argument. Those who believe that these matters should be pursued believe that it is essential that possible criminals are brought to justice. Others feel that the events happened a long time ago, that they concern another jurisdiction and that we should let bygones be bygones, for a variety of reasons. I know how strongly those views are held. But I place my confidence in the judgment of the House of Commons tonight. There will not be a great analysis of the Division list or anything of that sort. I hope that the House will come to a clear decision tonight.


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Mr. Gorst : Before my right hon. Friend leaves his second point, may I ask him whether he agrees that allied to it is the consideration that if we do not pass the Bill there will be a danger of trial by media? Although no member of the all-party war crimes committee is aware of the names of the three main suspects, those names are known and, under parliamentary privilege, they could be made known. In that case, the most almighty trial by media could take place. That is so odious to consider that it is undesirable that it should take place.

Mr. Baker : If any hon. Members know the names of any of those who are alleged to have committed war crimes, I hope that they will not mention those names in the House today. That would be very unfair indeed. A trial of that sort would be the worst condemnation because it would be done under privilege and those accused would not have the right to reply. I agree with my hon. Friend that the way in which these matters can be cleared up is by extending the jurisdiction and holding trials.

For the two reasons that I gave, the Government concluded that these issues should be brought back before Parliament, and they made that clear in the Queen's Speech. Since that decision was announced, we have made clear our hope that Parliament would reach an agreed position on the Bill. Our hope is that on further consideration the Bill will be found acceptable in another place, and that it will be allowed to pass into law. Nevertheless, we recognise that some have expressed anxiety about the way in which the legislation will work in practice, and how far it will be possible to guarantee the fairness of any trials which ensue.

The arrangements in the Bill as drafted ensure fairness through measures such as the removal of the committal proceedings, the right of the accused to appeal to a court to have the trial set aside, and the power of the Attorney-General to agree before a prosecution is brought. But the other place may wish to make amendments. It may wish to strengthen the Bill further in that regard. If the Bill is amended in another place, the House will, of course, have the opportunity to consider the impact of any changes or amendments made and how far they are acceptable within the overall scheme of the legislation. The Government hope that the Bill will be allowed to pass with the agreement of both Houses, whether in the form before the House today or amended in a mutually acceptable way in another place. But the difference of view between the Houses may remain irreconcilable. I read the debate in the House of Lords. It was a distinguished debate. In a way it crystallised the strong feelings that divide people. Some Members of the other place who are Jews and had family connected with the matter urged the House not to pass the Bill. Other Members who are Jews urged the House to pass the Bill. Opinion is deeply divided.

The House will be aware that the provisions of the Parliament Acts exist to ensure that the views of the elected Chamber ultimately prevail over the other House, in cases where no accommodation can be found. I very much hope that resort to those powers will not be necessary. To preserve the possibility of using those powers, it is necessary to send the Bill back to another place in the form that it was in on the previous occasion. That is why the Bill before the House is unamended from last time, and why it cannot be subject to any amendments during its reconsideration by this House.


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Mr. Tony Banks (Newham, North-West) : This has nothing to do with being Jewish or with any other race or religion. It is to do with Nazis who may still reside in this country and who should never be given the time to take another breath of our good air. How many people are we talking about? I understand that 301 cases were investigated. So that we may have an idea of the scale of what we are contemplating, will the Home Secretary tell us how many cases will be under serious consideration?

Mr. Baker : I told the hon. Member for Greenock and Port Glasgow (Dr. Godman) that 301 cases were considered. It was thought that 75 merited further consideration, that three cases were virtually prepared and that a further three merited much more extensive investigation. That is the scale of the matter.

Ms. Clare Short (Birmingham, Ladywood) : I am troubled by the fact that only four cases were scrutinised in detail. We heard about the 70 cases. Only four were investigated in detail--there seemed to be a case in three, and the person in the fourth died. Are we making a decision on the basis of only two cases that have been considered in detail?

Mr. Baker : Other cases are brought to the Government's attention from time to time. This is a difficult matter. Those of us who have seen the evidence have found it chilling. In some cases, there is detailed evidence implicating people in certain ghastly and horrible events.

Mr. Tam Dalyell (Linlithgow) rose --

Mr. Baker : If the hon. Gentleman will allow me, I have given way a great deal, and I should proceed because many hon. Members wish to speak in the debate, which touches on important issues which are significant in a much wider sense.

The House will be familiar with the heart of the Bill, in clause 1(1), which establishes jurisdiction in respect of offences of murder, manslaughter or culpable homicide. It is important that those offences are covered in the Bill. This is not a Bill concerning crimes against humanity. Those who have studied and debated the matter previously will know that there is a big distinction between the position post-1957 and the position pre-1957 in these matters. The Bill is limited to the crimes of murder, manslaughter and culpable homicide committed in violation of the laws and customs of war in German-held territory during the second world war. The Bill is concerned with the specific wrongdoing uncovered by the Hetherington inquiry and is intended precisely to deal with that. The Bill refers to "war crimes" for the very reason to which I alluded--to keep the Bill within the terms of international law as it stood at the relevant time and not to bring in any other form of atrocity of which international law had not then taken cognisance.

Clause 2 addresses the investigative process that will be necessary if the Bill is passed. The Government recognise the demands that that will place on the police, particularly the Metropolitan police, and have accordingly decided that the cost should be met from central Government.

I draw attention to the schedule, which provides for a procedure in lieu of committal for war crime trials. Hon. Members will recall that that is not a new idea. Such a procedure is already available in serious fraud trials, and the House has recently agreed to a similar procedure for


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child abuse cases in the Criminal Justice Bill, now in another place. The justification for the provision is the same in each case and is intended to help the defendant in that the complexity and sensitivity of the matters in question are such that presenting the evidence twice over, at committal and at substantive trial, would be an inappropriate burden on all concerned.

I am, of course, aware that the subject matter of the Bill is sensitive and difficult and one on which there are strongly held views cutting across party lines. The Government respect those differences of opinion. To decide to bring the Bill back before Parliament is in no way to doubt the integrity of those whose views differ from our own. I am sure that hon. Members will feel that strongly as the debate proceeds. No one would suggest that those opposed to the Bill would in any way condone the terrible crimes with which it deals. Members in all parts of this House and all shades of opinion in another place are at one in our utter abhorrence of the deeds that occurred and of the perverted philosophy that gave rise to them.

I well recognise the strength of the arguments--that the events that the Bill addresses took place half a lifetime ago ; that suspects are inevitably of advancing years, as are many of the witnesses ; and that the mounting of trials will not be easy. Few of us would have wished to confront those issues again now, or to be reminded of the horrors that occurred. The fact is that those allegations are before us--allegations so serious that the passage of time, however long, cannot blot them out.

I respect those who want only to forget, but I respect also those who, without any sense of vindictiveness or with any desire for revenge or vengeance, call for justice to be done in the memory of all those who suffered so appallingly. I believe that the criminal justice system of this country is capable of ensuring that justice is done in respect both of the victims and of those accused of those crimes.

Mr. Patrick Cormack (Staffordshire, South) : I ask my right hon. Friend to bear in mind that those who have misgivings about the Bill do not have them simply because they want to forget. The memories are burned as fiercely into their minds as into the minds of those who support the Bill. When he speaks of justice, will my right hon. Friend bear in mind that the fear that it might not be possible to ensure a fair trial also gives rise to misgivings about the Bill?

Mr. Baker : I hope that the protection built into the Bill and into its procedures will make it possible to have fair trials. I have already indicated certain protections in the committal process, and the need for the Attorney-General to be satisfied. There is also the protection for the accused of going to the High Court to have the matter set aside. If the House agrees to the establishment of this jurisdiction, there will be a fair hearing, in courts both north and south of the border.

Sir John Stokes (Halesowen and Stourbridge) : My right hon. Friend the Home Secretary passed rather quickly the question of the Bill calling in aid the Parliament Act 1911 of the Liberal Government and the Parliament Act 1949 of the Labour Government. Putting aside for a moment the curiousness of a Tory Government making this attack on another place, is it appropriate for an extraordinarily difficult Bill of this kind concerning a moral issue, and for which there has been no support either


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from the nation or in the Conservative party manifesto, to be forced through the constitution and signed by the Queen purely on the vote of this House?

Mr. Baker : I answered that point at the beginning of my speech. I agree with my hon. Friend that it is an issue of great import and significance, because we are asking this House, and Parliament, to agree to a very unusual procedure. We are justified in asking the House to agree to do so only because of the unusual nature and enormity of the crimes that were committed. My hon. Friend has expressed his views in the past, and, although I appreciate his concern about retrospection and other matters, many are concerned that persons who are alleged to have perpetrated such crimes could have taken refuge in our country and be living here now, and feel strongly and passionately that they should be called to account. As to the differences between the two Houses, as this House has expressed its view so clearly on a free vote, it is right to allow the matter to come back again and for it to go to another place. One cannot say what is likely to happen in another place, and I should not want to anticipate whether the Bill will be given a Second Reading, and, if it is, in what way it might be changed. If it is changed, it will return to this House.

Sir Geoffrey Howe (Surrey, East) : I appreciate as well as anyone the extremely difficult issues with which the Government have had to grapple in considering the Bill. My right hon. Friend is right to draw attention to the enormity of the crimes disclosed in the evidence to which he referred. It was for that reason, among others, that the Government thought it right to present the Bill in the first place. Does my right hon. Friend agree that, when the House reflects on the matter for a second time, it should pay some attention to the views so strongly expressed in another place? Should we not ask ourselves, as we reflect upon that--because that is the purpose of this second opportunity--whether it would be right to invite a jury to proceed to convict in cases of this kind when we have been unable to persuade the Upper House to agree on the legitimacy of the premise and the proceedings?

The view that I took was that, with a Bill of this kind, we should seek to persuade both Houses of the legitimacy of our case. In the absence of that, in cases as exceptional as these, the House should think carefully before relying on the matters that the Home Secretary has advanced as justification for letting the Bill go forward for a second time.

Mr. Baker : I thought that I had heard the answer to that question from my right hon. and learned Friend's own lips on other occasions. One cannot possibly prejudge how a jury will respond to these matters until it hears the evidence. Juries will have to assess the evidence in a case and consider it carefully. The fact that there are divided opinions between the House and the other place reflects the divided opinions in this House. There are divided opinions in the country on the Bill. We feel--I know that my right hon. and learned Friend felt it strongly--that the possibility of this jurisdiction should be extended, and that is what the Bill seeks to do.

To sum up, may I say that I believe--especially in answer to the last question--that the criminal justice system of our country is capable of ensuring that justice is done in respect of both the victims and those accused of these crimes. There can be no guarantee that if


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prosecutions are mounted there will be convictions, which is the point of what my right hon. and learned Friend said, as that is not Parliament's task. It is our job to provide courts with the jurisdiction that they need to hear the charges that have been made and to come to a conclusion on the facts, according to the normal principles of British justice. I commend the Bill to the House. 4.1 pm

Mr. Roy Hattersley (Birmingham, Sparkbrook) : On the Opposition Benches and, as I understand it, on the Conservative Benches, there will be a free vote at 10 o'clock. Usually on such occasions, whoever speaks from the Front Bench gives advice to his right hon. and hon. Friends on whether they ought to support the legislation under discussion. I do not presume to do so today. My own doubts about my decision to support the Bill are so great--though support the Bill I shall--and my decision to support it was arrived at after such doubts and consideration that it would be simply impertinent for me to make any recommendations to my right hon. and hon. Friends about how they should proceed. All that I can do is to describe why, after much consideration and a good deal of anguish, I have decided to vote in the Bill's favour.

When the Bill was debated in the House last year, I began my speech by describing the difficulties that I then faced--difficulties which I have again experienced, for the passage of the past 11 months has done nothing to reduce my dilemma. Last year, I voted for the Bill with reluctance and with reservations. I have decided to do the same today, but my reservations have multiplied and my reluctance has increased.

I know that there are those who say that politicians should never express any doubts and should always advocate a case with complete confidence and without reservation. I feel that I am unable to do that today, for reasons that I shall set out to the best of my ability.

My doubts have certainly been increased by some of the opinions expressed in the House of Lords. Lord Shawcross overstated the case when he said that the Bill was a violation of

"the basic principles of British justice."

However, no one could read what distinguished lawyers of every persuasion said without having doubts about the procedures involved in this Bill-- which were expressed during the previous Second Reading debate--reinforced.

My decision and my doubts have not been influenced by the eventual rejection of the Bill by the House of Lords. The House of Lords possesses the right under the constitution to reject legislation, and we possess the right to overrule that rejection. The House of Lords, this House and the Government, if I may say so, have acted with absolute constitutional propriety by bringing the matter forward again. Anyone who is dissatisfied with the powers presently exercised by the House of Lords should decide to change them rather than to complain about them. If I have been influenced by the Lords at all, it is not by their decision but by the speeches made during the debate. They were made by lawyers who happened to be peers, and they added to the enormous weight of legal opinion ranged against the Bill. I shall turn to the legal technicalities shortly, but first let me explain why, despite all my doubts, I shall vote for the Bill. I do not want it to be possible for anyone--no matter how ignorant, prejudiced or malicious--to have the slightest opportunity of arguing that the House has either


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forgotten the holocaust or forgiven. This is not the time to appear in the slightest degree tender-hearted about those who commit war crimes or are complacent about anti-Semitism. I shall vote for the Bill for what I can only describe as essentially declaratory reasons.

I know that some hon. Members on both sides of the House will feel that no such declaration is necessary from this Parliament, and in a sense that is wholly true, but I recall the way in which votes in the House of Lords were interpreted--or, I fear, misinterpreted--even by some of the peers who took part in the debate. That misinterpretation resulted from the way in which the entire debate about the principles underlying our action has been tilted in the wrong direction by one of the sentences in the Hetherington- Chalmers report--or, rather, a misinter-pretation of it.

The most quoted sentence in that report described the crimes to which the Bill relates as

"so monstrous that they cannot be condoned".

That judgment is so obvious, so self-evident and so transparently true that to include it as a crucial part of the report implies that someone disagrees with it. Following the Lords debate, the unattractive suggestion was made that voting against the Bill implied that crimes to which it referred could be condoned. Although I shall vote for the Bill, I have no doubt that those who vote against it support the Hetherington judgment about

"crimes so monstrous that they cannot be condoned"

with as much passion as those who vote for it.

I confess that my instinct now, as a year ago, is best expressed by the much-quoted statement that Sir Winston Churchill made to the House on 28 October 1948. I, too, feel instinctively that the time has come

"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.]

The context in which Sir Winston made that statement is a subject of great dispute. I say no more than that it represents my instinctive view, not simply because of compassion for the feeble and senile who will be prosecuted under this Bill if any prosecutions come about--although compassion for the feeble and senile is not an unworthy emotion. I wonder whether it is right for society as a whole to relive the horrors of the holocaust and some of the more despicable and unforgivable crimes that were committed during that period, particularly given the way in which some British newspapers will deal with any prosecutions.

Mr. David Winnick (Walsall, North) : Is my right hon. Friend aware that, after the end of the war, many of us--regardless of our age at the time--believed that the allies had given a clear pledge that, once the war was over and Nazism defeated, all those responsible for monstrous crimes against humanity should be brought to justice? We were pleased about what happened in Nuremberg--a different Nuremberg from that associated with the Nazi reign of terror. What concerns us, and will always concern us, is precisely what was implied by Sir Winston Churchill's words ; that, rather than continuing to bring the people responsible to justice, we have allowed many to escape justice, and, indeed, to lead prosperous lives in


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Germany or Latin America. If the policy contained in the allies' promise had continued we might not be dealing with the matter now. Much the same applies to the atrocities committed in Kuwait. I believe that, no matter how long it takes--

Mr. Speaker : Order. That was more of a speech than an intervention.

Mr. Winnick : May I end, Mr. Speaker, by saying that, no matter how long it takes, I believe that those responsible for the crimes committed during Iraq's occupation of Kuwait should be brought to justice.

Mr. Hattersley : I understand my hon. Friend's point, but I am sure that he will understand mine when I say to him that we have to discuss the situation as we find it now, not the situation as it was, when it was thought to be right to make promises immediately after the second world war. All of us would feel a good deal more comfortable if action had been taken then, which would have obviated the necessity to take action 50 years later. I have come to the same conclusion as my hon. Friend, as he knows, about the need to go on. However, I should be doing my cause, and my attempt to describe my position, less than justice were I not to deal with some of the very grave doubts that I feel.

Mr. Cormack : Only last week it was brought home to us in a horrific way that the wrong people had been convicted of a horrific crime. We all know that the crime committed was horrific, but the wrong people were convicted. Can we be so sure that the right people will be convicted here?

Mr. Hattersley : I intend to deal with that point. We shall have to consider the techniques by which the operation of the Bill, if it becomes an Act, will be appropriate within our system of justice. I had intended to repeat that it was simply my instinct that prompted me to feel support for Sir Winston's statement, with all its limitations and generalities. I intended then to say, as I say now, that as the House examines legislation, it has to be guided by more than instinct. Therefore, it is to the practicalities of the Bill that I now turn.

Part of my concern about the Bill is that, although it is entitled "War Crimes", it is concerned not with war crimes in general but with war criminals in particular. To put it crudely, we know at least some of the individuals whom the new law is intended to encompass. The Home Secretary said disingenuously that it would be wrong of us to mention their names in the House. The same stern injunction was not applied five years ago to Scottish Television, which broadcast programmes that purported to describe individuals who would be subject to such prosecutions were the law to be amended.

The Hetherington-Chalmers report refers to 10 named war criminals whose names were supplied by the Wiesenthal Centre. Scottish Television broadcast a programme that named men whom it claimed were responsible for war crimes that it specified. Newspaper articles have been written about these names and a libel case is pending. So well are they known--to answer the question of my hon. Friend the Member for Walsall, North (Mr. Winnick) that the Home Secretary did not deal with--that in the final paragraph of the Hetherington-Chalmers report reference is made to the age of known


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suspects. Like it or not, we are considering legislation which may be used to prosecute suspects who are already publicly identified. That leads me to my first question to the Home Secretary, which I ask him in the spirit of the debate--not in the usual style of trying to score rhetorical points but with the unusual House of Commons intention of eliciting information that might help our debate. It would, I think, be of great help to the House as a whole if, in that spirit, the Home Secretary could answer my question straight away. Does he really believe that prosecutions are possible under the Bill, and is that the advice that he has received from the Law Officers? I do not refer to lawyers more distinguished than the Attorney-General, but the Home Secretary will not argue with me if I say that lawyers as distinguished as the Attorney-General insist that prosecutions under the Bill will simply not be possible and that no Home Secretary would give his fiat for prosecutions to proceed.

I am not asking the Home Secretary whether he thinks that prosecutions will succeed or whether there will be convictions, though I realise that the Law Officers' advice is bound to be conditioned by their judgment of the likelihood of success, but, with so much prejudicial material already published, is the beginning of a prosecution even possible?

I understand also that there may be questions concerning the general legal propriety of proceeding after such a passage of time. I shall turn in a moment to the technical difficulties of prosecutions for offences committed half a century ago, but I am advised that a 50-year delay between the commission of the crime and the prosecution of the subject may in itself be regarded as what lawyers call, in their jargon, "abuse of the process". I am told that that does not imply criticism of a lawyer who may proceed with such a decision, but it is suggested that that would be ruled out simply because of the 50-year delay between the commission of the crime and prosecution.

Mr. Jeff Rooker (Birmingham, Perry Barr) : I am not a lawyer, but even if the Home Secretary says that there will be no prosecutions and that the system will not allow it, surely Parliament must give the legal authorities the power to take such decisions. We could then hold our heads up with other countries and say that we have done everything possible. That is a question for the British legal system, and the Attorney-General cannot be asked to make that decision until the House has passed the legislation.

Mr. Hattersley : If my hon. Friend is correct--I mean that in no ironic sense ; I am grateful to him, but I should be more grateful for an answer from the Home Secretary--he and I can vote for the Bill simply as a declaratory measure. My hon. Friend spoke of our holding our heads up high. That is not language which I would use, but I think that he supports my view that the Bill is a declaration of principle. The House must know how it is behaving--whether it is being asked to pass a Bill whose intentions are purely declaratory or whether the Government genuinely believe that we are passing a Bill which may result in prosecutions if it is passed, for instance, during the term of office of the present Attorney-General.

Mr. Kenneth Baker : The right hon. Gentleman asked me to advise him. It is not usual to disclose the advice that


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Law Officers give Ministers, and I must stick to that constitutional convention. I draw the right hon. Gentleman's attention to clause 1(3), which says :

"No proceedings shall by virtue of this section be brought in England and Wales or in Northern Ireland except by or with the consent of the Attorney General or, as the case may be, the Attorney-General of Northern Ireland"

We shall have to consider carefully, first, the position of the Attorney- General. Paragraph 6 of schedule 1 gives the judge the power to dismiss

"a charge (and accordingly quash a count relating to it in any indictment preferred against the applicant) if it appears to him that the evidence against the applicant would not be sufficient for a jury properly to convict him."

Given those safeguards, we believe that it would be possible to bring proceedings.

I am listening to the right hon. Gentleman's speech very carefully. So far, his reservations are so great that I should be surprised if he voted for the Bill. Perhaps he will be able to establish the bridge of conviction that we are waiting for.

Mr. Hattersley : I am glad that the Home Secretary is listening to my speech with such care--that is a new development. His answer on the abuse of process was not a model of precision. If my right hon. and learned Friend the Member for Aberavon (Mr. Morris) catches your eye, Mr. Speaker, he will no doubt develop the question in more detail. I understand that, according to convention, the Home Secretary cannot reveal the Attorney- General's advice. I can only thank the right hon. Gentleman for helping me to vote for the Bill for the reason that I keep repeating as my one reason for doing so--the belief that it is declaratory and little else.

Ms. Short : I am terribly troubled by my right hon. Friend's reason for voting for the Bill. If he is declaring his opposition to the holocaust, we all share that view unanimously and deeply, but we do not have to vote for a bad Bill which might lead to injustice because we oppose the holocaust. If that is his reason, I invite him to change his mind and vote against the Bill.


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