House of Commons Hansard Debates for 18 Mar 1991

Mr. Morris : May I develop my argument?

In particular, the judge questioned whether "unjustifiable delay" by the prosecution was a precondition to a plea of abuse of process. He concluded that it was not. He agreed with the judgment of Lord Justice Watkins in the Wapping policing case--the Cherry case. He stated :

"We see no warrant for not following ample precedent now well set for the proposition that mere delay which gives rise to prejudice and unfairness may by itself amount to an abuse of the process. What has to be demonstrated to the court is that the delay complained of has produced genuine prejudice and unfairness. In some circumstances prejudice will be presumed from substantial delay. Where that is so it would be for the prosecution to rebut, if it can, the presumption. In the absence of a presumption, where there is a substantial delay, it will be for the prosecution to justify it."

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The judge concluded that there were five matters to be considered in deciding whether a plea of abuse of process should succeed. I shall deal with them briefly. The first was the length of the delay. In the Grob case, the judge found that a delay of 10 years was substantial. In the more recent case of the Blake escape trial, another court found that it would not be an abuse of process to try the defendants, even though the acts complained of had occurred in the 1960s. Each case would be decided on its merits. It is obvious that the facts alleged in the war crimes cases would have occurred between 45 and 50 years ago or more. The longer the delay, the stronger the presumption of prejudice and unfairness.

The second matter to be examined would be the reason for the prosecution to justify the delay. In this case, there would be the absence of legislation. The third is the defendant's responsibility for, and past attitude towards, the delay, which might be one of indifference in these cases. The fourth is the proven or likely prejudice to the defendant. I believe that the 40 or 50-year delay is likely to cause much prejudice against the defendant in the preparation and in the conduct of his defence. At least, I am confident that that will be strongly argued. The passage of time means that the memories of the prosecution and defence witnesses fade. Defence witnesses die or cannot be located and documentation is destroyed. We have only to go to Westminster Hall to see a plaque commemorating the trial of Warren Hastings. I am not enough of a legal historian to say what length of time the facts covered, but, as we all know, the trial lasted for seven years and at the end of it Warren Hastings was acquitted. Let that be a warning to us.

Mr. Gorst : The right hon. and learned Member for Aberavon (Mr. Morris) mentioned Warren Hastings, but to what extent does he believe that impeachment was an example of acting with hindsight?

Mr. Morris : I am not sure that it would be wise to pursue that matter now. I mentioned it merely as an illustration of lengths of time and of the effects in that case.

As the Home Secretary said in another context only last week, justice delayed is justice denied. The accuracy and reliability of recollection and identification are problems faced by the hundreds of prosecutors in our courts.

The fifth matter is the public interest in a disposition of serious charges and the conviction of those guilty of crime. While it must be right that it cannot be in the public interest that there should not be trials of serious criminal offences merely because of the passage of time, there is a counter -balancing public interest to ensure that trials are fair and take place within a reasonable time of the commission of the alleged offence.

On the basis of the foregoing, the prosecution would face a difficult hurdle if the plea of abuse of process were raised. The matter would, of course, be for the court to determine, but it is obvious that a strong case can be argued. Each case would have to be determined on its merits. That is not to say that the defence would be home and dry--far from it. All that I can safely conclude is that the Crown would face a difficult, but not necessarily insurmountable, task.

In view of those considerations, are convictions likely? We cannot be sure one way or the other. However, there cannot be much--if any--similar legislation under which the Crown would be faced with such a difficult task. Would

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it help the rule of law if successful prosecutions were found, time after time, to be impossible? If so, the Act would be a dead letter and would fall into disuse. Parliament cannot and should not exempt the legislation from the plea of abuse of process.

I have drawn on my deep concern as a lawyer to outline some of the practicalities of successful prosecution and I have tried to give a balanced view of my concern. If the House wishes to pass this legislation-- taking full account of, and giving what weight it wishes to, the difficulties--we must do the best that we can with it. We shall soon learn the attitude of the courts. I have thought about the issue long and hard over the past few months and, at the weekend, I was not sure how I should cast my vote--if at all--tonight. As I am so troubled in my own mind, I shall, after considerable deliberation, cast my vote against the Bill because I suspect its practicalities. 5.9 pm

Sir John Wheeler (Westminster, North) : I shall be brief, because this is the fourth debate that the House has had on this important question. There is no doubt that the arguments for and against the Bill have been well rehearsed in all those debates, as well as in this one.

I remind this House, and especially the House of Lords, that in December 1989 the House voted in favour of the principle of legislation by a majority of 348 to 123--a margin of 3:1. The House voted in favour of the War Crimes Bill receiving a Second Reading by a majority of 273 to 60, an increased majority of 4:1, and in the free vote on Third Reading the majority was 135 to 10--an overwhelming majority of 13:1. Any objective observer would conclude that the will of this elected House of Commons is firmly in favour of the principle of the Bill.

Even in the House of Lords, when their Lordships rejected the War Crimes Bill, 74 Members of that House voted in favour of the principle and many others were sufficiently moved to write an open letter to the Prime Minister stating their opinion that the House of Lords is best used as a revising Chamber, and not to question the principles of the House of Commons' decisions on such matters of substance.

I will not reiterate all the arguments in favour of the Bill, which have been rehearsed many times. I want simply to state the principle that the Bill is not concerned with creating a new crime or a new kind of crime. What was done 50 or more years ago was so vile and infamous that those who did those things knew that they were committing a crime under any jurisdiction and under any circumstances. In the Bill, the House seeks merely to confer jurisdiction within the two criminal jurisdictions in the United Kingdom--in Scotland, and in England and Wales--to make it possible for a case to be considered before the criminal courts.

I agree with the right hon. and learned Member for Aberavon (Mr. Morris) that bringing a prosecution will be difficult. All the factors to which he referred will have to be considered by my right hon. and learned Friend the Attorney-General. However, that is not the issue for today. The House is concerned with the principle of jurisdiction and with jurisdiction alone. If the House and Parliament as a whole pass the Bill and it becomes law, it

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will be for the normal processes of investigation, of preparation and of prosecution, should there be accused to prosecute, to take into account all the normal procedures.

Those matters are for the future. We are concerned with the principle. I have heard nothing in previous debates, in the debate in the House of Lords or in subsequent discussions elsewhere to cause me to change my vote. The majority of my constituents expect me to vote for the Bill tonight and I will gladly do so.

5.13 pm

Mr. Robert Maclennan (Caithness and Sutherland) : Like those from other political parties who have spoken, I want to begin by making it clear that my right hon. and hon. Friends will be voting individually on this matter and not according to a party line.

I stated in an earlier debate that the proposed trials are misconceived. In the months that have passed, I have reflected on the state of British public opinion and on the difficulty of the trials with a view to considering whether it would be right to revise my views and to take a supportive line on the Bill. As time has passed, my doubts, like those of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), have grown. I have been fortified in my earlier view that the trials are misconceived and cannot be attended by the standards of justice that we seek to ensure here.

Sir Thomas Hetherington and Mr. Chalmers, who were responsible for the report that underlies the legislation, viewed the problem too exclusively from the point of view of the prosecution and inadequately from the point of view of the defence. That may not be surprising in view of the professional occupations that those two gentlemen held with distinction for many years. In their professional lives, they had been committed to the introduction of prosecutions in Scotland and in England but, when considering the potential predicament of the defence, they did not show the rigour appropriate to reaching a balanced conclusion.

Mr. Alex Carlile : I must take my hon. Friend to task for a travesty. I do not know much about Mr. Chalmers, but I know that it was a travesty in relation to Sir Thomas Hetherington. Is not my hon. Friend aware that Sir Thomas, before he was the Director of Public Prosecutions, was the Treasury Solicitor who acted for a number of years to protect, for example, the interests of children before the court? It is wrong to suggest that he is wholly and subjectively in favour of prosecution.

Will my hon. Friend be kind enough to tell the House whether he believes in a statute of limitations for criminal prosecutions? If he does, will he tell us when, morally and legally, he believes that murder should stop being a crime?

Mr. Maclennan : I do not rest my case on biographical analysis of either Sir Thomas Hetherington or Mr. Chalmers, distinguished gentlemen though they are. I have no doubt that they did their best to come to the right conclusion and I have no doubt that they weighed their words with considerable care, but they condemned themselves out of their own mouths. I will allude later to some of the things that they said in their report that give rise to concern that justice and the standards of justice that we are right to seek could not be achieved if we enacted the Bill.

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The Bill rests its moral case on the enormity of the crimes which, it is argued, have been committed by a number of citizens and residents of this country and which are beyond the memory of many of those who debate the matter today. It has been observed that several of those taking part in the debate, including my hon. and learned Friend the Member for Montgomery (Mr. Carlile), were not alive when these matters occurred. It is not in question that the crimes of which those concerned will stand accused are monstrous, that they are against the law of the countries in which they were committed and that they would be crimes according to the general principles of law recognised by all civilised nations. The question is not whether we believe that the crimes were of an enormity that must be condemned. The question is whether we can establish in a British court of law that the individuals who are allegedly responsible actually committed those crimes.

It does not seem right to pass a law, as the right hon. Member for Sparkbrook suggested we should, to demonstrate to the world our abhorrence of the holocaust. As he systematically advanced his argument, with every sentence he seemed to strengthen the doubts that he had expressed in the earlier debate and ended by saying that he was proposing to vote for the Bill simply as a declaration of his revulsion against the crimes of the holocaust. I cannot and do not believe it necessary to make such a declaration. I do not believe that there is any hon. Member who does not share that revulsion ; nor do I believe that the British public need to be reminded of that fact.

One of the fears that I expressed in our earlier debate was that if the trials go ahead they may elicit some sympathy for those who are alleged to have perpetrated crimes of a kind that would stand the moral order on its head. That would be the reverse of sensible. The crucial question that one must examine in this debate is whether the defendants to these charges could, in practice, experience the facilities that the prosecution will enjoy in handling the evidence against them. I doubt whether they can. My understanding is that most of the offences are alleged to have taken place in countries that are now part of the Soviet Union. Most of the cases will have to be subject to the evidence of eye-witnesses for identification. It must be common sense that after 45 or 50 years the evidence of the eye- witness is less than reliable. However, it is also more than common sense, because the evidence from earlier committees that considered the nature of such evidence was that even those who said in courts of law that they had seared into their memories the face of the man who committed the atrocity-- I am thinking especially of the Virag case that was referred to in the Devlin committee report--had got it wrong. Identification years after the event turned out to be wrong.

Mr. Rupert Allason (Torbay) : Is the hon. Gentleman aware that when Sir Thomas Hetherington originally considered the issue he was sceptical about whether such evidence could be obtained and would be available to the defence? Is the hon. Gentleman further aware that, having taken a great deal of time and trouble to study exactly that issue, he concluded that the evidence was overwhelming and compelling?

Mr. Maclennan : I shall read from what Hetherington and Chalmers said on this subject, which I find most disturbing. They stated : "Because of the sickening efficiency of the mass killings we found few Jewish eye witnesses of the actual crimes : those

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who had witnessed the atrocities were usually themselves killed. Many, however, were able to help with circumstantial and hearsay evidence, and some were able to identify suspects from photographs." I do not believe that the quality of such identification is likely to convict or to be convincing. It seems probable

Mr. Lawrence : Will the hon. Gentleman give way?

Mr. Maclennan : No, I shall develop my argument before giving way again.

It seems probable that such prosecutions will not stick. In introducing the Bill, the Government appear to contemplate those evidential problems being overcome by the arrangements that are being made for television and video recordings of evidence taken abroad. Such arrangements may be open to the prosecution, which can deploy the limitless resources of the state when gathering evidence, but I question whether such an approach will be open to any of the defendants who are seeking to rebut the charges--

Mr. Alex Carlile : It should be.

Mr. Maclennan : My hon. and learned Friend says that it should be. However, I am not aware of any arrangements that have been made to finance such a trawl for evidence for the defence and nor am I aware of the practicalities of so doing. We have heard about the old people who are to be the subject of the trial. It is beyond imagination that it would be within their physical capacity to conduct their defence efficaciously.

I further question whether the Soviet Union would feel as ready in such trials to volunteer evidence for the defence as it might for the prosecution. I recognise that substantial and important changes have been made in the administration of justice in the Soviet Union territories in recent years, but I am not unmindful of the fact that in the Soviet Union the whole history of the second world war is still fraught with high emotion. Many of those who would be charged under the legislation would be considered guilty in the Soviet Union of the most grave offences. It seems unlikely that the Soviet Union would offer to the defence the co-operation with evidence that it might be prepared to offer to the prosecution.

Mr. Gorst : Is not the hon. Gentleman's argument tantamount to saying that if, when debating the passing of any law, the House can see difficulties with evidence, we should not pass that law, even if the crime that we are contemplating is odious?

Mr. Maclennan : In passing any legislation one should be aware of the consequences of what one is doing.

I find it impossible to accept the argument that this is not retrospective legislation, because it plainly is. The practical consequences of setting up such retrospective jurisdiction and of bringing into court a number of people who, by the nature of the process, will be gravely disadvantaged when compared with the prosecution lead me to believe that such cases would not be in accordance with the standards of British justice or with the European convention on human rights. Although the convention is not incorporated into the law of the land, it is none the less an indication of the standards that we have accepted internationally. Some play has been made of the international nature of the offences--

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Mr. Latham : Will the hon. Gentleman give way?

Mr. Maclennan : I shall give way to the hon. Gentleman, who has not yet intervened, when I have finished this point.

Article 6(3) of the European convention on human rights provides : "Anyone charged with a criminal offence has the right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

Anyone who can say that that is possible or likely has taken a small step towards justifying the trials. However, one need only contemplate that to realise that, in practice, it will not be done.

Mr. Latham : I am grateful to the hon. Gentleman, who has given way to me with his usual courtesy. I am trying to follow his argument because he seems to be arguing that the defence would be gravely disadvantaged, yet the argument used in the House of Lords by the Master of the Rolls and others, and in this House today, is that it would be impossible to bring a trial successfully because no jury would convict. Does the hon. Gentleman agree?

Mr. Maclennan : The Master of the Rolls has more experience than I of such matters and he may well be right. We are considering whether such trials should be set up and the prospects that would flow from the establishment of such trials. I cannot say whether a jury would be convinced. It seems highly improbable that a fair-minded jury would consider that the burden of proof had been discharged. Indeed, it seemed to be the purpose of the report to demonstrate that a remarkably small number of people among the cases that were considered would be likely to be convicted. However, there is a small number of people who would be convicted. I believe that the number has diminished by one death since the report was published. The House should not legislate for demonstration purposes. We can demonstrate our revulsion of crime in many ways. We do not need to embark on retrospective criminal legislation to do so. I see the Minister of State, Home Office, the right hon. Member for Oxford, West and Abingdon (Mr. Patten), shaking his finger at me. Perhaps he would like to shake his lips at me.

Mr. John Patten : I did not make a rude gesture from a seated position. I am grateful to the hon. Gentleman for giving way with characteristic courtesy. He has been exact in his use of words so far, but he has suddenly suggested that the Bill is retrospective criminal legislation. Whatever else the Bill is, it is not that. It affects jurisdiction. There may be arguments about whether that jurisdictional change is retrospective, but the Bill does not change the criminal law in any way.

Mr. Maclennan : That is precisely the distinction that I cannot understand, although I admit that I am not a lawyer. If this country does not have the jurisdiction to prosecute someone for a crime, that is a function of the criminal law. It is the limit of the criminal law. The Government are seeking to change the jurisdiction of the courts to prosecute people for offences for which hitherto they could not be prosecuted. The Minister is logic chopping. We are not in dispute about the facts. How one cares to describe them is a matter of nuance which does not carry the argument much further forward.

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I was impressed by the weight of argument against the Bill in another place. I do not normally consider that the House of Lords, for all its great expertise, is more in touch with the realities of life than the House of Commons. But on this occasion, the House of Lords predicted with much greater accuracy than this House did during our debates what would happen if the Bill were enacted and the travesty of justice that we ran the risk of initiating by putting the proposals on the statute book.

I hope that the House will think again and will realise that every month that passes makes it more likely that our standards of justice will be seen to be less than adequate and less than we aspire to in Britain.

5.31 pm

Sir Ian Gilmour (Chesham and Amersham) : I understand that the hon. Member for Caithness and Sutherland (Mr. Maclennan) intends to change his vote from an abstention to a vote against the Bill. The right hon. and learned Member for Aberavon (Mr. Morris) is changing from a vote for the Bill to a vote against it. The deputy Leader of the Opposition, the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), has changed his argument and his views, but not his vote. Nevertheless, there has been a change of opinion on the Opposition Benches.

The Bill seeks to deal with enormous and terrible crimes which excite revulsion and strong feelings among us all. That is common ground. But before I deal with the merits of the Bill, I should like to deal briefly with the constitutional point. Formally, the Government are within their rights to employ the Parliament Acts. But, in reality, what they are doing is an abuse of those Acts. It shows, at the least, a sorry sense of proportion.

The Parliament Acts were designed to prevent a minority party in the House of Commons from using its majority in another place to frustrate the will of the elected Government. Of course, that is far from being the case on this occasion. This is not a party matter and no democratic principle arises. All that has happened is that a heavy majority of the other place, with great knowledge of the subject, has voted strongly against the Bill and an even bigger majority of this House has voted the other way. In those circumstances, if the Government were not prepared to take the obvious and proper course--to drop the Bill--their duty was surely to amend it to make it more acceptable to the overwhelming majority in the other place. There is no excuse whatever for using the Parliament Acts.

The Government's behaviour is wholly disproportionate. As far as I am aware, the Parliament Acts have been used only to force through Bills of major constitutional or other importance such as Welsh disestablishment, Irish home rule and the Parliament Act 1949 itself. Furthermore, the Parliament Acts have never been used by a Conservative Government. They are being used for the first time for this, in many ways, highly objectionable little Bill. That is all the more ridiculous because, as the hon. Member for Caithness and Sutherland said, the Bill was annihilated in the Second Reading debate in the other place.

It was conclusively shown that the Bill was retrospective legislation, selective legislation and, in addition to those crippling disadvantages and contraventions of the rule of law, legislation which would not

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produce a fair trial. Of course, the Government are not bound to defer to the vote of the other place. But surely they are bound to pay attention to the authoritative views stated there. The Government have singularly failed to do that.

I do not wish to be rude to my right hon. Friend the Home Secretary, who made a statesmanlike and moderate speech, and still less to the Minister of State, Home Office, my right hon. Friend the Member for Oxford, West and Abingdon (Mr. Patten), but why in matters of law do they believe that they know better than the extraordinarily impressive array of legal and other talents which annihilated the rationale of the Bill in another place? I am aware that the prestige of the judiciary is not at its highest at present, but, rightly or wrongly, that is because we have had some alarming cases in which the Bench was slow to realise that innocent men had been convicted. The position is absolutely the opposite in this case. The Law Lords in another place are worried that under the Bill people will not be given a fair trial. Surely their views should be listened to carefully.

Mr. Gorst : Are not we safer with men of common sense than with men of erudition?

Sir Ian Gilmour : That is an uncharacteristically philistine point from my hon. Friend, which is singularly inapplicable to a Bill of this nature.

Lord Hailsham, Lord Bridge of Harwich, Lord Ackner, Lord Donaldson of Lymington and Lord Goodman variously said that the Bill would not be British justice, that it would damage the rule of law and that it would debase the standards of British justice. Where is the matching expertise of my right hon. Friends in the Government which entitles them to dispute that view? We certainly have not heard any arguments against that view so far today.

Almost everyone agrees that retrospective legislation is undesirable. Lord Hailsham, Lord Ackner and Lord Donaldson, to say nothing of distinguished historians such as Lord Dacre of Glanton and Lord Blake, pointed out that the Bill was retrospective legislation. Of course, it is clearly retrospective. If it were not, we should not need the Bill. People could be prosecuted without it.

Equally clearly, the Bill is highly selective legislation. After the war I was lucky enough to visit the Nuremberg trials, which were presided over in a most distinguished and fair way by Lord Oaksey, then Lord Justice Lawrence. In 1946 much less was known about the iniquities of the Soviet regime. But even then a great deal was known or suspected. In particular, it was widely suspected that the Katyn massacres had been perpetrated by the Soviets, not the Nazis. So, even in 1946, it seemed odd that representatives of the Soviet regime sat side by side with British, American and French justices at the Nuremberg court. Yet in the circumstances of 1946 it was inevitable. The selectivity of this Bill is not inevitable. It is confined to offences committed in Germany or in German-occupied territory and offences committed before 1945. Such selectivity is not inevitable and it is wrong. That was demonstrated in another place by Lord Hailsham, who said that there was no attempt to be fair, by the Scottish Law Lord, Lord Morton of Shuna, and by Lord Donaldson. One may believe, like the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), that the whole

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business is declaratory--in which case I believe that it could be done better by a declaration than by an Act. Supporters of the Bill clearly want to see fair trials. Otherwise, the whole business would be pointless. Again, we have unanswerable testimony that that will not happen.

Lord Shawcross pointed out that in 1948 two distinguished judges felt that a four-year delay was too long. We are now faced with a delay of 50 years. Apart from the delay, Lord Shawcross thought that the changes in procedure that are being introduced to help the prosecution at the expense of the defence would prevent justice from being seen to be done. I was struck by the fact that my right hon. Friend the Home Secretary thought that the changes in procedure were introduced to help the defence--that is exactly the opposite of the truth. All the changes are biased in favour of the prosecution. Lord Goodman agreed with Lord Shawcross. Lord Hutchinson of Lullington, a most distinguished criminal advocate for the defence over many years, pointed out that naming suspects first and then building up evidence against them had led to many miscarriages of justice. He did not think that we could guarantee a fair trial. Lord Ackner made a similar point strongly and expressed similar doubt about a fair trial being provided. Lord Morton of Shuna went even further and spoke of the practical impossibility of achieving a fair trial. Lord Donaldson had the same view. He said :

"Identification after 45 years is a wholly preposterous proposition".--[ Official Report, House of Lords , 4 June 1990 ; Vol. 519, c. 1174.]

Lord Blake is not a judge, but he was a prisoner of war. He said that he would have the greatest difficulty identifying any of his captors or guards 50 years later. Lord Bridge of Harwich believed that the procedures under the Bill would be a breach of the criminal process. Once again, I ask the Government : on what possible grounds do they think that they know better, on a specifically legal point, than the experienced and distinguished judges whom I named? My right hon. Friend the Home Secretary seemed a bit shaky on that matter this afternoon.

There is one final point. The enormous lapse of time since these dreadful crimes were committed means that the accused men--guilty or not--were very young at the time. In other words, they were small fry who were obeying orders. If they had disobeyed orders, they would certainly have been killed. No doubt they should have disobeyed orders, but I do not think that we can all be sure that we would have behaved heroically and disobeyed those appalling orders.

Mr. Winnick : Does the right hon. Gentleman accept that there are known cases of soldiers serving in the German army who refused to commit war crimes and who managed not to be shot? Surely, to a large extent, the right hon. Gentleman is trying to find excuses for those appalling crimes. Day after day, men, women, children and even babes in arms were systematically murdered. Surely the fact that those soldiers were young at the time and were serving in the most monstrous army known cannot be an excuse for their not being brought to justice.

Sir Ian Gilmour : I have not been making excuses. The crimes were appalling. I am not sure that I, or even the hon. Gentleman, would have been heroic enough to disobey orders, and be shot for doing so. The hon.

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Gentleman may be confident about his courage- -I do not dispute his courage--but he is demanding great courage from everyone. But that is a relatively minor point.

The main point is that these people will not be given a fair trial, even with the highest testimony. The whole debate on this matter has shown that the Labour Government in 1948 and Sir Winston Churchill a little earlier were right in saying that the process of retribution should be brought to an end and that it had gone on long enough. Sir Winston Churchill said that a "sponge" should be drawn across the whole story of horror and atrocity. The Labour Government and Sir Winston Churchill were right then and the Government are wholly wrong now. For those reasons, I oppose the Bill.

5.44 pm

Mr. A. E. P. Duffy (Sheffield, Attercliffe) : I agree with the Home Secretary that, given the developments that have taken place since proceedings in the House just a year ago, there must be an opportunity to see how feelings have changed. Already in the debate we have had ample evidence that feelings are changing and of how far accommodation is possible between the two Houses. We heard a persuasive speech from the right hon. Member for Chesham and Amersham (Sir I. Gilmour). There clearly is a case for such an accommodation. Above all, there must be an opportunity for reconsideration--happily, we have been provided with that this evening--in the light of the debates in both Chambers. As the right hon. Member for Chesham and Amersham pointed out, the evidence so far suggests that hon. Members are re-examining their positions. At this stage, the argument seems to be going in one direction.

As my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) said, nothing that any hon. Member says--no matter which side of the argument he is on--moves any of us either to forget the holocaust or to be prepared to forgive it. That is not in question. Like the right hon. Member for Chesham and Amersham, I was intrigued to hear the argument put by my right hon. Friend the Member for Sparkbrook and then to note his final position. It was similar to the speech he made a year last December when we debated the principle. His argument then was persuasive most of the time, but suddenly he made a big jump and said that, despite all his reservations, he would go into the Division Lobby in support of the Bill. Apparently my right hon. Friend is content with taking a declaratory position. I thought that I heard him murmur--I hope that he will forgive me if I misjudge him--that, if the Bill is passed, we are unlikely to hear much more about it. If my right hon. Friend did not say that, that view is certainly held by other hon. Members.

I have sat through all the debates and wondered repeatedly about the confidence displayed by, and even the authority expressed on war crimes by, hon. Members on both sides of the argument. I did not agree with my right hon. and learned Friend the Member for Aberavon (Mr. Morris) or with the right hon. Member for Chesham and Amersham that the passage of 50 years would make it almost impossible to identify a defendant or a witness.

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Those who have known war will agree that it leaves a shadow across a person that never leaves him--it leaves an indelible mark. The days of the war were extraordinary times and none of those who knew them can ever really communicate the flavour of them to those who did not. Anyone who has been a party to death, much less stood in its shadow or become reconciled to it, will know that the minutest details of the circumstances are etched on one's mind--Dr. Johnson was right.

Given the record of Dresden, Hiroshima and Nagasaki in particular, I doubt whether too clear a distinction could be drawn, as some hon. Members insisted a year ago--notably the right hon. Member for Castle Point (Sir B. Braine)--between the wholesale slaughter of defenceless women and children who played no part in the war and killing in the heat of battle.

If there is one phrase that I associate with war more than any other--I am reluctant to use it because it has become a cliche --it is the fog of war. War became a fog. No matter how long it went on, no matter how clear one's recollection of part of it, there was always a fog. Unlike some hon. Members, I doubt whether, this final step having been taken, we can put the horrors of war behind us once and for all or that, given Stalin, Mao, Pol Pot, Idi Amin and now Saddam Hussein, the Bill will act as a deterrent.

I have never been able to rid my mind of the concern, expressed by some hon. Members, about how the people of this country will be affected once the process starts. The right hon. Member for Old Bexley and Sidcup (Mr. Heath) has warned us of that yet again. I fear that this will stir cynicism, or worse, and at a time when Europe is looking to the future we shall be seen to be delving into the past. I came down on the side of those who were against the proposal, and then only with great reluctance--like my right hon. Friend the Member for Sparkbrook. For me, it remained a matter of doubt so that, in common with half the membership of this House, I abstained on Second Reading three months later. The general attitude of those right hon. and hon. Members who remained committed to the Bill struck me as half hearted. That appeared to be confirmed when the Bill's defeat in another place produced only one question to the Prime Minister the following Tuesday--from the right hon. Member for Castle Point. There was no passion elsewhere in this House on that day.

We owe this opportunity to reconsider the Bill to another place. We also owe it to the Upper House that many moral, legal and potentially constitutional issues were widely aired in the debate there, in a way that they were not in this Chamber. No one who has studied the debates of both Houses can deny that the other place had overwhelmingly the best of the argument. Despite some recent comments to the contrary, today's House of Lords is the very model of constitutional circumspection. There is no breach of the Salisbury convention. Their Lordships' treatment of the Bill is ample proof of the contemporary value of the other place as a second Chamber. It is making us think again. There is already evidence in this debate that other right hon. and hon. Members are thinking again--and I am one of them.

I am entirely persuaded by the plea of my noble Friend Lord Callaghan. I share his belief that the Members of this House ought to express their deep conviction and experience--especially our experience of war. Concern has inevitably focused on the moral and legal issues, but there

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is considerable interest in the subsidiary matters. One is whether defendants can be guaranteed a fair trial after 50 years ; the other is the nature of the charges, without knowledge of which, given the claim that the Bill is a unique provision to meet unique circumstances--although tonight the Home Secretary substituted the word "unusual" for "unique"--right hon. and hon. Members may find it difficult to form a view.

The first of the major issues is moral outrage. It will undoubtedly unite the House. Where mass murder is the issue, all right hon. and hon. Members will yield initially to the moral argument that we cannot tolerate in our midst the presence of unprosecuted persons, however few they are or however old they may be, who are perhaps guilty of certain crimes. There are crimes that cry out to heaven for justice.

What of the legal response involved? The Hetherington report refers to an element of retroactive justice--that is to say, laws passed against deeds that were not unlawful at the time that they were supposedly committed. In this case, the crime is murder by non-British nationals many hundreds of miles from British soil. The most balanced case against altering the law was made in the Upper House by Lord Goodman, who is one of our most distinguished lawyers, and who is also Jewish. He said that parts of the Bill would alter the rule of law in Britain, and would thus do "appalling damage" to all the minorities who find their defence in it. When I visited Dachau, I was interested to note that, long before the horrors that were perpetrated against the Jews in the early 1940s, waves of German socialists, trade unionists, gipsies, and similar dissidents and minorities had been taken there. In 1939 and 1940, the Poles arrived--most of them Catholic priests--and then there followed the torrent.

In the debate in another place, Lord Bauer said that he is of Jewish extraction, that his father was killed by the Nazis, but that he regarded the Bill as another step in the erosion of the rule of law. When moral outrage and the sense of legality clash with such force, where does one turn in a democracy but to public opinion? I distinctly remember the decision, announced after the second world war, not to continue prosecuting or surrendering suspected war criminals because parliamentary and public opinion was critical of war crime trials. I attended the London School of Economics with my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees), and often used to visit the House of Commons. Any suggestion then that war crime trials would be revived 40 years later would have been received with incredulity. If there is one institution in this land that would have protested if there had been even the smallest dissent against that decision, it would surely have been the London School of Economics, given its character then.

Mr. Rooker : Does my hon. Friend agree that, if the British public had been told at that time that it was likely, because of inadequate vetting procedures or as a result of deliberate policy--because we needed information from the war criminals concerned--that such persons could come to this country and be immune from prosecution for ever after, British public opinion would have remained silent?

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Mr. Duffy : I am truly astonished when I hear my hon. Friends impugn the motives of the postwar Labour Government at this late stage.

Ms. Short : In the debate in another place, Lord Shawcross made it clear that, when the decision was made in 1984 to stop prosecutions, the decision was taken also to free German generals, who were much bigger fish than the suspected war criminals who are the subject of the Bill. That kind of knowledge was available at the time.

Mr. Duffy : The Nuremberg trials were designed not only to punish barbarism but to act as a deterrent. The Chief Rabbi fears that if such people escape justice, humanity will never be safe. The trouble is that the revival of such trials might in some twisted minds have precisely the opposite effect to that which is intended. There is a risk--and one that I identified in the speech of the right hon. Member for Old Bexley and Sidcup --that the passage of time may change people's perceptions.

Late last June, I was walking down Leipzigstrasse in east Berlin before unification when a car pulled up alongside me and a couple of young Scandinavians jumped out to ask for directions. They did not want to know the way to Checkpoint Charlie, which was just behind me ; to the Brandenburg gate, just two blocks away ; or to the Reichstag just beyond. Instead, they wanted to know the way to the building immediately opposite the Reichstag--across the river from it--which they described as Goering's air ministry. There is a danger of desensitising a public already prone to saturation with the details of man's bestiality.

Just as Nuremberg had little moral influence on individuals, so has it failed to serve as a deterrent internationally. What is the purpose of continuing to hunt down the geriatric remnants of the Nazi scourge ? Some hon. Members believe that it will encourage other nations--notably Germany, Canada, and the United States--to proceed against other alleged war criminals. Will it serve that purpose ? The failure of this House to initiate any move against Saddam Hussein, who gassed an entire town, while tinkering with its own domestic legal process to permit the prosecution of three old men and the investigation of others residing in Britain will strike many people as being misconceived.

Mr. Winnick : This is one of the few subjects on which my hon. Friend and I do not agree, having achieved so much unity in the past few months in respect of the Gulf crisis. My hon. Friend referred to the gassing of the Kurds in March 1987--and other Iraqi atrocities were committed more recently in Kuwait. If those alleged to have committed such crimes are not brought to justice, but are found, even 50 years later, to be living in this country, for reasons that I cannot explain, is it suggested that they should not be brought to justice then ?

Mr. Duffy : I am considering their prosecution now and in present circumstances. It is difficult to project one's mind 50 years hence, into the circumstances that would be present then. We have the advantage of knowing the present circumstances, even though there is a 50 year gap.

My hon. Friend the Member for Walsall, North (Mr. Winnick) is right--we usually fight on the same side. He makes a difficult demand of me, but we must agree that we would like a move to be made against Saddam Hussein now.

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Mr. Lawrence rose--

Mr. Deputy Speaker (Mr. Harold Walker) : Order. I remind the House that a large number of right hon. and hon. Members wish to speak, and that at 6 o'clock the 10 minute time limit on speeches will begin. Those hon. Members who seek to intervene do so only at the expense of their colleagues' time.

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