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Sir Nicholas Fairbairn : Two.

Mr. Stanbrook : My hon. and learned Friend is right--two. Another Law Officer is responsible for Scottish jurisdiction. It is said that at least one of the three lives in Scotland.

However, the ultimate law enforcement authority in this country has to decide whether a prosecution is in the public interest. That cannot be laid down in the Bill. It is not in the Bill. The Bill does not contradict the existing constitution of this country--or not as far as England and Wales are concerned.

The Attorney-General must decided ultimately whether any case should go forward for prosecution and whether to prosecute it would be in the public interest.

I thought it rather daring of my right hon. and learned Friend the Attorney -General not only to be present for the earlier speeches, but to intervene in the speech of my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) to suggest that the Attorney-General could not possibly authorise a trial that became a show trial. That must be one of the strongest arguments against the Bill. If it is passed, the chances of a show trial, or show trials, for the three old men is very great.

I felt that my right hon. and learned Friend the Attorney-General was skating on thin ice when he posed that question.

Ultimately--whatever happens to the Bill--if some jurisdiction is given to the British criminal courts to try the people concerned, he will still have to decide whether, in the light of the evidence and every other consideration, it is in the public interest to pursue the matter. He should keep that judgment clear and separate in his mind. I have no doubt that he will do so, but it would be better if he expressed no opinion until the time came.

There are good reasons why prosecutions are not in the public interest. Let me list three of them. The first lies in

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the concept of retrospection--for, no matter what my right hon. Friend the Minister of State and the proponents of the Bill may say, this is retrospective criminal legislation. The Minister says that it is not criminal legislation ; that, while it may be retrospective, it extends only to jurisdiction. This is the first time that I have heard anyone say that a change in the jurisdiction of a criminal court is not part of the criminal law. Of course it is--especially, and more definitively, because in this instance the jurisdiction will be changed in a particular way, in relation to particular events, at a particular time and in a particular place. That is very selective, and cannot possibly escape the label of retrospective criminal legislation.

Many arguments have been advanced against treating the Bill as retrospective legislation ; we have heard some tonight. Let us not forget, however, why we do not like retrospective legislation. Not only would it be unfair to charge someone with an offence when no such offence existed at the time of its commission ; it would also be unfair if, because of what had passed since the commission of the offence, it was impracticable or, indeed, almost impossible to initiate a prosecution. Do not let us become involved in arguments about whether we knew in 1948 that certain people had come to this country whom we knew to be guilty of certain offences and whether that was deliberate, a question raised rather unworthily by some hon. Members in regard to the speech of my right hon. Friend the Member for Old Bexley and Sidcup. Such arguments are irrelevant. To change the law after 50 years is to say to the individual concerned, "No matter that you kept no records, no documents and no memories of the events of 50 years ago. No matter that you have not kept in touch with friends who could possibly help you to defend yourself. No matter that you did not keep alibi evidence. You simply did not know that you would be prosecuted." It is fundamentally unfair, 50 years on, to bring a charge and to ask the accused to defend himself against the weight of a Government machine that has spent half a million pounds, engaged the services of 20 or 30 police officers and toured eastern Europe for 18 months trying to obtain the evidence that, according to part two of the report, will be damning enough to justify the legislation.

Retrospection is the offence embodied in the Bill--an offence that we should not contemplate, because, in view of the time lapse, it is doubly unfair. If we cannot give these people a fair trial, we cannot say that we are exercising British justice, for a fair trial is fundamental to all British justice.

My second point has already been made--although with less force--by my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn). For the purposes of the Bill, the law has been changed in the past 12 months to enable evidence to be admitted in court that is derived from sources who are deceased, or, for some other reason, unable to appear as witnesses to give honourable testimony. We should bear in mind that 50 years have passed. Written statements from witnesses can be used, regardless of how they came to be made--up to 50 years ago--and regardless of the possibility that they are forgeries.

Ms. Short : The Hetherington report even suggests that statements from people who are now dead can be used, whatever the conditions in which they were made.

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Mr. Stanbrook : That is indeed one of the report's

recommendations. The report has proved very useful, in that it gave us the sources that we needed ; but, when discussing the legal difficulties, it effectively told us, "The way in which to bring a case is to bend, or change, the law." The ultimate consequence is a Bill like this, which changes the jurisdiction of the courts. That is an inherent injustice. If the Bill is enacted and trials follow, three people will be arraigned-- three known people : the Simon Wiesenthal Centre has made sure that the newspapers, and everyone else, know their names and where they live. Simon Wiesenthal's own people have paraded up and down outside the House of one of the prospective defendants, accusing him of being guilty.

If the Bill is passed, the law will be directed solely towards the object of bringing three people to court on evidence that has been changed and adjusted for that specific purpose. As a practising barrister of some 30 years' standing, I would have voted against the Bill on that ground alone. There is, however, another argument--the argument that the people concerned should be entitled to obtain witnesses and evidence in their defence. It has been pointed out that legal aid is available to them, but those of us who have used legal aid in such circumstances, or have tried to, will laugh at that. It is difficult enough to obtain a witness from overseas ; to obtain a witness who can testify to events of 50 years ago is another matter, and the resources of the legal aid fund will not rise to such a challenge. The argument is spurious : it would not be practically possible for any of the accused to defend themselves. In the end they will have to answer these charges, unsupported by all the paraphernalia that applies to prosecutions and without all the resources that are available to the prosecuting authorities. Therefore, we have to ask ourselves whether we intend to legislate for an injustice. It is no use those who support the Bill saying that justice can be done. Due to the way that it has been contrived, it will be impossible for the defence to establish credentials and evidence of such a nature as to enable it to make its case. The question of identification was referred to by the hon. Member for St. Helens, South (Mr. Bermingham). Can one imagine the difficulties of identification after 50 years? One case was in 1941, 50 years ago. Identification ought to depend not on whether the individual was there but on whether he committed the crime. He may well be identified as having been present, but British justice ought to require that it is proved that he was the criminal, not a bystander, with German guns in view and German soldiers standing around.

The hon. Member for St. Helens, South suggested that modern techniques--DNA testing, no doubt, and all the other wonderful techniques that are now available--are used to identify defendants as criminals. However, they could not be used in Lithuania in 1941, under wartime conditions.

Please let us not legislate for an injustice. We cannot say that it is possible for British justice to be applied now to what happened then. It is no use talking about what happened in this country years ago but has been discovered only now. Trials could take place at any time in this country under our jurisdiction. The evidence would be available in a civilised country where law and order is, happily, the normal rule. Documentary evidence would have been preserved. We are not, however, talking about such a case ; we are talking about doing an injustice to

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people who at the moment are living under the British system of justice. Justice will not be obtained if we bend the law in the way that the Bill requires us to do. Therefore, I call upon the House to vote against it.

9.1 pm

Miss Emma Nicholson (Torridge and Devon, West) : The speech of my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) was very well constructed, valuable and helpful. I pay tribute to him for what he said against the Bill and recognise his knowledge of the issue. However, I believe that the Bill ought to be supported. Therefore, I intend to put before him a different point of view--though briefly, as I know that other hon. Members wish to speak.

Perhaps each generation sees the war that it experienced as the war--the benchmark of evil, the hallmark of horror, the epitome of brave deeds and thus its war criminals as unique in the evil that they committed. The Bill addresses only the second world war and the criminals that it spawned.

Alas, there is no end to the cruelty of mankind. Man's inhumanity to man continues ceaselessly and with a ferocity that is heightened and deepened by today's fiendish inventions, Cambodia's genocide--that mountain of skulls--Iraq's barbarism--what we read of the abominable cruelty to Kuwaitis--and the impassive horror of China's army in Tiananmen square, with the blood of students flowing over the stones. We do not attempt to deal with those killers tonight, nor do we plan to do so in the future. Why, then, this Bill, when the voices of all those who have been treated cruelly, or who have been tortured, maimed or killed, echo throughout the centuries? It is because we, as a Christian nation, played our part in the anti-Semitic European movement over the centuries. Today, as a multi-faith society, rooted and grounded in a more tolerant Christianity, we have a small chance to make reparation. We can rebalance the scales. Anti-Semitism is not dead. The Jews are persecuted always. In England and Scotland in the 12th century, we piled Jews into chimneys and lit the fires beneath them. In the 1940s, those chimneys were recreated in Auschwitz, and with the freeing of Poland we now have the opportunity to see them. That shows the uniqueness of the Bill ; anti-Semitism is the key. As a Christian, I have some responsibility to wipe out that evil. 9.4 pm

Mr. Richard Shepherd (Aldridge-Brownhills) : If my hon. Friend the Member for Torridge and Devon, West (Miss Nicholson) will forgive me, I shall not follow the sentiments that she expressed.

Three speeches reflect the dilemma in which I find myself in confronting this issue. One speech stood out : would that I had the eloquence of my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn). The three speeches were made by the hon. Member for Birmingham, Ladywood (Ms. Short), the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) and my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour).

We all agree about the enormity of the crimes that were committed. I do not intend to impugn any hon. Member

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who expressed hatred and abhorrence about those crimes, but it takes little imagination to know the evil that was perpetrated. The hon. Member for Ladywood expressed the dilemma truly in wanting to hit out and to express the rage and concern of humanity by saying that those crimes are unacceptable.

Why should not we pass the Bill? The right hon. Member for Sparkbrook addressed that issue powerfully--so powerfully that he reached the conclusion that, should anybody be mistaken about the fact that he regarded these crimes as an anathema, he was going to set aside the most formidable list of reservations that I have heard about the Bill in order, for declaratory purposes, to show that he could not be associated with a scintilla of doubt about his distaste and hatred for the activities that took place almost half a century ago.

I shall not question the conclusion that the right hon. Member for Sparkbrook reached from the evidence that he adduced. That evidence was well expressed by my right hon. Friend the Member for Chesham and Amersham, who, in a detailed, clinical, detached but cerebral manner, reminded us of the principles of our legal system.

I sympathise with all three expressions of opinion. I do not condone the activities that took place 45 or 50 years ago--no hon. Member would wish to be associated with them--but I must ask myself, not as a lawyer but as a human being, whether I honestly believe that we shall effect justice according to the terms of our courts. I doubt whether we shall do so and on that basis, mindful of my abhorrence of the acts that took place, I cannot support the Bill.

9.8 pm

Mr. John Browne (Winchester) : I support the sentiments expressed by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and the eloquent speeches of my hon. Friend the Member for Orpington (Mr. Stanbrook) and of my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn). As they put the case extremely well, I shall make only one fundamental point about retrospection. Most hon. Members, if not all, would agree that war crimes are horrific and should be punished.

Indeed, I would go further than many hon. Members, because I support capital punishment. Although the punishment may be severe--

Ms. Short : This is a very funny time at which to be talking about supporting capital punishment. If ever two groups of criminals would have been hanged, it is the six men convicted of the Birmingham bombings and the men convicted of the Guildford bombings. Years later, we know that they were wrongfully convicted. In view of that fact--quite apart from all the other arguments--how does the hon. Gentleman now dare to stand up and say that he supports capital punishment?

Mr. Browne : I do not agree with the hon. Lady that it is a funny time. It is an important time, and the hon. Lady has made my point clearly. The more severe the punishment--capital punishment even--the more we must strive for justice. There can be no justification for supporting capital punishment if trials admit of the

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possibility of injustice. That is my key point in this case, and I am glad that the hon. Lady said that. However severe the punishment, it must be just and not just convenient. In this case, it may be popular. It may be politically convenient. But it must also be fundamentally just.

It is for basic justice that we and our forefathers have fought over centuries.

A key element of our principles of justice is the onus of proof. The accused is innocent until proved guilty. At the weekend, I heard a well- meaning member of my own party saying on television, "Oh, but the Guildford and Birmingham men had not been proved innocent." Surely they had to be proved guilty. That is the fundamental point. We in the House have already bent the rule of the onus of proof in respect of some of our anti-drugs legislation. I do not support that principle because it leads to a slippery slope.

My second point relates to the right to cross-examination.

Sir Nicholas Fairbairn : Before we get lost in the idea that the debate is about the holocaust, let us not forget that 60 million gentiles died in the last war.

Mr. Browne : I am sure that we shall remember that.

My second point relates to the right to cross-examine witnesses, which is fundamental to natural justice. My hon. Friend the Member for Orpington made it clear that, in this case, the rules have been bent to suit this Bill.

The last of my three basic points concerns knowledge of the law, which is assumed in our system of justice.

I support the argument of the right hon. Member for Morley and Leeds, South (Mr. Rees), who made an eloquent speech in favour of plugging the gap. I agree with him that the gap should be plugged and that its very existence is abhorrent. However, attractive as it may be, it should not be done retrospectively.

I believe that the Bill would lead to show trials. Doubtless, they would be very popular and highly convenient politically. But they would be a travesty of justice.

The Bill was debated in the other place and their Lordships, many of whom are extremely well versed in the law, voted against it. Their Lordships do not have party constituencies and were able to speak and vote relatively unaffected by considerations of public popularity and political convenience. They defeated the Bill by a large margin--by 273 to 60. That may have been a political nuisance but it was right because it was just.

I believe that the Bill represents retrospective legislation which would be intrinsically unjust, and I urge the House to vote it down. 9.13 pm

Mr. Alistair Darling (Edinburgh, Central) : This has been an extremely thoughtful debate--on both sides of the argument. It is interesting to note that several hon. Members appear to have changed their minds since we last debated the matter. It will be extremely interesting to see not only the outcome of tonight's vote but the number of hon. Members who, for whatever reason, choose not to vote. It is to be a free vote, and there will be no rancour if hon. Members choose to go different ways when we divide.

Before I deal with the substance of the argument, I should like to refer to one matter raised by the hon.

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Member for Torbay (Mr. Allason), who is not in his place at the moment. The hon. Gentleman said that, if the Bill fails to be given its Second Reading tonight, there will be those who will publish the information contained in the second part of the Hetherington- Chalmers report. That is a dangerous and threatening statement. If there are to be trials, they should be conducted in a court room and not in newspapers or on the streets. We do not want witch hunts. The Minister must make it clear when he replies that the report will not be published under any circumstances unless a trial was to proceed.

Mr. John Patten : Does the hon. Gentleman accept that I agree entirely that it would be wrong for the Government at any stage to publish that information? Does he also recognise that to do so would be deeply prejudicial to those who might in future find themselves accused of a crime and also to the many people whose names were brought forward for the investigation, were examined and found to be totally innocent and were exonerated? If that were to happen, it would be deeply prejudicial.

Mr. Darling : I am grateful to the Minister of State and I wholeheartedly agree with him. I hope that those who follow our proceedings and those who might have access to information that might be highly damaging to individuals will take note of what has been said.

The principle underlying the Bill remains correct. However, like my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley), I have reservations about how it would work in practice. I did not intervene when hon. Members, particularly Conservative Members, said that my right hon. Friend had rested his entire case on the need to make a declaratory statement against those people who might have perpetrated such horrific crimes. He did not peril his case simply on that statement, because it would have been wrong to do that. Like me, my right hon. Friend the Member for Sparkbrook believes that the principle underlying the Bill is correct. It is wrong that British courts have no jurisdiction over crimes of murder, manslaughter or culpable homicide committed abroad by people who were not British subjects at the time but who have now become so. That problem has not arisen since 1957 and British courts now have such jurisdiction. However, it is wrong that a person accused of such crimes can escape prosecution while another person who was a British subject at the time cannot do so. That is especially important when we consider the nature of those crimes.

Ms. Short : Under the Geneva convention that was incorporated into British law around 1956 and under the Genocide Act 1969 to which my hon. Friend has referred, we have powers, but we have never prosecuted in relation to the killing of Kurds or other awful war crimes. This debate is not simply about powers ; it involves war crimes in recent history as well as distant history. Does that not trouble my hon. Friend?

Mr. Darling : My hon. Friend is quite right. Since 1957--and since 1969 when the legislation was considerably widened--British courts have had jurisdiction to hear the case of an individual accused of such crimes who is resident within any of the jurisdictions of the United Kingdom.

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Many crimes have gone unprosecuted and will continue to go unprosecuted and my hon. Friend the Member for Birmingham, Ladywood (Ms. Short) identified some of them. If someone is living in this country against whom charges can be made, it is wrong to say that nothing should be done simply because there are others elsewhere in the same position or perhaps in a far worse position. I accept that the people who are likely to come before our courts may feel aggrieved because others may be responsible for far worse crimes. However, it does not seem to be any more right to say that we cannot prosecute anyone for any crime on the ground that there may be someone somewhere else who is guilty of a worse crime. That argument does not stand up.

While I have no doubt about the principle of the Bill, I have every doubt about the implementation of its provisions. Before I consider the provisions, I want to refer to retrospection, which particularly taxed members of the other place in their debates on the matter last year.

Of course the legislation is retrospective in the strict sense. We should not be here tonight if it were not. However, it seems that there is an important point : the Bill seeks to give British courts retrospective jurisdiction. It does not seek to create a new crime. It would be wrong to do that. As such atrocities have probably always been criminal and since the Hague convention of 1907 they have certainly been criminal, we are not establishing a new crime ; we are merely making it possible to prosecute those individuals in one or other of the jurisdictions in the United Kingdom.

Sir Nicholas Fairbairn : Surely it would be a new crime if a Lithuanian were to kill a Russian in Germany, and surely it would be new if that person were to be tried in Scotland. I have never heard of such a thing.

Mr. Darling : The crime is the act of killing. The subsequent charging of someone is no part of the crime. In Germany, and elsewhere in Europe, it has always been a crime to kill someone. The purpose of this Bill is to enable a court in England or Scotland to hear the case and, if it is satisfied that there is sufficient evidence, to convict. It seems to me that the hon. and learned Gentleman's point is misconceived.

On the question of retrospection, it is important to bear in mind the fact that in 1950 the European convention on human rights anticipated that someone might be prosecuted for an act even though, at the time of the offence, there was no jurisdiction to hear the case.

When the other place declined to give the previous Bill a Second Reading, it was said that that decision was controversial. Indeed, the Home Secretary made the point that the other place had overruled the elected Chamber. I accept that entirely. There is some force in the argument that, in the event of a conflict between the two Chambers, the will of the House of Commons must prevail. Indeed, it would be far better if the second Chamber were elected. In that case, its revising and delaying role would be fully accepted as part of the democratic process. Thus, that element of such a controversy would be removed.

In answer to a point that was made by the right hon. Member for Chesham and Amersham (Sir I. Gilmour), I should make the point that legal arguments were not the only ones to be employed in another place. The Members of the other place who are lawyers are quite capable of raising points that are entirely political. Indeed, they do

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just that. As Parliament is currently constituted, they are entitled to express their views. We should be in some danger were we to believe that everything that lawyers say must be right. In saying so, I speak as a lawyer.

Let me say something about my doubts. It seems to me that the fundamental duty of any court is to ensure that the accused gets a fair trial. That is a matter which has troubled many hon. and right hon. Members during the debate today. Before deciding to charge an individual, the Crown must give serious consideration to the weight and quality of the evidence. Once a person is charged, the die is cast. There will be publicity, and set in train will be certain events that would be difficult to undo. If there is a doubt, the Crown should not proceed.

I lay some emphasis on the role of the Crown, as it seems to me that it is a strength of the Scottish system, and now of the English system, that the Crown is given a considerable degree of judgment. It is important that the Crown should evaluate the evidence that it is prepared to lead--the quality of the evidence that the court is likely to hear--before deciding that prosecution is justified. Indeed, one of my reasons for supporting the Bill is that it will enable the Crown to make that judgment--to weigh the quality of evidence against any individual, and decide whether prosecution is justified. Of course, the prosecutor will still have a duty to have regard to the public interest. If the Crown's view is that it would not be in the public interest to prosecute an individual, nothing in this Bill will take away from that.

Reference has been made to the possibility of show trials. It would be wrong to characterise any trial in this country as a show trial as we understand that term. Not even in our wildest moments would we accuse the present Government, or a Government formed by my party, of being so crass as to stage a show trial for political purposes. The media, especially in England and Wales, have quite wide latitude in the way they report matters, both before and during a trial. We must be very careful that, before the Crown decides to proceed, it is satisfied that it has a case that it can prosecute to a successful conclusion. No proceedings should be started on the basis of the mere chance of success, or in the belief that, once this Bill becomes a statute, we must be seen to be doing something about the problem. That would be quite wrong.

The Crown will have a number of substantial difficulties. The first, which was referred to by my right hon. and learned Friend the Member for Aberavon (Mr. Morris), is delay. Delay in itself is not a bar of trial, but it presents formidable difficulties. It is not enough to stop the prosecution in its tracks, but none the less the Crown will have to have regard to the fact that nearly 50 years have elapsed since the crimes were allegedly committed. I strongly believe that the fact that a crime took place some years ago should never be a reason for not prosecuting. We do not have a statute of limitations, and nor should we have one. In fact, within our recent memory is a case in which the body of a baby was found in an individual's back garden and it was found that the baby had died in the 1960s or late 1950s. No one ever argued that that individual should not have been prosecuted. As it happened, if I recollect correctly, he was subsequently convicted. I understand that delay may be a ground for

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stopping a trial in England, but I am less certain of the position in Scotland. The position in Scotland was referred to in the other place.

Connected with delay is consideration of the quality of evidence. It has been said that old men never forget. I accept that, but I cannot believe that old men, or even young men for that matter, always remember things exactly as they happened. Anyone who has been in a court room must be aware of the difficulties that arise even after a short period. In Scotland, people in custody are brought to trial within three months, yet it is quite common for a witness not to remember what he saw, despite being quite certain about it until he went into the witness box and was cross-examined. How much worse would the position be after 50 years? Indeed, a witness may remember an event that sticks in his mind--perhaps the killing of an individual--but will he remember the circumstantial evidence and the various bits of evidence that fit into the crucial jigsaw? Sir Nicholas Fairbairn rose--

Mr. Darling : Once more, out of deference to the hon. and learned Gentleman from the same Bar as myself, I shall give way.

Sir Nicholas Fairbairn : I am anxious to know whether, when it comes to evidence, the law of England is to be raised to the qualifications of the law of Scotland, or whether the law of Scotland is to be lowered to the laxity of the law of England.

Mr. Darling : I was about to refer to that very point. There is one difficulty that the Government must address, and that is the problem that they face with different laws on corroboration. It is ironic that the Home Secretary should announce a royal commission last Friday--I hope that it will address the desirability of corroboration being part and parcel of English criminal law--yet trials may take place under this legislation before the royal commission reports and certainly, I suspect, before anything is done about its findings. It will be ironic that someone accused of a war crime and prosecuted in Scotland will be entitled to various protections that he would simply not have in England. For example, the evidence that is laid against him will have to be corroborated. It will not be possible in Scotland to have evidence delivered by video.

In Scotland, identification of the accused is vital. The Crown cannot proceed without it. In England the system is different because there is no dock identification ; instead identification is done by a different system that may have many advantages, but I suspect that in this case an accused would rather be brought to trial in Scotland, where it will be necessary for witnesses to appear in the witness box and to point the finger at the accused and say, "That is the man whom I saw do those things 50 years ago."

I should be grateful if the Minister would let us know whether the Government will try to resurrect the attempt to introduce video evidence in Scotland. The Minister will recall that, last year in the debacle on the Law Reform (Miscellaneous Provisions) (Scotland) Bill, that was one of the provisions that were lost, and so also was the Chalmers report recommendation that statements made by people who are now dead should be admissible. I should be grateful if the Minister would tell us whether the Government still intend to amend the legislation.

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Although I believe that the Bill should get a Second Reading and that people who are accused of war crimes should be prosecuted, I would take great objection if any attempt were made to amend the laws of evidence to bring about those prosecutions. If those people are to be brought to trial, it must be done under existing criminal procedures. The law must not be altered to secure a conviction, as that would be wholly wrong and objectionable.

The Hetherington-Chalmers proposal that evidence on commission should be widely accepted is not satisfactory. Indeed, it is difficult to see how a jury will convict if it cannot see the witnesses, evaluate their credibility and demeanour and do everything normally expected of juries. I strongly believe that if witnesses are to point the finger at individuals, they should--except in the most exceptional circumstances--do so within a court. Juries should not be invited to convict on the strength of documentary evidence, perhaps taken on commission or from some old, frail individual giving evidence on a video against an accused person whom they cannot and will never see.

I support the Bill because if a charge is to be brought against those individuals, it is important that they should be prosecuted. The trials must be fair and be seen to be fair or far more injustice will be done than if we simply let matters lie.

My hon. Friend the Member for Ladywood said that the

Hetherington-Chalmers report mentioned that many names were translated into the Cyrillic alphabet. It is easy to make mistakes--indeed, it is not beyond the bounds of possibility that deliberate mistakes were made. During the cold war under Stalin, Soviet officials may have altered the records for their own reasons. It would be wrong for someone to be convicted on bogus evidence that cannot be cross-examined. I suspect that those who made the alterations and those responsible for keeping the records are now long dead or, if not, would certainly not be keen to speak up.

Mr. Marlow : The hon. Member rightly mentions various constraints and caveats. He seems to be coming to the conclusion that the chances of securing a conviction in a war crimes trial would be minimal. Does he agree with that, and, if so, why does he support the Bill?

Mr. Darling : I do not believe that. If I believed that there was no prospect of a conviction under the law of evidence in Scotland or England, there would be no point in supporting the Bill. I support the principle of the Bill because I believe that, although there are formidable difficulties, a fair trial is possible. As I said earlier--I am not sure whether the hon. Gentleman was present--the Crown must weigh up all those considerations when deciding whether to mount a prosecution. In the light of the hon. Gentleman's speech, it is possible to support the principle of something while holding honest doubts about it. Ultimately, the question is whether the doubts are sufficient to change one's mind. In my case, they are not.

Other matters were considered this evening and in the debate in the other place. There was a question about what happened in 1948 and whether the British Government decided to abandon war trials for all time. Although I was not born then, I understand why the Parliament of the day decided that it did not wish to go on with the war trials in Germany. However, we must differentiate between investigating about 8 million possible former Nazi party

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members--who would all have been culpable to varying degrees--while at the same time trying to rebuild West Germany and Europe, with the position that exists in 1991, when we are confronted with evidence that a few individuals may have been responsible for horrific crimes about which we can do nothing because we lack the jurisdiction.

Ms. Short : The Bill empowers us to prosecute anyone for murder, but we know that after 1948 people accused of the monstrous organisation of mass murder were not prosecuted. Does my hon. Friend agree?

Mr. Darling : I thought that I had already dealt with that matter. I do not quite understand my hon. Friend's question. In view of the shortage of time, if she would like to pursue the matter later I shall be happy to discuss it with her.

I believe that the principle of the Bill must be right. However, one issue troubles me, and it did so when we debated the subject in Committee. It involves pre-trial publicity. Ostensibly the law in England and Scotland is the same. I can do no better than rely on the Minister of State, who told me that they were the same, so that must be right. However, those of us who read the newspapers, north and south of the border, wonder whether there is any relationship between the two legislations. In Scotland, once suspicion has been focused, the press are severely restricted in what they can report, but in England that does not seem to be the position.

We are all familiar with the concept of trial by newspaper. In the fairly recent past, trials have attracted great publicity, and newspapers have felt free to publish photographs and highly damaging articles about an accused individual. The Government must consider whether it is time to amend the law in England to stop such things happening. The issue of the innocence or guilt of an individual is a matter for the jury alone. It is no use saying to the jury, as judges frequently do, "You must ignore anything you read in the newspaper, hear on radio, or see on the television." That is like throwing a skunk into the jury room and asking the jury to forget the smell--that simply will not work. I hope that, having had a year to reflect on the matter, the Minister will say that the Government are prepared to do something about that problem. If he does not, perhaps it is something to which the royal commission could attend when considering what should be done with British criminal law.

On the last two occasions that the House debated the Bill, a majority supported the principle behind it. I hope that that will remain the case. Most people accept that there are difficulties, most of which will have to be shouldered by the Crown. I also hope that if we give the Bill a Second Reading, the other place will note that we have given a considered judgment and have not taken a hasty decision. This debate was born not ‡out of great emotion, but out of a recognition that there is a problem in this country and there are individuals against whom serious allegations have been made which should be answered. We do not underestimate the difficulties that will face the Crown or the accused in the event that he or she is brought to trial.

It seems to me and many of my right hon. and hon. Friends that the principle behind the Bill must be right,

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notwithstanding the difficulties. For those reasons, I urge my right hon. and hon. Friends to give the Bill a Second Reading. 9.37 pm

The Minister of State, Home Office (Mr. John Patten) : I shall endeavour to do all I can to reply to the points raised by hon. Members in what, by any standards, has been an excellent debate. By my counting, if my arithmetic is correct, there have been 32 speeches, including mine, since 3.30 pm--a prodigious number. I have done a rough running count of those in favour and those against, and, to borrow from your terminology, Mr. Speaker, the ayes seem to be 19, including me and my right hon. Friend and the Opposition Front-Bench spokesmen, and the noes 13. However, this is a matter to be decided not by the numbers who spoke in favour or against the Bill, but in the Division Lobbies afterwards and in another place.

I must address the majority of my remarks to those people who are against the Bill, so I shall not say a great deal about those who have spoken strongly in its favour, except to say that, as the hon. Member for Edinburgh, Central (Mr. Darling) said, the debate has been marked by extremely calm and lucid argument on both sides, with little emotion and certainly no acrimony, apart from one enjoyable outburst between a Whip and an hon. Lady on the Opposition Benches. The incident entertained the few of us in the Chamber who were privileged to see it, but I suspect that it has nothing to do with us or the Bill.

Of those who have spoken in favour, my hon. Friend the Member for Westminster, North (Sir J. Wheeler) said that prosecutions were difficult, but that we should proceed on the issue of principle, and I agree with him. My hon. Friend the Member for Rutland and Melton (Mr. Latham) said that he had consulted widely in the British community, including the Jewish community, because he feared that the measure might lead to a growth in anti-Semitism in this country. He and others had seen none of that, so he felt that the Bill should proceed unencumbered, with which I agree.

The hon. Member for Hartlepool (Mr. Leadbitter) made a remarkable speech. As I sat listening to him, I could not believe that he had not been legally trained. He stressed the importance of the House exercising its judgment and of individual Members of Parliament deciding the law, willing the law, willing the means and then leaving it to the courts to decide. I entirely agree with him ; and my hon. Friend the Member for Hendon, North (Mr. Gorst) felt much the same. I also agree with the tone of the remarks of the hon. Member for Birmingham, Perry Barr (Mr. Rooker), who had not intended to speak, but I am glad that he decided to do so.

The Father of the House, my right hon. Friend the Member for Castle Point (Sir B. Braine), spoke with authority, and I agree with all that he was allowed to say in 10 minutes before he was so cruelly cut off by the rule.

I was especially glad that the hon. and learned Member for Montgomery (Mr. Carlile) managed to catch the eye of Mr. Deputy Speaker. He was able not only to examine the arguments of learned Law Lords and others in another place where, generally speaking, legal experts tend to take one view, but to compare and contrast the views of the senior judiciary--Law Lords and others--with the

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developing views of those who are much younger. It was a case of, "Let generation speak to generation". What the hon. and learned Gentleman said perhaps illustrates a substantial generation difference between some of those in another place and some of those who practise with him or who sometimes sit under his eye when he is in court as a recorder.

My hon. and learned Friend the Member for Burton (Mr. Lawrence) spoke most movingly of his recent visit to a concentration camp, but he also spoke unemotionally, and his speech was all the more telling for that. Nobody tried to play on the emotions of any other hon. Member. The hon. Member for Newcastle-under-Lyme (Mrs. Golding) broke her Trappist vow by sprinting from the Whip's seat to the Back Benches to make a powerful speech in support of the Bill. The hon. Member for St. Helens, South (Mr. Bermingham) and my hon. Friends the Members for Gravesham (Mr. Arnold) and for Torbay (Mr. Allason) also made powerful speeches. We were then treated by the right hon. Member for Morley and Leeds, South (Mr. Rees) to what the Michelin guide used to call "a little history". I am glad that he gave us that little history of war crimes from 1939 to 1945 and the period immediately after the war, because his speech set much in context. I should like to return to some of his comments when I deal with the important points raised by my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath). My hon. Friend the Member for Torridge and Devon, West (Miss Nicholson) also supported the speech in an intervention.

From the Opposition Front Bench, the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) and the hon. Member for Edinburgh, Central said that they would support the Bill, although they would not seek to advise their hon. Friends. I welcome what the right hon. Member for Sparkbrook said. I understand his deep thinking on the issue since last year and the concerns that have moved him to cleave to his earlier decision to support the Bill, although there was a large declaratory element in the reasons that he gave for doing so. The Home Secretary and I are also grateful to the right hon. Member for Sparkbrook for expressing the view that the Government have acted with constitutional propriety. Some people would not agree, but I do, unlike one or two colleagues who feel that we have not behaved with constitutional propriety. I agree with the right hon. Gentleman that the Bill represents a change in jurisdiction in the criminal law but does not introduce any new offences. I shall deal with that point when I respond to my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour). I certainly agree with the strong view--and I have not heard it disputed by any hon. Member from either side of the debate--that there should not be a statute of limitations in this country. That point was made by the right hon. Member for Sparkbrook.

I owe the right hon. Member for Sparkbrook and the hon. Member for Edinburgh, Central an answer to the points that they raised about Scottish legislation. I tread with some temerity into Scottish law, all the more so as I see the menacing shape of my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) behind me. I am no expert in Spanish-- [Laughter.] I am no expert in Spanish practices, which I am sure are not practised at the Scottish Bar.

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