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War Crimes (Supplementary Provisions) Bill [H.L.]

6.11 p.m.

Lord Campbell of Alloway: My Lords, I beg to move that this Bill be now read a second time.

The purpose of the Bill is to afford a fair administration of justice in the context of the War Crimes Act in two distinct ways which are not mutually dependent, so each requires separate consideration. The Bill does not amend any provisions of the Act and to some extent, Clause 1 reflects the sense of urgency as regards implementation of the Act, as appears from the Official Reports to have been the understanding of another place.

If this Bill is given a Second Reading and reaches another place, there would be a long period of time before it could ever receive Royal Assent during which investigations could be ended. A decision could be made as to whether to charge or exclude on the available evidence. Only on the passing of the Act would the limitation provisions of Clause 1 bite. Proceedings instituted before that date would not be affected in any way.

Clause 2 imports from Scotland a pre-trial appellate procedure on which I took advice from the noble and learned Lords, Lord Jauncey of Tullichettle and Lord Morton of Shuna. That is with regard to applications to quash the indictment on grounds of delay. The reason for its introduction is to avoid abortive trials which should not have taken place, because in England those trials must take place as there is no appellate jurisdiction until after conviction.

The Bill has the support of many noble and learned Lords to whom I have spoken informally, including the noble and learned Lord the Lord Chief Justice, who are not able to attend. The right reverend Prelate the Bishop of St. Albans, whose annual meeting is taking place at this very moment, has written to say that he wishes well for these laudable efforts on an important moral and legal issue.

Let it be said at the outset with respect to the memory of millions who suffered, some of whom are still suffering, that it is proven beyond doubt that mass murders were perpetrated—a policy of extermination—by the Third German Reich to the everlasting shame of all mankind. But since the War Crimes Act received Royal Assent on 9th May 1991, no charges have been made. And even today, it is not known whether and

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indeed, if so, when the continuing investigations may end or whether any charges will be made. Already one-third of the suspects interrogated have died.

When the War Crimes Bill was before another place, there was an air of urgency, of resolve, to implement the recommendations of Part I of the Hetherington-Chalmers Report on the basis of the evidence of 301 case files and other material in Part II of that report which was not disclosed in either House. But another place was permitted to labour under a crucial misunderstanding, a crucial misapprehension, which was repeated in your Lordships' House by my noble friend Lord Waddington, that on that evidence, which the noble Lord said that he had read, those trials were warranted and so would ensue with dispatch.

There was no sufficient evidence on which to charge anyone. Another place, in good faith, had to take for granted the supposed quality and cogency of that evidence in Part II to avoid prejudicing a fair trial in impending proceedings, and did so. Even today, there is no sufficient evidence on which to charge anyone and as yet, the Crown Prosecution Service has not even decided whether to seek the consent of Mr. Attorney to institute proceedings in any single case.

It was never envisaged by another place that a delay of that order could possibly arise; that 15 of the 301 people who have been under investigation since 1988 would still be under investigation today; that new investigations would have been initiated as late as March this year; that by today, a decision as to whether or not to prosecute would not have been taken in all cases; and that by now, those trials would not have been either instituted or concluded.

Indeed, on the contrary, it was common ground among all Members of both Houses that if those trials were to ensue, they must be fair trials in accordance with our concepts of justice. Each year of delay infects the prospects of a fair trial as prejudicial to the defence: especially so where the alleged conduct took place so very long ago and the crucial issue is one of identity.

Clause 1 proposes a time limit on the institution of proceedings. Why so? That is because the Crown Prosecution Service, having received substantive reports from the police on which charges could not be laid, remitted the matter to the police for further investigation. Both my noble friend Lord Ferrers and my noble and learned friend the Lord Chancellor have informed your Lordships' House that the end of those investigations cannot be predicted. It is also because in Scotland, all were excluded from prosecution before 27th June 1994 in exactly the same circumstances in which the Crown Prosecution Service remitted the matter to the police for further investigation. A disparate regime for exclusion on either side of the Border, operating under the same statute, all but beggars belief.

Your Lordships may well think that the only fair and just approach was that adopted by the noble and learned Lord the Lord Advocate, which was explained in a Written Answer on 11th July of this year. It read:

    "After extensive enquiries in the United Kingdom and overseas, Crown Counsel decided that there was not sufficient available evidence for a criminal prosecution in any of the cases".—[Official Report, 11/7/94; col. WA 93.]

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The book was closed in Scotland by the noble and learned Lord the Lord Advocate on that basis before 27th July, yet the Crown Prosecution Service continues investigations on the same basis, the end of which, the Government take the view, cannot be predicted.

The purpose of Clause 2 is to remove the disparity of procedure in an act of general application and to introduce in England and Wales and in Northern Ireland the appellate procedure as it existed for many years in Scotland. The justification is to avoid a long, complex and costly trial with unusually emotive overtones conducted so long after the event which should not have taken place, and to avoid the "backlash" factor to which the right reverend Prelate the Bishop of St. Albans referred on Second Reading of the Bill. In all those cases, it is inevitable that an application will be made to the court to quash the indictment on grounds of delay, as being prejudicial to a fair trial.

As to the present position and the attitude of government, noble Lords will be grateful to my noble friend the Minister for what she said on 28th November this year (at col. 473 of Hansard). There are now 24 men who have been candidates for prosecution since before 27th June 1994. As I have mentioned, 15 of them have been under investigation since 1988; three since July 1991; and the rest since February, April and December 1993 and January and March 1994 respectively. Of the 369 suspects investigated, 233 have been excluded and 112 have died.

What is the attitude of government? Parliament has had its say. There is no limitation period for murder at common law, so none will be introduced. The continuance of those investigations, whatever delay may be involved, is entirely a matter for the Crown Prosecution Service and must be left to the CPS. It is a matter for the courts to decide whether to quash the indictment on grounds of delay as from 1st September 1939 up to and including the date of trial, or on grounds of abuse of process.

As to Parliament having had its say, having read the Official Reports, perhaps I may say with great respect to my noble friend Lord Tonypandy and to my noble friend the Minister that, on any objective analysis, Parliament has not had its say on either of the procedural matters, the subject of this Bill, which were neither envisaged nor discussed in either House.

There is of course no period of limitation at common law; we know that. But the common law was introduced by a statute with retrospective effect as from 1st September 1939 over persons who owed no allegiance and to whom the common law did not apply. It was a unique and wholly exceptional assumption of retroactive extra-territorial jurisdiction which may no longer be questioned. But your Lordships may well think that some form of control, some form of limitation, is called for in those exceptional circumstances where investigations continue, the end of which cannot be predicted.

Investigations to gather up evidence against a set of octogenarians, some 50 or 60 years after the alleged event, has little to do with my personal concept of the fair administration of justice.

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As regards leaving matters to the Crown Prosecution Service, perhaps enough has been said about the disparate regime operating either side of the Border and about the continuance of the unpredictable delay under the aegis of the CPS which the Government are apparently prepared to countenance. This is not the occasion upon which to consider the judgment, efficiency or competence of the CPS, either generally or in context with this affair in which, perhaps, it may speak for itself. But if the Government are prepared to leave the matter in the hands of the Crown Prosecution Service without any control over continuing delay, then surely a case is made out for some limitation on the institution of proceedings.

Moved, That the Bill be now read a second time.—(Lord Campbell of Alloway.)

6.26 p.m.

Lord Merlyn-Rees: My Lords, I should, first, declare an interest in the matter of war crimes as chairman for many years of the all-party group on war crimes. I am glad to say that we played a part in getting the Hetherington-Chalmers Report published. We also played some part, along with my colleagues in another place, in getting an overwhelming vote in favour of the War Crimes Bill when it appeared before that place. It is my view that if today's Bill were to get to the other place—although I do not believe that it will—it would be overwhelmingly defeated.

I have been two years in your Lordships' House and I am second to none in my appreciation of the role of this place as a revising Chamber. Very often the quality of debates here is far better than those in another place. The purpose of the Bill now before us is to overturn the Act which was passed overwhelmingly in the other place; indeed, it would nullify it. I should like to argue the case for leaving things as they are.

Even if the effect of the Bill were not to nullify the Act, as came out in the discussion that we had during Question Time recently it is not the role of Home Office Ministers to interfere in any way with the police through their War Crimes Unit. The police are independent. The glory of the police—sometimes it is not so; indeed, it never used to happen in Northern Ireland where the police were the creatures of the state—is that they are independent when they are investigating crimes. The Home Office is quite clear on that fact. There have been one or two occasions in recent years when I believed, with no knowledge perhaps, that there had been an overstepping of the mark in that respect. The independence of the Crown Prosecution Service and of the War Crimes Unit is, I believe, most important.

However, that is not to say that one cannot ask questions. Nevertheless, it is not the job of the Home Office to hasten progress and ask, "What are you doing about this?", or say, "Drop that, and do something else". It must be a matter for the independence of the police. I was going to crack a joke, but this is the wrong place for doing so.

As regards my own role as Home Secretary, I often used to reflect on the fact that Winston Churchill said, "Never make a lawyer a Home Secretary." I believe that he had in mind Sir John Simon. The obverse of that

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remark, of course, is that it does not mean that if you are not a lawyer you would be a good Home Secretary. I believe that sometimes judgment has to take over from the detail of the matter—it can be left to other people.

There is no need for me to rehearse the facts that led to the Act of Parliament, and its antecedents in the Hetherington-Chalmers Report. The report came to a conclusion which I mentioned during the first reading of the Act in another place. I shall not quote the whole thing again, just the following sentences:

    "The cases we have investigated disclose horrific instances of mass murders, and we do not consider that the lapse of time since the offences were committed, or the age of the offenders, provide sufficient reason for taking no action in such cases. We therefore recommend that some action should be taken in each case in which the evidence is adequate".—[Official Report, Commons, 12/12/89; col. 886.]

I shall return to that point. When I quoted those sentences in another place Mr. Edward Heath interrupted me and asked if I would read on. He was being helpful. I said that I would willingly do so and continued, at col. 886:

    "In paragraph 9.18 we describe possible courses of action. We do not recommend deprivation of citizenship and deportation".

That would have constituted another way of dealing with this matter. The noble and learned Lord, Lord Hailsham, discussed this matter in this place. The people we are talking about had entered this country too easily at the time of a Labour Government, which I supported as an ex-serviceman. I had been active in the Labour Party as a kid before the war. People entered this country from Italy —a country I know well—and from Austria too easily. That situation was badly handled. People were not checked. One course of action is not to accuse these people of war crimes but to say that they did not tell the truth when they filled in the forms at the time they entered this country as cheap labour in 1945 and 1946. The young men of South Wales and Yorkshire did not work in the pits at that time because of all the cheap labour entering the country. Many of those people who entered this country wanted a job and I do not blame them for that. Many of them played an important role in the areas to which they moved, but they did not tell the truth about their situation when they entered the country.

The Hetherington-Chalmers Report referred to English and Scots law. I believe this matter has already been mentioned tonight. The report stated that neither English nor Scots law have imposed time limits in the prosecution of indictable crime. The War Crimes Unit has taken its time over this matter. The noble and learned Lord, Lord Scarman, the noble Lord, Lord Jenkins of Hillhead, the Cardinal of Westminster and I have formed ourselves into a committee which has sought new legislation to deal with miscarriages of justice. We have dealt with the case of the Guildford Four and that of the Maguires. I have not checked my papers but I believe that when I was Home Secretary I sent the Maguire case back to the Appeal Court. I was given a dusty answer and told not to waste the court's time. The Maguires are now out and so are the Guildford Four.

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I am the last person to want miscarriages of justice to occur. There must be a cloud over parts of the judiciary and the police, otherwise the Government would not be about to introduce legislation to deal with miscarriages of justice. As interested as I am in war crimes, I do not wish to see miscarriages of justice. I would not care if no one who was investigated was charged if the evidence does not stand up. That is the glory of our system. I am not seeking to catch people for alleged crimes because of what I witnessed at an impressionable period in my life.

As regards miscarriages of justice, I understand that a body, separate from the Court of Appeal, and separate from the Home Office, is to be set up to deal with this. However, I believe the Court of Appeal will be involved. I am not worried about delay. What is important is that this work must be carefully carried out.

I wish to say a few words about the nature of these war crimes. I am an oldish man now but sometimes when one is inside this place one feels younger than when one is outside it. As an old man I sometimes talk with my young sons. They ask me about Dresden. I was proud to serve in the RAF but I was not at Dresden. But I also talk to my sons about the rocket attacks on London and on Lewisham. A ceremony was held in Lewisham recently to mark the anniversary of a rocket attack. However, those events are not war crimes according to the definition of the law.

I have just revisited—as I do every year—war graves in those parts of the world in which I served. I visited Sicily to see the graves of the 51st Highlanders and the 50th Northumbrians. Some of my friends are buried there. My father died as a result of the First World War; he was gassed. I have taken my children to see the war graves of north eastern France. What a society there was at that time, but millions of Germans, French, British and other nationalities died in the First World War and no wonder in the inter-war years the cream of manhood had disappeared.

I regard those events as war crimes in the non-legal sense. However, the war crimes we are discussing are of a different nature. They were committed away from the front. The Hetherington-Chalmers Report describes various crimes. It describes how people were lined up in front of a trench and shot so that they would fall into the trench. What happened at Dresden was terrible, as were the rocket attacks on London, the bombing of Rotterdam and the heavy bombing of the German cities. But the crimes we are talking about must not be forgotten. I shall return to that matter in a moment.

I served in the Air Force but I also spent some time working with Army personnel. Recently I returned to the south of France. When I served in that area I was astonished to discover that the German soldiers who wore Iron Crosses came from eastern Europe. I had been fed the idea that Europe was waiting to be liberated and that most of the people in Europe were waiting to be liberated by us and were not on the side of the Germans. I did not find that to be true. They had fought willingly for the Germans. I found that was the case in Yugoslavia and as regards the troops who were streaming from the Hungarian front. I understand, although I do not know

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about this, that there were similar soldiers —not soldiers of fortune, but working with the Germans—in pockets on the second front.

It was those people from eastern Europe who found their way into this country. That is why we should examine how they entered this country rather than actual war crimes. Some of those people committed heinous crimes.

In the past few years I have talked to Jewish friends who were in concentration camps. My friends told me that the personnel in those camps, who came from the Baltic states and parts of eastern Europe, were worse than the Germans. They tried to outdo the Germans in their behaviour. Only some of those crimes will be able to be proven. I do not want revenge. I have fought against capital punishment. I do not wish those people to be hung if they are found guilty. All I want is for the world to face up to what has happened.

We need to face up to what is happening in Yugoslavia now. The Government have embarked on a scheme with the UN to establish war crimes tribunals, and then trials, in Yugoslavia. Therefore, that process will happen again there. However, I should have thought it would be extremely difficult to obtain evidence. I believe it is a mistake to hurry things up. I have no knowledge of how many cases have been considered. Let the matter be dealt with but at least let it be known that we in the Parliament in this country have stood up and declared that war crimes are evil. Let us not be sidetracked from that.

I saw Barbie's Lyon. I saw Lyon airfield bombed to smithereens. The light bombers—or the posh name for them, the tactical bombers—bombed the airfield. The French kids cheered and they were shot. I saw their legs sticking through the earth. That is a war crime and it is that sort of war crime—not the events that occurred in battle in north eastern France that I describe to my sons—that was perpetrated, mainly on members of the Jewish faith in eastern Europe, that we need to consider. The other House, in which I was proud to play a part, stood clearly for dealing with such war crimes. We should not renege on that. Let us see what happens.

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