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The legislation proposed in Amendment No. 173 seems wide ranging; in fact, really an invitation to litigation:

a person, on the ground that he,

This opens up the possibility of a number of cases which, in the end, would not be in the interests of the Reserve Forces because employers would become wary about people using the excuse of discrimination because they thought they might join the reserves. So I would like the Minister to address the real question here: we have some legislation already, there is a problem, the Ministry of Defence is not giving our reservists enough legal assistance when they need it, and the resources necessary. That would be better than drawing up extra legislation, which would still leave the problem of how we resource people to get cases heard appropriately.

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Lord Glenarthur: I had not anticipated taking part in the debate on this amendment. My noble friend Lord Attlee and the Minister might like to be aware that, as chairman of the National Employer Advisory Board for the reserves, this subject has arisen in a number of different ways over the past few years. I can well understand the superficial attractiveness of the idea, but I am not sure that it really holds water when analysed, largely because, as the noble Lord, Lord Garden, said, the provision is drawn extremely widely.

However, other nations take a rather different view. I know that there is pronounced legislative activity in the United States—and, I think, in Australia, but I shall check that—to legislate on the lines of the amendment. It may be helpful to the Minister if I say that my board is considering that. We are not conclusive about any particular resolution to the problem, but the indications so far are that further legislation would not necessarily do what everyone hopes. The issue is not closed. I certainly understand the spirit in which the amendment is moved, but I am not convinced that it is the right answer.

3 pm

Lord Drayson: I absolutely accept the importance of the matter. As noble Lords have described, it is a matter of whether the issue is best addressed by legislation or by focusing on policy and implementation—the actions that the Ministry of Defence takes in support of our reservists. If I may say so, it is important for us to recognise the importance and central role that our reservists play in the Armed Forces. We have changed our policy to make reservists an integrated part of our fighting effort—for example, with the Territorial Army—as part of the one Army concept. Some noble Lords may have seen the advertising on the television to reflect that.

We recognise that there is an issue here, but we should not regard it out of proportion, if I may say so. I shall give some numbers. Since 2003, 14,500 reservists have been called out to support operations. Of those called out, 28 reservists have applied to have their cases brought before a reinstatement committee. Fourteen cases were withdrawn, six were settled before hearing, five were won by the applicant and three by the employer. Those are small numbers but are nevertheless very important. From my experience both latterly in the Ministry of Defence and previously in industry, I recognise the responsibility that we in the Ministry of Defence have to communicate very clearly to industry and employers what are their responsibilities. I take on board the points that have been made asking whether the Ministry of Defence is doing enough.

With regard to the specific case raised by the noble Earl, Lord Attlee, concerning Sergeant Knight, if he would care to write to me, I shall look into the matter and take it up with my ministerial colleagues.

I agree with the noble Lord, Lord Garden, that this is about implementation, not legislation.

I ask the noble Earl to withdraw his amendment after hearing what I have said.

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Earl Attlee: I have to agree with the analysis of my amendment given by the noble Lord, Lord Garden. If there were 28 reinstatement committees, why were they not invariably attended by an officer to support the serviceman? It is always a pleasure to receive faint praise from my noble friend Lord Glenarthur. It is a shame that I cannot ask him questions about volunteer reserve recruitment, especially officer recruiting.

I agree that further legislation may well be counterproductive, but the issue is to use the legislation that we have in place and to ensure that we provide heavy support for those few cases—we are talking about only 28 cases that ended up in the reinstatement committee. We must be right behind those volunteer reservists if they have to resort to the reinstatement committee. I am disappointed by what we have done in the past and I hope that we can do better in future. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 345 to 347 agreed to.

Schedule 12 agreed to.

Clause 348 [Power to take affidavits and declarations]:

Lord Drayson moved Amendment No. 173A:

On Question, amendment agreed to.

Clause 348, as amended, agreed to.

Clause 349 agreed to.

Schedule 13 [Protection of children of service families]:

Lord Drayson moved Amendments Nos. 174 to 177:

On Question, amendments agreed to.

Schedule 13, as amended, agreed to.

Clauses 350 to 354 agreed to.

Lord Drayson moved Amendment No. 177A:

(a) an offence under any of the following provisions of the Army Act 1881 (c. 58)-

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(i) section 4(2) (casting away arms etc); (ii) section 4(7) (cowardice); (iii) section 6(1)(b) (leaving post etc without orders); (iv) section 6(1)(k) (sentinel sleeping etc on post or leaving post); (v) section 7 (mutiny and sedition); (vi) section 8(1) (striking etc superior officer); (vii) section 9(1) (disobedience in defiance of authority); (viii) section 12(1) (desertion or attempt etc to desert); (b) an offence under any of the following provisions of the Indian Army Act 1911 (Indian Act, No. 8 of 1911)- (i) section 25(b) (casting away arms, cowardice, etc); (ii) section 25(g) (sentry sleeping on post or quitting post); (iii) section 25(i) (quitting guard etc); (iv) section 27 (mutiny, disobedience, etc); (v) section 29 (desertion or attempt to desert). (a) affect any conviction or sentence; (b) give rise to any right, entitlement or liability; or (c) affect the prerogative of mercy.

The noble Lord said: As I reported to the House on 14 June during Second Reading, the Secretary of State decided to re-examine the issue of pardons for World War 1 soldiers. The outcome of that review was subsequently announced by the Government on 16 August, when we said that we intended to seek parliamentary approval for a statutory form of pardon for servicemen executed for a range of disciplinary offences during the First World War. The purpose of the amendment is to provide for that.

The Government are very much aware of the considerable feeling in this country and abroad for the British and Commonwealth servicemen who were executed in the tragic and horrific circumstances of the First World War. A great deal of consideration has been given over the years to the best way in which to address that issue. Pardons under the royal prerogative were considered as part of the review of the subject initiated in 1997 by Dr John Reid, then Armed Forces Minister. The review concluded that few, if any, of the cases would succeed if the standard test for prerogative pardons was applied. An important factor leading to that conclusion was the sparseness and unevenness of the surviving evidence across the group of cases.

Noble Lords expressed their strong concerns about the matter most clearly to me when we debated it in this House on 9 January. As I undertook to do at the time, I reflected those concerns to my right honourable friend the then Secretary of State for Defence. Having reviewed the situation again, we believe that we should now act to remove the dishonour that still taints the memory of those servicemen who suffered execution and is still felt all too heavily by their families today. It is time to recognise that execution was not a fate that they deserved but one that resulted from the form of

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discipline believed to be necessary at the time for the prosecution of the war. We believe that this can be achieved by the clause.

In speaking to the amendment, I stress that the Government do not intend to call into question the actions of officers who were responsible for discipline. The commanders at that time were themselves faced with extremely difficult and unpleasant duties that none of us would envy. The clause does not stand as a judgment of the way in which they did their duty. The amendment avoids the difficulties that would be posed by assessing individual cases. It does not seek to rewrite history by quashing convictions or sentences. Its aim is to lift the stigma that has been attached to these executions for so long, affecting the lives of the servicemen’s families for many decades. This will be the moral effect of the measure if passed by Parliament.

The amendment provides that all servicemen executed for certain offences, such as desertion and cowardice, committed between 4 August 1914 and 11 November 1918 shall be taken to be pardoned. The names of those affected are not listed in the clause because our records are insufficiently comprehensive to be able to do this. However, if the amendment is passed, we plan to place a formal record of the pardon alongside the relevant court-martial files, where we hold them. This will be visible to anyone viewing those files in the future, and it will be an important measure in helping to restore the memory of these men.

I understand the concerns of the House that we announced our decision to seek a statutory pardon during the Recess, but I assure noble Lords that we made the announcement at the earliest possible opportunity following our review of policy so that we could commence the necessary consultation and drafting for an amendment to be included in the Bill. I am sure noble Lords will agree that, having reached a decision, and given the age of some of those campaigning for pardons, the Government should not have delayed on this matter until another opportunity arose in the legislative timetable. For the same reason, we also intend the amendment to take effect on Royal Assent.

The subject of pardons is emotive, and the public feel very strongly about it. There is also considerable interest in the matter in the House. It seems appropriate, in this year that saw the 90th anniversary of the Battle of the Somme, which claimed so many victims, that we should take this opportunity to recognise other victims of the First World War. On a particularly poignant note, the 90th anniversary of the execution of Private Harry Farr falls on 18 October, less than a week from now. I have read Private Farr’s file, and anyone who has done so cannot fail to be moved by it. I am glad that we have had an opportunity to revisit this matter and to find a solution.

Private Farr’s family have been at the forefront of the campaign for pardons, and I take this opportunity to pay tribute to the important role that they have played. I also pay tribute to my noble friend Lord Dubs for his interest in and support for this cause, and I hope that we will be able to have his support for our amendment. It is also right that I use this opportunity to thank the noble Lord, Lord Campbell of Alloway,

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who supports the amendment. I trust that all noble Lords will be able to support this important amendment, which I believe will bring closure to all families who have had to live with the stigma of these executions since the First World War. Noble Lords will be aware from an open letter from some of those families that they welcome this move to restore their men’s reputations. I beg to move.

Lord Dubs: I very much welcome the government amendment and what my noble friend has said. I am grateful to him for the part that he has played in this, and to the Secretary of State, with whom I had several conversations in the summer about the amendment. I also pay tribute to the campaigners, who have worked very hard to achieve this end, and to my honourable friend Andrew Mackinlay in the other place, who has worked for longer than I have to seek the pardons that we now have the power to effect.

The facts are well understood and I do not want to take any more time of the Committee, except to say that we are talking about young men, many of whom fought bravely for this country and some of whom were underage and lied to be allowed to join our forces. Sometimes the courts martial were very brief, and often in the heat of the fighting in the trenches there was no possibility of a defence or witnesses. The families were left with an understandable sense of injustice that men, some of whom we would describe as traumatised and shellshocked—I do not speak medically—were then executed. For many years, the families have had a sense of grievance that people who fought for this country should have been stigmatised and punished in this way.

3.15 pm

We know that documentation and records do not exist for all the cases, so it is right that the pardon should extend to all of them. To pick out individuals on the basis of sometimes poor documentation would have been an invidious process and would not have given people the sense of closure which this all-embracing amendment does. Like my noble friend, I do not want to criticise the officers who were members of the courts martial that led to these results. None of us in the calm of today can understand what was going on in the trenches, although some of us might understand from books. The officers in the courts martial were doing what they saw was their duty on the basis of the mood, understanding and attitudes of the time, so I do not want pardons for one lot of people to be seen as somehow vilifying others. If there is to be closure, it must be for all concerned, so all the families of the victims as well as of the officers in the courts martial can have the sense that we have now brought this matter to what I hope will be a conclusion—I will not call it happy—that ends the stigma under which the families of these men have suffered. I warmly support what the Government have done.

Lord Luke: We all sympathise with the descendants of the soldiers who were executed during the First World War for various disciplinary offences. However, there are certain considerations which, as an historian, I believe should be taken into account. I also want to ask the Minister some questions, to

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which I shall come in due course. In his letter to me of 27 September, the Minister wrote:

Surely it is the offence which dishonours someone and confers stigma, not the sentence for that offence.

Of the 3,000-odd offences where the sentence of death was passed, no fewer than 2,700 were commuted. Many of those soldiers served considerable terms of imprisonment instead. They are not included, apparently, in this pardon. Surely it is completely illogical to pardon those soldiers who committed the most serious offences, which the relevant authority refused to commute, and at the same time not pardon the offences which were obviously considered to be less heinous, thus leading to those sentences being commuted. What about the descendants of the 2,700? Indeed, what about the hundreds of thousands of soldiers who died with their faces to the enemy and their descendants?

If this amendment is passed, does it confer a legal pardon for the offences of the executed 300? From the perspective of military discipline, surely it must be wrong to go back and impose modern values and sensitivities on a proper system which was operative 90 years ago; that is, between three and four generations ago. Does that not set a precedent that could come back and haunt us?

I notice that the question of compensation is not dealt with in the amendment. Is the Minister quite sure that this does not lay the Government open to claims for compensation at a later stage? Only 1 per cent of those tried for a capital military offence in World War I were subsequently executed, and as few as 10 per cent of those sentenced to death were actually executed. As the Minister has mentioned, in 1998, Dr Reid conducted deep research into a third of the cases we are considering today. He concluded that there should be no blanket pardon because it was impossible to distinguish those who had deliberately let down their country and comrades from those who were not guilty of desertion or cowardice. What has happened with regard to evidence since 1998? Surely, in considering whether a group of people should be pardoned, there ought to be sufficient evidence in each case. As has been admitted, that is most clearly lacking here.

There is a myth that these executions were indiscriminately carried out pour encourager les autres. The facts, as far as we know them, rather suggest that great consideration was given to whether sentences of execution should be commuted. The fact that nine-tenths of those sentenced to death escaped with lesser sentences also suggests that compassion was shown where appropriate and as often as possible.

I fear that this is a political gesture to help people to feel more comfortable about the past. In 1916—or 1914 or 1918—different customs, different standards and different morals were the norm. The principle of rewriting history must be totally wrong. As Wordsworth wrote some 150 to 200 years ago:

And battles long ago”.

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Lord Astor of Hever: I declare an interest in these two amendments in that my grandfather was the commander-in-chief of the day who had the difficult task of making the final decisions in these cases. I very much welcome the Minister’s confirmation that this pardon will not cast any doubt on those who took those very difficult decisions. The means of maintaining discipline was prescribed in the Army Act, renewed every year by Parliament, which determined what actions by troops under command were criminal offences and the appropriate punishments for those crimes. Discipline as exercised by the British Army in the First World War was considered at the time to be fair. That was recognised by all ranks and was effective. The British Army was the only one of the main participants in the war not to experience major mutinies. An essential element in deterring widespread desertion was—unlike the French—the very sparing use of the death penalty. My grandfather refused to confirm 90 per cent of the death sentences that came up in front of him. Despite what the noble Lord, Lord Dubs, said, with shellshock very much in mind, he took explicit medical advice on each case.

Where will the proposed pardon leave this 90 per cent? It is around 2,700 soldiers. What about those found guilty of the same offence who were not shot but reprieved and spent a good deal of time in prison? A pardon would leave some soldiers who were rightly convicted pardoned while others who may well have been wrongly convicted are not pardoned. Within the 360 executions for military offences are some very guilty men who, from the evidence, did intend to commit the offence and were responsible for their actions. Furthermore, some were either multiple offenders or had used deception to evade arrest, and it is quite wrong to grant pardons to those who were guilty of outright cowardice. They declined to risk their lives when others did. What message would this pardon send about the kind of standards we would like our soldiers to abide by today?

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