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We have to accept that past societies did things differently, even if we morally disagree with particular actions today. Otherwise, as my noble friend said, history will be endlessly rewritten by Governments of different political stripes. This is a controversial issue that deserves to be treated with careful sensitivity, and we cannot withhold our sympathies from the descendants and relatives of those who were executed. Wherever possible, relevant individual cases should be reviewed and a pardon considered. But I cannot support a blanket pardon.

Lord Campbell of Alloway: Perhaps I may speak in support of the amendment, as my name is on it. I put my name on it because I received a letter and the amendment from the noble Lord, Lord Drayson. Let us face it: none of us was there, and none of us really knows what went on. But my father was there. When I was a child he told me what went on, and as soon as I saw the letter, it all came back, because children store away things in the mind that occasionally return.

I am not a historian and I do not read much history, but I remember very well the essence of the

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circumstances. In the light of that, this amendment is a totally fair and proper arrangement for the servicemen and their families who, let us face it, were always the prime concern of the field marshall. It affords no form of criticism of the field marshall, although it has been used by so-called historians, none of whom was there. We should all, as a nation, be grateful to this day for what the field marshall did.

In essence, the circumstances as I was told them were that morale was cracking, discipline was on the line, and it was a scene of daily attack. The French had started to desert. But for the intervention and, as my father put it, the compassionate dealings of the earl marshall, discipline would not have been restored. It was also put to me that the earl marshall was greatly admired by the men for having done that and, as I say, is totally unworthy of the criticisms of so-called historians or of a technical analysis based on material from so long ago that it cannot be checked or verified. In these circumstances, the amendment affords the benefit of addressing a mistake or mistakes which inevitably were made. In a way, mistakes have ever been the collateral damage of warfare, and still are. This gives credence to what is owed to the families without in any way questioning the convictions—which you cannot do en masse—or in any way criticising the field marshall. I support the amendment.

3.30 pm

Lord Mayhew of Twysden: I am very grateful for the outstandingly sensitive speeches that we have heard already in this short debate. With great deference to my noble friend Lord Luke, I cannot agree with his suggestion that it is only the offence that brings dishonour. To be shot at dawn before your comrades is to experience the very pinnacle—or perhaps the very nadir—of humiliation and dishonour. I welcome the new clause and I am very glad that the Government, encouraged by the noble Lord, Lord Dubs, and perhaps by the example of New Zealand, have taken this course.

But it is not an easy question and it is deserving of careful analysis. To modern minds, it is rather surprising that the British Army in 1914 went to war with so wide a swathe of offences capable of attracting, in the discretion of courts martial, a capital sentence. The offences are listed in the new clause with one exception—treachery. Probably the reason for that is that there was no execution for that offence in the First World War.

But then was then and, in the hardly imaginable circumstances in which much of that war was fought, it was generally felt within the Armed Forces that the wide availability of capital punishment was necessary for the maintenance of discipline and to fortify the courage of others. I am confident that that was the view of my own father, who was a front-line officer in France and Flanders from 1915 onwards, and he was a kind man. I do not think that we are today in any proper position to challenge, let alone criticise, the practical beliefs of that terrible time. It is interesting to note that, within fewer than 12 years from the end of the war, Parliament had limited the military offences punishable with death to treachery and mutiny alone.

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My support for the clause does not derive from any desire to rewrite history. Indeed, the clause makes it specifically clear that it is not doing that; it does not affect any conviction or sentence. My support derives from the gross inadequacy of the procedures—which were required and supposed to be judicial in character—by which the law in respect of those offences was enforced. By any objective standards, they were generally travesties of justice. If anyone doubts that, I recommend them to read a book published in 1983 written by His Honour Judge Anthony Babington QC, who had a gallant record in World War II and was gravely wounded. He conducted meticulous research into the 318 traceable executions in the British Army relating to the war. Perhaps I may quote five sentences from the book’s preface. It states:

I omit two sentences for brevity’s sake. It continues:

It is this which, in Judge Babington’s words, has,

And he comments that that uneasiness was,

It is absolutely right and fair that the point should have been made that the commander-in-chief commuted all but 10 per cent of those capital sentences. I very much agree with the comments that there is no implicit criticism of that great man. But some, I know, will fasten on the words:

Where living people—related families—are suffering continuing distress from the outcome of proceedings that today we see in the main to have failed the most elementary tests of fairness, surely it would be wrong to say to them, “We will do nothing to palliate your pain; those were the admittedly woeful standards of that time, but for your relatives—and for you—that must remain simply bad luck”. I do not think that I can find any towering principle in that.

It is not necessary to take special account of the extreme youth of so many of these soldiers, nor the fact that many of them had volunteered to serve, sometimes falsifying their age to do so. There is quite enough already to show that the humane and just, as well as the constitutionally sound, course is not to overturn the convictions, not to overturn the sentences, not to impugn the decisions of the commander-in-chief, but to effect posthumous pardons for these unhappy men. I support the new clause.

Lord Borrie: I share the views that have just been expressed by the noble and learned Lord, Lord Mayhew of Twysden. I recollect the book from which he quoted, published more than 20 years ago. The only thing that I would add to the useful quotations

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and points made about that exposé of First World War court martial procedures is that, when Judge Babington began to interest himself in this subject more than 30 years ago, it was not possible to get at the files; it was not possible to research the issue until Lord Callaghan changed the set-up when he was Prime Minister and enabled the learned judge to get at the files and write the books from which the noble and learned Lord has so helpfully quoted.

The judge was talking about the hugely stressful conditions of the First World War when he referred to the inadequacies of court martial procedures at the time. In my view, the Government are right to bring forward this new clause, which must have been very difficult to draft. The points made by the noble Lords, Lord Luke and Lord Astor of Hever, are perfectly valid in the sense that this is not a comprehensive amendment dealing with the rights and wrongs of all the various executions and the convictions that did not result in execution. It is not trying to deal with that comprehensively. The 300-plus pardons proposed will, however, help to remove the most extreme dishonour, stigma and indignity that the First World War executions created, which have been inherited by the men’s families and descendants and have continued, as we know from the campaign about this, to oppress them. Nobody has mentioned war memorials, but excluding the executed men from the list of those killed in the First World War is one of the great features of stigma and indignity to which the families have referred.

As has been said, the Government are not impugning the individual convictions of individual men or the individual sentences; they are not even being critical of the inherently hurried and hasty procedures that led to the convictions and executions. A very fine line is being drawn. It is by no means perfect, as those who are not keen on this amendment have suggested. The pardon that is being proposed is, as I understand it, a very special, peculiar statutory recognition that a line should be drawn. It should be drawn because in so many cases—not in all—execution now seems to have been an unjust outcome for the offences committed in those hugely stressful conditions of World War I. I support the amendment.

The Lord Bishop of Chelmsford: The language of pardon is rooted in our Christian history. What pardon does is clear the agenda. In this case, it lifts a cloud that has drifted from the First World War across our history. It has the genius that it does not require us to pass judgment on anyone. Indeed, it lifts the burden not just from the families of those who were executed, but from those who may carry the burden of having required that to take place. So everyone’s burdens are lifted when you carry forward a pardon.

While it is very important never to take away the burden of responsibility that lies on every individual for their own actions, in war in particular the community bears a collective responsibility for the atmosphere in which the event is conducted. It seems therefore to be entirely right that Parliament should take this action as a collective act of responsibility for clearing an issue in the past that has put a burden on all points of the circle that surrounds these events.

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Lord Selsdon: Perhaps I may be a little personal about this, because this is a sensitive amendment which has been introduced in an intelligent way. However, I was always told that history could not be written until the last person who was alive at the time was dead. We can look at past perfect or future perfect, but most of us will have no memory of those times or—I will probably become a little emotional—just a second-hand memory.

My grandfather won the Sword of Honour at Dartmouth and was invalided out of the Navy just before the war, and he wanted to fight. He had a brother-in-law, my uncle Sir Stafford Cripps, who also wanted to fight, but he was too ill to do so. The two of them got together with others in a double-decker bus and went off to the front. When they arrived, they asked, “What can we do?”. They were told that they could be medical orderlies. They then wrote a letter back to their father-in-law, JC Eno, who had invented Eno’s Fruit Salts, asking for some help. Eno went to his car-maker and had a special ambulance made, which he sent out to the front, and my grandfather and my uncle both became stretcher-bearers.

My grandfather would talk to me at the age of six and seven and tell me what it was like—that he had to go out to pick people up from no-man’s-land, which as a child I called “nobody’s place”. He had to try to find limbs to match people who had been wounded and bring them back. He took people in to have limbs amputated by surgeons and then buried the limbs, only to find that they had been dug up by wild dogs. He said that this was the most terrible time that anybody could have. Sometimes, they would have to go with a stretcher to collect someone who had been shot at dawn. He said that, on one occasion, a man was standing there whom he heard say that he did not want to be blindfolded in any way. He brought him back and there was his brother, who was still alive.

Obviously, you cry as a child sometimes when you try to think as a man. You realise that these were terrible, emotional times. My grandfather and Uncle Stafford—he would never talk about it afterwards—would try to explain that, while these people had been wounded or shot, all people at the front suffered from emotional stress; that mental illness was the same as physical illness; and that there were people who actually prayed that they would be wounded so that they could escape. Whatever the law may have been at that time, and whatever the rules were, you could almost say that the immortal memory of those awful times is more important. We who did not live in those times will never know them, but I will always remember my grandfather. I therefore support this amendment entirely.

3.45 pm

Lord Garden: I find this a very difficult topic, and obviously others in your Lordships’ House have been considering it deeply—including the Government, given that the position of this amendment is the complete reverse of that expressed by them during the Starred Question on 9 January, when passions in the House were high. The problems outlined by the noble

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Lords, Lord Luke and Lord Astor of Hever, are real concerns that one has when trying to put this narrow pardon into a Bill that is about the future of military law, rather than changing the past. However, I have listened carefully to the debate, and I find myself convinced by the legal minds that have told us that doing it this way will be all right—the noble Lords, Lord Campbell of Alloway and Lord Borrie, and the noble and learned Lord, Lord Mayhew of Twysden—and the thoughtfulness behind this measure. It is clear that whatever precedent it may set, it will be of key importance to the families, who will see it as a great comfort if we pass this.

I make one observation, however, as we introduce this measure in what is a strange place; that is, in the Armed Forces Bill for the future. It reminds us that in earlier times legislation was made by people who thought the death penalty was appropriate for these offences. We do not have the death penalty any more; instead, we have life imprisonment. I remind your Lordships that when we discussed a number of these offences earlier in the Bill, there was great enthusiasm for life imprisonment. When we come back on Report, perhaps we should ask whether we are repeating the mistakes of our forefathers in some respects, and whether we want to prevent, in another 90 years, your Lordships’ House—if it still exists—having to make retrospective legislation to change decisions we make about this Bill.

It will be for each of your Lordships to decide how they feel about this subject, but, listening to the debate, I have been moved to change my view, and I will support the Government’s amendment.

Viscount Slim: Perhaps we could debate whether a Government or politicians should tamper with and sanitise history, but we do not need to do so today. One or two noble Lords have mentioned their fathers and grandfathers. I remember having this conversation with my father. I can recall it quite well. He said to me, “I think the problem was that if you were court-martialled for this, you probably didn’t have much of a chance”. Rather like the noble and learned Lord, Lord Mayhew, said, it was the court martial system, its speed and so on. Then my father said one thing else: “Mind you, I think probably one or two of them deserved it”. That is probably true.

In this instance, I go along with the noble Lord, Lord Dubs. He and I have spoken fairly briefly on the matter. I do not consider that enough has been said about the people who had to put these laws into action. Fortunately, Members of the Committee have today rightly spoken about exonerating all those who sat on the courts martial. It was not much fun being on such a court martial, particularly if an officer had fought through the night and had been pulled back to sit on a court martial.

We should look forward. As the noble Lord, Lord Garden, rightly said, we are considering a forward-looking Bill. If a soldier has stuck it out in the line for a long time and has done his duty—“done the business”, as they say today—he does not think much of a chap who deserts or throws his rifle down, lies in the bottom of a slit trench and takes no further part

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in the battle. Whether that is cowardice or desertion is probably for a lawyer to decide, but men who stick out a battle do not think much of a chap who behaves like that. Therefore, when making law on mutiny or desertion, as we are doing in the Bill, we must think of that aspect. It is not just a case of lawyers or governments making law but of the view of men who behave perfectly correctly in battle not thinking much of a chap who chucks in the towel. We must be very careful not to make a habit of this sort of clause, even though today we do not shoot people accused of these offences. The soldier who does his duty in battle and does it well is perfectly entitled not to think much of a chap who does not.

Lord Craig of Radley: I wish to make one comment on the amendment. I accept its thrust but I am disappointed that it should be included in this Bill. It seems to me that this is a rather half-hearted way on the Government’s part of going about what is a very significant and unique change of direction. As it is of such significance, it deserves its own Bill. I am extremely disappointed that it should be included in this one, which, as has been said, concerns the future rather than the past.

From the Government’s point of view it would be difficult to find legislative time. Nevertheless, such a Bill would not be heavy and would generally enjoy support. The Government would have strengthened their position if they had taken the full up-front approach on this. The Government have sought to include the amendment in this Bill for convenience. I wonder whether they considered the Charities Bill a vehicle for it. I am sorry that it should be included in this Bill.

Lord Tebbit: I hope that the Committee will forgive my speaking, not having heard the earlier speeches, but I was committed—curiously, in view of the subject of the amendment—to be with the Czech ambassador at the laying of a wreath to the last of the Czech fighter pilots who fought in the Battle of Britain, and who was remembered today at the Battle of Britain monument on the Embankment. So the enormously difficult circumstances in both the Second, and even more so, the First World War, have been much in my mind.

Like most noble Lords, it is the case for my family that my father and his younger brother volunteered to join the Army in 1914 and fought through the war as infantrymen in the Middlesex Regiment. Quite remarkably, both survived. I found myself wondering what my father or my uncle would have said about this. I think they would have been very understanding about the sheer horror of the man whose nerve cracks; the man who is in fact simply no longer in control of himself. But I think they would have had the gravest of reservations about exercising any form of pardon for those, for example, who had deserted their post, or had simply fallen asleep while they were on duty as sentries and thereby imperilled their colleagues. Therefore, there is some hesitation in my mind about the amendment.

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It is both a pity and perhaps also a good thing at the same time that, as I understand it, the records are now so imperfect that there can be little distinction between the offences of which men were accused and found guilty and for which they paid with their lives. It is probably an act of humanity and generosity towards the families of those who suffered this fate; recognising that almost by any standards, even perhaps by the standards of the time, some of these sentences were unjust. We have to recognise that; but we also have to recognise that some of those who will receive pardons under this proposal do not deserve to have been pardoned.

I always have hesitations about revisionism of history. What happened did happen. We are edging onto very dangerous ground in what we are doing, because it is being done in a manner that does not distinguish between those who genuinely suffered an injustice and those who deserved punishment. Once we start going into that second area, we are substituting our views today of what would have been the right punishment for that crime in the views of the people of that time. I think that is dangerous. I do not like saying that that which happened did not; or that that which was, was not. So I do not think that I can bring myself to vote against this, but we should understand that it is an amendment with very many faults, and if it is accepted it should be accepted as being a very imperfect instrument.

4 pm

Lord Ashdown of Norton-sub-Hamdon: Like the noble Lord, Lord Tebbit, I apologise to the Committee for having come in just a few minutes after the debate started, again for unavoidable reasons. In quite a long political career, I have not on many occasions found myself agreeing with the noble Lord, Lord Tebbit, and disagreeing with a man whom I respect very much, the noble Lord, Lord Dubs. But this amendment gives me very grave cause for concern.

Is this a sentimental thing to do? Yes, it is. Is it an understandable thing to do? Yes, it is. Is it a good thing to do? I listened to the right reverend Prelate. In so far as it relieves suffering today among the relatives and families, yes, no doubt it is. Is it a human thing to do? I think it is that, too. Is it a political thing to do? I say to the Minister that I suspect that there is a good deal of politics in this issue, not least because it has been introduced in this strange way and because there has been a complete 180 degree turn, but the Minister will no doubt have his own comments to make about that. But is it a wise thing to do? I do not think that it is, in part for the reasons articulated by the noble Lord, Lord Tebbit.

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