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Baroness Miller of Hendon: My Lords, I listened with enormous care to the noble and learned Lord. I was surprised that he referred to my upsetting the House with constitutional matters. It seems to me that the Government are bringing forward lots of constitutional matters which undoubtedly are upsetting many parts of your Lordships' House. I certainly did not hear any murmurs of upset on the few remarks that I made.
I quoted from the noble and learned Lord the line about discouraging some employers who may be tempted to use unfair tactics or dissuasion. I said that that sounded like intimidation to me and not that the noble and learned Lord was saying it. I said that if a minder came onto the premises I might feel some kind of intimidation. However, I totally accept what the noble and learned Lord said on that point, and not for anything would I upset him. In fact he was smiling at me very nicely at the end, but he was not smiling at me at the beginning when he said those words.
I am amazed that the noble and learned Lord continues to say that one may not go onto the premises. He referred to subsection (8)(a) and then put subsection (8)(a) and (b) together. I think that we will have to agree to disagree on that one. However, with regard to the copies, the noble and learned Lord said that he is sure that that is the normal way for that to happen. Yet he continues to say that by providing that that is what should happen, it would in some way weaken the Bill. I cannot agree. I shall certainly withdraw the amendment at this stage and read very carefully what the noble and learned Lord said. However, I reserve the right to return to the matter again at Third Reading. I beg leave to withdraw the amendment.
Lord Haskel: My Lords, I beg to move that the Report stage be now adjourned. In moving this Motion, perhaps I may suggest that the Report stage begin again not before 8.35 p.m. If we are to get through the Motion of noble Lord, Lord Campbell of Alloway, during the hour, perhaps I may suggest that the noble Lord, Lord Campbell of Alloway, speaks for not more than 10 minutes, the noble Lord, Lord Dubs, for not more than 12 minutes and all other speakers for not more than five minutes.
Lord Campbell of Alloway rose to move to resolve, That an humble Address be presented to Her Majesty praying that Her Majesty should exercise the Prerogative of Mercy to release Guardsmen Fisher and Wright from mandatory life imprisonment in exceptional circumstances as other available mechanisms would unduly delay their release.
The noble Lord said: My Lords, I am more than content to treat this as if it were a dinner hour debate, which in effect it is. In the wake of your Lordships' debate on 23rd June, the Secretary of State set up a review to which this Motion now relates. My noble friend Lord Dubs explained the procedure on 6th and 16th of July in context with the amendment moved by my noble friend Lord Tebbit. This review is a welcome initiative which enhances the purpose of this Motion. The Secretary of State proposes to give her decision as to release towards the end of August. It is accepted that immediate release from a mandatory life sentence for murder presupposes time for due inquiry. This is a matter for the executive under delegated remit of the Royal Prerogative. It is acknowledged by statute; not the judiciary, not the legislature.
The Government Chief Whip was good enough to inform me this afternoon that it is not the intention of the Government to oppose this Motion; and for this relief I am indeed most grateful. If this Motion were to be carried, the humble Address, when received, would be sent straight off to the Secretary of State. It would serve as a representation from your Lordships' House, confirming the opinion already expressed in favour of immediate release, as sought indeed by my noble friend Lord Tebbit, but by other means. Such is the practical effect of the form in which the Motion is cast, which would be of considerable persuasive consequence without any hint of confrontation with government.
These findings are the ultimate degree of culpability and indeed were reflected in the last decision of the Secretary of State on 17th June on remission by the court on 22nd May. These findings were based on partial and wholly unsatisfactory evidence, contrary to early accounts given to the police by three residents of the New Lodge area of Belfast hostile to these armed foot patrols, who said that when the lance sergeant in charge of the patrol stopped McBride, he searched him; and so was found by the judge to be unarmed.
According to the affidavit evidence of the lance sergeant, as confirmed by Guardsman Williams--the fourth man in the patrol--and CSM Dunn, the platoon sergeant in various aspects, the lance sergeant did not search McBride who indeed attempted to evade, and evaded, the proposed search.
The noble and gallant Lord, Lord Inge, then CGS, and who, alas, is unable to speak today, but would have wished to have done so, and the noble Lord, Lord Thomas of Gresford, identified as the crux of the case whether or not the lance sergeant searched McBride. If he did not, according to the documents in the Library, the findings which supported conviction and have since thwarted release, are wholly untenable.
The question is whether these findings will continue to thwart release--findings which your Lordships concluded on 23rd June, on the documents in the Library, and in the light of the speeches made, were fundamentally flawed. As to this, the noble Lord, Lord Dubs, has said, quite reasonably, that no assurance can be given as this would pre-empt the decision of the Secretary of State.
It is therefore of cardinal importance that a representation, a strong signal, a message--call it what you will--as to release as soon as possible should be sent to the Secretary of State by your Lordships as an exercise of mere persuasion. As a means to this end, noble Lords on all sides of the House are respectfully invited to support this Motion.
The narrative is wholly based on affidavit evidence in the Library and is devoid of any embellishment. On 4th September Fisher and Wright--first-class soldiers of good character, experienced in anti-terrorist drill and practice--were part of a foot patrol with Guardsman Williams, as armed soldiers in aid of the civil power in the New Lodge area of Belfast under the command of Lance Sergeant Swift, a reliable patrol commander on
The colonel--who, with the company commander, saw Fisher and Wright when they returned to barracks before they were arrested on 4th September and interrogated on 4th and 5th and charged by the RUC with murder on 5th--has deposed that when he saw them they were "shocked" and said that they acted in good faith, believing that their lives and the lives of the patrol and others, were in danger. They said that they fired in accordance with the terms of engagement.
The colonel also deposed that in his belief they acted in accordance with the terms of engagement as armed soldiers in aid of the civil power on the streets of Northern Ireland; and that those under his command were in danger 24 hours a day, seven days a week--a belief supported on 23rd June by the noble and gallant Lords, Lord Bramall and Lord Inge, the noble Lord, Lord Chalfont, my noble friend Lord Vivian and all noble Lords who spoke to this.
At the trial neither the lance sergeant, Williams nor Darren were called to testify. The evidence of Fisher and Wright that they acted in good faith in accordance with the terms of their engagement, was rejected.
Moved to resolve, That an humble Address be presented to Her Majesty praying that Her Majesty should exercise the Prerogative of Mercy to release Guardsmen Fisher and Wright from mandatory life imprisonment in exceptional circumstances as other available mechanisms would unduly delay their release.--(Lord Campbell of Alloway.)
Lord Bramall: My Lords, like, I suspect, a number of other noble Lords, I do not fully understand the exact constitutional position of the Queen's Prerogative of Mercy, imagining that Her Majesty is bound to act on the recommendation of the very Minister or Ministers to whom, so far, our pleas and urgings, although utterly reasonable and widely supported, have fallen on deaf ears.
What I do know, however, is that the two Scots Guardsmen, Guardsman Fisher and Guardsman Wright, having already served what amounts to (taking into account normal remission) a custodial sentence of between eight and nine years, for what might have been a tragic, split-second error of judgment, but which they believed constituted (under the circumstances) their duty, should now be released forthwith. They should not have to suffer any longer the reality and stigma of a life sentence which, although mandatory under the law for the offence for which they were convicted, was wholly inappropriate in terms of justice; nor would it be other than invidious if the decision on their release was to be delayed just so that it could be entwined with political considerations affecting the release of terrorists on both sides. After all, those are the very people whom the whole training of soldiers such as Fisher and Wright was designed to thwart.
So, if the Motion in the name of the noble Lord, Lord Campbell of Alloway, to present an Humble Address to Her Majesty the Queen will help to persuade the Secretary of State for Northern Ireland that the time really has come to initiate the release of Guardsman Fisher and Guardsman Wright, I most readily support it.
Lord Vivian: My Lords, I have served in Belfast, as thousands of others have done. Before going to Northern Ireland, every regiment receives excellent, well prepared and highly sophisticated training. I have patrolled in the remarkably unpleasant and dangerous New Lodge area of that city where Fisher and Wright were on the day that MacBride was killed. I know how those guardsmen felt when they started their patrol that day and the immense strains and pressures they were under.
Although Her Majesty's Government do not accept responsibility for the defence submissions or for the judge's verdict, they have overall control over the mounting of the case for the prosecution. I should like to bring to the attention of those in authority and to the general public the fact that there are serious concerns about the trial of Guardsmen Fisher and Wright, concerns which, in my humble opinion, amount to a gross miscarriage of justice.
A number of questions arise from the new sworn affidavits, which have been placed in the Library, which I have read with great care. I should like to know why that evidence was never produced to the court. If it had been presented to court, the outcome of the trial might have been very different.
I wish to concentrate on four important facts. The first issue is the search. Swift denies searching MacBride, and Williams has corroborated his statement. In my view, it is clear that Swift was physically prevented from searching MacBride. Why did Swift order the three men in his patrol to grab MacBride? Presumably, because he had not been able to search him by then. If he had searched him and found nothing, he would not have given chase, thus endangering their lives even more. If MacBride had nothing to hide, why did he evade being searched? Presumably, because he was carrying a coffee-jar bomb.
The second fact is that all four members of the patrol saw MacBride carrying a transparent plastic bag in which was a cylindrical object. Under existing regulations, that gave the patrol every right to adopt the action that it took.
Thirdly, the inhabitants of the New Lodge area are particularly resourceful at removing incriminating evidence from the scene of an incident. It is no wonder that no coffee-jar bomb was found on MacBride as he would have dropped it off as he went through 15 Upper Meadow Street.
My fourth point concerns the evidence given by the three local residents. In this unpleasant New Lodge area, it is not unknown for people to give false evidence when required to do so. The witnesses cannot be said to be impartial. Indeed, one of those witnesses had 12 convictions for shoplifting and others for receiving
Both Swift and Williams have said that there were no bystanders. Swift has said that there were no civilians in the immediate area. The total lack of civilians was most unusual, particularly as it was the school holidays and around 10.20 in the morning. It has been my sad experience that that is often a sign of an ambush. My personal view is that that ambush was thwarted because of the sudden and unexpected appearance of MacBride. In IRA terms, anything that does not go according to plan is immediately aborted as the IRA takes no unnecessary risks. It is most unlikely that there would have been three bystanders out on the street under those circumstances.
Furthermore, when the adrenalin is flowing very fast through the body, the automatic reactions by a soldier conform to the drills and commands learnt in training. Under those immense pressures, the mind is normally incapable of using words that have not been practised and rehearsed time and time again during training. To read that three mythical bystanders said that they had heard radically different versions, interspersed with foul language, of the laid-down command, "Army, halt or I'll fire", is so unlikely as to be, in my judgment, quite inconceivable. In any event, how could the three alleged bystanders have observed the search or heard the commands shouted by Fisher and Wright in Upper Meadow Street, some distance away with so many houses between them and where the incident took place?
In conclusion, the Minister informed us in our previous debate on this that the Secretary of State can at any time, if she thinks fit, release a person serving a term of imprisonment for life providing she consults with the Lord Chief Justice and the trial judge, if available. Why does she not do so? Are those two men, who were merely carrying out their duty for the nation, to languish in prison when others, many of whom have committed unspeakable crimes, are to be released? It is at this point that the whole matter becomes political. There has been a gross miscarriage of justice and it must be put right as soon as possible.
Lord Chalfont: My Lords, I rise to support as strongly as I can the Motion in the name of the noble Lord, Lord Campbell of Alloway. I should like noble Lords for one moment, if they can, to put aside thoughts of the Scots Guards with their great reputation and powerful image and to remember that we are talking about two young Scotsmen, Jim Fisher from Ayr, who was aged 24 at the time, and Mark Wright from Arbroath, who was aged 19. Those two young men did not go out that day to kill innocent people. They went out to perform what has already been called their duty in aid of the civil power--in other words, to help the police to protect innocent people from those who were out that day intending to kill. That is what those two young men were doing.
On 4th September 1992, the day with which we are concerned, there was an incident and someone, innocent or otherwise, was killed. As the noble and gallant Lord, Lord Bramall, pointed out, it might have been an accident, an error of judgment. I make no comment on that. However, as the noble Lord, Lord Vivian, hinted, I think it is very difficult for anyone who has not stood in a jungle clearing in Malaya, in a terrorist village in Cyprus, or in the African bush with a small patrol, to comprehend how such an accident might have happened. These young men were in none of those places but in a part of Northern Ireland known to be a dangerous area. They were in an urban terrorist area in which their regiment and other patrols had already been fired upon and attacked and in which one of their own comrades had been shot by an enemy sniper. While that was in their minds, before them was a man who, when ordered to be searched as a suspect carrying some offensive weapon, seized the earpiece of the patrol commander's radio set and made off in an attempt to escape. If I had been the patrol commander to whom that had happened I would have expected my soldiers to take some fairly vigorous action. Having studied the evidence to an extent I believe that what these soldiers did they were perfectly entitled to do. Indeed, were I the patrol commander I would have expected them to do it.
I understand that there was no way in which a lesser charge could have been brought. If any charge was to be brought it had to be murder. There was no way in which they could be tried for manslaughter, culpable homicide or any other offence. But one wonders whether they should have been prosecuted at all. I believe that in the light of the evidence the prosecution was unwise, unsafe and unsound.
I make one other point which may not be entirely relevant but is always in the back of my mind. I refer to the message that this kind of prosecution sends to soldiers and others who have to act in aid of the civil power and, having done what they consider to be their duty, are not criticised, reprimanded or punished under army regulations but are charged with murder and sent to prison for life. I believe that we should be asking ourselves some very serious questions in respect of that matter.
I conclude, as have other noble Lords, by saying that it is long past the time when these two young men should be released from prison. We do not want ponderous reviews or any lengthy reconsideration of the matter. If these two men are still in prison when terrorists under the peace process or the great agreement are released, ordinary, intelligent, decent people in this country will find it very difficult to understand. If the Secretary of State cannot or will not act now to secure the immediate release of these young men, perhaps the Motion of the noble Lord, Lord Campbell of Alloway, is the only way to do it. I strongly support the Motion.
Since 23rd June affidavits from Guardsman Williams and Company Sergeant Major Dunn have been placed in the Library. They show the salient aspects of that confirmation. I apologise for being long-winded but I believe that it is relevant to read the affidavit of Guardsman Williams:
They have been in custody since 4th September 1992. They have served the equivalent of a nine-year determinate sentence. The opinion of your Lordships' House, as expressed on 23rd June and 16th July, is that they should be released immediately. The Motion should be carried so that a representation to this effect should be sent to the Secretary of State for consideration on the current review.
The Earl of Carlisle: My Lords, I too thank the noble Lord, Lord Campbell of Alloway, for raising yet again the case of the two unfortunate Scots Guardsmen who have been languishing in gaol for over five years.
It is a privilege to follow the noble Lord, Lord Westbury, who, among others, has worked tirelessly both inside and outside your Lordships' House to obtain redress and release for the two unfortunate guardsmen who, through a tragic error of judgment, found themselves convicted of murder by due process of law and received mandatory sentences of life imprisonment.
I am sure that all noble Lords in this House, including noble and gallant Lords who have had the privilege to wear the uniform of the King in war or peace, or of the Queen in war, peace or counter-insurgency operations, will agree with me that on exercise or on operations we
I had the privilege after serving in Northern Ireland of serving with the British Army of the Rhine when General Sir Michael Gow was the Commander-in-Chief. He is a most distinguished infantryman. He is quoted as saying that in a similar situation to that faced by the two Scots Guardsmen he would probably have done exactly the same. So would I.
I rise to support the Motion of the noble Lord, Lord Campbell of Alloway, that an Humble Address be presented. As far back as 20th April of this year I asked a supplementary oral question to the one put by the noble Lord, Lord Burnham. I asked the Minister of State, the Minister who is in his place today, if he would consider putting the case to the Sovereign so that Her Majesty could exercise Her prerogative of mercy.
The Minister replied that the Life Sentence Review Board procedure and the sentence review body would be running in parallel and that in the circumstances he did not think it would be appropriate to refer the case elsewhere. I did not agree with him then and I shall not agree with him if at the end of this debate he cannot agree to endorsing a mechanism which would speed up the date of the release, the Life Sentence Review Board being too slow.
My view is further reinforced by a statement from the Northern Ireland Office dated 6th July 1998. The Secretary of State stated in another place that she had received the papers and would be considering those papers "during the next few weeks". How many weeks? We are entitled to know, as indeed are the guardsmen.
Secondly, the papers which have to be considered are extensive. I recall my service at various headquarters, in particular the Northern Ireland headquarters, where the staff were often directed by the Commander, Land Forces, to produce a brief, a paper or information for the Northern Ireland Office within 24 hours, or, indeed, within 24 minutes or even two-and-a-half minutes. Woe betide the staff office if that work was not produced on time. Why the delay in this case? Does not the noble Lord agree with me that this new review by the Secretary of State smacks of prevarication? Why is that the case?
The second avenue of approach is the sentence review body. As every schoolboy knows, this is a mechanism for granting convicted terrorists early release. This is an entirely inappropriate method for the release from gaol of the two Scots Guardsmen. First, they are not terrorists. Secondly, they never were terrorists. Thirdly, they were sent to Northern Ireland by the state--by previous Secretaries of State for Defence and for Northern Ireland--to keep the peace, to prevent terrorism and to apprehend or, indeed, kill terrorists.
I turn to the prerogative of mercy. I have been much influenced by the paper by Christopher Vincenzi, Crown Powers, Subjects and Citizens. He states that crimes may be pardoned absolutely or conditionally. He draws the distinction between the free pardon, which wipes out not only the sentence but the conviction, commutation of the sentence, and, finally, remission, which is
I shall conclude on this point. Last week on the West Front of Westminster Abbey 10 statues were unveiled to 10 Christian martyrs who died for their faith this century. Over the past quarter of a century over 3,000 people--3,000 too many--have died in Northern Ireland or, as I prefer to call it, been murdered; some--the vast majority I suggest--because either they were in the wrong place at the wrong time or they died for their faith. Although these statues are prominent, less attention is given to four statues below the 10 Christian martyrs. They represent the four cardinal virtues: truth, justice, peace and mercy.
I suggest that truth, in the matter of this tragic incident, will never be readily available or complete, as the evidence is incomplete. Justice was done, I hope, but it was very harsh. Peace may come to Northern Ireland, we all hope that. And finally, mercy: it is time--it is long overdue--to show mercy to these two guardsmen. That is the reason why I support the Motion before your Lordships' House.
Earl Attlee: My Lords, I apologise to the House for missing the first few minutes of this debate. I also remind the House that I have an interest. I notice, yet again, that we have a defence Minister, Lord Gilbert, in his place on the Front Bench. We are, indeed, grateful for his interest.
I have spoken on this matter before and I declare that I am broadly content with the Motion, but I believe that my noble friend Lord Tebbit may have a superior amendment or lever to pull later.
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