Skip to main content

Jurisdiction Over Certain War Crimes

Volume 171: debated on Wednesday 25 April 1990

The text on this page has been created from Hansard archive content, it may contain typographical errors.

10.27 pm

I beg to move amendment No. 2, in page 1, line 10, leave out from 'with' to end of line 11 and insert '15th August 1945'.

With this it will be convenient to take amendment No. 3, in title, line 2, leave out from `committed' to 'during' in line 3.

The purpose of the amendments, the second of which is a consequential amendment to the long title, is twofold. It removes the territorial restriction on the operation of the Bill. It is always bad law to pass criminal law which is ad hominem. There can be no justification, if there is any justification for the Bill, in confining its provisions to the crimes of the nature covered in German-occupied territory. There is no reason whatever why it should not extend to Japanese-occupied territory. If the Bill is passed, how can we look in the face any constituent whose husband was murdered by the Japanese army? How can we conceivably justify legislating within the confines of the Bill?

Amendment No. 2 does two things. It substitutes the end of the second world war for the end of the war in Europe. It substitutes VJ day, the end of the second world war, for VE day, which so inappropriately appears in the Bill, as if the war ended on 5 June 1945, which it did not. The amendment also removes the territorial restriction. Even if that provision had been left in, it would be to the enrichment of lawyers and the prolongation of trials.

My hon. Friend says that it is anyway.

What is a place which at the time was part of Germany or under German occupation? Does it mean, for instance the Sudetenland of Czechoslovakia, which was declared by the Germans to be part of Germany but not recognised as such by Great Britain? What about territory occupied by the Hungarian army, the Romanian army or the Italian army, all of which fought on the Russian front?

What is a place? Is a place a country, a province, one of the Nazi German protectorates, such as the protectorate of Bohemia and Moravia? Is it a town, is it a village, is it a house, is it a field? What is a place? It is an absurd piece of drafting. The whole of that nonsense would be got rid of if amendment No. 2 were accepted and with it consequentially amendment No. 3 to the long title.

I rise to oppose the amendment. I have great respect for my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop) and the anxieties that he has expressed throughout the debates on the War Crimes Bill. However, I stress that the Bill was introduced following the Hetherington-Chalmers report.

It was specifically devised to deal with war crimes committed by the German Nazi party and its allies in Western Europe and not with any other problems.

I shall give way in a moment if my hon. Friend will allow me to finish my argument. The Bill was introduced against the background, following what Winston Churchill called the fall of the iron curtain, of no information being passed from eastern Europe to the western nations, particularly those involved in the Nuremberg trials, that would provide them with evidence to bring people who had committed war crimes in eastern Europe to trial. As a consequence, during the period immediately after the war, many people who had been involved in war crimes in eastern Europe fled to the west but were not accompanied by the flow of information that was necessary to bring them to trial and convict them under the law at the time.

The position has now changed. Because of glasnost and perestroika in the Soviet Union, there has been a flow of information which has enabled us to re-examine the cases of many people who fled from eastern Europe. They fled as legitimate refugees then, but it is now clear that they were either Nazi sympathisers, members of the SS or involved in committing atrocities behind what was then regarded as the iron curtain. Previously we had no evidence to bring them to trial. That is the logic behind the Bill. It is specific and localised towards that particular problem.

My hon. Friend the Member for Tiverton seeks—commendably—to extend the Bill to all war crimes, particularly those committed in Japan. I ask him to examine the question of Japan carefully. Large numbers of people came to the United Kingdom from eastern Europe—Lithuania, Estonia, the Ukraine and parts of Russia—claiming that they were political refugees escaping from possible persecution in the Soviet Union. There is no parallel between that and Japan or other countries. We must recognise that the Bill has been introduced to deal with people who are resident in the United Kingdom. It gives powers to deal with them in the British courts. There is clearly no parallel with people from Japan who were involved in committing war crimes against British subjects in the far east, emigrated to this country and settled here. For that reason, my hon. Friend the Member for Tiverton should think again about the amendment.

My hon. Friend inadvertently used the phrase "Germany and its allies." We make the point that Germany's allies are not covered by the Bill, but only Germans and German-occupied territory. Does my hon. Friend recognise that it is bad law to pass laws specific to certain individuals but which do not cover all war crimes committed in the second world war?

I accept my hon. Friend's point that my use of the word "allies" was loose. I had in mind those allies in Europe and those from parts of the Soviet Union who fought alongside the German forces. The right hon. Member for Morley and Leeds, South (Mr. Rees) said that many of them found themselves in occupied Vichy France. Those are the people about whom I am concerned.

The allies referred to by my hon. Friend the Member for Tiverton—the Japanese and those in the far east— should not be covered by the Bill because there was no major immigration from that part of the world to the United Kingdom. They did not place themselves within the jurisdiction of the British courts and are therefore not eligible to be dealt with in this way.

I am sure that my hon. Friend will have an opportunity to make his own speech.

I cannot emphasise strongly enough that my hon. Friend the Member for Tiverton is seeking to bring into the remit of the Bill those who do not fall within our jurisdiction and for whom we do not have the evidence or people to deal with in Britain today.

One criticism that has been made of the Bill is the fact that we are looking back to the past, and it is retrospective legislation. I believe it should be used only in special circumstances which arise in relation to factors with which we can deal. It is within our power, as a Parliament, to create a body of laws to deal with a particular problem. We are doing that. We are not doing so in relation to the problem put forward by my hon. Friend the Member for Tiverton, because that problem does not exist. Therefore, I urge the House to reject the amendment.

I shall be brief, because I know that the shorter my speech is the more popular it will be with some of my colleagues.

I feel strongly that the amendment moved by my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop) is not sensible. My hon. Friend talks about widening the Bill's scope to include, for example, the Japanese. But there is not one iota of evidence that there is one former Japanese war criminal in the United Kingdom. We know from the Hetherington-Chalmers report that there are former German war criminals in the United Kingdom.

How do we know that there are not? Who has looked for them? There is no Japanese equivalent of the Simon Wiesenthal Centre. How can my hon. Friend say that there are no such criminals here?

I should have thought it was quite obvious that there are no Japanese war criminals in the United Kingdom. If my hon. Friend the Member for Tiverton and his friends believe that there are, they should name names in the House. There is not one iota of evidence; this is just a pure charade to try to weaken the Bill and a strong case.

One should remember that we were dealing with a war machine that was the most foul ever known to this country. On Sunday I was walking around my constituency and noticed on someone's door that this was holocaust day; people were remembering all their relatives who had died. There are people in this country who lost their father, mother, grandparents and uncles, and their brothers, sisters and cousins. Some lost 30 or 40 close relatives—all killed by the Nazi war machine. It was the most evil mass murder known in the history of mankind.

We have never had a statute of limitations on murder, and I do not believe that we should introduce one this evening by seeking to defeat the Bill. Those who oppose the Bill are saying that mass murder that took place 50 years ago should not be punished. I find that doctrine repugnant.

With his customary eye for meticulous detail, my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop) has put his finger on a couple of rather uncomfortable facts about the Bill.

If I may dare to correct my hon. Friend's history, I do not think that 5 June 1945 was VE day. We discussed this in Committee in some detail, and discovered that there were two possible options for that day. First, as everyone knows, it was the day when Brazil declared war on Japan. [Interruption.] We should not denigrate the Brazilians, who fought with great courage up Italy, and who sustained many casualties. The fifth of June was also the day of the tripartite meeting in Berlin, and that is what has been chosen.

My hon. Friend is absolutely correct about the prospect of the Japanese being in this country. A large number of Japanese come to this country snow; there is a great deal of Japanese investment here, too. That leads to an awkward problem. My hon. Friend the Member for Orpington (Mr. Stanbrook) described the possibility of a resident of the Federal Republic of Germany—in Committee he mentioned the war crime of gunning people down in the sea from a U-boat—who had committed an atrocity coming to the United Kingdom; he would be liable for prosecution under this Bill.

In Committee we discussed whether someone who stayed in this country overnight could qualify as a resident. The possibility is not so remote that a Japanese who had been involved in an atrocity 50 years before might come here. It would be very embarrassing if such a person—perhaps the director of a major Japanese concern who had escaped prosecution at the end of the war in Japan—was identified. It would be embarrassing if he were able to escape scot free although he had been positively identified—unlike someone who had committed an atrocity on German-occupied territory, who could be prosecuted.

The person does not necessarily have to be Japanese. He could be, for instance, an Indian who had been a member of the Indian national army which operated under Japanese orders and also committed atrocities contrary to the laws of war.

I take that point. One of the interesting aspects about my hon. Friend's decision for a date in August is that it would encompass operations in the far east, which continued long after June 1945.

There has been a tendency, especially in Committee, to say that everyone committed war crimes. The hon. Member for Edinburgh, Central (Mr. Darling) suggested that British troops were involved in the murder of German prisoners of war. I should like to give him an opportunity to correct that statement, because I have carried out a little research and, as far as I am aware, the only case of an atrocity alleged by the German Government during the 1939–45 war was the alleged murder of a single German who was captured during a raid in 1942 in the Channel Islands. He was found dead by the Germans with his hands tied behind his back. As a direct consequence of that one incident, the prisoners who were captured at Dieppe in 1942 were all handcuffed and bound. That was the reason given for that episode.

As far as I am aware, no major or even minor atrocities were committed by British troops. It is easy for people to say that atrocities were committed by everybody and that in some way that is acceptable or forgivable. Allied troops fought with great bravery because they knew that the rules of war were being followed by British and Allied Governments.

10.45 pm

I am listening to my hon. Friend with great attention because he is a meticulous recorder of events and many of us have read his works with pleasure. I entirely endorse what he says about the conduct of British troops during the war. That was my experience in Europe, Africa and the far east. He discussed the possibility, as others of our hon. Friends have done, of Japanese and Indians and others might come to this country who had been guilty of atrocious conduct during the war. Has he forgotten that the Bill deals with people who were nationals of another country when the crimes were committed and that the crimes would have been charged against Britons if they had committed them? The Bill deals with people who came to this country and acquired the privilege of British citizenship. That is the basis not only of the Bill but of the law in Canada, Australia and the United States when such people enter those countries and acquire citizenship. British citizenship is surely a great privilege, and not to be held by criminals.

I entirely accept my right hon. Friend's view that citizenship of the United Kingdom is a privilege. That is the nub of the retrospective aspect of the legislation. I would entirely endorse my right hon. Friend's observations if it were the case that the crimes and atrocities were committed by people who did not realise at the time that they were committing crimes. There is no question but that at the time these events were against not just British law but international law and conventions and the German military code. People were aware that they were committing crimes. We are merely ensuring that a loophole that was exploited by such people to find safe haven in this country through a strange quirk in the law that was overlooked by many people will be closed once and for all.

There is nothing retrospective about the legislation in terms of the crime. The only element of retrospection is in terms of the jurisdiction. My hon. Friends have made a good point about Japan and the victims of Japanese atrocities, but I urge them not to pursue it and risk wrecking the Bill.

I strongly support the objectives and principles behind the Bill. Equally, I recognise that there is a great deal of force in what my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop) said, which reflects the fact that the Bill is but one aspect of a wider principle. In times to come, we shall have to amend and extend the Bill. Unfortunately, the events of the second world war and the crimes against humanity were not unique in history. I wish that they had been; if they had, we might be taking a different view of the Bill. The sad truth is that crimes against humanity have been committed again and again, in different parts of the world.

Given the encouraging climate that is breaking out in eastern Europe and elsewhere, with democratic Governments taking over from oppressive regimes, there will be a constant stream of ex-murderers and ex-torturers on the run, looking for safe havens. I would find it extremely distasteful if, because of a loophole in the law, Britain became such a haven, be it for the Nazi war criminal, the torturer from central America or the mass murderer from eastern Europe. The Bill is a valuable signpost for the way ahead, and it is desirable that we should enact the concept that, if anybody applies for British citizenship, he must be automatically deemed to give the British courts jurisdiction to try him for serious crimes that he may have committed elsewhere.

Although I have great sympathy for what my lion. Friend the Member for Tiverton said, I believe that the right amendment to the Bill would be far more wide-reaching, and would require careful and comprehensive thought. I am sure that, in due course, the House will have to return to it. The Bill is a welcome first step, but the amendment does not go far enough in dealing with a problem with which in time we will have to deal.

I voted against the Bill on Second Reading because I believe it to be badly drafted and flawed. We should not introduce retrospective legislation. In Committee, my hon. Friends and I who opposed the Bill on Second Reading made it clear that we were trying to improve the Bill by tabling amendments. None of our amendments were selected, so we were not able to make the points that my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop) has made tonight. Had we done so—I tabled an amendment reasonably similar to his—we could have had this debate in Committee.

I say to my hon. Friend the Member for Hendon. South (Mr. Marshall) that the amendment does not weak en the Bill. Rather, it strengthens it by making it applicable to all war criminals of the second world war, rather than to a small number. It would be wrong to introduce a law designed to deal with specific individuals—and only a small number of people will be caught by this Bill—when we know that, during the war, others committed similar horrific crimes in other countries. I am concerned that the Bill is so narrowly drawn. My hon. Friend the Member for Tiverton makes a good point in trying to extend it to cover all war criminals from the second world war who are not covered by existing legislation.

My hon. Friend the Member for Elmet (Mr. Batiste) is mistaken about the circumstances since the second world war. The Bill deals with crimes committed in that war, because anyone who was involved in a crime committed since that time will be covered by existing legislation.

My hon. Friend the Member for Lancashire, West (Mr. Hind) inadvertently referred to "allies", and I subsequently intervened in his speech. He then, having defined the term "allies" more carefully, spoke about those who were working with the Germans and referred to as being occupied by the Germans. Vichy France was not occupied by the Germans—that is why it was Vichy France. After the invasion of north Africa in Operation Torch on 10 November 1942, Vichy France was ruled by the French.

It is our understanding from what was said in Committee that actions of collaborators with the German regime in areas that were not under direct German occupation will not be caught by the Bill. Indeed, the hon. Member for Edinburgh, Central (Mr. Darling) introduced an amendment that would have added "or under German control" after "German Occupation". We were promised in Committee by my right hon. Friend the Minister of State, Home Office that that proposal would be considered and raised again on Report. I look forward to hearing from my right hon. Friend what consideration has been given by the Home Office to the sensible amendment that was tabled and moved by the Opposition spokesman in Committee.

It is surely sensible to recognise that those who committed crimes in Vichy France between June 1940 and 10 November 1942, although not under German occupation, were subject to a puppet government who were very much under German control. A similar argument can be extended to other countries, such as those in the Balkans, which were in a similar position. They were not ruled directly by the Germans but they were very much under German influence.

Has my hon. Friend any evidence of war crimes committed by the Vichy French which are not triable by the French authorities and therefore not subject to extradition from Britain? Furthermore, has he any evidence that such persons are now resident in the United Kingdom?

It is clear that my hon. Friend was not in his place when that argument was advanced a few minutes ago. It is because the Bill has been introduced as a direct result of the activities of the Simon Wiesenthal Centre that the only evidence that we have is that which has been uncovered. It does not make sense to say that we shall pass only laws that are particular. No other evidence has been produced, because no one has looked for it. The most sensible course would be to produce a Bill that had the benefit of covering all war crimes that are not presently covered by legislation. That is all that my hon. Friend the Member for Tiverton is seeking to do.

I think that my hon. Friend the Member for Gravesham (Mr. Arnold) was making the point that the French have their own legislation and that, if there are people resident in Britain who are of French origin, they can be extradited to France to stand trial there.

I am not sure whether that is true. We are talking about people who have taken British citizenship, who are surely in a different position from that of French citizens. In those circumstances there may be far more difficulties in dealing with an offence that took place up to 1945, and subsequently when the law changed as a result of the Geneva convention. The Bill was introduced to deal with crimes for which, under the convention, we have no redress.

Will my hon. Friend the Member for Pembroke (Mr. Bennett) give way?

No. I have given way on several occasions already.

My hon. Friend the Member for Gravesham (Mr. Arnold) says that I have shot my case, but we do not know whether there are people from Japan and elsewhere around the world, including the Balkan countries, who might be caught if the amendment of my hon. Friend the Member for Tiverton were accepted. I cannot understand my hon. Friend's objections to widening the Bill. To widen it would not let off any of the people whom they think the legislation should cover. Indeed, it might extend it to others. Surely that is a sensible proposition. I cannot understand why my hon. Friends want a narrow Bill to deal with one specific class of person. That is not good law. If the House is to legislate in this area, it should enact general laws that are applicable to everyone who committed war crimes during the period that we are considering.

I support the amendment but I am not happy about the Bill. I am deeply unhappy about retrospective justice and about the difficulty of finding adequate evidence and bringing old men to trial. I have not been able to speak in previous debates on the Bill, but I voted against the measure on Second Reading for the reasons to which I have referred. If we are to have legislation, it must be even-handed.

Clause 3(6) makes it necessary to support the amendment, or something like it. The subsection states:
"Her Majesty may by Order in Council direct that the provisions of this Act shall extend, with such exceptions and modifications as appear to Her Majesty to be appropriate, to the Isle of Man, any of the Channel Islands or any colony."
It so happens that one of our colonies is Hong Kong, which has been much in the news recently. It was the scene of some of the most appalling atrocities during the second world war. I find it difficult to accept that among the teeming millions of the population of Hong Kong there are not some Japanese war criminals.

We are being asked to pass a piece of legislation that is designed to catch half a dozen people who have been fingered by one man and one institute, and to bring them to trial. We shall have an Act that can, by Order in Council, be extended yet be unable to catch people who committed in Hong Kong some of the most appalling atrocities known to man. For that reason alone, if this House is to legislate—I have grave doubts about the wisdom of what the House has embarked upon and I am deeply unhappy about it—we must be even-handed.

11 pm

I understand why many right hon. and hon. Members have reservations about the Bill; I do, too. However, on balance, I have reached the conclusion that the Bill should proceed. It is obvious that since the Geneva Conventions Act 1957 the problem has been resolved to the extent that anyone accused of what we loosely call war crimes can be prosecuted, regardless of his nationality, or the place at which those war crimes took place, provided that he is subject to the jurisdiction of any of the legal systems of the United Kingdom.

We could have left matters there, but for one problem. During the past few years, and in particular after Chalmers and Hetherington prepared their report, it has become apparent that some people living in this country may have been guilty of what are called war crimes. That being so, I find it difficult to envisage how it could be right or, indeed, possible to avoid taking action. If there are people in this country accused of having committed what, by any view, are appalling crimes, it would be wrong to do nothing about it. That is what has swung my vote behind the Bill.

I understand the thrust behind the remarks of the hon. Member for Tiverton (Mr. Maxwell-Hyslop). Many of these points were made in Committee. I am not as confident as the hon. Member for Hendon, South (Mr. Marshall) that there is absolutely no one, beyond reasonable doubt, living in this country who may have been guilty of atrocities in the Japanese theatre. If there is no evidence that such people are living in this country, it would be pointless to add that provision to the Bill. If we were to agree to the amendment, we would be duty bound to start some investigation to try to determine whether people in that category were living here. I do not think that that is possible and, for that reason, I am not tempted to follow the hon. Member for Tiverton in his argument.

Does the hon. Gentleman think that if one such person were found, we should then go through the whole procedure of enacting another Bill? That is the thrust of his argument. As we are legislating, what is wrong with covering that eventuality rather than legislating ad hominem, which is usually considered to be a disreputable legislative practice?

The hon. Gentleman knows that I would be inconsistent if I said that if we found someone in that category in this country we should do nothing about it. That would not be right. I have to tell him, reluctantly, that if it emerged that there were people living in this country who may have been guilty of war crimes in the war against Japan, there would be no alternative but to deal with them in the way that we are dealing with people accused of having committed war crimes in the German theatre of war.

To agree to the amendment would inevitably require investigations and other work being carried out to determine whether there were Japanese war criminals—

We have to draw a line somewhere. It is, perhaps, a rough and ready line, but if there is no evidence that there are such people I should be reluctant to encourage the Government to incur the time, effort and expense of engaging in a search that might be completely fruitless.

I am one of those Members who have come reluctantly to support the Bill, simply because we are told by reliable sources that there are people living in this country who may—I put it no higher than that, and we should remember it in future debates—have been guilty of war crimes. For that reason I am prepared to support the Bill. There could be people in this country guilty of war crimes in other theatres of war, and we would have to extend the scope of the legislation beyond Japan to other countries. Suffice it to say that I understand why the hon. Gentleman advanced his amendment, but I do not agree with it.

I agree with the hon. Gentleman's point. but the principle could be extended. If we were asked by the Soviet Union or by republics within it to extradite people from the United Kingdom to stand trial in those countries for war crimes, we might not have enough confidence in their system of justice to provide a fair and proper trial. However, if Japan or another democratic country made the same request in respect of a person who had committed war crimes in their theatre of war, we would be dealing with a western-style democracy having standards of justice that we recognise. That is not the position in respect of the Soviet Union.

I do not want to go down the road of extradition, but the hon. Gentleman's general point is correct. It may be possible to deal with this by way of extradition, according to the circumstances.

I refer to another aspect that I intended to raise on Third Reading—and I may still do so, if we ever reach it. The hon. Member for Tiverton made a point with which I have some sympathy, and to which some of his hon. Friends alluded, relating to Germany and to countries under German occupation. In Committee, we tabled an amendment to extend the definition to include territories that had substantially been under German control. Vichy France was mentioned in the debate, and since then the all-party war crimes group has undertaken additional work and cited Slovakia, Hungary, Romania and other countries.

The Minister undertook to examine that point, and he may have something to say—although perhaps not as much as we would like. If the other place has an opportunity to examine that aspect, it may choose to give it special consideration. The extent of territories under German occupation or controlled by Germany may he a moot point. It would be extremely awkward—I put it no higher than that—if the defence in a war crimes trial was able to prove that although a crime had been committed it had not occurred on territory in Germany, under German occupation, or under German control—with the result that the accused person could not be convicted under the Bill.

If the hon. Gentleman accepts my amendment, that problem will disappear, because the amendment removes the definition of location.

The hon. Gentleman's amendment goes further than I want. I would prefer a tightening up of the definition of territory within Germany, under German occupation, or under German control rather than have the definition removed altogether. The problem relating to location arises in practically every murder trial, and it is a matter for the Crown to prove.

Even if no satisfactory solution can be found, at the end of the day the Crown will have to prove its own indictment. If it cannot do so, the accused will be acquitted. I see nothing wrong with that requirement, which is an essential feature of our legal system and one that has much to commend it.

This has been an extremely interesting debate. I agree largely with what the hon. Member for Edinburgh, Central (Mr. Darling) has just said in his brief concluding remarks.

I must address my opening remarks to the amendments tabled by my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop), who has taken a close interest in the Bill. I recall my hon. Friend intervening in the speech by my right hon. and learned Friend the Home Secretary when we first debated the issue in December.

I know that my hon. Friend the Member for Tiverton has followed the proceedings of the Bill closely since then. Even though he opposes the principle of the Bill very strongly, my hon. Friend has sought to ensure that if the Bill is enacted it should be as equitable and as workable as possible—I am grateful to him for that—as has my hon. Friend the Member for Staffordshire, South (Mr. Cormack). My hon. Friend the Member for Pembroke (Mr. Bennett) also pursued that line firmly and effectively in Committee. He also disliked the Bill but sought to improve it, while engaging in some interesting historical dialectic.

I shall examine carefully the thinking that has led my hon. Friend the Member for Tiverton to table the amendments. I think that they are unnecessary and I disagree with them for three reasons. First, as my right hon. and learned Friend the Home Secretary said in December and on Second Reading, the Bill as it stands, as a matter of Government policy, deliberately reflects closely the recommendations contained in the Hetherington-Chalmers report. Those recommendations were framed carefully to ensure that they dealt with allegations that were made to the inquiry.

I naturally understand the view that if we are to legislate to make war crimes trials possible, the legislation should apply to all crimes, wherever they are committed. However and—I think that many hon. Members would support this view—the Government would be reluctant to extend the Bill beyond what was recommended after such careful thought by the war crimes inquiry. After all, it advertised widely and people from all over the country and from abroad made depositions to it and it built up a considerable expertise.

It is for the House to legislate, not for Mr. Hetherington or Mr. Chalmers.

That is exactly what the House is doing and over the years my hon. Friend the Member for Tiverton has been a notable defender of the House of Commons, of the Chamber of the House and of its rights.

If I may, I shall continue my reply, and then I shall give way.

Nonetheless, the Government asked the Hetherington-Chalmers committee to look into the issues. It considered them objectively and made a set of recommendations which the Government accepted, which is why they formed the basis for the framework of the legislation. It is a short Bill—three clauses and one schedule—and it has been closely scrutinised in Committee.

My hon. Friend has just shot a hole in his argument because the Government set up the Hetherington-Chalmers inquiry and the terms of reference were set out by the Government:

"To obtain and examine relevant material, including material held by Government Departments and documents which have been or may be submitted by the Simon Wiesenthal Centre".
It goes on to describe war crimes, which extend
"only to crimes of murder, manslaughter or genocide committed in Germany and in territories occupied by German forces during the Second World War."
My hon. Friend, the Minister prays in aid an argument that that was what the Hetherington-Chalmers report concentrated on, but the Government set up the terms of reference to consider that specific point alone.

I do not believe that I have shot a hole in my argument or any other part of my person. I am about to deal with the amendment moved by my hon. Friend the Member for Tiverton, which is what we are debating. We are not reopening the wider arguments, which I know you would not wish us to do, Mr. Deputy Speaker, because they were examined in Second Reading and exhaustively in committee. The amendment deals specifically with the extension of the legislation to deal with what one might—in shorthand—term the Japanese problem.

Before I turn to that, I shall give way to my hon. Friend the Member for Hendon, South (Mr. Marshall) and then my hon. Friend the Member for Gravesham (Mr. Arnold).

Does my right hon. Friend agree that if anyone in the United Kingdom had had one shred of evidence that a former Japanese war criminal was resident in the United Kingdom he would have produced that evidence at the time of the inquiry?

I agree with what my hon. Friend says, as I agree with what he said in his speech.

Is my right hon. Friend confident that the term

"Germany or under German occupation"
is sufficiently wide? Concern was expressed in Committee about the probability of crimes having been committed in the Ukraine and elsewhere in Russia.

11.15 pm

I shall deal with that point later.

The nub of the argument is that, despite all the publicity about the war crimes issue in the last few years there has been no suggestion that there are any alleged war criminals, other than those who committed their alleged crimes in German or German-controlled territory, living within the jurisdiction of the United Kingdom. That point was made forcefully by my hon. Friends the Members for Hendon, South, for Lancashire, West (Mr. Hind) and for Elmet (Mr. Batiste). We do not wish this country to be a haven for any criminal, of whatever sort. We seek to legislate to deal with an identifiable mischief rather than with a hypothetical future event.

As the inquiry report shows—it was a careful inquiry the—arrival in this country in the years immediately following the second world war of some men and women who may have committed crimes in Germany or in German-occupied territory reflects the nature of the conditions in post-war Europe. Thousands and thousands of people in post-war Europe had been displaced from their former homes and were seeking new homes and work, sometimes in this country. The Bill deals with the possibility that some of the people who came to settle in this country from Germany or from countries that had been occupied by the Germans may have committed war crimes.

After the termination of hostilities in the Soviet Union, there was no mass migration from the Soviet Union to western Europe. Moreover, there is no evidence of any mass migration, or even mini-migration of people after the cessation of hostilities in the far east that led to people from Japan settling in this country.

My right hon. Friend must admit that it is not fanciful to say that migration from Hong Kong is a possibility. As there is a provision to extend the legislation to include the colonies, and as Hong Kong is by far our largest and most important colony, why does my right hon. Friend set his face against that possibility?

Because we take the view—I personally do so—that we should seek to legislate to deal with identifiable mischiefs rather than with mischiefs that may arise at some future date. That is narrowly what we are seeking to do in the Bill.

The argument is about identifiable mischiefs, not about identifiable persons. My amendment covers the mischief. To try to constrain it constrains it to persons rather than to the whole mischief.

The identifiable mischief is the fact that people who are now living within this jurisdiction may have committed murder or may have attempted murder in Germany or in German-occupied territory. In no sense at all does the legislation refer ad hominem to any persons named. The mischief is that some persons—all persons have names—may in the past have committed such alleged crimes.

I now turn to the important point about territory raised by the hon. Member for Edinburgh, Central and reflected in the remarks of my hon. Friends the Members for Torbay (Mr. Allason) and for Pembroke. We have a pretty clear view about what is German and German-occupied territory. My hon. Friend the Member for Pembroke asked about Vichy France. Actions by Vichy France against Frenchmen would not he war crimes, and would therefore be outside the scope of international law at the time; they would be acts of homicide or crimes against humanity. Actions by puppet regimes against their own citizens in their own territory would fall outside the definition of war crime at any stage since the Hague convention of 1907. They would not be war crimes by that or by any other definition in international law, as far as I am aware, although they might certainly be caught under a number of crimes against humanity.

The French connection is a difficult issue. I was involved with the French for quite a long time. I fought the Vichy French and very nearly fought the free French. After the 1941 invasion of Vichy Syria, many British officers and soldiers were taken back to France where they were treated quite abominably for several weeks and under the armistice it was very hard to get them back. That will not be helped by the Bill.

I do not believe that that will be covered by the legislation. I should be happy to learn more about those matters from my hon. Friend. I should be particularly interested to learn how he narrowly avoided fighting the free French. Perhaps at some stage my hon. Friend will tell me how that happy chance came about.

I must deal with the point raised by the hon. Member for Edinburgh, Central reflecting some correspondence sent to me by the former Home Secretary the right hon. Member for Morley and Leeds, South (Mr. Rees) about the terms in which the Bill is drafted and whether they are adequate to catch war crimes in what might have been termed puppet regimes or the territories of puppet regimes sympathetic to the German cause. The matter was raised in Committee and I have reflected on it since. Since then we have benefited from the advice of the right hon. Member for Morley and Leeds, South and some very detailed papers which I received towards the end of last week. I am studying them carefully, and if we conclude that as a result there is indeed a gap such as that alluded to by my hon. Friend the Member for Pembroke, we shall certainly be willing to table the necessary amendments to be debated in Committee in another place.

However, it is fair and important for me to repeat that, as with Vichy France, my preliminary assessment is to doubt whether the events described in the papers that the right hon. Gentleman was good enough to send me fall within the definition of a war crime. The events described were undoubtedly terrible, but given the circumstances in which they took place, it appears that they might have been crimes against humanity rather than war crimes and would therefore lie outside the scope of the Bill, whatever territorial extent is applied.

The third point that I put before my hon. Friend the Member for Tiverton, who I know feels very strongly about the Japanese issue, is that it is obvious that we can give our courts the power to try only cases involving people who live within our jurisdiction. The Bill does not provide the power to try alleged war criminals, whatever offences they may have committed, if they have not come to live here.

Supposing that, on behalf of the Government, I accepted my hon. Friend's amendment and we could extend the scope of the Bill to Japan, Russia and elsewhere, I fear that we would be conveying a misleading signal to a number of people whose fathers, husbands or relations might have suffered terribly at the hands of the Japanese during the war. It might lead people to think that something could be done when, as far as I know, there has never been an allegation that anyone living within British jurisdiction might have committed such crimes. It would therefore be a mistake for the House to raise people's hopes that something might be done to right past terrible deeds when it was not in our power so to do.

The Minister's point would be more valid if the proposition struck at a specific date, such as March 1990, as in the Bill. The Bill, however, goes on to use the words "or subsequently". I understand from my right hon. and learned Friend the Member for Worley, West (Mr. Archer) that "or subsequently" refers to the future as well as the present. Evidence of what happened in the past is not conclusive in regard to the jurisdiction; the Bill allows for what could happen in the future.

The Bill refers to whether a person is resident in this country from that date.

My hon. Friend asked what comfort the extension would bring if there were no Japanese war criminals now living in Britain, the Channel islands, the Isle of Man or a British colony. Obviously thousands of Japanese war criminals are still alive. The comfort that such an extension would bring is this: people who had lost fathers or husbands would know that those responsible would not dare to come to this country. If the amendment is not passed, however, they will be able to come here with impunity.

There has never been any evidence that anyone alleged to be guilty of such crimes has ever come to this country. I feel that the amendment would provide scant help for those who grieve for the people who were so badly harmed during the Japanese conflict, although I appreciate that my hon. Friend would like to enable such mischief to be blocked in the future. I do not think that it is right in principle for us to legislate in that way, and I hope that, having heard my three reasons for not wishing to accept the amendment, my hon. Friend will feel inclined to withdraw it.

Question put, That the amendment be made:—

The House divided: Ayes 22, Noes 151.

Division No. 180]

[11.26 pm


Allason, RupertSkinner, Dennis
Beaumont-Dark, AnthonyStanbrook, Ivor
Beith, A. J.Stokes, Sir John
Bennett, Nicholas (Pembroke)Summerson, Hugo
Buck, Sir AntonyTaylor, Matthew (Truro)
Butcher, JohnTownsend, Cyril D. (B'heath)
Campbell, Menzies (Fife NE)Wallace, James
Cormack, PatrickWilliams, Rt Hon Alan
Glyn, Dr Sir AlanWinterton, Mrs Ann
Hamilton, Neil (Tatton)
Hughes, Simon (Southwark)Tellers for the Ayes:
Kennedy, CharlesMr. Robin Maxwell-Hyslop and Mr. Nicholas Winterton.
Mans, Keith


Abbott, Ms DianeBoswell, Tim
Amess, DavidBradley, Keith
Arbuthnot, JamesBrandon-Bravo, Martin
Archer, Rt Hon PeterBright, Graham
Armstrong, HilaryBrooke, Rt Hon Peter
Arnold, Jacques (Gravesham)Brown, Michael (Brigg & Cl't's)
Ashby, DavidBurns, Simon
Atkins, RobertBurt, Alistair
Baker, Rt Hon K. (Mole Valley)Butterfill, John
Baldry, TonyCaborn, Richard
Batiste, SpencerCarlile, Alex (Mont'g)
Battle, JohnCarrington, Matthew
Beggs, RoyChalker, Rt Hon Mrs Lynda
Bendall, VivianChope, Christopher
Benn, Rt Hon TonyConway, Derek
Bermingham, GeraldCook, Robin (Livingston)
Boateng, PaulCoombs, Anthony (Wyre F'rest)

Cryer, BobMichie, Bill (Sheffield Heeley)
Cunliffe, LawrenceMitchell, Andrew (Gedling)
Currie, Mrs EdwinaMontgomery, Sir Fergus
Dalyell, TamMoonie, Dr Lewis
Darling, AlistairMorley, Elliot
Davies, Ron (Caerphilly)Morris, Rt Hon A. (W'shawe)
Dixon, DonMorrison, Rt Hon P (Chester)
Douglas-Hamilton, Lord JamesMoynihan, Hon Colin
Dunnachie, JimmyNeubert, Michael
Durant, TonyNicholls, Patrick
Eggar, TimNicholson, David (Taunton)
Evans, John (St Helens N)Norris, Steve
Fallon, MichaelOppenheim, Phillip
Fearn, RonaldPaice, James
Fields, Terry (L'pool B G'n)Parkinson, Rt Hon Cecil
Foot, Rt Hon MichaelPatchett, Terry
Foster, DerekPatten, Rt Hon John
Freeman, RogerPattie, Rt Hon Sir Geoffrey
Garel-Jones, TristanPike, Peter L.
Golding, Mrs LlinPortillo, Michael
Gordon, MildredPowell, Ray (Ogmore)
Graham, ThomasPrescott, John
Hanley, JeremyRedwood, John
Hardy, PeterRees, Rt Hon Merlyn
Harris, DavidRidley, Rt Hon Nicholas
Haynes, FrankRoberts, Wyn (Conwy)
Hind, KennethRoe, Mrs Marion
Hood, JimmyRogers, Allan
Howard, Rt Hon MichaelRoss, William (Londonderry E)
Howells, Dr. Kim (Pontypridd)Rowlands, Ted
Hunt, David (Wirral W)Scott, Rt Hon Nicholas
Illsley, EricShephard, Mrs G. (Norfolk SW)
Jack, MichaelSmyth, Rev Martin (Belfast S)
Janner, GrevilleSpicer, Michael (S Worcs)
Jessel, TobySteen, Anthony
Jones, Barry (Alyn & Deeside)Steinberg, Gerry
Jones, Gwilym (Cardiff N)Stevens, Lewis
Jones, Martyn (Clwyd S W)Stewart, Andy (Sherwood)
Kilfedder, JamesSumberg, David
King, Roger (B'ham N'thfield)Taylor, Ian (Esher)
Kirkhope, TimothyTaylor, Teddy (S'end E)
Lang, IanThorne, Neil
Lawrence, IvanTrippier, David
Leigh, Edward (Gainsbor'gh)Vaz, Keith
Lennox-Boyd, Hon MarkWalker, Bill (T'side North)
Livingstone, KenWaller, Gary
Lloyd, Peter (Fareham)Walley, Joan
Lloyd, Tony (Stretford)Wareing, Robert N.
Lyell, Rt Hon Sir NicholasWatson, Mike (Glasgow, C)
McAvoy, ThomasWelsh, Michael (Doncaster N)
MacGregor, Rt Hon JohnWheeler, Sir John
McKay, Allen (Barnsley West)Widdecombe, Ann
MacKay, Andrew (E Berkshire)Wilson, Brian
Maclean, DavidWinnick, David
Maclennan, RobertWood, Timothy
McLoughlin, PatrickYeo, Tim
Mahon, Mrs Alice
Maples, JohnTellers for the Noes:
Marshall, John (Hendon S)Mr. Sydney Chapman and Mr. Irvine Patnick.
Mawhinney, Dr Brian
Meale, Alan

Question accordingly negatived.

Order for Third Reading read.

Motion made, and Question proposed, That the Bill be now read the Third time.— [Mr. John Patten.]

11.37 pm

I made my position on the Bill clear in the debate on amendment No. 2, and I see no point in repeating it. [HON. MEMBERS: "Hear, hear."] I am equally confident in saying that I shall have the support of the majority of the House in following that approach. I dealt with jurisdiction and the definition of Germany and of territory occupied by Germany. I hope that the Government will give further thought to tabling amendments in Committee in the other place. I know that the Minister will accept my point in the spirit in which it is made when I say that I remain unconvinced by his preliminary reasoning. He will have to return to this matter.

I am not sure whether we can resolve a further difficulty, which is how on earth we can define the laws and customs of war. They are defined in the 1907 Hague convention and, as one can see from the Hetherington and Chalmers report, the definition is fraught with difficulties. I am content to leave this issue to the Crown, which will have to prove that a killing was such as to render it contrary to the laws and customs of war. Perhaps those in the other place with greater experience and expertise will turn their minds to that difficulty.

This must be one of the few Bills on which it is necessary for a Committee to report to the House that it has been unable to resolve many problems. First, many of the fears that we canvassed in Committee may not arise in any trial, and, secondly, they will be a matter for proof at the trial. If the Crown cannot prove the indictment against any individual, that individual must be acquitted. That seems to be the right solution.

No one should be under any illusion that the prosecution of these cases will be easy, especially given the lapse of time since the events took place. Despite those difficulties, as I said when I spoke on the amendments, I believe that the Bill should proceed. Although it is far from perfect and can never be perfect because of the circumstances in which we have to legislate, it is not so flawed that it is unworkable. Therefore, the House should support it.

The Government have taken one welcome step. In Committee, the Opposition moved an amendment to require the Secretary of State to submit an annual report on the progress of the trials, in general rather than specific terms. It would address the problem raised in Committee of an end date for the trials. The Minister of State, Home Office, the right hon. Member for Oxford, West and Abingdon (Mr. Patten), has been good enough to write to me to say that, although he could not accept our amendment, he accepted the principle that an annual report in general terms should be made available to both Houses and, indeed, to any other interested party. It would report on general progress as well as on the costs incurred.

The explanatory memorandum of the Bill anticipates spending of between £7 million and £9 million in England and Wales and £3·5 million in Scotland. That is a great deal of money and it would be wrong for Parliament to allow the trials to run on without any supervision. As this is a special Bill which deals with a special case, the Minister's solution is welcome. I dare say that he will refer to it again when he replies.

I feel strongly about pre-trial publicity. I know that there was not exactly a meeting of minds on this subject in Committee. If someone in Scotland is accused of committing a war crime, from the moment that he is charged there is almost a total ban on any publicity about events that will be the subject of the trial. Furthermore, during the trial there are strict restrictions on what can be reported. There cannot be speculation about events that are not canvassed in the trial. The position in England is different. Pre-trial publicity is allowed. As we have seen in the past, publicity during the trial is also apparently allowed. I am worried that there will be trial by television or by the media. If that happened, it would be a travesty of justice.

We cannot afford another Guildford, Birmingham or Broadwater Farm where there is controversy about the circumstances surrounding the trial. If people are to be brought to trial under the Bill, they must be tried before a jury who will hear the facts in the sober silence of the court room. They should not be subject to the influence of newspapers or television. They should not be influenced by consideration of events that took place at the same time but may have had nothing to do with the individual facing trial. I feel strongly that the Government should have done something about pre-trial publicity in this case, just as they will have to tackle the matter generally in the English criminal system.

To show that I am not partisan, let me say that I have a great deal of sympathy with the English system on dock identification. In Scotland we have a problem, in that the witness is invited to identify an accused person in court. There is usually only one person chained up between two policemen, his head hung in shame. If the witness could not identify him or her, it would be very odd. I have been invited to refer to an anecdote that I related in Committee. It would be wrong of me to do so because the hon. Gentleman concerned is not in the Chamber.

We received assurances about legal aid in Committee. They are extremely important. Legal aid must not be a barrier in these cases. Much concern has been and, I expect, will be expressed in another place about retrospection. We should remember that we are not creating a new crime, although I accept that we are extending jurisdiction, and that involves retrospection.

I accept the difficulties of passage of time and proof and the problems that the defence will face. But, on balance, I believe that it would be wrong of the House not to pass this legislation. Such serious allegations have been made that it would be wrong for us to turn our backs on them and ignore them. Therefore, I urge hon. Members to give the Bill a Third Reading.

11.45 pm

I have been against the principle of the Bill ever since the request for legislation was made by the Simon Wiesenthal Centre in London two or three years ago. I have followed the issue closely ever since, and have been on the Standing Committee considering the Bill. I have no reason to change my view that it is a bad Bill.

It is bad for two main reasons. First, in principle it is wrong to enact retrospective legislation to cover something that happened 50 years ago, 1,000 or more miles away. That cannot be good or in the public interest. It cannot be right for the atrocities and awful events that took place in the last war to be re-enacted and exhumed, to be once again paraded before the people of this country and their children, when the need is for peace, reconciliation and forgiveness. No good will come of the trials that may take place as a result of the legislation.

Secondly, I oppose the Bill because, in practice—quite apart from the principle—it will be impossible to ensure that the people concerned receive a fair trial. In Standing Committee, some of my hon. Friends and I endeavoured to improve the Bill to try to ensure that those who were likely to be defendants were given assurances and the privilege of a fair trial. We were unsuccessful, and the rest of the Committee disagreed with us.

The Bill should not be called a War Crimes Bill. If we know anything of the allegations and evidence, we know that these are not war crimes in the proper, even legal, sense of the word. We are talking about murder and the massacre of innocent civilians. It so happens that those events occurred during the war. We are talking about the events and people covered by the Bill. It so happens that the events occurred in Europe, in German-occupied territory. That does not make them war crimes. By any standard, those events, whether or not they occurred during the war, would have constituted murder.

Speaking as a lawyer, may I say that those who devised the Bill made a great mistake in closely defining the offences as crimes committed against the laws and customs of war. When one gets into the nitty-gritty of the laws and customs of war, one gets bogged down—as we did in Standing Committee—over how that phrase is defined. The Hague convention of 1907 specifies what constitutes war crimes. Lo and behold, they do not cover events such as the murder of civilians and innocent people; by and large, they cover the rights of soldiers. In 1907, before the first world war, there was still a chivalrous notion that the rights of soldiers, especially prisoners of war, had to be protected.

My hon. Friend said that we were dealing with murder. As he knows, there is no statute of limitations on murders in the United Kingdom, so why is he recommending one for these murders?

If only my hon. Friend would listen more carefully, he would find a little more merit in my argument, which has nothing to do with his point.

By describing these outrages as war crimes, we misdescribe them. They were horrific crimes, but they are not to be confined within the definition of war crimes, or to be further narrowed down in this Bill in terms of territorial extent or of acts contrary to the laws and customs of war. All such terms are inappropriate.

If suitable jurisdiction had been in force at the time, it would surely have covered these crimes without the need to refer to them as war crimes; normal criminal legislation should have covered them. That is the brunt of the arguments advanced earlier—that the jurisdiction of the courts should be extended to include all such crimes, wherever and by whomsoever they are committed. The Government have missed this opportunity to propose that our laws should in future cover all such offences. If they had taken it, it would have constituted a passport to future co-operation in matters of extradition. It would also have avoided the overtones and the narrowing of definitions involved in the description "war crimes". If this legislation designates such crimes as war crimes, that will only make the application of the law more difficult in future.

In his wisdom, Mr. Speaker chose not to select for debate the two new clauses to the Bill that I tabled. No doubt he thought I would have the chance to raise the two issues concerned on Third Reading, and I gladly do so now. Nowhere in the Bill is any provision made to enable the defendants to gather evidence on their own behalf. It is a fundamental right of anyone in this country charged with an offence to be able to gather his own evidence and to seek witnesses in his defence to show that he is not guilty of the crime with which he has been charged. In most cases, this right is taken for granted and is available.

In the natural course of events, a trial will not come on until such an opportunity has been given, but in any case that may arise out of this legislation, the offences having occurred 1,000 or more miles away almost 50 years ago, the defence will face grave difficulties in securing the evidence with which to rebut the charges. The Bill does nothing to help the defence in this respect, which makes it vulnerable to criticism on that ground alone. It is not nearly enough to state that the usual laws of criminal procedure will apply. That will result in all too short a time being allowed, once a defendant has been arrested and charged, before a case comes on for trial.

The chance of a successful application to the trial judge to enable the defence to go to Russia or Israel or to any of the other places to which the Hetherington-Chalmers inquiry travelled, spending £500,000 and 18 months, will not be available once cases have been initiated in this country.

Does my hon. Friend agree that this matter was fully covered in Committee and that the Government gave an undertaking about legal aid?

We are not talking about pure financing, although I would be glad to hear that the Government have allowed £500,000 from the legal aid fund and 18 months for any defendant seeking to establish evidence in his own cause. If that is what is meant, I welcome it because it will go some way towards balancing matters between the prosecution and the defence.

In normal cases before criminal courts in Britain, the charge involves events that took place fairly recently. Some 90 per cent. of such cases are about events that happened a matter of days before the arrest. Here we are dealing with events that took place 50 years ago, and 49 years ago in one case that I know. After such a passage of time, is it right that there should be no provision for the defence to be able to say when the case comes before the trial judge that it is impossible for justice to be done?

Let us suppose that the defence said, "We have not been able to gather evidence. We have not been allowed to travel unhindered in Russia. We have not discovered anything that could be of value to us and therefore choose not to offer any sort of evidence." Would the prosecution, the Government and all the people who are prosecuting and persecuting these people be content with the result of such a case? Of course they would not, yet that is the nub of the problem with which we are dealing.

Fifty years make a tremendous difference to the quality of evidence that is available in a case. It is no use people telling me, as they often do during our debates, that the people concerned were not British at the time. That makes not the slightest difference. These events occurred nearly 50 years ago and many miles away. The alleged offences were committed under conditions in which it was impossible for evidence to be gathered. Since then, governmental institutions and well-founded bodies such as the Simon Wiesenthal Centre have campaigned and spent money all over the world in order to produce evidence that might justify the prosecution of these people, and certainly enough to justify our Government initiating legislation to permit that to happen even though it will be ex post facto a retrospective law.

There is a grave danger that prosecutions under this legislation will be oppressive and vindictive and perceived to be inspired by motives of revenge, malice and hatred. The hon. Member for Edinburgh, Central (Mr. Darling) spoke about the pre-trial publicity, all of it aimed against these people who are already identified by the media and by members of the Simon Wiesenthal Centre, one of whom has been marching up and down outside the house of one of the prospective defendants with a banner proclaiming his guilt.

Even in Scotland, where apparently the standards in such matters are somewhat higher than they are in England, what chance have these people of a fair trial? What chance do they have of the application of the normal standards of British justice that would apply to anybody else were it not for the fact that we are passing special retroactive legislation to cover these people? It is nonsense to say that 70 people are involved. There may be a list of names, but the inquiry claimed that there are only three people about whom there is sufficient evidence to justify prosecution. That claim is based on an assumption that the House will change the law—bend it—to make it possible to proceed against them in accordance with the laws of evidence.

It will be impossible for such people to have a fair trial. It will be impossible to stop pre-trial publicity. From the moment that they are identified by name, as they will be shortly, they will be picked out by the legislation as guilty men. Already they are accused of being Nazi war criminals. We are legislating for an injustice. We are deliberately picking on three people.

Despite the fact that, for 40 years or so, they have lived here, apparently honestly and peacefully, as useful citizens, and that the law did not cover the crimes that they are alleged to have committed, we shall finger them and rig the law so that they become guilty. I should not be surprised if, at the end of it all, after the expenditure of millions of pounds and lots of time, a good British jury said, "We are having nothing to do with this," and the whole thing would be aborted. I hope so, but one cannot depend on it. British juries are often unreliable—I speak as a practising barrister—and I do not want to hide the inherent possibilities.

It would be wrong for the House to authorise legislation such as this deliberately directed against three named and identified people. I should always be opposed to such a move.

12.1 am

I am glad to follow my hon. Friend the Member for Orpington (Mr. Stanbrooke). Although the events about which we are talking took place nearly 50 years ago, I have some recollection of those times and the unpleasant scenes that I saw.

This is the third occasion on which we have debated this subject. I listened to the two previous debates and followed the excellent debate in the other place, and have listened carefully to what has been said today. All my instincts as an Englishman continue to be against our proceeding any further with this Bill. It contains new and thoroughly unsatisfactory retrospective legislation. It goes against the grain of our history, how we do things and how we introduce our laws. There remain severe practical problems in attempting to give a fair trial to people accused of alleged crimes committed so long ago. There is also the almost impossible problem of physically identifying the supposed criminals. There is no public demand for the Bill. I have not received a single letter about it from my constituents.

I dread what will happen if the Bill is passed. We know that long, thorough and expensive inquiries will have to be made. We shall have to rely on testimony from Soviet Russia that is bound to be highly unreliable. We are instituting special forms of trial and production of witnesses will be called for. The defendants are bound to be at a grievous disadvantage, and I shudder to think what the gutter press will make of it. The hon. Member for Edinburgh, Central (Mr. Darling) spoke of the extremes that there will be in the press, television and the radio, and how these wretched men will be condemned from the word go. People will be found guilty long before the trial, an intolerable strain will be placed on juries, and the trials will be in danger of becoming show trials—all quite unEnglish and foreign.

Above all, the entire procedure is partial. Many of the crimes committed by the Japanese, for instance, are not covered by the Bill. At a time when our legislative process is overloaded and when the Government should be—I hope that they will be—concentrating on good government and good administration, this is an entirely unnecessary and dangerous Bill. If it is enacted—I hope that it will not—I am sure that in time it will be deeply regretted by the Government and all those concerned with it.

12.5 am

I feel the most profound unease about the passage of the Bill on two principal grounds. First, this is retrospective legislation. Let us have no soft soaping or weasel words about that. It is definitely retrospective legislation. The dreadful deeds to which it is directed were not triable in the British courts in the year after they were committed, and they are not so triable now. The Bill is needed to make them triable.

Does my hon. Friend agree that if any person who was a British citizen at the time the offences were committed had committed them, he could have been tried under the law of this country?

Yes. He could have been tried under our law. He still could be so tried. Retrospective legislation would not be needed. The fact remains, however, that to deal with the deeds in question and to bring the individuals who were identified by the Hetherington-Chalmers report to trial, the Bill is necessary. If it is not enacted, those people could not be tried in the courts of Great Britain. It is without doubt retrospective legislation. What is more, it is retrospective criminal legislation.

I have an intense and instinctive dislike for retrospective legislation of any sort. In the hands of an oppressive or unscrupulous Government, it is so easy for retrospective legislation to be used to challenge liberty and justice. The danger is that a Bill such as this will be used in the future as a precedent. That is a great peril and one that the House should consider carefully before giving the Bill a Third Reading.

Will the hon. Gentleman inform the House how many clauses of Finance Bills that have involved retrospective legislation he has supported since becoming a Member of this place?

Perhaps not surprisingly, I cannot give a precise answer to that question. I merely say that in principle I am very much opposed to retrospective civil legislation. It is true that that is to be found especially in taxation measures. But if retrospective legislation relating to civil matters is dangerous—I believe strongly that it is—retrospective legislation that deals with criminal matters is doubly—indeed, trebly—dangerous.

Would my hon. Friend say that it was ever all right, ever lawful, to commit mass murder? If it was never right or lawful, what is wrong with retrospective legislation which has the effect of bringing to book those who committed those crimes?

Of course it is never right to commit mass murder. I am horrified that my hon. and learned Friend should think fit to pose that question to me. It is important that I make it clear that nothing that is said in the Chamber can possibly overshadow the fact that the most terrible crimes were committed in central and eastern Europe during the second world war. The most terrible suffering was endured by those who were subjected to those ghastly cruelties. Nothing that I or anyone else says in the Chamber should minimise that. I assure hon. Members who take a different view from me about the merits of the Bill that I share equally their horror at those crimes and deeds. However, the fact remains that this is retrospective criminal legislation, which poses a great danger.

I draw the attention of the House to the words of Lord Reid in the case of Waddington—a not unfamiliar name in this House—v. Miah—1974, 1 Weekly Law Reports, page 683. Lord Reid was, for many years, a distinguished Member of this House. Later he sat as a lord of appeal in ordinary and became one of the most distinguished judges of this century. He said:
"There has for a very long time been a strong feeling against making legislation, and particularly criminal legislation, retrospective … It is hardly credible that any government department would promote or that Parliament would pass retrospective criminal legislation."
Yet only 16 years later this Bill is being guided through the House by a Minister. It was given a massive majority on its Second Reading even though it involves retrospective criminal legislation.

It is not just the fact that this Bill is retrospective criminal legislation that leads me to feel great unease about it.

Can my hon. Friend help me and other hon. Members by telling us whether Lord Reid was referring to the creation of new offences or to the extending of jurisdiction where neither had previously existed?

With great respect to my hon. Friend, Lord Reid was enunciating general principles. Soft soaping will not get the House or my hon. Friend anywhere. The fact is that whether it relates to jurisdiction, territory or citizenship, legislation of this kind represents retrospective criminal legislation.

The second reason for my considerable unease about the Bill is my belief that it will be impossible, at this distance of time, for there to be a fair trial in any contested prosecutions brought under the Bill. The time that has passed since the deeds in question is immense. The further that those deeds pass into time, the more difficult it will be for justice to be done.

I draw the attention of the House to a passage from a judgment by Lord Justice Diplock in the case of Allen v. Sir Alfred McAlpine and Sons Ltd. (1968) 2 Queen's Bench page 229 which I read out in Committee. It was a case in which the Court of Appeal was deciding whether three civil actions should be dismissed for want of prosecution. One action involved an accident nine years previously, another a different accident that had occurred nine years previously, and the third matters that had arisen 14 years previously.

I ask the House to consider Lord Justice Diplock's words at page 255 particularly carefully:
"Where the case is one in which at the trial disputed facts will have to be ascertained from oral testimony of witnesses recounting what they then recall of events which happened in the past, memories grow dim, witnesses may die or disappear. The chances of the courts being able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard. If the trial is allowed to proceed, this is more likely to operate to the prejudice of the plaintiff on whom the onus of satisfying the court as to what happened generally lies. But there may come a time when the interval between the events alleged to constitute the cause of action and the trial of the action is so prolonged that there is a substantial risk that a fair trial of the issues will be no longer possible. When this stage has been reached, the public interest in the administration of justice demands that the action should not be allowed to proceed."
His words related to matters that had taken place not 45 or 48 years previously but only nine to 14 years previously.

Does my hon. Friend recall that very recently an action was brought in the High Court by my noble Friend Lord Aldington relating to events that occurred not 10 or 20 years ago but 40 years ago, just after the second world war? The result was one of the largest libel awards in the history of this country, of more than £1 million. How does my hon. Friend square the success of that action with the quote that he has just given and the views that he advances?

I have no difficulty in squaring that action with the points I make and the passage I quoted from Lord Justice Diplock's remarks. The case to which my hon. Friend refers did not require retrospective legislation. Nor was it a criminal action. In the particular circumstances of that case, the jury may have been able to determine the facts and reach a proper decision, but the longer the time that elapses from the commission of the offence, the more difficult it is to have a fair trial. That is particularly so in war crime cases because of the difficulty of preparing and presenting evidence.

At chapter nine, pargraph 44 of the Hetherington-Chalmers report, the difficulty confronting the prosecution in such cases is detailed. The hon. Member for Edinburgh, Central (Mr. Darling) referred to the difficulties that the prosecution would face. What was not mentioned in the Hetherington-Chalmers report or in the speech of the hon. Member for Edinburgh, Central is the difficulties facing the defence. The desirability of ensuring a fair and proper trial should be at the heart of our considerations.

If it is difficult for the prosecution to bring a satisfactory case, it will be that much more difficult for the defence to refute it. After all, Hetherington and Chalmers employed a team of former Metropolitan police detectives working to amass evidence, and they enjoyed the co-operation of the Soviet authorities. The Soviet authorities may be very willing to grant facilities to the prosecution in a war crimes case, but would they necessarily be so ready to do so to assist the defence? Although people living behind what used to be called the iron curtain may volunteer to give evidence for the prosecution, it might be different if they are called upon to give evidence for the defendant.

There is no doubt in my mind that, just as the prosecution will have difficulty, so will the defence, and the difficulties of the defence are likely to be greater. Some of the difficulties that face the prosecution have been made easier by what I regard as the wrongful denial of committal proceedings which are normally available in England to the defence. Anyone who has practised in the criminal courts knows how useful committal proceedings can be to the defendant's lawyers and how they enable the defendant to test the evidence for the prosecution case and to tie down the prosecution witnesses. Yet the defendant's right to committal proceedings is specifically set aside by the schedule to the Bill.

I fear that the defence will find it difficult to prepare its case properly. The question of legal aid is linked with that. My hon. Friend the Minister has said that the legal aid authorities will exercise their discretion generously, but there will be difficulties. Obviously, it would be absurd to allow the Legal Aid Board to grant financial assistance unconditionally to the defendants to enable them to follow up every avenue, but conducting the defence may be a massively expensive exercise, involving a great deal of travel abroad, and the use of interpreters, translators and experts to examine documents. It is important that, if the Bill is enacted, the legal aid authorities are allowed to be generous to ensure that as fair a trial as possible is achieved.

Those are the reasons behind my considerable anxiety and doubts about the Bill. It is a bad Bill. I hope that it runs into trouble in the other place and I hope also that the British jury—in which I have more faith than my hon. Friend the Member for Orpington—will bear in mind the risks involved in trials of this nature at this distance in time.

12.22 am

I am not a lawyer like my hon. Friends the Members for Orpington (Mr. Stanbrook) and for Ipswich (Mr. Irvine), but I recognise certain legal precepts that the Bill does not match up to. The first precept—the danger of retrospective legislation—has been ably dealt with by my hon. Friend the Member for Ipswich and I do not wish to comment further on it. The second is the question of equity. It is inequitable that we should bring forward a Bill which deals with a small, clearly identified group.

My hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop) has already drawn attention, in an amendment that was unsuccessful, to the unfairness of producing a law which limits by location the people caught within its ambit.

Let us consider the Baltic states and Poland, which were occupied by both the Russians and the Germans during the last war. The massacre at Katyn, which, until 12 April 1990, when the Russians came clean and admitted their responsibility, would have been within the ambit of the Bill. It is removed from the ambit of the Bill by the Russian statement of 12 April this year. The same is true of other atrocities during that period.

One only has to look at the Hetherington-Chalmers report to see the number of people who were killed by the Russians in the Baltic states. Those crimes will not be covered by the Bill. It is repugnant to me that some people will be caught by the provisions of the Bill for crimes committed in the Baltic states while other people, who committed exactly the same kind of crimes a few months later or a few months earlier will be excluded because the Bill refers only to Germany or German-occupied territory.

When an alleged crime was committed nearly 50 years ago, it must be right that, if the defendant is to have a fair trial, he should have access to all the evidence. Defendants, however, will be unable to get the kind of help over the evidence that they need.

Since Parliament has spent so much time and money on discussing the issue, I cannot believe that juries will not be influenced by the fact that Parliament had to pass a special law to bring these people to trial. At the back of their minds there will constantly be the thought that these people must be guilty because Parliament went to all this trouble to bring them to trial. That cannot be right.

I hope that when the other place considers the Bill it will bear in mind the questions of justice, equity and fair trial. Their Lordships ought to remind themselves of their powerful debate that was held in the other place last December when Law Lord after Law Lord and ex-Lord Chancellor after ex-Lord Chancellor rammed home the fact that the Bill is deficient in terms of equity and fair trial. I hope that it will be defeated in another place, or so changed that this expensive, time-wasting and totally unnecessary Bill is rendered useless.

12.25 am

To respond immediately to the request by the hon. Member for Edinburgh, Central (Mr. Darling), I confirm that, on behalf of the Government, I am happy to undertake to arrange for the publication of an annual report on the working of the Bill. I promised during our consideration of the Bill in Committee to consider the matter. On reflection, I believe that the hon. Gentleman's suggestion was correct.

The contents of the report will have to be sufficiently general to ensure that individuals cannot be identified. Subject to that proviso, we should be able to provide an informative text that will be of interest both to right hon. and hon. Members and to the general public. The Government will place copies of the annual report in the Libraries of both Houses. They will also make copies available to the press through the Vote Office and the Printed Paper Office in the normal way.

I listened carefully to the speeches of my hon. Friends the Members for Orpington (Mr. Stanbrook), for Halesowen and Stourbridge (Sir J. Stokes), for Ipswich (Mr. Irvine) and for Pembroke (Mr. Bennett). Alas, I cannot agree with the points that they made so forcefully. I respect their point of view, so I am sad that I have to disagree with them. I shall not go into the reasons for that disagreement. I fear that I laboured those reasons in Committee and on Second Reading. All I would add is that the Bill was carefully scrutinised in Committee over a substantial number of hours.

Anyone who cares to read the reports of our Standing Committee proceedings will see that the Bill was scrutinised line by line and that it goes to another place having been properly scrutinised. It also goes to another place having been subject to overwhelming majorities on two occasions: when the report was debated in the House on 12 December 1989 and after the Second Reading debate. I am sure that the Bill in its present form will be carefully and properly scrutinised in another place. It is to that other place that I hope the Bill will speedily go, after having obtained its Third Reading. I commend the Bill to the House.

Question put, That the Bill be now read the Third time:—

The House divided: Ayes 135, Noes 10.

Division No. 181]

[12.29 am


Abbott, Ms DianeCurrie, Mrs Edwina
Allason, RupertDalyell, Tam
Amess, DavidDarling, Alistair
Arbuthnot, JamesDavies, Ron (Caerphilly)
Archer, Rt Hon PeterDixon, Don
Arnold, Jacques (Gravesham)Douglas-Hamilton, Lord James
Baker, Rt Hon K. (Mole Valley)Dunnachie, Jimmy
Baldry, TonyDurant, Tony
Batiste, SpencerEggar, Tim
Beggs, RoyEvans, John (St Helens N)
Beith, A. J.Fallon, Michael
Bendall, VivianFields, Terry (L'pool B G'n)
Benn, Rt Hon TonyFoot, Rt Hon Michael
Bermingham, GeraldForman, Nigel
Boateng, PaulFoster, Derek
Boswell, TimFreeman, Roger
Bradley, KeithGarel-Jones, Tristan
Brandon-Bravo, MartinGlyn, Dr Sir Alan
Bright, GrahamGolding, Mrs Llin
Brooke, Rt Hon PeterGordon, Mildred
Brown, Michael (Brigg & Cl't's)Graham, Thomas
Burns, SimonHanley, Jeremy
Burt, AlistairHarris, David
Butterfill, JohnHaynes, Frank
Carl Me, Alex (Mont'g)Higgins, Rt Hon Terence L.
Carrington, MatthewHind, Kenneth
Chope, ChristopherHood, Jimmy
Conway, DerekHoward, Rt Hon Michael
Cook, Robin (Livingston)Hughes, Simon (Southwark)
Coombs, Anthony (Wyre F'rest)Jack, Michael
Cryer, BobJanner, Greville
Cunliffe, LawrenceJessel, Toby

Jones, Gwilym (Cardiff N)Portillo, Michael
Kennedy, CharlesPowell, Ray (Ogmore)
King, Roger (B'ham N'thfield)Redwood, John
Kirkhope, TimothyRees, Rt Hon Merlyn
Lang, IanRenton, Rt Hon Tim
Lawrence, IvanRidley, Rt Hon Nicholas
Leigh, Edward (Gainsbor'gh)Roberts, Wyn (Conwy)
Lloyd, Peter (Fareham)Roe, Mrs Marion
Lloyd, Tony (Stretford)Ross, William (Londonderry E)
Lyell, Rt Hon Sir NicholasRowlands, Ted
McAvoy, ThomasSkinner, Dennis
MacGregor, Rt Hon JohnSmyth, Rev Martin (Belfast S)
McKay, Allen (Barnsley West)Spicer, Michael (S Worcs)
MacKay, Andrew (E Berkshire)Steen, Anthony
Maclean, DavidSteinberg, Gerry
McLoughlin, PatrickStevens, Lewis
Mans, KeithStewart, Andy (Sherwood)
Maples, JohnSumberg, David
Marshall, John (Hendon S)Taylor, Ian (Esher)
Mawhinney, Dr BrianTaylor, Teddy (S'end E)
Meale, AlanThorne, Neil
Mitchell, Andrew (Gedling)Trippier, David
Moonie, Dr LewisVaz, Keith
Morley, ElliotWallace, James
Morrison, Rt Hon P (Chester)Waller, Gary
Moynihan, Hon ColinWareing, Robert N.
Nellist, DaveWatson, Mike (Glasgow, C)
Neubert, MichaelWheeler, Sir John
Nicholls, PatrickWiddecombe, Ann
Nicholson, David (Taunton)Williams, Rt Hon Alan
Norris, SteveWinnick, David
Oppenheim, PhillipWood, Timothy
Paice, JamesYeo, Tim
Parkinson, Rt Hon Cecil
Patchett, TerryTellers for the Ayes:
Patten, Rt Hon JohnMr. Sydney Chapman and Mr. Irvine Patnick.
Pattie, Rt Hon Sir Geoffrey
Pike, Peter L.


Campbell, Menzies (Fife NE)Townsend, Cyril D. (B'heath)
Hamilton, Neil (Tatton)Winterton, Mrs Ann
Illsley, EricWinterton, Nicholas
Maclennan, Robert
Maxwell-Hyslop, RobinTellers for the Noes:
Stanbrook, IvorMr. Michael Irvine and Mr. Nicholas Bennett.
Stokes, Sir John

Question accordingly agreed to.

Bill read the Third time, and passed.