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Lord Campbell of Alloway: My Lords, before the noble Lord sits down, perhaps I can ask him formally to move his amendment in due course so that I may reply to it.

Lord Mishcon: My Lords, as I understand it, Amendments Nos. 1 and 2 must be taken first and I cannot formally move my amendment now. However, if the noble Lord wants me to make a promise to him, I shall promise to move my amendment.

7.15 p.m.

Earl Russell: My Lords, the noble Lord, Lord Mishcon, is naturally entirely correct that there is no limitation of actions in cases of murder or manslaughter. He asks what is the distinction. I think there is an answer. Murder and manslaughter can be, and regrettably are, committed at any time. I can think at the moment—though I am sure somebody may put me right—of no other crime which in its nature cannot have

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been committed less than 50 years ago. That is why war crimes are peculiar. That is why a distinction does, in logic, have a place.

I am glad that the Bill was tabled. The 1991 Act was passed at very nearly the last moment when it could effectively have been put into execution. Our expressions and appearances change with the passage of time, and so do our memories. It is entirely compatible with the passage of that Act to hold that it may have been enforceable at the time, but that as time goes on so we reach a point where it cannot practically be done. It is a valid principle that there is no such thing as a crime so dreadful that an innocent person should be convicted for it.

The noble Lord, Lord Mishcon, asked what harm it could do. But he answered the question himself. He said that accepting the amendment would put a special mark on the Bill; he did not say a mark of disapproval, but he came very near to saying that—so near that he answered his own argument.

Lord Clinton-Davis: My Lords, I have not previously participated in debates on this Bill. I hasten to say that I do so now in a purely personal capacity and certainly not from the Front Bench. These issues are not within my responsibilities. But I wish to add my support to what was said by my noble friend Lord Mishcon. I notice that he said that he rose with great humility because of his modesty as a solicitor in the presence of some extremely distinguished lawyers in this place. Where that puts me I am not quite sure because I was his articled clerk only a few years ago. However, while I did not always agree with him then, I do so in relation to this matter.

Looking back to the time when we debated this issue when the War Crimes Bill was before us, like him, I was not unduly enamoured of the Bill. I felt that there was a danger that there would be a transfer of sympathy from the true victims of these horrendous crimes to people who may not deserve that sympathy. I felt too—I say this with great respect to some noble Lords who spoke in that debate—that in the light of some of those contributions I was impelled to vote for it, notwithstanding my reservations about it.

I also felt, perhaps as a former Member of another place and still having some of the sensitivities of that place, that it was a dangerous precedent to engage in a confrontation with the will of the House expressed not once but on several occasions. I believe, notwithstanding what the noble Lord, Lord Campbell of Alloway, said in a very moderate way, that this is close to becoming precisely that all over again. This House must watch itself. We must be extremely careful about engaging in confrontations of this kind.

Something was said tonight, notably by the noble Earl, Lord Russell, about the danger of an unfair conviction after all this time. That depends on the evidence, the view that the jury takes of the evidence and the way in which the jury is directed on the evidence. Consequently, I do not believe that there is a risk of a miscarriage of justice in the way that the noble Earl envisages. One of the points which the learned

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judge presiding over the trial will make is that the jury must be extremely careful because of the passage of time. That goes to the heart of the matter.

We are dealing with crimes of unprecedented savagery. Therefore, in my judgment we must take careful note of the will of the Members of another place who expressed strong views about the matter with overwhelming majorities. I believe that it is an abuse of our criminal law to talk of periods of limitation. I may have strayed over the bounds of propriety because this House has—in my view misguidedly—given a Second Reading to the Bill. I believe that it is a thoroughly bad Bill and I hope it will go no further once it reaches another place.

I fall back on the position that my noble friend adopted, he probably shares my views in principle about the matter. Today we are constrained and I support the constrained amendment that he put forward.

Lord McIntosh of Haringey: My Lords, I rise without premeditation and with considerable trepidation to disagree with one point only in the speeches of my noble friends Lord Mishcon and Lord Clinton-Davis. It is about the status of the Second Reading of the Bill in this House. Those of us who did not oppose the Second Reading cannot be said thereby to have given approval to the Bill in principle. In my brief intervention when the Bill came before us a second time, having received a large majority vote in the elected Chamber, I said—and my noble friend Lord Clinton-Davis said much the same thing—that it was extremely unwise of this House to oppose the Second Reading again and thereby bring into play the Parliament Act 1911. It was unwise and I still hold that view. At the same time, I have to recognise as a matter of practical legal possibility that the chances of a significant number of successful prosecutions under the War Crimes Act 1991 are very low. They are low for the reasons that have been expressed.

However, the Bill is a Private Member's Bill. It did not seem to me to be appropriate—speaking from the Front Bench in a personal capacity, as we always do on Private Members' Bills—to suggest that your Lordships should reject this Private Member's Bill at Second Reading and therefore exclude the possibility of amendment at Committee, Report and later stages. Therefore, with the deepest respect, I say to my noble friend Lord Mishcon that he need not worry about this House having given approval to the Bill in principle. His amendment is a modest one because he thinks that that is how the Bill should be amended. But he should not be deterred from even wrecking amendments if he believes them to be necessary, just because the House has given the Bill a Second Reading.

The amendment is at least an improvement on the rather dangerous confrontational precedent which is introduced by the Bill. I therefore hope that the House will support it and that the movers of the first amendments will agree that it is an improvement, particularly on Amendment No. 2.

Lord Houghton of Sowerby: My Lords, it takes a prosecution to bring to an end the false hope that one can punish people for crimes committed over half a

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century ago. We are dealing with the unreality of the present situation in the false hope that if we bring someone to trial, our sense of duty and our conscience will be at rest.

In Canada, the first and only case showed how futile the whole process of prosecution was. The last time I spoke on the subject I asked noble Lords to bear in mind one practical aspect—the position of the jury with whom rests the duty of reaching a verdict. Experience has shown that such trials last month after month, imposing on a jury an almost impossible mental, emotional and physical strain. When we hear the verdict, it may give rise to a feeling of deep resentment, not that there has not been a fair trial, but that the verdict has not been right.

In Canada, after months of reflection on their verdict, the jury came to a unanimous decision—to find the accused not guilty on a large number of charges. There was an immediate reaction among the representatives of the Jewish fraternity in Canada, demanding that the Government should exercise their right under the constitution to order a new trial. It is incredible how far human emotion will drive people along the path of futility and purposeless endeavour. We all feel strongly about what happened, but we were not part of it. We hoped that punishment would come to those guilty long ago. I fear that we shall continue toying with the subject of war crimes indefinitely until there is no one left or there is a disinclination on the part of society to continue that futile course any longer.

I cannot think that noble Lords, with their keen imagination and great experience, could contemplate going into a trial which could last six to nine months. It would take six months to hear the evidence in trials of unprecedented complexity, with problems of language, of bringing witnesses hundreds of miles, of video tapes and all that apparatus, to try to bring to bear upon the jury the idea that the evidence is conclusive.

I support the amendments. I supported the amending Bill, I opposed the original Bill. I felt that it was a great privilege to submit to your Lordships the course of understanding but of sanity. We accepted it but the House of Commons overruled our decision and we had to accept that. But the efflux of time is rendering the proceedings sad and useless. Can we not bring down the curtain on the attempt to bring war criminals to trial? History has its verdict, there is little one can do to ageing people to make them feel the horror and shame of what they did.

I do not know whether we are old enough yet to remember some of the things that we did years and years ago. I have memories of things that I did that I cannot comprehend. I cannot believe that I did them. The person who committed some of the things I did was not me! Fifty, 60 and 70 years go by—96 years go by—and we change in that time and we are not the same people. It is playing about with the emotional make-up of humanity to go on with this.

I am sorry to take that view but I wish that world Jewry would accept the fact that history must now bury its own dead and let us get on with life as it is with thousands of war crimes having been committed in the meantime. It is war which is the crime, and as long as

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there is war, crimes will be committed. There was Bosnia and the Gulf. It is shameful and shocking. There is a catalogue of crimes of recent wars which we shall never be able to tackle. I wish that we could see the sense of this matter and lead world opinion on it. I wish that we could tell the Australians and Canadians that they can bring their responsibilities in this direction to an end with honour and understanding.

I hope that we shall take a decision in the interests of our own integrity. The elected Chamber has not got all the sense in the world. I used to hear that 50 million people cannot be wrong—50 million people can be wrong! They are mostly wrong. It is here, with our sense of reality and common sense and our vast experience of life, that we can express the true verdict on this situation. For heaven's sake, let us do it!

7.30 p.m.

The Minister of State, Home Office (Baroness Blatch): My Lords, perhaps I may start by associating myself with the good wishes and the pleasure which we all take in seeing the noble Lord, Lord Mishcon, back in his seat and participating in our debates.

The effect of Amendments Nos. 2 and 3 would be that the investigating and prosecuting authorities would have three months—or if we accept the other amendment, 12 months—longer than otherwise to continue with inquiries and bring charges as appropriate in relation to the War Crimes Act 1991.

The noble Lord, Lord Mishcon, was absolutely right. Clause 2 is a declaratory clause and that point was made by my noble and learned friend the Lord Chancellor when he referred to it. However, there is an anomaly, in that Clauses 2 and 3 would apply in relation to applications to quash indictments made three, or 12, months or more after Royal Assent, but not to applications in the immediately preceding three-month or 12-month period. I am sure that that was not the intention of my noble friend Lord Campbell of Alloway. If that needs putting right I am sure that he will see to it at further stages of the Bill.

I should perhaps emphasise lest there be any doubt whatsoever, that it should not be assumed that war crimes investigations will necessarily be concluded when funding, in the form of police specific grant for the Metropolitan Police War Crimes Unit ends on 31st March 1995. As to whether police officers will be made available beyond that date to finish investigations and support any prosecutions, that would be a matter for the Metropolitan Police Commissioner.

But the Government's position remains that the investigating and prosecuting authorities should not be subject to a time bar on their inquiries or the bringing of charges. These amendments in no way therefore overcome the principled objection which the Government have to Clause 1 of the Bill, which, with or without the amendments to Clause 4, would effectively repeal the War Crimes Act 1991.

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Amendment No. 1 is merely a consequential amendment. It does not affect the principle behind the clause, which is that, with the coming into force of the clause, no proceedings may be instituted in relation to the War Crimes Act 1991.

Therefore, with or without the amendment, the clause is unwelcome to the Government as it stands. My noble friend Lord Campbell of Alloway reminded us that I said on 7th December 1994 at col. 1007 of Hansard that the clause would set a most unfortunate precedent. We do not have a time bar on the institution of proceedings in the United Kingdom for murder, manslaughter or culpable homicide nor do we wish to depart from that principle.

The clause, if enacted, would create an exception for people who did not have British nationality at the material time. They would again be immune from prosecutions, thus rendering the War Crimes Act ineffective. Parliament did not intend at the time when the War Crimes Act was enacted that the police and the independent prosecuting authorities should have a prescribed period of time in which to carry out their investigations into war crimes and bring charges as appropriate. The Government's position in relation to the Act is clear. It is that those who committed most terrible crimes in Nazi-occupied Europe during the Second World War cannot be allowed to use the privilege of residence in the United Kingdom to escape justice.

In response to the comments made by the noble Earl, Lord Russell, and the noble Lord, Lord Houghton, justice and fairness must be a matter for the Crown Prosecution Service, the work of the police, that of my right honourable and learned friend the Attorney-General and, if appropriate, the courts themselves. This is a Private Member's Bill and, as is consistent with the conventions of this House, I shall not be opposing these amendments.

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