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(""A body corporate created by virtue of section 59A(2)(c) of the Further and Higher Education (Scotland) Act 1992.",").

Page 33, line 20, leave out ("73(1)(f)") and insert ("73(f)").


Page 33, line 26, leave out ("73(1)(f)") and insert ("73(f)").


Page 33, line 30, at end insert--

("Education (Fees and Awards) Act 1983 (c. 40)

. In section 1(6) of the Education (Fees and Awards) Act 1983 (fees at further education establishments), for "section 27(6) of the Education Act 1980" substitute "section 218(9) of the Education Reform Act 1988".").

Page 33, line 33, at end insert--

("Further and Higher Education Act 1992 (c. 13)

. In section 17 of the Further and Higher Education Act 1992 ("further education corporation" and "operative date"), at the end of subsection (1) add "or which has become a further education corporation by virtue of section 47 of this Act".
. In section 90(3) of that Act (interpretation), after ""university"" insert "(except where the context otherwise requires)".").

Page 33, line 33, at end insert--

("Charities Act 1993 (c. 10)

. In section 3 of the Charities Act 1993 (the register of charities), after subsection (5) insert--
"(5A) In subsection (5) above, paragraph (a) shall be read as referring also to--
(a) any higher education corporation within the meaning of the Education Reform Act 1988, and
(b) any further education corporation within the meaning of the Further and Higher Education Act 1992." ").

Page 34, line 33, at end insert--

("1980 c. 20. Education Act 1980.Section 19. Schedule 5.
1983 c. 40.Education (Fees and Awards) Act 1983.
In section 2(3), paragraph (a) and in paragraph (b) the word "other".").


Page 34, line 41, at end insert--

("1993 c. 10.Charities Act 1993.
In Schedule 2, paragraphs (h) and (j).").


In the Title, line 6, leave out from ("them") to ("to") in line 8 and insert ("; to make provision with respect to the funding of higher education institutions and certain further education, and other matters relating to further and higher education institutions;").

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In the Title, line 8, after ("institutions;") insert ("to enable the higher and further education funding councils in Scotland to discharge certain functions jointly;").


Line 9, after ("training;") insert ("to make provision with respect to the inspection of training and careers services provided in pursuance of arrangements or directions under the Employment and Training Act 1973; to provide that the Scottish Further Education Funding Council shall be a relevant body for the purposes of section 19(5) of the Disability Discrimination Act 1995;").

Baroness Blackstone: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 133 to 153.

Moved, That the House do agree with the Commons in their Amendments Nos. 133 to 135.--(Baroness Blackstone.)

On Question, Motion agreed to.

Lord Haskel: My Lords, the early completion of our deliberations on the Teaching and Higher Education Bill means that the time available for the Unstarred Question on Guardsmen Fisher and Wright is no longer limited to a one-hour dinner adjournment debate. The debate can now run for a maximum of one-and-a-half hours. That change does not affect the time available to the noble Lord, Lord Campbell of Alloway, or to my noble friend Lord Dubs, but it increases the maximum time available to other speakers from three minutes to six minutes.

Guardsmen Fisher and Wright

7.38 p.m.

Lord Campbell of Alloway rose to ask Her Majesty's Government when Guardsmen Fisher and Wright can expect release from life imprisonment.

The noble Lord said: My Lords, I thank all noble Lords who have put down their names to speak. In particular, I thank the Government Chief Whip for his tremendous help, even at this late stage, to enable us to do justice to a serious problem which concerns us all.

The expectation of release remains as deferred until well beyond six years spent in custody. The Secretary of State, on reasoned analysis of the findings of the trial judge, has so decided and, for my part, that decision is not called in question because the trial judge found that there was no possible justification for either of the accused to have opened fire as they knew that they were not exposed to any appreciable degree of danger and that the man they shot was unarmed. Both Secretaries of State--fortunately one is present--were entitled to rely on those findings which inevitably slighted release: and are not open to criticism for having done so.

But the purpose of this Question is to challenge the rectitude of such findings on material deposed to on affidavits handed to the noble Lord, Lord Dubs, and placed in the Library; and so to seek immediate release pending judicial resolution as an exercise of ministerial discretion--a delegation of the Royal Prerogative--as acknowledged by Section 23 of the Northern Ireland Prisons Act. That is an exercise of discretion on which immediate release is not to be inhibited by treating these

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cases as scheduled for accelerated release or by "comparable culpability" which in this context does not arise.

The merits of that argument (grounded on those affidavits) have not as yet been considered by either Secretary of State (in context with release) or judicially (in context with conviction) because Lance Sergeant Swift, in charge of this four-man foot patrol, and Guardsman Williams, the fourth man (whose evidence would have been in stark contradiction to those findings of the judge to which I have referred) were not called to testify at the trial.

These affidavits were sworn by the lance sergeant in amplification of his recorded interview by the RUC on 10th September; the colonel then in charge of the 1st Battalion of the Scots Guards; the company commander; and the search training officer of the battalion. The recorded interrogation of Williams by the RUC on 9th December 1992 is also included. They are all in the Library.

On 4th September, after the shooting these men returned to Girdwood barracks and were questioned by the colonel, who saw them with the company commander before they were arrested by the RUC and taken to the North Queen Street station, where they were questioned on 4th and 5th September. On 5th September there was a protest demonstration of about 500 who had gathered around the station. On the afternoon of that day the RUC charged them with murder. In Northern Ireland when British soldiers on duty have killed a civilian, the charge of manslaughter is not available.

When seen by the colonel and the company commander, according to the colonel's affidavit, these guardsmen were shocked and they said that they believed their lives, the lives of the patrol and of others were at risk, and that they acted in good faith in accordance with their terms of engagement. The colonel also deposed that these men indeed did act in accordance with the terms of engagement as armed soldiers on the streets of Northern Ireland, and under his command were in danger 24 hours a day, seven days a week.

The evidence deposed shows that the findings of fact to support this conviction were fundamentally flawed; that these men did no less, and assuredly no more, than their ordained duty according to training; and that their convictions were a grave and manifest injustice.

The Crown contended in opening that the defence was "dishonest and concocted". The judge rejected the evidence of Fisher and Wright in favour of that of three residents in the New Lodge area, an area hostile to these patrols in which there was a high risk of terrorist activity, and where doors were kept open as an escape route: and in recent weeks such patrols had come under persistent attack from coffee-jar bombs--an improvised grenade, as some of your Lordships will know, which contains Semtex, shrapnel and a detonator and has a killing radius of 30 metres.

The defective structure for inevitable conviction (based on the evidence of the residents) was erected upon five flawed pillars of fact; a structure which could

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never have been assembled if the lance sergeant and Williams had been called in evidence (and believed on their oath). For the lance sergeant would have said that he never searched McBride; that when McBride made a dash for it he did not shout, "Don't shoot"; and that he had every reason to believe that McBride was armed with a coffee-jar bomb; that he, Fisher, Wright and Williams thought that they were exposed to the danger of a "come on" ambush in which a coffee jar bomb would be used; and that as McBride had disregarded three yellow card warnings, there was every justification under the rules of engagement to open fire. Various aspects of his evidence would have been confirmed by Williams, and are confirmed by the affidavits in the Library.

The lance sergeant would have said that at the morning briefing on 4th September and orders of the day, the threat of attack from coffee-jar bombs was stressed as the patrol would be out for over two hours; that it was well known to the patrol that the coffee-jar bomb was often directed with a plastic bag from behind the engine of a parked car; that it was an extremely dangerous, easily concealed weapon, designed to be used against such foot patrols; that leading the patrol he had cause to stop McBride, who with an arm across his waist was holding something bulky under his jacket. Fisher covered him, Wright covered down the street, Williams covered the rear.

The lance sergeant started to question McBride and when he gave his name and address the lance sergeant knew that the RUC was searching at that address. The lance sergeant tried to make radio contact but failed. He said, "I'll search you. Empty your pockets onto the wall", and again tried to make radio contact. Before he was able to search, McBride grabbed the earpiece of the radio from the lance sergeant's ear and lunged at him. The lance sergeant recoiled and McBride made a dash for it, vaulting over the wall and railings. As McBride did so, he pulled from his jacket a thin white plastic bag containing a solid looking cylindrical object, which the lance sergeant thought would be a coffee-jar bomb to be used against the patrol in a "come on" ambush.

The lance sergeant made a dash to catch him but fell to the ground. Then McBride ran towards the wall. The lance sergeant shouted, "Grab him". Fisher tried to grab him but failed. The lance sergeant did not shout, "Don't shoot". They all went in pursuit. McBride was gaining on them, still with the bag in his hand, heading towards a parked car. Three yellow card warnings, "Army--halt or we'll fire", were given and disregarded. McBride was shot, still running with the bag in his hand towards the parked car. Wounded he fell behind the parked car and then struggled to a house. It was then that the lance sergeant shouted, "Don't shoot", as confirmed by Williams. The area was deserted. There was no one about until after the shooting.

7.57 p.m.

Lord Bramall: My Lords, apart from expressing my gratitude to the noble Lord, Lord Campbell of Alloway, for raising the issue, I want to make only two points. First, among all the encouraging gleams of hope emanating from Northern Ireland, on which--and on her

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determination and perseverance--I warmly congratulate the right honourable Secretary of State for Northern Ireland, the time has surely come to spare a thought, in practical and understanding terms, for those men and women of Her Majesty's Forces who have borne the heat and burden of the day in internal security for close on 30 years and have done their duty as they saw it under conditions of considerable tension and stress.

Secondly, I have always fervently believed--I may say I have had considerable encouragement and support for this view from very senior members of the legal profession--that if a soldier goes out on duty, when called in to aid the civil power, with absolutely no malice aforethought, and may possibly and tragically make a split second error of judgment under very great pressure, he should at the end of the day serve a sentence no greater than that commensurate with unlawful killing and manslaughter rather than with the appalling crime of murder.

I suggest that a split second error of judgment is all the more understandable because these men were operating in good faith in that grey area closely surrounding the yellow card rules of engagement. When these points are taken together, there should be no question but that the two guardsmen, Fisher and Wright, who have now served that sort of punishment and paid that sort of price, should be released forthwith. Under the circumstances prevailing in Northern Ireland, in which immense tolerance is being shown to terrorists serving multiple life sentences, that is the very least that the Secretary of State, who has the power, can do.

8 p.m.

Lord Vivian: My Lords, I served in Belfast in 1973-74, as thousands of others have done. Before going to Northern Ireland, every regiment receives excellent, well-prepared and highly sophisticated training. I have patrolled in the remarkably unpleasant and dangerous New Lodge area of that city where Fisher and Wright were on the day that McBride was killed. I am aware of the guardsmen's feelings and the pressures and strains that they were under. There is no time to go through the incident that happened that morning. In any event, my noble friend Lord Campbell has dealt with it in some detail.

I wish to put some questions to the Minister. Why were the following personnel not called to give evidence? First, the company commander, who would have issued the instructions to Sergeant Swift and the patrol that day. Why were Sergeants Swift and Williams, the two other members of the patrol, not called to give evidence? Why was Company Sergeant Major Goodall, a trained search adviser and an expert witness, who would have provided vital evidence, not called? He would have, or could have, said that the search of the house through which McBride had passed did not take place for approximately one hour after the shooting incident; that the cordon surrounding the RUC search was insecure; that people were coming and going all the time, and any one of them could have taken a coffee jar grenade and disposed of it; that the house search took a mere 17 minutes, when in Goodall's expert opinion a proper search would have taken some

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two-and-a-half hours. I agree with that; I, too, was trained in house searches. Why did the RUC not carry out their duties on that particular occasion in their normal diligent and painstaking way? Is the Minister aware that Sergeant Swift was subjected to hostile questioning by the RUC on behalf of the prosecution in a military barracks at Windsor shortly before the trial?

I now turn to some matters raised by Sir Ludovic Kennedy. Why did the judge accept the evidence of three local Irish residents who said that McBride had been searched in preference to the guardsmen's denial that any search had been carried out? It is worth noting that one of those witnesses had 12 convictions for shoplifting, as well as others for receiving and handling stolen goods, disorderly behaviour and failing to surrender to bail.

If a search of McBride did take place, and he was unarmed, certain questions arise which the judge made no attempt to answer. Why, if McBride was unarmed, did he run away? Why did Sergeant Swift order the guardsmen to grab him? If McBride had nothing to hide, why did he not stop when Fisher and Wright told him that they would open fire if he did not?

Fisher and Wright acted as they did because they were convinced from what they saw that McBride was carrying a coffee jar bomb and might use it, putting their lives in immediate danger. Army rules of engagement are extremely strict and are normally gone through carefully before every patrol goes out. Those two guardsmen opened fire in accordance with Army regulations, because they realised that their lives were in immediate danger, in the belief that McBride was in possession of a lethal weapon which he might have used.

In conclusion, the Secretary of State can, at any time, if she thinks fit, release a person serving a term of imprisonment for life. Why does she not do so? The cases of these two guardsmen are to be remitted to the Secretary of State for further consideration. It can only be hoped that she will release the guardsmen immediately. Are those two men, who were merely carrying out their duty for the nation, to languish in prison when others, many of whom have committed unspeakable crimes, are to be released? There has been a miscarriage of justice, and it must be put right immediately.

8.6 p.m.

Lord Chalfont: My Lords, I rise to support the noble Lord, Lord Campbell of Alloway. Like the noble Lord, Lord Vivian, and others in this House, I have been in the same position as these two young soldiers were in on 2nd September 1992--on patrol in a hostile environment under the immediate threat of urban terrorism. As other noble Lords have said, in those circumstances one has to make constant life and death decisions. They are not just split second decisions; they are more deliberate decisions based on experience and the kind of attacks that the regiment has endured.

In much of the debate about this matter there has been the dreadful fallacy of moral equivalence: the tendency to apply the same standards to terrorists on the one hand

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and to soldiers and policemen on the other. But they are not the same. When the terrorist goes out in the morning with his armalite, his grenade or coffee jar bomb, he sets out to kill or maim, not merely soldiers and policemen but often innocent civilians as well. In my experience, when a soldier puts on his equipment, he does not go out to kill. More often he goes out on dangerous duty with a determination if possible to avoid inflicting death upon other people. That is my experience of the British soldier in such circumstances. That is how they behave. They are required to carry out dangerous and complicated duties. These young men believed that they were doing that duty.

They might, as the noble and gallant Lord said, have made a mistake. I am not sure that I would go that far. When the man who was eventually killed pulled the earphone away from the patrol leader and ran, was that the action of an innocent man? Were the two soldiers of whom we are speaking supposed to regard that as an innocent and normal procedure? I think not.

But even if they made that mistake, they were on duty and under military discipline; and there are military disciplinary channels for dealing with that kind of mistake. What happened to these two young soldiers is that they were sentenced to prison for life. One of them has already spent a quarter of his life behind bars for doing what he believed to be his duty.

I am not one of those who will rush to blame or criticise the judge on this occasion. As the noble Lord, Lord Campbell of Alloway, said, there was not a possibility of a verdict of manslaughter being found in this case because it was not available; and the sentence was mandatory. I suppose it is possible to suggest that even judges can make mistakes, like soldiers sometimes do. But, whatever the reasoning, the facts and the legal arguments behind this case, I believe that there has been a very grave miscarriage of justice. It is important that this miscarriage of justice should be rectified at once.

It has been suggested--and I think there may be something in the suggestion--that the reasons why the Government are finding it difficult to bring about the release of these young men have a political content: that to release them might, to use the jargon of the day, send the wrong message; that it might in some way upset the peace process. If that is so, it is an outrage. To use the workaday jargon of the City of London, there should always be a Chinese wall between political calculation and the administration of justice. There is absolutely no excuse for keeping two young men behind bars because someone has judged that to release them may send the wrong political message. That is a total fallacy and an outrage.

I agree with the noble and gallant Lord, Lord Bramall, that we in this House should now call upon the Government to exercise ministerial discretion, which it is open to the Government to do. In my view, this is not just a question of the early release of these two young men. Someone said that they had already been in prison long enough. They have been in prison far too long. We should be calling not for their early release or a reconsideration of the circumstances but for their immediate release. As I said, it would be outrageous if

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this were not done for political reasons. What would be even worse, and what no civilised or intelligent person would understand, would be if terrorists convicted of murder--multiple murder in many cases--were released from prison in pursuit of a political process while these two young men remained in prison. That would be not just inconceivable but utterly outrageous.

8.12 p.m.

The Earl of Carlisle: My Lords, I thank the noble Lord, Lord Campbell of Alloway, for introducing this Unstarred Question. First, I should like to offer my sympathy to the family of the late Peter Paul McBride, the young man who died in this tragic incident on 4th September 1992. Secondly, I wish to offer my deepest sympathy to the families of Guardsman Fisher and Guardsman Wright, who, I understand, have behaved with classic dignity during their misfortune. Thirdly, I wish to offer my sincere best wishes to the two guardsmen in prison at the moment. Like the noble Lords, Lord Chalfont and Lord Vivian, I too had the privilege to serve in uniform in Northern Ireland and I say sincerely: "There, but for the grace of God, went I".

I understand that the law in Northern Ireland does not permit a court to impose a discretionary sentence on someone convicted of murder. Instead, it requires the court to impose a sentence of life imprisonment. It therefore falls to the Secretary of State for Northern Ireland to decide whether, and, if so, when, it is appropriate to release a life sentence prisoner on licence. I understand that the Secretary of State will listen to the advice given to the Life Sentence Review Board. That advice was given in October last year. I understand that on that board there are senior officials of the Northern Ireland Office, psychiatrists, psychologists and prison staff. I hope that the Minister can assure this House that, when examining the case of these two guardsmen, the senior officials from the Northern Ireland Office on the Life Sentence Review Board were not in any way influenced by the political situation at that time in Northern Ireland.

I further understand that, when the board considers that a prisoner has served long enough to meet the requirements of retribution and deterrence and is considered to be no longer a threat to the public, the board will recommend to the Secretary of State that the prisoner be released. Let us consider those three points.

Retribution, in Old Testament terms, means an eye for an eye and a tooth for a tooth, does it not? Five years in prison for those who have worn with pride the uniform of their nation is surely sufficient retribution for what was a tragic error committed in the course of most dangerous duty.

Deterrence means, I understand, preventing someone from carrying out a similar course of action in future. Does anyone in this House or elsewhere believe that these two servicemen will ever be in a position, or be put in a position, in which they will carry out the same action again? The answer must be no.

I know and admire the Ministry of Defence. I understand that in similar circumstances, where a soldier has accidentally killed, murdered or committed

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manslaughter against a civilian, that soldier does not carry arms in Northern Ireland again. I also understand that cases will be looked at on other occasions, especially when there is a significant material change in circumstances. Ministers in another place and noble Lords on the ministerial Benches have expressed the view that the situation has indeed changed dramatically for the better in Northern Ireland. I ask them to bear that in mind when they consider the cases of these two guardsmen languishing in gaol.

Having had the privilege to serve as a soldier in the Province in the 1970s, I sincerely believe that it is the wish--the demand--of people on the mainland and all people of good will in Northern Ireland, people I deeply admire, that these soldiers should be released from gaol, not forthwith, as the noble and gallant Lord, Lord Bramall, said, but with immediate effect.

We are shortly to hear the Constable of the Tower of London, the noble and gallant Lord, Lord Inge. He will know, as many of your Lordships know, that there are three important swords in the Tower of London. One is the Sword of State, which we see at the opening of Parliament every year. The second is the Sword of Justice. That has a sharp point, evidently demonstrated in the cases of Guardsman Wright and Guardsman Fisher. The third is Curtana, the Sword of Mercy. I hope that the Secretary of State will show mercy.

8.19 p.m.

Lord Ackner: My Lords, if any one of the following defects in our law had been removed before the shooting took place in this case, then these guardsmen would now be at liberty. The defects to which I refer are, first, that murder carries with it an automatic life sentence. Time and again in this House we have said that, because the circumstances giving rise to a murder vary infinitely, then the life sentence which should be available for the offence should be discretionary. Thus, the whole range of sentences would be the same for murder as for any other serious crime.

I had the privilege to be a member of your Lordships' Select Committee on Murder and Life Imprisonment when, in 1991, an amendment was tabled by the noble Lord, Lord Nathan--the chairman of the committee--to provide for the abolition of the mandatory life sentence. It was passed in this House with a majority of nearly 100. There were two former Lord Chancellors, the Lord Chief Justice, the Master of the Rolls and five Law Lords among those who voted in its favour.

The second defect is that the settling of the tariff and the decision on release is taken by a politician, in private, with no right of appeal. The Home Affairs Committee recently recommended that,

    "it is wrong in principle for the Executive--that is, a politician--to have a role in decisions which effectively determine how long a person subject to a mandatory life sentence spends in prison; a role it does not have in discretionary life sentences".

It is refreshing to observe that the noble and learned Lord, the Lord Chancellor, when in Opposition in 1989, said when the Select Committee's report was being debated:

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    "The point is that the duration of imprisonment should be decided by judges in an open process and not by the Executive behind closed doors, without even the authority of Parliament".--[Official Report, 6/11/89; col. 522.]
That was his view as shadow Lord Chancellor. It was also substantially his view when he was asked a Starred Question on 24th June last. I had briefed him in advance of his previous statement, to which I made reference, and asked him in terms whether or not he still agreed with it. His answer was,

    "The only difference between my position as expressed then and now is that today I have a keener awareness of the arguments on the other side".--[Official Report, 24/6/97; col. 1463.]

Finally, under this heading, I refer to the observation made by the current Leader of the House, the noble Lord, Lord Richard, again in the debate on the 1991 Act to which I have made reference where he said, "To be blunt"--if one can imagine that ever occurring with the noble Lord--

    "I believe that the public have an infinitely greater confidence in judges than in Ministers--of any government--to make decisions on the length of sentences".--[Official Report, 18/4/91; col. 1570.]

The third deficiency is that it was not open to the judge to bring in a verdict of manslaughter. In that regard it is interesting to note that the Criminal Law Revision Committee, in its 14th report way back in 1980, made this recommendation:

    "Where a person kills in a situation in which it is reasonable for some force to be used in self-defence or in the prevention of crime but the defendant uses excessive force, he should be liable to be convicted of manslaughter not murder if, at the time of the act, he honestly believed that the force he used was reasonable in the circumstances".
That recommendation featured in the Law Commission's draft criminal code in 1979. The Select Committee to which I have already made reference recommended that the law be so changed. Significantly, in the Clegg case, both the Court of Appeal in Northern Ireland and your Lordships Appellate Committee, when the case came before it, made the same recommendation; in fact, the Appellate Committee wondered at the extent to which it could itself lay down that a verdict of manslaughter was open in that situation but decided that it needed legislation and was beyond its powers acting in a judicial capacity.

I understand that the guardsmen are entering their sixth year of imprisonment. That is equivalent, if one was dealing with a determinate sentence, to eight or nine years.

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