War Crimes

§ Sir Bernard Braine (Castle Point)

I beg to move, That this House takes note of the report of the War Crimes Inquiry; and endorses the need for legislation to permit the prosecution in this country, for acts of murder and manslaughter or culpable homicide committed as war crimes in Germany, or German-occupied territory, during the Second World War, of people who are now British citizens or resident here.

§ Mr. Speaker

I must tell the House that I have selected neither of the amendments on the Order Paper. Moreover, a very large number of right hon. and hon. Members have written in seeking to participate in the debate. I urge them all, if they are called, to be brief.

§ Sir Bernard Braine

In October 1986 the Simon Wiesenthal Centre wrote to the Prime Minister with a list of 17 alleged Nazi war criminals said to be living in this country. Scottish Television made a programme on the subject at about the same time and obtained from the Soviet Union a further list of 34 suspects believed to be living here. My right hon. Friend the Foreign Secretary, who was then Home Secretary, examined the allegations and concluded that 10 of the 17 names on the Wiesenthal Centre list and seven of the 34 names on the Scottish Television list might be alive in this country.

In February 1988 my right hon. Friend announced that Sir Thomas Hetherington, the former Director of Public Prosecutions, and Mr. William Chalmers, the former Crown Agent for Scotland, would prepare a detailed report. My right hon. Friend presented their report to Parliament on 24 July. It recommended that British criminal law should be changed to make possible the prosecution of a number of individuals for Nazi war crimes.

Details of those investigated were quite rightly placed in an unpublished annex to the main report, which stated that they revealed horrific instances of mass murder. The investigations related specifically to three individuals against whom there is sufficient evidence to warrant immediate prosecution; three cases in which detailed investigation has taken place but more is required; 75 cases in which detailed investigation is still needed; and 46 further cases in which suspects are so far untraced—a possible total of 124 cases.

At present, under our law, murder and manslaughter committed during the second world war anywhere in the world can be prosecuted in British courts only if the person who committed the alleged offence was a British citizen or resident here when the crime was committed. The inquiry recommends that the law be changed so that persons who now live in Britain may be prosecuted for murder or manslaughter committed as a violation of the laws and customs of war in Germany or German-occupied territory during the second world war. The effect of that change is that a criminal law as already applied to those who were British citizens at the time of the alleged murders would apply equally to persons who later acquired British citizenship or residence. This is simply to recognise an obvious truth: that the acquisition of British citizenship confers both privileges and responsibilities.

In common with all other western countries, the British legal system has a proud tradition of resistance to the 869 retrospective introduction of offences into our criminal law. The Hetherington-Chalmers report fully endorses that tradition. Under its proposals, no new offences will be created. The changes will be retrospective only in so far as those who were not British citizens or residents at the time will now be liable to face charges that could always have been made against British citizens.

Not only were such crimes against our domestic law but they were against international law at the time. They were crimes against the accepted and recognised law of all civilised nations. What is more, current international conventions to which Britain is party explicitly permit such legislation. It might be thought unusual that, if the proposed legislation is enacted, British courts will be required to try individuals for crimes committed overseas. Not so. When an offence is considered sufficiently serious, British courts already have criminal jurisdiction over persons who did not have British citizenship or residence at the time of the offence. Our courts have been granted extraterritorial jurisdiction relating to hijacking, terrorism and the practice of torture. The inquiry's recommendations in respect of the rules of evidence are all in line with our current practices.

The Criminal Justice Act 1988 provided for the use of live video links in England and Wales. The recommended change would bring Scots law into line with the 1988 Act. The inquiry recommends that the recorded statements of persons now dead should be admissible as evidence. That requires no new legislation. As a guarantee of fairness, the courts have wide powers to determine whether such statements should be admitted as evidence.

It is important to recognise that, if we approve legislation on the lines recommended, Britain will not be standing alone. Indeed, we are the last of the allied powers engaged in the second world war to bring war criminals to justice. Legislation to allow for the retroactive punishment of Nazi criminals has recently been sponsored by the Governments of two countries whose legal and constitutional systems are based upon our own—Canada and Australia. Both have enacted war crimes legislation. Both have acted on recommendations from commissions of inquiry which held that such measures were in accordance with their own constitutions and with international law. In Canada, legislation was passed in September 1987, and proceedings against alleged war criminals are now under way. In Australia, the Government-commissioned Menzies review reported to the Attorney-General in November 1986 with detailed allegations against 70 persons whose former activities warranted further investigation.

§ Mr. John Gorst (Hendon, North)

Will my right hon. Friend give way?

§ Sir Bernard Braine

I would rather not give way. I listened carefully to what Mr. Speaker said about the large number of hon. Members who wish to contribute to our debate. If I give way once, I shall have to give way on another occasion. I hope that my hon. Friend will understand.

Appropriate legislation was introduced in Australia in December 1988, and trials are expected to start quite soon. The United States changed its immigration law 10 years ago so that Nazi criminals could be stripped of their 870 citizenship and deported. In 1980, the United States Justice Department set up the Office of Special Investigations which, so far, has successfully proceeded against about 30 persons. In western Europe, France, Holland and West Germany continue to mount investigations and prosecutions.

Of course, I recognise that this grave issue has given rise to moral doubts and reservations, and that is only right —it is only human. First, there are those who say, "It happened a long time ago." To them I reply that there is no period of limitation in English or Scots law for the prosecution of murder or manslaughter. Indeed, various United Nations and European conventions require states not to impose statutes of limitation on the prosecution of war crimes. Police and prosecutors investigate and prosecute murder committed in Britain, however long ago such crimes were committed. Indeed, the report refers to an alleged domestic murder committed 27 years ago. Certainly public opinion in this country would be outraged if the real perpetrators of the Guildford bombing were traced but were then released because the offence was committed some 15 years ago.

Secondly, there are those who, I am sorry to say, have not read the report but who tell me, "Surely after such a lapse of time there is insufficient evidence." To them I reply that Sir Thomas and Mr. Chalmers were appointed to their task by the Home Secretary precisely because of their experience as experienced and much-respected prosecutors. They are used to applying a strict test of the evidence in a case before recommending it for prosecution—that there must be a greater than 50 per cent. chance of conviction. It was on that basis that they found sufficient evidence of murder and manslaughter against a number of persons. However, as is the norm with criminal legislation, my supporters and I ask hon. Members to consider only enabling legislation. Whether or not prosecutions go ahead is not a matter for us. It will be for the current Director of Public Prosecutions or the Crown Agent.

Thirdly, there are those who say, "Such trials run counter to the Christian concept of mercy." Not so. The concepts of justice and mercy run alongside, not against, each other in the Judaeo-Christian tradition. A former Archbishop of Canterbury, Lord Coggan, went right to the heart of the matter in his letter to The Times in March 1987, when he wrote: Justice demands that society takes note of wrongs committed, and does so in such a way as to ensure, in so far as possible, that such atrocities do not occur again…It is hardly for one who has not suffered at the hands of the Nazis to hint at which way the scales should be tilted. Fourthly, it may be argued that it would be wrong to prosecute old men. There is no question of putting frail old men in the dock. In any criminal case in this country, if a defendant is unfit to mount a proper defence, it is the normal practice not to proceed.

Fifthly, some argue, "Terrible things happen in war. Why single out these particular acts?" The answer is that these were not crimes committed in the heat of battle. They are cases of mass murder of non-combatants—the slaughter of whole communities and of women and children. Such murders were premeditated—planned. I hope that the House will forgive me for mentioning one case which has been in my heart and mind ever since I saw people coming out of concentration camps at the end of the war. In 1942, the Nazi leadership met at the infamous Wannsee conference. It was resolved there that mass 871 murder by carbon monoxide gas was too costly and laborious and that instead gas chambers would be built —it would he cheaper and quicker. Such calculating cold-blooded criminality had nothing to do with savagery in the heat of battle. Let me be clear about the sort of crime that I and my supporters are talking about.

On 15 April 1946, during the Nuremberg tribunal, the chief witness for the defendant, Ernst Kaltenbrunner, was called to the stand. His name was Rudolph Hoess. From 1940 to 1943 Hoess was the commandant of Auschwitz, where he presided over 2.5 million planned deaths. While in the witness box, his signed affidavit was read out in open court. It stated: The Final Solution of the Jewish Question meant the complete extermination of all Jews in Europe. I was ordered to establish extermination facilities at Auschwitz in June 1941. I visited Treblinka to find out how they carried out their exterminations. The camp commandant told me that he had liquidated 80,000 in the course of one half-year. He was principally concerned with liquidating all the Jews from the Warsaw Ghetto. He used monoxide gas, and I did not think that his methods were very efficient. So when I set up the extermination building at Auschwitz, I used Zyklon B, which was crystallised prussic acid that we dropped into the death chamber from a small opening. It took from 3 to 15 minutes to kill the people in the death chamber, depending upon climatic conditions. We knew when the people were dead because their screaming stopped. We usually waited about half-an-hour before we opened the doors and removed the bodies. After the bodies were removed, our special commandos took off the rings and extracted the gold from the teeth of their corpses. In 1943, along with the United States of America, Canada and the USSR, Britain signed the Moscow declaration, committing itself to the pursuit of Nazi war criminals. Britain gave this solemn undertaking: Most assuredly, the Allied Powers will pursue them to the uttermost ends of the earth and deliver them to their accusers in order that justice may be done. As the Hetherington-Chalmers report reminds us, Britain has never taken a decision not to prosecute war criminals. The question that we must now resolve is, "Why should we act now?" There are two reasons. First, mass murders of the kind that I have described are as abhorrent to the British people now as they were on the day and at the place they were committed. Secondly, we must make it clear before the entire world that the proud privilege of British citizenship cannot and must never be extended to vile criminals.

§ Mr. Merlyn Rees (Morley and Leeds, South)

It was a privilege to listen to the Father of the House, the right hon. Member for Castle Point (Sir B. Braine), who heads the list of the sponsors of early-day motion 18. He is a fellow member of the all-party group on war crimes, of which I am chairman. It would put the group into context if I said that for three years we have run an office, raised money and run a conference. We have hosted visits from the United States of America, Canada and Australia to find out what is going on in those countries and what changes have been made in their laws. We have also commissioned a report on the legal aspects of these cases in advance of the report that we are, effectively, debating today. In addition, we gave evidence to the inquiry. I hope that it has proved to be a model of an all-party group of hon. Members, and not a pressure group, although wishing to 872 pressure the Government. I do not commit all of us in the group to having the same views about what should happen.

In a sense, the inquiry took over from us because we had reached the limit of what an all-party group could do.

It was right that under a previous Home Secretary the Government set up the Hetherington-Chalmers inquiry, which issued a report, which is the core of our debate. It was right that two 'Law Officers', one of Scotland and one of England and Wales, should carry out the inquiry because one of the aims that we could not achieve, with all the evidence put to us, was to consider the extent of the problem in this country, the numbers of people involved in this country and the number of those against whom allegations had been made who could be brought before the courts. It is the job of the Director of Public Prosecutions to make such decisions on a daily basis, working with the Attorney-General.

People coming from America, Australia and Canada found it strange that there was no question of setting up a special inquiry to investigate people against whom allegations had been made because only the police in this country can carry out investigations in the face of allegations and only then if the law has been broken. As things are at the moment, if I had carried out those crimes in middle and eastern Europe, I could be brought before the courts because I was born and bred in this country. However, if the person living next door to me had carried out those crimes, come here as a displaced person, settled here and taken out British citizenship, that person could not be brought before the courts because despite having, become a British citizen—and some have—that person is not in the same position as somebody who was born here. One thing that has motivated me is that if one becomes a British citizen, one must accept that there are responsibilities and rights as well as advantages in coming to this country—

§ Mr. Quentin Davies (Stamford and Spalding)

rose—

§ Mr. Rees

No, I should rather not give way.

I turn now to the motion and remind the House of what we are debating. We are asking the House to take note of the war crimes inquiry and to endorse the need for legislation…for acts of murder and manslaughter or culpable homicide committed as war crimes in Germany, or German-occupied territory, during the Second World War, of people who are now British citizens or resident here. That is what we are debating today in this authorising debate.

As I go around the country, I am often asked, "What is a war crime?" I must point out that the term "war crime" does not refer to acts committed in the course of war because most of the crimes that we are talking about had nothing to do with the German war effort. Indeed, some occurred before the second world war began and they did not necessarily arise in the period 1939–45. Most of the crimes were perpetrated on the ground of the victims' race, religion or belief. Knowing that I served in the Royal Air Force, younger people have asked me when I have argued this case, "What about the bombing of Dresden when 130,000 people were killed in one night?" It might have been 120,000—it does not matter very much to the argument. When I visit Dortmund, which is paired with my city of Leeds, and where we killed 2,000 people per night over a period as part of the war, I sometimes find it 873 difficult to define where a war crime begins and ends. However, when I read about the sort of thing that we are discussing, when in the cool of the night 2,000 people were killed in the way that they were, I know that that is a war crime—

§ Mr. Quentin Davies

rose—

§ Sir Nicholas Fairbairn (Perth and Kinross)

What about the Cossacks?

§ Mr. Rees

There are those who say, "What good will it do to bring it all back again now?" To those who have doubts and to the younger people who knew not, I say simply that if the Director of Public Prosecutions says so, those who committed such crimes should be brought before the courts. I do not particularly want to lock them up or to see them in show trials, but I believe that the world should know that such things will never be forgotten and they should be brought before—

§ Mr. Quentin Davies

rose

§ Mr. Rees

I would rather not give way.

The report said, in relation to the evidence, that there were unpublished findings of horrific instances of massacres; that there were three individuals against whom there was sufficient evidence to warrant immediate prosecution; that in three cases detailed investigation had taken place but more was required; that in 75 cases detailed investigation was needed; and that in 46 further cases suspects were still untraced. The words that moved me most were: The crimes committed are so monstrous that they cannot be condoned.

§ Mr. Quentin Davies

What crimes?

§ Mr. Rees

The hon. Gentleman should have done us the courtesy of reading the report, which said that their prosecution could act as a deterrent in future wars. To take no action would taint the United Kingdom with the slur of being a haven for war criminals. The question of evidence has been raised on a number of occasions and I agree that it will need to be examined carefully when the Bill following the debate is brought before the House. In a speech at a conference which we organised, Sir Thomas Hetherington said: If Parliament does legislate, if these cases do come to the DPP or Crown Agent, in each case there will be two main tests to be applied before a decision about prosecution will be taken. First of all, the adequacy of the evidence will be tested to make sure there is, as we believe, a realistic prospect of conviction in the light of the witnesses who are then available. The second main test, which is now always applied before the decision to prosecute is affirmed is whether it would be in the public interest. So not only could you prosecute, but should you prosecute. And in the public interest element, amongst those matters to be considered will be: fairness to the defendant; age of the defendant; infirmity of the defendant; and all the other matters that are taken into account. In other words, the matters that are of concern to hon. Members will be dealt with.

It is asked whether Soviet-source evidence is reliable. It has been brought to our notice that documents and witnesses from the Soviet Union and other Eastern bloc countries are likely to be relevant, in the experience of 874 other western countries. That was put to us by Americans, and of all nations, the citizens of that country would be likely to question evidence from the Soviet Union.

In the experience of other western countries that have proceeded against alleged Nazi war criminals, evidence produced by Soviet citizens or Soviet authorities has proved consistently reliable. Access to Soviet-source evidence is given to all parties in proceedings.

The Hetherington-Chalmers report found Soviet-source documents authentic and witnesses credible, and said: Expert testimony in court is recommended as the best means of testing the authenticity of documents as material evidence. I suggest that the main points of the report appear in the concluding summary where it says: In our opinion, there is sufficient evidence to support criminal proceedings for murder against some persons living in the United Kingdom…and further investigations may disclose the necessary evidence against other such persons…The cases we have investigated disclose horrific instances of mass murders, and we do not consider that the lapse of time since the offences were committed, or the age of the offenders, provide sufficient reason for taking no action in such cases. We therefore recommend that some action should be taken in each case in which the evidence is adequate. That evidence came not from politicians but from the Hetherington-Chalmers report.

§ Mr. Edward Heath (Old Bexley and Sidcup)

Will the right hon. Gentleman read on?

§ Mr. Rees

Willingly: In paragraph 9.18 we describe possible courses of action. We do not recommend deprivation of citizenship and deportation". That is the point that I assume the right hon. Gentleman has in mind. It continues: The remaining possibilities are prosecution and extradition. I had not intended to follow the line of extradition. I remember from my days as Home Secretary that extradition did not necessarily avoid going to court. If the Home Secretary of the day orders extradition and if an extradition treaty is available—and in this case there is not —the person concerned can elect to go before the Court of Appeal, so that the question of trial is not avoided.

I can say, from my experience of a small part of Europe about which we have been reading following a recent court case, that one cannot but recall the chaos of the ghastly effects of the break up of society in the Balkans area which led to a lack of screening and large numbers of displaced people coming to this country. Many of them came to the mining village in which I was born. They have played a major part in the social life of the village, and they are good people. Nothing in my argument is concerned with the people from the Baltic or the Balkans or from that area, where the feelings and, in many instances, the hatred of nationalism arise to a great degree. We are not talking of a large number of people.

At this time, when the icecap of Stalinist Europe is cracking, it seems curious that we should be talking about a part of the world where there is little tradition of democracy but which is full of feelings of nationalism that have caused problems over the years, and we now know what happened during the war years.

We cannot forget other matters because of that. We must deal with those who inveigled their way into this country and who did not tell the truth about their past activities. I hope that the House will authorise the 875 Government to provide the necessary legislation. I wonder what sort of majority will be required today so that the Government will act, and I believe that they have acted honourably all the way through.

I hope that we can have the necessary special procedure for dealing with the Bill that would come forward. It would be appropriate to take evidence in Committee upstairs rather than deal with it as a party political measure. There are ways of carrying on the tradition that we in the all-party group have built up over the last three years. Let matters continue in that way. This is a special problem and I hope that we will use special measures to deal with it in the House. Accordingly, I hope that hon. Members will vote for the motion.

§ The Secretary of State for the Home Department (Mr. David Waddington)

When the report of the war crimes inquiry was published, my right hon. Friend the former Home Secretary promised a debate, and that is why we are here today.

The events which led to the setting up of the inquiry are well known. My right hon. Friend the Member for Castle Point (Sir B. Braine) referred to the letter addressed to the Prime Minister by Rabbi Marvin Hier of the Simon Wiesenthal Centre and the grave allegations contained therein. The whole House will agree that those allegations had to be investigated.

My right hon. Friend the former Home Secretary therefore appointed Sir Thomas Hetherington, the former Director of Public Prosecutions, and his Scottish counterpart, Mr. William Chalmers, to carry out the task. The whole House would like me to thank them both for the dedicated and thorough way in which they approached the work and the clarity of the report they produced.

Sir Thomas and Mr. Chalmers set about following up no fewer than 301 allegations that had been made to them. Some of those were detailed and specific. Others were extremely vague. But it proved possible to investigate seven cases in detail. In four of them, they considered that the evidence available was sufficient to mount a prosecution. One of the four people concerned has since died. They recommended additional work on the three other cases and they identified 75 others in which further investigation would be warranted. They also recommended that attempts should be made to trace a further 46.

In the light of the apparently strong evidence of guilt which the authors had uncovered in at least some of the cases, the inquiry considered possible courses of action that might be taken to bring the alleged offenders to justice. The inquiry ruled out the possibility of depriving the individuals concerned of their citizenship and deporting them. Any attempts at deportation were certain to be resisted strenuously through the immigration appeals system and the courts, and would probably be frustrated. Extradition to the place where the offence was committed —in each of the cases examined in detail, now part of the territory of the Soviet Union—was also rejected. The inquiry noted the apparent progress towards greater democracy and openness that had recently been made in the Soviet Union, but concluded that despite these changes there must still be doubts whether the legal safeguards that would be the right of anyone put on trial in this country would be available in the Soviet Union. The inquiry therefore recommended that our law should be changed to 876 give British courts jurisdiction over acts of murder and manslaughter committed as war crimes—that is to say, as violations of the laws and customs of war—during the second world war in Germany or German-occupied territory by people now resident here.

In last week's debate in another place, one of the main points of concern was whether the implementation of these recommendations would amount to retrospective legislation. There are clearly two views about this, but the inquiry suggests that retrospectivity does not arise and points out that had these crimes been committed by British citizens our courts would have had jurisdiction over them. Their proposal was simply to extend that jurisdiction to those who were not British citizens or residents at the time but are now.

§ Mr. Robin Maxwell-Hyslop (Tiverton)

How is German-occupied territory defined? Germany and her allies—Italy, Romania and Hungary, for instance—occupied a great deal of territory, for example Russian territory, sometimes with German officers attached and sometimes without. There were German bases in Italy when Italy was not German-occupied. How is that to be defined in law?

§ Mr. Waddington

It is certain that the Baltic states, Byelorussia and the Ukraine were German-occupied at the time of the alleged offences.

§ Mr. Quentin Davies

On that specific point, does my right hon. and learned Friend see any rhyme or reason in the jurisdiction which it is proposed to take under the proposal being confined to acts committed in German-occupied countries but not to crimes committed on territory occupied by other powers, for example, the Soviet Union? Does not the logic of that lead us into the absurdity that if the Katyn massacre had been committed by Germans, as the Soviet Union used to maintain but which we now know is nonsense—

§ Madam Deputy Speaker (Miss Betty Boothroyd)

Order. The hon. Member should not make a speech during an intervention.

§ Mr. Waddington

There is not the slightest evidence that any foreigner resident in Britain could have been responsible for the Katyn massacre. The report calls for jurisdiction to be given to the British courts to try people whom it says have been identified as responsible for war crimes in particular parts of the world. One must address one's mind to the circumstances identified in the report.

§ Sir Nicholas Fairbairn

Unquestionably, many people in this country were responsible after 1945 for sending people back at bayonet point to the other side of the divide to be butchered. Will legislation be introduced for those who, no doubt, will claim that they were acting under orders—one recently did—when they sent back thousands of men, women and children to be massacred in their own sight? Is that to be a war crime?

§ Mr. Waddington

I do not concede for one moment that those people were guilty of war crimes but, if they were guilty, they would be triable here because they are British citizens. My hon. and learned Friend's point does not arise.

It is certain that the acts alleged were crimes under the law of this country and under international law at the time 877 when they were committed. It is equally certain that no one who committed the acts described could have imagined for one moment that what he was doing was not a crime.

§ Mr. Tony Marlow (Northampton, North)

My right hon. and learned Friend will be aware that Mr. Winston Churchill, as he then was, was the main moving force behind the Nuremberg war crimes trials. He will also be aware that in September 1946, 43 years ago, Churchill said: There must be an end to retribution. We must turn our backs on the horrors of the past and look to the future. If that was true 43 years ago, surely it is true now.

§ Mr. Waddington

After that, the decision was made not to proceed with war crimes trials in the British-occupied zone. We are not talking about that. No decision was ever made by a British Government that there should be an end to all war crimes trials, least of all that there should be an exemption from prosecution for all time for people resident in this country who had been proved guilty of war crimes.

I repeat that it is absolutely certain that no one who committed the acts described could have imagined for one moment that what he was doing was not a crime. This is not a proposal to criminalise actions that were not criminal at the time. It is a proposal to give our courts power to try here actions which were undeniably criminal and which the perpetrators must have known were wicked and criminal.

§ Mr. Gorst

Before my right hon. and learned Friend leaves that point, may I draw his attention to page 55 of the report in which the authors set out clearly that there is a precedent for us in this country to try war criminals who have never been tried within the United Kingdom, because we extended our jurisdiction by the royal warrant of June 1945. That enabled us to try war criminals. We did so and were not fettered by the question of which territory they should be tried in.

§ Mr. Waddington

I take the point made in the report. I was merely meeting the argument that to do what is proposed would be offensive as retrospective legislation.

The inquiry also made a number of related proposals about the practical and procedural steps that might have to be taken before any trials could take place. They were concerned in particular with the problems posed by the need to take evidence from elderly people living abroad. Their principal recommendation was that such witnesses should be able to give evidence through a live television link, legislative provision for which exists already for trials in England and Wales under the powers in the Criminal Justice Act 1988. They also advocated the extension to war crimes trials of the procedure for bypassing committal proceedings, already available in serious fraud cases. That in itself would require legislation.

In last week's debate many noble Lords made clear their view that no action should be taken on the Hetherington report. Those who hold to that view have no wish to blot out the memory of the terrible atrocities that occurred. That would be quite impossible. Rather, their doubts about proceeding centre on the length of time that has elapsed since the end of the war. There is an understandable feeling that time may have gone some way towards healing some of the wounds and pain.

878 More importantly, it is argued that those who witnessed these terrible events are, in many cases, dead or very elderly. No one doubts that some who suffered from these dreadful events yet survived will go to their graves with the full horror of them still printed vividly and indelibly on their minds. One has to face the fact that others might have great difficulty identifying accurately those involved. There are also, no doubt, some colleagues who feel that it would be impossible to ensure that the evidence of witnesses abroad was open to fair challenge by the defence, even if that evidence was given via a television link. Other hon. Members may judge that, in all the circumstances and after the passage of such a long time, it would be impossible for anyone accused to gather evidence and witnesses in his defence.

I respect the views of those who see insurmountable difficulties in the way of fair trial. I understand the view, expressed in another place, that the substantial sums that would be incurred in implementing the report would be better spent on other things. I also appreciate why some feel that putting on trial elderly men who have lived in this country peacefully for nearly 45 years is distasteful and would serve little purpose. Nothing we do now, they say, can ever make amends for what happened in the last war, and holding war crimes trials might even risk rekindling old prejudices. That is one side of the case, but there are powerful arguments the other way.

First, there is the dreadful magnitude of the events that we are discussing. We are not talking of excesses or cruelty by soldiers on soldiers carried out in the heat of battle. We are talking about premeditated acts of cold-blooded mass murder perpetrated upon defenceless civilians. Some, therefore, will argue that justice demands action. Some will say that time may have passed, but with crimes as terrible as these it should never be too late to prosecute, and that we have a duty to the memory of those who suffered and those who continue to suffer from the physical and mental wounds inflicted upon them to bring the guilty to justice.

Each one of us is entitled to his view, and each Member of the House and each member of the Government will make up his mind without advice from anybody. The House, however, would expect me to state my personal view, having studied the issue carefully. It is this. Nobody would have chosen to address these issues so long after the event. It is so long since the war, and the instinctive wish of most of us is to get on with our lives in peace and not to rake over the past, let alone the pasts of men who have lived peacefully in this country since before some hon. Members were even born. But sometimes one is brought face to face with facts that cannot be buried and I do not believe that the Hetherington report can just be interred. The terrible stories revealed in its pages and the evidence of foul deeds that is presented cannot just be put aside or ignored.

I see all the difficulties. Difficulties might be involved in presenting to a jury compelling evidence of the guilt of any individual so long after the event. There are problems involved in securing proper safeguards for an accused person. But evidence has now been put before us that people in our midst committed war crimes. It has been pointed out to us that such people would now be subject to the jurisdiction of this land, had they been British citizens at the time, and that they now escape from such jurisdiction only because they were not then subjects of the Crown. In the light of that, and despite all the difficulties, I cannot believe that we should now fail to give jurisdiction 879 to our courts so that, if the independent prosecution authorities so decide, the issues of guilt or innocence can be properly determined.

Although I have offered my view on the issue before us, I must stress again that the Government have not yet formed an opinion on whether we should legislate to implement the inquiry's recommendations. I have listened with care to what has already been said, and will pay equal care to the views that will be expressed in the rest of the debate. In the light of those views and of the views expressed in another place, the Government will decide whether a Bill on the lines proposed by the inquiry would be likely to command the general support of Parliament.

§ Mr. Roy Hattersley (Birmingham, Sparkbrook)

No topic on which I have spoken during my 25 years in this House has raised so many doubts in my mind as the subject which we discuss today. Tonight my hon. Friends will vote according to their conscience and I shall do the same. I do not propose to offer the House any advice. I simply set out my instincts and judgments, and describe the conclusion to which they have led me.

The motion before us refers to "War Crimes"—the title of the Hetherington-Chalmers report, on which most of what we say depends. I wish that we were discussing war crimes in general. That would resolve at least part of my dilemma. In truth we are discussing war criminals or, to put it more properly, alleged war criminals. Indeed, the Home Secretary was explicit. He said that we were considering legislation to try people resident in the United Kingdom.

We are debating the Hetherington-Chalmers recommendations. That is the purpose of the debate promised by the Home Secretary on 24 July. The opening paragraph of that report makes it clear that it is primarily concerned with 10 alleged war criminals, whose names appear on the list supplied by the Wiesenthal Centre and seven from a list drawn up by the Soviet Union and broadcast on Scottish television. The final paragraph of the report is even more explicit: Given the ages of the suspects and the witnesses, we consider that any proposed legislation should be introduced and brought into force as quickly as possible. I am deeply uneasy about hurrying legislation through the House in the hope of convicting known individuals.

New legislation aimed at the prosecution of known suspects is a much more dubious proposition than law designed to prohibit a specific form of conduct. Since some of the suspects have been named in newspapers and on television, it may even be impossible for them to obtain a fair trial. The courts may not allow such prosecutions to proceed.

§ Sir Nicholas Fairbairn

Will the right hon. Gentleman give way?

§ Mr. Hattersley

No, it is much better if, in common with others who have spoken, I make my speech and give others the maximum opportunity to do the same.

In any event, as a matter of principle it would be much better to introduce general legislation, ideally in the terms of the Geneva convention of 1949, which made possible the prosecution of criminals from any war who take refuge in the United Kingdom and are protected by some anomaly of jurisdiction. I hope that even now the Government have not ruled out that possibility.

880 I shall discuss my dilemma and tell the House the conclusion to which it leads me by considering the nature of the suspects, the people that we are debating. Those suspects share three characteristics. First, it is alleged that they committed terrible crimes almost 50 years ago. Secondly, if the allegations are true, they committed those crimes at a time and in a place which excludes them from the jurisdiction of British courts. Thirdly, even if the jurisdiction of our courts is extended to cover the alleged crimes, some changes in the rules of evidence may be necessary in order to secure conviction.

I want to discuss the implications of each of those aspects of my dilemma, and the first is the propriety of initiating prosecutions for crimes that were committed almost half a century ago. The question has two aspects, the first of which is what effect delayed prosecutions will have on society in general and, more important, whether it is right in itself not only to prosecute men who are suspected of committing crimes so long ago but to change the law in order to do so.

Prosecution and punishment have many purposes such as the deterrence of other potential criminals, the reformation of those guilty of crime, protection against repetition of the offence, retribution and the demonstration of revulsion which society feels towards both the crime and the criminal. Plainly, not all those objectives will be achieved by the prosecutions that we are considering. Despite what was said so movingly in the House of Lords by the Chief Rabbi, I do not think that the idea of deterrence is remotely appropriate in this case. In any event, if that were our primary objective we would be promoting general legislation against all war crimes. Plainly, the people reported to the Government as fugitive criminals are wholly inappropriate to any process of rehabilitation. It is inconceivable that such people need to be locked away to prevent them from repeating their offences.

Two possible justifications for taking action remain. The first is retribution, which to me is the least acceptable reason for judicial punishment. Therefore, I am left with only one possible reason for us to proceed—the demonstration of society's continued abhorrence of what these men are alleged to have done.

In what I shall describe as normal cases—even murder —it is inappropriate after 50 years to change the law to allow suspects to be charged, even to demonstrate abhorrence. However, we are discussing what the Hetherington—Chalmers report describes as Crimes so monstrous that they cannot be condoned. I know of no one who seeks to condone them, but the House and Parliament have to go a step further. We have to demonstrate our abiding revulsion of what amounted to carefully planned and clinically executed genocide, no matter how long a period has elapsed between the commission of that offence and the trial of those whom, it is claimed, were responsible for it.

For that reason I regard it right, at least in principle, to proceed towards prosecutions, although I look with foreboding upon the by-products of that decision. A section of the British press will deal with any resulting trials in the prurient fashion that characterised their coverage of the capital punishment debate five years ago. As is so often the case, the excesses of some of our newspapers are the price we have to pay for a free society. Despite that foreboding, I am in favour of proceeding 881 towards prosecutions as long as that is possible within the accepted rules of law and the conventions of a democratic society.

That leads me to the conclusion that the prosecutions must take place within the United Kingdom. I could not support legislation that resulted in the deportation of the alleged offenders to countries where, in the words of the report, the system of justice is not comparable with that in this country". In any case I would never vote for the deportation or extradition of those accused of murder—even mass murder—to a country that retains the death penalty. If we are to prosecute, we must prosecute here. We cannot discreetly turn away and ship these old men somewhere abroad.

I know that the principle that I support requires retrospective changes to the jurisdiction of British courts. However, as we have been told, the individuals concerned would have been triable in Britain had they been citizens when the alleged offences were committed rather than foreign nationals who subsequently acquired British citizenship. I might be prepared to argue that acquisition of a new nationality should provide immunity from some prosecutions, but mass murder would not be one of them.

The 1957 Geneva convention implies that war crimes are offences over which it is suitable for British courts to exercise jurisdiction regardless of the nationalities of the perpetrators or the victims or the country in which the alleged offence took place. I am prepared to support the retrospective extension of jurisdiction in order to demonstrate the abiding national sense of revulsion.

That leaves me with one final question: is it possible to prosecute these alleged criminals with any prospect of success within the present rules of evidence? There is much in the Hetherington report which implies or suggests that there is not. I am certainly opposed to show trials, so that if there is no hope of conviction, I am against the matter proceeding. However, I am even more strongly opposed to the matter proceeding if its progress depends on changing for this category of offence the way in which our courts behave.

It is that final question that leads me to fear that many of the allegations against these men, admittedly carefully documented, are increasingly taken as proof of their guilt and that only the formalities of proof are now thought to be necessary. Of course, I do not accuse the Hetherington-Chalmers inquiry of holding such opinions, but the report contains statements about evidence which raise the fundamental question about whether it is possible to proceed in an acceptable fashion. Paragraph 9.39 deals with witnesses who are now dead. It says: It would undoubtedly be helpful if…statements, taken from witnesses who have subsequently died, could be admissible in the British courts. The question that arises is "helpful to whom?" The only answer consistent with the context is that it would be helpful to those who wish to obtain a conviction. That is a bad basis on which to make new laws.

§ Mr. Peter Archer (Warley, West)

Does my right hon. Friend recognise that this would not require any change in the law? The Criminal Justice Act 1988 has the required provision.

§ Mr. Hattersley

In moving the motion the right hon. Member for Castle Point (Sir B. Braine) made exactly that point. I am loth to argue with a lawyer as distinguished and experienced as my right hon. and learned Friend the Member for Warley, West (Mr. Archer), but as I go through the section of the Hetherington report from which I have already quoted, and from which I shall quote again as lucidly as I can, I find time after time the suggestion that changes in the law are necessary. If that is not the case, nobody will be happier than I. I repeat that I think that the prosecution should go ahead.

I hope that my right hon. and learned Friend the Member for Warley, West will speak in the debate. Perhaps if he does so he will examine the sections of the report that deal with changes in the rules of evidence that the report recommends in order to deal with these specific cases.

Paragraph 9.34 recommends that the provision in the 1988 Act to allow witnesses to give evidence by television link be extended—for this particular—to Scotland. Paragraph 9.37, which deals with video and audio recordings, concludes: if it is thought necessary to introduce new legislation to ensure the admissibility of such recordings, we so recommend. The next paragraph concerns evidence on commission, and expresses doubts about whether such evidence—as it would probably be taken in the absence of the accused —would be acceptable in court. It goes on to say, however, that the process has something to commend it, and proposes that it be applied in Scotland and considered for use in the English courts, with the necessary adjustments. I must confess that, as a layman, I am not clear about whether those adjustments would be changes in the law or alterations in judicial practice.

Paragraph 9.42 deals with the wide subject of "other documentary evidence". It proposes that papers from wartime archives should be admitted in evidence if authenticated by archivists, and specifically recommends amending legislation to make that possible.

According to the internal evidence—the evidence in the report, on which our debate is based—changes in the law are either necessary or, in the terms set out, desirable; and it is that that concerns me most. I could not possibly vote for proposals to change the rules of evidence with the specific intention of obtaining the convictions of a particular class of person—persons who are known and named. Fortunately, the motion does not require us to do that. I very much regret that the Home Secretary has complicated my position further by saying at the end of his speech that, if we voted for the motion, we would be voting to implement the Hetherington report, for that is not what the motion says; it proposes that we take note of the report and then proceed to consider what legislation is possible.

I am perfectly prepared to take note of the report, and to instruct the Home Secretary to consider implementing whatever legislation is decently possible to prosecute alleged war criminals. I hope, however, that the Home Secretary will not believe that many of the hon. Members who join him in the Aye Lobby tonight will be voting for what he said. We are voting for what the motion says: there is a substantial difference.

The motion does not refer to the problems of evidence or to the details of the Hetherington report, nor does it require us to endorse that report's most contentious passages. I am entirely ready to support the principle of 883 proceeding to legislation, and, as I have said, I will vote in the Aye Lobby tonight. Let me, however, make it clear to the Home Secretary—and I suspect that I speak for some hon. Members on both sides of the House—that, although I support the motion in principle, I could not possibly support any subsequent Bill requiring or recommending changes in the rules of evidence.

I do not wish to overstate my objections to such a course, for this is not an occasion for the usual excesses and rough and tumble of our debates. I must say, however, that it seems to me that changes in the rules of evidence in such circumstances constitute a negation of our basic freedoms, and it is the mark of a civilised society to preserve those freedoms, even for—perhaps, indeed, especially for—the people whom society despises most.

§ Mr. Marlow

On a point of order, Madam Deputy Speaker. It has become apparent that legal difficulties are inherent in the change in the law that might be required, particularly with regard to the rules of evidence. As my right hon. and learned Friend the Attorney-General is in the Chamber, would it be possible for him to catch your eye later so that we might hear his opinion of what the difficulties may be and how they can be approached?

§ Madam Deputy Speaker

That is entirely a matter for the Attorney-General.

§ Mr. Edward Heath (Old Bexley and Sidcup)

In his concluding remarks, my right hon. and learned Friend the Home Secretary said that we could not push these matters to one side. Nothing can ever push them to one side, and no one is suggesting for a moment that we should even attempt it.

I remember, as a boy in the 1930s, seeing the refugees arriving at Pegwell bay and Sandwich and going into encampments there in search of refuge from Nazidom and all that it meant. I was at Nuremberg in 1937, and I saw exactly what it meant. I met them all: I saw who they were and what they were like. I experienced the six years of the war, and was at the Nuremberg trials after it. Nothing can ever put to one side what all of that has meant. On the other hand, I have not heard a single convincing argument tonight, or found one in the report, that will ever lead me to support legislation that would change our entire system to bring those alleged war criminals to trial.

My right hon. and learned Friend said that all that was necessary was that legislation that affected British citizens at the time should now be extended to those who became British citizens later. If that were the case, I would still say that it was wrong—absolutely wrong—but, if we read the reports of the House of Lords debates, we see that it is not the case. The most distinguished lawyers in the Lords have said that it is not the case.

The right hon. Member for Morley and Leeds, South (Mr. Rees), once a very distinguished Home Secretary, is reported as having told the press that it was wrong for the House of Lords to debate this matter before it was debated in the Commons, but I do not understand that point of view. I think that it was a very good thing that the Lords debated it first. At least two Lords Chancellor took part, and they and Lord Campbell made powerful speeches on the legal side. It is difficult for Members of this House to emulate such speeches.

884 The legal question comes to this: are we to have retrospective, retroactive legislation to deal with this alleged crime? My answer is, "No, in no circumstances." The Conservative party above all has always opposed retrospective legislation. Even when a simple-minded Chancellor of the Exchequer wanted to backdate a tax for three months, he was torn to pieces by his hon. Friends. There is no reason whatever for such legislation.

On other questions, such as the means of giving evidence, I agree entirely with the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley). I am not prepared to tolerate such changes to deal with these particular circumstances. If we wanted to deal with them at the time—if we were determined to do so—we should have taken the necessary action then. If we want to deal with similar circumstances in the future, let the Government introduce general legislation now, and we can debate whether it is necessary.

I must warn the Home Secretary, and particularly the Foreign Secretary, that if they take such action they will put themselves in a terrible mess in every quarter of the world. What do they intend to do at this moment about south-east Asia? What will they do about visitors to this country who may then be accused of having committed war crimes or genocide? Such factors must be considered.

§ Mr. Rupert Allason (Torbay)

But does not the Geneva Conventions Act 1957 allow exactly those prosecutions to take place?

§ Mr. Heath

Yes, but that does not affect people at the time of their actions. [HON. MEMBERS: "It does."] That is what the motion deals with, and why I am so strongly opposed to it. [Interruption.] The right hon. and learned Member for Warley, West (Mr. Archer) shakes his head; he may have an opportunity to speak later. The right hon. Member for Morley and Leeds, South, who is chairman of the all-party committee, says that no pressure has been exerted, but there has been enormous pressure, and it has all come from California. We know all about that; there is no point in trying to avoid it. The question is, do we accept the arguments or not? As far as I am concerned, we do not.

It has been said that Britain's name will he stained unless it takes this action. I can think of nothing further from the truth. We took the lead in the Nuremberg trials: Lord Shawcross made the opening and concluding speeches, but it was Sir David Maxwell Fyfe who fought the case the whole way through. Both, however, performed a noble function. We have no reason to think that our name is stained. The Nuremberg trials were controversial at the time, but they dealt with the major people involved in the atrocities of which we know so well.

As for the practicalities, the argument can be raised to a very high level: that this is a question of morality. Of course it is a question of morality, but there is also a practical aspect which would have to be considered by the Director of Public Prosecutions or the Attorney-General. Not for one moment, however, am I prepared to give that power to them. They would have to consider whether the defence would have a proper opportunity to defend the people who may be left to face these charges. How would the defence produce witnesses and counter letters or documents that the report recommends should be brought before the court? The defence would have no opportunity to deal with such matters.

885 Another practical point that was referred to by my right hon. and learned Friend the Home Secretary is that, if it came to a prosecution, why should people who have been living here peaceably for 45 years have to go through all that? It is not a simple question. I am greatly worried about British justice. Look at the time it is taking in the Guinness case. It will be years before that case comes to court. That is not British justice. People who may be proved to be innocent are unable to earn a living; they have no social life; they cannot do anything, because British so-called justice is dragging on year after year before their case even comes to court.

The report concludes that in the case of only three people is there a reasonable chance of conviction. I am told that only one of the three would now be able to come before the courts. According to the report, there would have to be much more investigation of the cases against the other 46 people, which would take many more years. The report concludes that there is no point in doing anything about the rest. From a practical point of view, therefore, I do not believe that anything can be done.

If the Government introduced a Bill, Parliament would be asked to consider legislation whose effect would be retrospective and retroactive for nearly half a century. Certain means, such as television, are not used in our courts and ought not to be employed in cases of this kind. The defence would be unable to establish what it would want to establish in defending its clients. As the years went by, the public would say, "Why are we doing this to these people?" Those of us who survived six years of war feel that as strongly as anybody. We fought it out. Then we had the Nuremberg trials and disposed of them. We are now moving into a better and, we hope, a more peaceful and much wider Europe. That has always been our ambition. This is not the time to pass legislation of this kind.

§ Mr. Robert Maclennan (Caithness and Sutherland)

The difficulty of holding trials under legislation such as that proposed by Sir Thomas Hetherington and Mr. Chalmers is undoubted. The difficulty of bringing cases to the point at which prosecutions could be proved by the prosecuting authorities is also undoubted. We need consider only the evidence of the Hetherington-Chalmers inquiries, carried out over a period of 15 months, to have some idea of the time involved. There were 301 allegations to be investigated. After sifting, as the right hon. Member for Old Bexley and Sidcup (Mr. Heath) has just pointed out, there was only one case left in which the evidence is such as to be likely to lead to a conviction.

The difficulty of proceeding with investigations might not be the clinching consideration if all the moral arguments for holding the trials pointed in the same direction. However, no hon. Member would make that claim. I agree with the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) that the is one of the most difficult matters that we have had to consider during our time as Members of Parliament. I have reached a broadly similar conclusion, though with one important difference.

The Home Secretary was somewhat disingenous when he suggested that the matter was being addressed by 886 Parliament without there being any history of decision making. No formal decision not to legislate along these lines has been taken, but in 1948 and 1949 the question of what to do with those whom it was apprehended were in our midst was squarely addressed by Parliament. It was not suggested then that the law should be amended, although it would have been more understandable if such a suggestion had been made at that time. It was much closer in time to the offences that were in everyone's mind. However, Parliament considered whether the screening of the 130,000 immigrants from occupied Europe should continue and whether there should be a positive response to any applications for extradition. The firm decision was taken by Ernest Bevin and Clement Attlee that that process would cease. The decision was taken against the background of what had happened to the Yugoslays and the Ukrainians about whom there were still serious doubts. The only criticism in Parliament at that time was that the Government's decision had been taken too late and that the time for continuing the scrutiny process and pursuing war criminals had gone.

The matter was again considered in 1957 when the Geneva Conventions Bill was before the House and in 1969 when the Genocide Bill was before the House. On neither occasion was Parliament minded to change the law in the manner that is recommended in the report. I find it hard to understand how, after the passage of two decades, the case for changing the law in the manner recommended by the report has been strengthened.

§ Mr. A. J. Beith (Berwick-upon-Tweed)

Does my hon. Friend recall the suggestion in the Hetherington report that throughout that period it was not believed that war criminals had gained access to, or were resident in, this country?

§ Mr. Maclennan

I cannot accept that that is the position. Lord Mayhew made it plain in another place that it was clearly in the Government's mind in 1948 and 1949, when the decision was taken to which I have referred, that among the 130,000 immigrants living in this country there were people who were guilty of very grave crimes. However, the decision was taken not to pursue them for the reasons that I have given.

The sensitivity of those hon. Members who have spoken against the retrospective changes in the jurisdiction of the criminal courts, for example, distinguished Law Lords such as Lord Wilberforce, is not misplaced. We should be seeking to strengthen the forces of justice, and we must ask whether that will be achieved by a retrospective change. In many countries the constitution would rule out that sort of change. It is ruled out under the United States constitution, and that is why the United States has chosen an alternative route—stripping people of their citizenship and extraditing them.

§ Mr. David Winnick (Walsall, North)

rose—

§ Mr. Maclennan

That is also ruled out under the constitution of the Federal Republic of Germany.

§ Mr. Winnick

rose—

§ Mr. Maclennan

I shall follow the example of the right hon. Member for Old Bexley and Sidcup and will not give way because this is a short debate.

The second area of retrospective change that is proposed is also extremely difficult to accept. The right 887 hon. Member for Sparkbrook spoke at some length about the proposed changes in the rules of evidence, which would make it more likely that prosecution would be secured and conviction obtained. I agree with everything that he said on that subject, and it is unnecessary for me to repeat his arguments. It is not tolerable for us to amend the law to bring about the conviction of named individuals. The advantages of the defence should weigh as heavily in the balance as the advantages of the prosecution.

I detected too great a preoccupation in the Hetherington—Chalmers report with the possibility that the prosecution would be successful, as did the right hon. Member for Sparkbrook. Sufficient attention was not paid to the rights of defendants to face witnesses who are giving evidence against them, and that is a fundamental principle of our criminal law. The report was too casual in its support of some of the changes in the laws of evidence, although, no doubt, changes would be necessary in those laws in cases which depend heavily upon the recollections of people some 45 to 50 years after the event, living thousands of miles away, in completely different circumstances.

I base my opposition to the proposals made in the report not solely on considerations of legal propriety, but on considerations of the public reaction to such trials. As the right hon. Member for Sparkbrook said, it is right that the main justification, if any exists, for bringing about such trials would be as an expression of our unabated revulsion to the horrors of the events with which those people named were associated. The justification would be to show that there has been no falling-off in the determination of the British people to end such horrors, and to prevent their recurrence.

There is a serious risk that the cases considered by Sir Thomas Hetherington and Mr. Chalmers might create a backlash against the whole process. Public opinion in countries that have conducted such trials recently has been divided. The reaction has not always been one of strengthened revulsion to the offences, and I am thinking, in particular, of the Barbie and Demjanjuk cases in Israel. Public opinion may question whether it was right to have conducted such trials. Many people's sympathies might end up in the wrong place, and we should avoid that at all costs.

The report by Sir Thomas Hetherington and Mr. Chalmers was serious, and it was right that it should have been commissioned. However, the Home Secretary should listen to the views of some of his right hon. colleagues, including the former Lord Chancellor, Lord Hailsham, who expressed serious reservations about the attack on our system of justice if the recommendations are carried out. I shall vote against the report, and against the motion.

§ Mr. John Wheeler (Westminster, North)

I intend to be brief as there is no need for repetition. I welcome and support the words used by the Father of the House, my right hon. Friend the Member for Castle Point (Sir B. Braine), to introduce the motion. I also welcome and support the remarks of my right hon. and learned Friend the Home Secretary.

The motion invites the House to vote, not to create a retrospective offence, but to recognise that the offences of mass murder and manslaughter are contrary to the 888 criminal law in all civilised nations, contrary to international law, and were unlawful at the time that the offences were committed.

The House is merely being invited to agree the principle that jurisdiction should apply to persons who may be resident in the United Kingdom today. That is the cardinal issue that the House must dwell upon.

In the House this afternoon, and in another place, we have considered whether it is right to prosecute people who committed crimes 50 or more years ago. That is what may happen if the law is amended. We have contemplated that in the light of the decision made in the late 1940s not to continue to seek out persons who may have committed those serious crimes.

Circumstances have changed. Information of such a compelling kind was presented to the public domain in Britain, in October 1986, that the decision of 1948, or whenever, on whether to proceed to look for those people who have committed awful crimes cannot possibly be glossed over. That is not a luxury that we can afford to entertain now.

Allegations of such a grave nature have been made that the judicial system, and our concept of justice, would be impaired if we did not give the normal process of the criminal justice system the opportunity to contemplate the allegations in a court of law by changing the rules.

Those are the two issues that the House must decide upon when we vote on the motion. We do not have to contemplate what procedural consequences might arise if the House were to approve the principle of changing the laws to permit that jurisdiction. That is for another time, and it may also be decided through the normal process of examining a case when those people are under investigation.

I said that I would be brief, and I do not intend to be repetitious. Other hon. Members will express their points of view, but I am in favour of voting for the motion.

§ Mr. Harry Ewing (Falkirk, East)

I take the opposite view from that expressed by the hon. Member for Westminster, North (Mr. Wheeler) but nevertheless respect greatly and deeply the views of him and his colleagues.

My right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) said that he would vote in favour of the motion to express his horror at the terrible events that the House is discussing. I shall vote against the motion to express my horror at the terrible events that the House is discussing.

I recently had the pleasure of visiting Berlin. Anyone who has travelled there and seen, standing by the side of the avenue up to the Reichstag, the wagons that were used to collect people to take them to the gas chambers left out to rust as a constant reminder of the horror of those events, and anyone who has visited the building between the Reichstag and the airport, where thousands were put to death walking through dark curtains, not knowing which step would be their last, cannot fail to have feeling for those who suffered in the holocaust.

I have no answers for some of the questions that people will ask me. When I made my views known after the previous Home Secretary made a statement, I received letters—not many, perhaps five or six—all of them courteous and complaining about what I said. They asked 889 how I would feel if the victim had been my mother or father, grandmother or grandfather, sister or brother. I cannot answer that question, and would not attempt to. Such considerations do not bring me to this debate. What brings me is the Hetherington—Chalmers report and how I can pay my respects and best honour the memory of those who were put to death in those terrible times. I can only speak personally.

Much has been said about the retrospective nature of what is suggested in the Hetherington report. I do not intend to dwell on that subject for the simple reason that I am not a lawyer, but I have always had serious reservations and the strongest doubts about the introduction of retrospective legislation. I well remember the time when the right hon. Member for Old Bexley and Sidcup (Mr. Heath) was in office, and the House was forced to introduce retrospective legislation to protect and cover the actions of our soldiers policing Northern Ireland. The debate went on and on. The House argued about whether it should introduce such restrospective legislation. I have always had serious reservations about it.

The Hetherington—Chalmers report has compromised any Director of Public Prosecutions for England and Wales and any Lord Advocate for Scotland, who would have to consider submissions put before them. Thomas Hetherington is on record as saying that he is absolutely convinced that there is sufficient evidence on which to mount a prosecution in respect of three people. He may be convinced. He is entitled to be as he has expert knowledge. But, with great respect to him, he will not decide whether a prosecution should be mounted. If that day ever comes, and the documents are presented, he will not be the Director of Public Prosecutions.

I ask the House to consider what will happen if the DPP of the day says, "In my opinion, there is insufficient evidence on which to proceed." If anybody has any doubt about what might happen, I shall try to explain what I envisage. There would be an unholy public row, with both sides of the argument lined up against each other. One side will say, "How is it that an experienced former DPP can say that there is sufficient evidence and the present holder of the office can say there is not?" Secondly, what would happen if that hurdle were crossed and the DPP said that there was sufficient evidence on which to mount a prosecution but the court returned a verdict of "Not guilty"?

§ Mr. Greville Janner (Leicester, West)

So be it.

§ Mr. Ewing

I am not being unkind to my hon. and learned Friend or anyone else, but I simply do not believe, bearing in mind the hype that has been generated on the issue, that a "Not guilty" verdict would be accepted with the words "So be it."

§ Mr. Janner

It happens all the time.

§ Mr. Ewing

It would not happen in this case. That is my view, and I am expressing it.

We are building up the hopes of relatives of people who were slaughtered in the holocaust, only to let them down. I am not certain that that is the best way in which to honour the memory of people who were slaughtered during those terrible events. I believe in all sincerity that 890 that would do tremendous damage to the legal system and to the immediate families of those who were killed. I accept, however, that those families might not agree.

When I think how best I can honour the memory of those who were slaughtered, I come firmly to the conclusion that no useful purpose would be served by staging show trials, for without a shadow of a doubt that is what they would be. I come firmly to the conclusion that nothing should be said or done that would disturb the sleep of those who were slaughtered.

§ Mr. Ivor Stanbrook (Orpington)

My right hon. Friend the Member for Castle Point (Sir B. Braine) is well known for his championship of many good causes, but on this occasion I believe that he has lent his name and his prestige to the pursuit of a cruel vendetta which he will come to regret.

The proposition before us, when properly understood, offends against all the basic instincts of decent British people. It asks us to set aside the normal rules of British justice and so to change the law that three old men whose identities have already been revealed in the popular press may be branded as vile murderers without having the faintest chance of defending themselves. Nothing comparable to this motion has come before a British Parliament since the Acts of Attainder which deeply disfigured our criminal justice system in the 16th and 17th centuries.

It is good to know that last week at least the other place decisively rejected the principle behind this motion. It is ill conceived. If it were passed, the practical steps needed to implement it would make a fair trial quite impossible.

The principle at stake is that we should change our law to permit the prosecution of three individuals for acts performed long ago and far away. That is abhorrent at a time when peace and reconciliation are needed rather than revenge.

§ Dame Elaine Kellett-Bowman (Lancaster)

Will my hon. Friend give way on the point of law raised in their Lordships' House? They were not against it; they passed the motion.

§ Mr. Stanbrook

No good can come from reviving the stories of the wicked atrocities of the past. Why should we change the law retrospectively—every good lawyer believes that it is restrospective legislation—for such a narrow purpose? Why not pursue the perpetrators of the other heinous crimes committed during and since the war? Are not the British ashamed of sending back the Cossacks and the Chetniks to their certain deaths? What about the Americans who are alleged to have starved their German prisoners of war to death? What about the hideous crimes committed in Palestine and elsewhere in the middle east and in Cambodia?

If it is said that the malefactors in those cases have not been identified or that they do not come within our jurisdiction, what about the leaders of modern Israel, some of whom were responsible for the cold-blooded massacre of British subjects and are now received with warmth and hospitality when they come to Britain? We do not need to change the law to prosecute them. Why should they escape retribution? My right hon. Friend the Member for Castle Point apparently does not understand that it is not because we are soft or because we do not hate criminals, but 891 because the British instinct is and always has been to let the dead bury their dead and after the passage of time to forgive and even to try to forget such things, knowing with the wisdom that we have acquired in our long history that it is better for everyone that we should do so.

Rabbi Blue said recently in a BBC radio programme that there is something of the Nazi in all of us—[interruption.] We are all guilty of man's inhumanity to man.

Like everyone else, I am revolted by the knowledge of what the Nazis did to the Jewish and other communities during the war, and I do not seek to condone, excuse or deny it. Those horrors arouse deep emotions, some of which were shown by my right hon. Friend the Member for Castle Point, but emotions are a bad foundation for justice. In the other place last week, as reported in the House of Lords Hansard at column 615, the Chief Rabbi said that the Jewish faith "abhors vengeance" and I withdraw anything that I may have said to the contrary in the context of this debate.

According to St. Paul, the Lord said: Vengeance is mine; I will repay. It is not for us endlessly to pursue those who may have avoided earthly retribution for their misdeeds, and certainly not in a retrospective and selective way.

Even if I were not already convinced that it is wrong in principle for us to change the law, as a lawyer I would condemn the idea because in practice it means committing a far greater injustice than allowing suspected criminals to go unprosecuted. Despite the hard knocks that it has suffered recently, British justice has always been respected and admired. The motion asks us to set aside its most important feature—the right to a fair trial. It is not simply a matter of extending the territorial jurisdiction of the court and making British citizens liable for their misdeeds before they gain citizenship. There is something to be said for such extension, and I agree with the right hon. Member for Birmingham, Sparkbrook (M r. Hattersley) about that. However, it is objectionable that such steps should be taken specifically for three individuals and their crimes.

§ Miss Emma Nicholson (Torridge and Devon, West)

Will my hon. Friend give way?

§ Mr. Stanbrook

I am sorry but we do not have time.

Although British law does not forbid trials for offences committed long ago, such trials are seldom held because the evidence is sparse, the witnesses unreliable and their memories faded. When identification is an issue, as it probably would be in these cases, all lawyers know that a witness's recollection dims after only a few weeks and is totally unreliable after a few years.

Of course, one can always put the suspect in the dock and ask a witness to identify him then and there as is done in show trials. I hope that it will never come to that in Britain. That is why my right hon. Friend is wrong to gloss over the substantial changes in the law of evidence and procedure which Hetherington says will be needed if those men come to trial.

His assessment of the sufficiency of the evidence is based upon the assumption that those changes will be made. There would be no committal proceedings. That is possible but most unusual. It would mean that the prosecution would not need to prove even a prima facie case before the matter went before a court. Evidence would be admitted in writing by statements made in Russia, and would include statements made by dead 892 people. There would be no chance to cross-examine witnesses at the trial, no check on the circumstances in which a statement was made, and no indication as to any inducement or intimidation before the statement was made. Documentary evidence would be admitted without the need for the maker or the authenticator to attend the court. All those changes would be retrospective and directed towards those particular cases.

The Hetherington report says that legal aid will be available, but does anyone imagine that a defendant or his representative would be able to travel freely arid unmolested in Soviet Russia to gather evidence and to find witnesses to support his case?

§ Mr. Allason

They have already.

§ Mr. Stanbrook

That is not so. Russia replied to a request made by one of them that it is a matter for the British Government, and of course the British Government are in no position to assist.

The Hetherington inquiry took 16 months and cost £500,000. It interviewed hundreds of witnesses by courtesy of the KGB. Will the defendants be allowed equivalent time and facilities? Of course