House of Lords Pronounce Agreement on Pardons Amendment

HOUSE OF LORDS 12th October 2006

Lord Drayson moved Amendment No. 177A:

After Clause 354, insert the following new clause-

PARDONS FOR SERVICEMEN EXECUTED FOR DISCIPLINARY OFFENCES: RECOGNITION AS VICTIMS OF FIRST WORLD WAR

(1) This section applies in relation to any person who was executed for a relevant offence committed during the period beginning with 4 August 1914 and ending with 11 November 1918.

(2) Each such person is to be taken to be pardoned under this section in respect of the relevant offence (or relevant offences) for which he was executed.

(3) In this section “relevant offence” means any of the following-

(a) an offence under any of the following provisions of the Army Act 1881 (c. 58)-

(i) section 4(2) (casting away arms etc);

(ii) section 4(7) (cowardice);

(iii) section 6(1)(b) (leaving post etc without orders);

(iv) section 6(1)(k) (sentinel sleeping etc on post or leaving post);

(v) section 7 (mutiny and sedition);

(vi) section 8(1) (striking etc superior officer);

(vii) section 9(1) (disobedience in defiance of authority);

(viii) section 12(1) (desertion or attempt etc to desert);

(b) an offence under any of the following provisions of the Indian Army Act 1911 (Indian Act, No. 8 of 1911)-

(i) section 25(b) (casting away arms, cowardice, etc);

(ii) section 25(g) (sentry sleeping on post or quitting post);

(iii) section 25(i) (quitting guard etc);

(iv) section 27 (mutiny, disobedience, etc);

(v) section 29 (desertion or attempt to desert).

(4) This section does not-

(a) affect any conviction or sentence;

(b) give rise to any right, entitlement or liability; or

(c) affect the prerogative of mercy.

(5) Any reference in this section to a provision of the Army Act 1881 (c. 58) includes a reference to that provision as applied by any enactment, wherever enacted.”

The noble Lord said: As I reported to the House on 14 June during Second Reading, the Secretary of State decided to re-examine the issue of pardons for World War 1 soldiers. The outcome of that review was subsequently announced by the Government on 16 August, when we said that we intended to seek parliamentary approval for a statutory form of pardon for servicemen executed for a range of disciplinary offences during the First World War. The purpose of the amendment is to provide for that. The Government are very much aware of the considerable feeling in this country and abroad for the British and Commonwealth servicemen who were executed in the tragic and horrific circumstances of the First World War. A great deal of consideration has been given over the years to the best way in which to address that issue. Pardons under the Royal prerogative were considered as part of the review of the subject initiated in 1997 by Dr John Reid, then Armed Forces Minister. The review concluded that few, if any, of the cases would succeed if the standard test for prerogative pardons was applied. An important factor leading to that conclusion was the sparseness and unevenness of the surviving evidence across the group of cases. Noble Lords expressed their strong concerns about the matter most clearly to me when we debated it in this House on 9 January. As I undertook to do at the time, I reflected those concerns to my right honourable friend the then Secretary of State for Defence. Having reviewed the situation again, we believe that we should now act to remove the dishonour that still taints the memory of those servicemen who suffered execution and is still felt all too heavily by their families today. It is time to recognise that execution was not a fate that they deserved but one that resulted from the form of discipline believed to be necessary at the time for the prosecution of the war. We believe that this can be achieved by the clause. In speaking to the amendment, I stress that the Government do not intend to call into question the actions of officers who were responsible for discipline. The commanders at that time were themselves faced with extremely difficult and unpleasant duties that none of us would envy. The clause does not stand as a judgment of the way in which they did their duty. The amendment avoids the difficulties that would be posed by assessing individual cases. It does not seek to rewrite history by quashing convictions or sentences. Its aim is to lift the stigma that has been attached to these executions for so long, affecting the lives of the servicemen’s families for many decades. This will be the moral effect of the measure if passed by Parliament. The amendment provides that all servicemen executed for certain offences, such as desertion and cowardice, committed between 4 August 1914 and 11 November 1918 shall be taken to be pardoned. The names of those affected are not listed in the clause because our records are insufficiently comprehensive to be able to do this. However, if the amendment is passed, we plan to place a formal record of the pardon alongside the relevant court-martial files, where we hold them. This will be visible to anyone viewing those files in the future, and it will be an important measure in helping to restore the memory of these men. I understand the concerns of the House that we announced our decision to seek a statutory pardon during the recess, but I assure noble Lords that we made the announcement at the earliest possible opportunity following our review of policy so that we could commence the necessary consultation and drafting for an amendment to be included in the Bill. I am sure noble Lords will agree that, having reached a decision, and given the age of some of those campaigning for pardons, the Government should not have delayed on this matter until another opportunity arose in the legislative timetable. For the same reason, we also intend the amendment to take effect on Royal Assent. The subject of pardons is emotive, and the public feel very strongly about it. There is also considerable interest in the matter in the House. It seems appropriate, in this year that saw the 90th anniversary of the Battle of the Somme, which claimed so many victims, that we should take this opportunity to recognise other victims of the First World War. On a particularly poignant note, the 90th anniversary of the execution of Private Harry Farr falls on 18 October, less than a week from now. I have read Private Farr’s file, and anyone who has done so cannot fail to be moved by it. I am glad that we have had an opportunity to revisit this matter and to find a solution. Private Farr’s family have been at the forefront of the campaign for pardons, and I take this opportunity to pay tribute to the important role that they have played. I also pay tribute to my noble friend Lord Dubs for his interest in and support for this cause, and I hope that we will be able to have his support for our amendment. It is also right that I use this opportunity to thank the noble Lord, Lord Campbell of Alloway, who supports the amendment. I trust that all noble Lords will be able to support this important amendment, which I believe will bring closure to all families who have had to live with the stigma of these executions since the First World War. Noble Lords will be aware from an open letter from some of those families that they welcome this move to restore their men’s reputations. I beg to move.

Lord Dubs: I very much welcome the government amendment and what my noble friend has said. I am grateful to him for the part that he has played in this, and to the Secretary of State, with whom I had several conversations in the summer about the amendment. I also pay tribute to the campaigners, who have worked very hard to achieve this end, and to my honourable friend Andrew Mackinlay in the other place, who has worked for longer than I have to seek the pardons that we now have the power to effect. The facts are well understood and I do not want to take any more time of the Committee, except to say that we are talking about young men, many of whom fought bravely for this country and some of whom were underage and lied to be allowed to join our forces. Sometimes the courts martial were very brief, and often in the heat of the fighting in the trenches there was no possibility of a defence or witnesses. The families were left with an understandable sense of injustice that men, some of whom we would describe as traumatised and shell-shocked—I do not speak medically—were then executed. For many years, the families have had a sense of grievance that people who fought for this country should have been stigmatised and punished in this way.

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We know that documentation and records do not exist for all the cases, so it is right that the pardon should extend to all of them. To pick out individuals on the basis of sometimes poor documentation would have been an invidious process and would not have given people the sense of closure which this all-embracing amendment does. Like my noble friend, I do not want to criticise the officers who were members of the courts martial that led to these results. None of us in the calm of today can understand what was going on in the trenches, although some of us might understand from books. The officers in the courts martial were doing what they saw was their duty on the basis of the mood, understanding and attitudes of the time, so I do not want pardons for one lot of people to be seen as somehow vilifying others. If there is to be closure, it must be for all concerned, so all the families of the victims as well as of the officers in the courts martial can have the sense that we have now brought this matter to what I hope will be a conclusion—I will not call it happy—that ends the stigma under which the families of these men have suffered. I warmly support what the Government have done.

Lord Luke: We all sympathise with the descendants of the soldiers who were executed during the First World War for various disciplinary offences. However, there are certain considerations which, as an historian, I believe should be taken into account. I also want to ask the Minister some questions, to which I shall come in due course. In his letter to me of 27 September, the Minister wrote: “The amendment will not overturn the original convictions, but it will provide that the persons executed are taken to be pardoned so that the dishonour and stigma are removed”. Surely it is the offence which dishonours someone and confers stigma, not the sentence for that offence. Of the 3,000-odd offences where the sentence of death was passed, no fewer than 2,700 were commuted. Many of those soldiers served considerable terms of imprisonment instead. They are not included, apparently, in this pardon. Surely it is completely illogical to pardon those soldiers who committed the most serious offences, which the relevant authority refused to commute, and at the same time not pardon the offences which were obviously considered to be less heinous, thus leading to those sentences being commuted. What about the descendants of the 2,700? Indeed, what about the hundreds of thousands of soldiers who died with their faces to the enemy and their descendants? If this amendment is passed, does it confer a legal pardon for the offences of the executed 300? From the perspective of military discipline, surely it must be wrong to go back and impose modern values and sensitivities on a proper system which was operative 90 years ago; that is, between three and four generations ago. Does that not set a precedent that could come back and haunt us? I notice that the question of compensation is not dealt with in the amendment. Is the Minister quite sure that this does not lay the Government open to claims for compensation at a later stage? Only 1 per cent of those tried for a capital military offence in World War I were subsequently executed, and as few as 10 per cent of those sentenced to death were actually executed. As the Minister has mentioned, in 1998, Dr Reid conducted deep research into a third of the cases we are considering today. He concluded that there should be no blanket pardon because it was impossible to distinguish those who had deliberately let down their country and comrades from those who were not guilty of desertion or cowardice. What has happened with regard to evidence since 1998? Surely, in considering whether a group of people should be pardoned, there ought to be sufficient evidence in each case. As has been admitted, that is most clearly lacking here. There is a myth that these executions were indiscriminately carried out pour encourager les autres. The facts, as far as we know them, rather suggest that great consideration was given to whether sentences of execution should be commuted. The fact that nine-tenths of those sentenced to death escaped with lesser sentences also suggests that compassion was shown where appropriate and as often as possible. I fear that this is a political gesture to help people to feel more comfortable about the past. In 1916—or 1914 or 1918—different customs, different standards and different morals were the norm. The principle of rewriting history must be totally wrong. As Wordsworth wrote some 150 to 200 years ago, “For old, unhappy far-off things, And battles long ago”.

Lord Astor of Hever: I declare an interest in these two amendments in that my grandfather was the commander-in-chief of the day who had the difficult task of making the final decisions in these cases. I very much welcome the Minister’s confirmation that this pardon will not cast any doubt on those who took those very difficult decisions. The means of maintaining discipline was prescribed in the Army Act, renewed every year by Parliament, which determined what actions by troops under command were criminal offences and the appropriate punishments for those crimes. Discipline as exercised by the British Army in the First World War was considered at the time to be fair. That was recognised by all ranks and was effective. The British Army was the only one of the main participants in the war not to experience major mutinies. An essential element in deterring widespread desertion was—unlike the French—the very sparing use of the death penalty. My grandfather refused to confirm 90 per cent of the death sentences that came up in front of him. Despite what the noble Lord, Lord Dubs, said, with shellshock very much in mind, he took explicit medical advice on each case. Where will the proposed pardon leave this 90 per cent? It is around 2,700 soldiers. What about those found guilty of the same offence who were not shot but reprieved and spent a good deal of time in prison? A pardon would leave some soldiers who were rightly convicted pardoned while others who may well have been wrongly convicted are not pardoned. Within the 360 executions for military offences are some very guilty men who, from the evidence, did intend to commit the offence and were responsible for their actions. Furthermore, some were either multiple offenders or had used deception to evade arrest, and it is quite wrong to grant pardons to those who were guilty of outright cowardice. They declined to risk their lives when others did. What message would this pardon send about the kind of standards we would like our soldiers to abide by today? We have to accept that past societies did things differently, even if we morally disagree with particular actions today. Otherwise, as my noble friend said, history will be endlessly rewritten by governments of different political stripes. This is a controversial issue that deserves to be treated with careful sensitivity, and we cannot withhold our sympathies from the descendants and relatives of those who were executed. Wherever possible, relevant individual cases should be reviewed and a pardon considered. But I cannot support a blanket pardon.

Lord Campbell of Alloway: Perhaps I may speak in support of the amendment, as my name is on it. I put my name on it because I received a letter and the amendment from the noble Lord, Lord Drayson. Let us face it: none of us was there, and none of us really knows what went on. But my father was there. When I was a child he told me what went on, and as soon as I saw the letter, it all came back, because children store away things in the mind that occasionally return. I am not a historian and I do not read much history, but I remember very well the essence of the circumstances. In the light of that, this amendment is a totally fair and proper arrangement for the servicemen and their families who, let us face it, were always the prime concern of the Field Marshall. It affords no form of criticism of the Field Marshall, although it has been used by so-called historians, none of whom was there. We should all, as a nation, be grateful to this day for what the Field Marshall did. In essence, the circumstances as I was told them were that morale was cracking, discipline was on the line, and it was a scene of daily attack. The French had started to desert. But for the intervention and, as my father put it, the compassionate dealings of the Earl Marshall, discipline would not have been restored. It was also put to me that the Earl Marshall was greatly admired by the men for having done that and, as I say, is totally unworthy of the criticisms of so-called historians or of a technical analysis based on material from so long ago that it cannot be checked or verified. In these circumstances, the amendment affords the benefit of addressing a mistake or mistakes which inevitably were made. In a way, mistakes have ever been the collateral damage of warfare, and still are. This gives credence to what is owed to the families without in any way questioning the convictions—which you cannot do en masse—or in any way criticising the Field Marshall. I support the amendment.

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Lord Mayhew of Twysden: I am very grateful for the outstandingly sensitive speeches that we have heard already in this short debate. With great deference to my noble friend Lord Luke, I cannot agree with his suggestion that it is only the offence that brings dishonour. To be shot at dawn before your comrades is to experience the very pinnacle—or perhaps the very nadir—of humiliation and dishonour. I welcome the new clause and I am very glad that the Government, encouraged by the noble Lord, Lord Dubs, and perhaps by the example of New Zealand, have taken this course. But it is not an easy question and it is deserving of careful analysis. To modern minds, it is rather surprising that the British Army in 1914 went to war with so wide a swathe of offences capable of attracting, in the discretion of courts martial, a capital sentence. The offences are listed in the new clause with one exception—treachery. Probably the reason for that is that there was no execution for that offence in the First World War. But then was then and, in the hardly imaginable circumstances in which much of that war was fought, it was generally felt within the Armed Forces that the wide availability of capital punishment was necessary for the maintenance of discipline and to fortify the courage of others. I am confident that that was the view of my own father, who was a front-line officer in France and Flanders from 1915 onwards, and he was a kind man. I do not think that we are today in any proper position to challenge, let alone criticise, the practical beliefs of that terrible time. It is interesting to note that, within fewer than 12 years from the end of the war, Parliament had limited the military offences punishable with death to treachery and mutiny alone. My support for the clause does not derive from any desire to rewrite history. Indeed, the clause makes it specifically clear that it is not doing that; it does not affect any conviction or sentence. My support derives from the gross inadequacy of the procedures—which were required and supposed to be judicial in character—by which the law in respect of those offences was enforced. By any objective standards, they were generally travesties of justice. If anyone doubts that, I recommend them to read a book published in 1983 written by His Honour Judge Anthony Babington QC, who had a gallant record in World War II and was gravely wounded. He conducted meticulous research into the 318 traceable executions in the British Army relating to the war. Perhaps I may quote five sentences from the book’s preface. It states: “Viewed by the standards of today few of the executed men received the most elemental form of justice. They were tried and sentenced by courts which often regarded themselves as mere components of the penal process and which, until the final year of the war, were asked to perform a complex judicial function without any sort of legal guidance. The cases for the accused were seldom presented adequately and sometimes were never presented at all. If crucial matters were raised which might have established their innocence they were rarely investigated by members of the court”. I omit two sentences for brevity’s sake.“What made it even worse was the fact that the decision of a court martial was virtually unappealable”. It is this which, in Judge Babington’s words, has,“ever since given rise to a profound uneasiness in the national conscience”. And he comments that that uneasiness was, “more than justified”. It is absolutely right and fair that the point should have been made that the Commander-in-Chief commuted all but 10 per cent of those capital sentences. I very much agree with the comments that there is no implicit criticism of that great man. But some, I know, will fasten on the words, “Viewed by the standards of today”. Where living people—related families—are suffering continuing distress from the outcome of proceedings that today we see in the main to have failed the most elementary tests of fairness, surely it would be wrong to say to them, “We will do nothing to palliate your pain; those were the admittedly woeful standards of that time, but for your relatives—and for you—that must remain simply bad luck”. I do not think that I can find any towering principle in that. It is not necessary to take special account of the extreme youth of so many of these soldiers, nor the fact that many of them had volunteered to serve, sometimes falsifying their age to do so. There is quite enough already to show that the humane and just, as well as the constitutionally sound, course is not to overturn the convictions, not to overturn the sentences, not to impugn the decisions of the Commander-in-Chief, but to effect posthumous pardons for these unhappy men. I support the new clause.

Lord Borrie: I share the views that have just been expressed by the noble and learned Lord, Lord Mayhew of Twysden. I recollect the book from which he quoted, published more than 20 years ago. The only thing that I would add to the useful quotations and points made about that exposé of First World War court martial procedures is that, when Judge Babington began to interest himself in this subject more than 30 years ago, it was not possible to get at the files; it was not possible to research the issue until Lord Callaghan changed the set-up when he was Prime Minister and enabled the learned judge to get at the files and write the books from which the noble and learned Lord has so helpfully quoted. The judge was talking about the hugely stressful conditions of the First World War when he referred to the inadequacies of court martial procedures at the time. In my view, the Government are right to bring forward this new clause, which must have been very difficult to draft. The points made by the noble Lords, Lord Luke and Lord Astor of Hever, are perfectly valid in the sense that this is not a comprehensive amendment dealing with the rights and wrongs of all the various executions and the convictions that did not result in execution. It is not trying to deal with that comprehensively. The 300-plus pardons proposed will, however, help to remove the most extreme dishonour, stigma and indignity that the First World War executions created, which have been inherited by the men’s families and descendants and have continued, as we know from the campaign about this, to oppress them. Nobody has mentioned war memorials, but excluding the executed men from the list of those killed in the First World War is one of the great features of stigma and indignity to which the families have referred. As has been said, the Government are not impugning the individual convictions of individual men or the individual sentences; they are not even being critical of the inherently hurried and hasty procedures that led to the convictions and executions. A very fine line is being drawn. It is by no means perfect, as those who are not keen on this amendment have suggested. The pardon that is being proposed is, as I understand it, a very special, peculiar statutory recognition that a line should be drawn. It should be drawn because in so many cases—not in all—execution now seems to have been an unjust outcome for the offences committed in those hugely stressful conditions of World War I. I support the amendment.

The Lord Bishop of Chelmsford: The language of pardon is rooted in our Christian history. What pardon does is clear the agenda. In this case, it lifts a cloud that has drifted from the First World War across our history. It has the genius that it does not require us to pass judgment on anyone. Indeed, it lifts the burden not just from the families of those who were executed, but from those who may carry the burden of having required that to take place. So everyone’s burdens are lifted when you carry forward a pardon. While it is very important never to take away the burden of responsibility that lies on every individual for their own actions, in war in particular the community bears a collective responsibility for the atmosphere in which the event is conducted. It seems therefore to be entirely right that Parliament should take this action as a collective act of responsibility for clearing an issue in the past that has put a burden on all points of the circle that surrounds these events.

Lord Selsdon: Perhaps I may be a little personal about this, because this is sensitive amendment which has been introduced in an intelligent way. However, I was always told that history could not be written until the last person who was alive at the time was dead. We can look at past perfect or future perfect, but most of us will have no memory of those times or—I will probably become a little emotional—just a second-hand memory. My grandfather won the Sword of Honour at Dartmouth and was invalided out of the Navy just before the war, and he wanted to fight. He had a brother-in-law, my uncle Sir Stafford Cripps, who also wanted to fight, but he was too ill to do so. The two of them got together with others in a double-decker bus and went off to the front. When they arrived, they asked, “What can we do?” They were told that they could be medical orderlies. They then wrote a letter back to their father-in-law, J. C. Eno, who had invented Eno’s Fruit Salts, asking for some help. Eno went to his car-maker and had a special ambulance made, which he sent out to the front, and my grandfather and my uncle both became stretcher-bearers. My grandfather would talk to me at the age of six and seven and tell me what it was like—that he had to go out to pick people up from no-man’s-land, which as a child I called “nobody’s place”. He had to try to find limbs to match people who had been wounded and bring them back. He took people in to have limbs amputated by surgeons and then buried the limbs, only to find that they had been dug up by wild dogs. He said that this was the most terrible time that anybody could have. Sometimes, they would have to go with a stretcher to collect someone who had been shot at dawn. He said that, on one occasion, a man was standing there whom he heard say that he did not want to be blindfolded in any way. He brought him back and there was his brother, who was still alive. Obviously, you cry as a child sometimes when you try to think as a man. You realise that these were terrible, emotional times. My grandfather and Uncle Stafford—he would never talk about it afterwards—would try to explain that, while these people had been wounded or shot, all people at the front suffered from emotional stress; that mental illness was the same as physical illness; and that there were people who actually prayed that they would be wounded so that they could escape. Whatever the law may have been at that time, and whatever the rules were, you could almost say that the immortal memory of those awful times is more important. We who did not live in those times will never know them, but I will always remember my grandfather. I therefore support this amendment entirely.

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Lord Garden: I find this a very difficult topic, and obviously others in your Lordships’ House have been considering it deeply—including the Government, given that the position of this amendment is the complete reverse of that expressed by them during the Starred Question on 9 January, when passions in the House were high. The problems outlined by the noble Lords, Lord Luke and Lord Astor of Hever, are real concerns that one has when trying to put this narrow pardon into a Bill that is about the future of military law, rather than changing the past. However, I have listened carefully to the debate, and I find myself convinced by the legal minds that have told us that doing it this way will be all right—the noble Lords, Lord Campbell of Alloway and Lord Borrie, and the noble and learned Lord, Lord Mayhew of Twysden—and the thoughtfulness behind this measure. It is clear that whatever precedent it may set, it will be of key importance to the families, who will see it as a great comfort if we pass this. I make one observation, however, as we introduce this measure in what is a strange place; that is, in the Armed Forces Bill for the future. It reminds us that in earlier times legislation was made by people who thought the death penalty was appropriate for these offences. We do not have the death penalty any more; instead, we have life imprisonment. I remind your Lordships that when we discussed a number of these offences earlier in the Bill, there was great enthusiasm for life imprisonment. When we come back on Report, perhaps we should ask whether we are repeating the mistakes of our forefathers in some respects, and whether we want to prevent, in another 90 years, your Lordships’ House—if it still exists—having to make retrospective legislation to change decisions we make about this Bill. It will be for each of your Lordships to decide how they feel about this subject, but, listening to the debate, I have been moved to change my view, and I will support the Government’s amendment.

Viscount Slim: Perhaps we could debate whether a Government or politicians should tamper with and sanitise history, but we do not need to do so today. One or two noble Lords have mentioned their fathers and grandfathers. I remember having this conversation with my father. I can recall it quite well. He said to me, “I think the problem was that if you were court-martialled for this, you probably didn’t have much of a chance”. Rather like the noble and learned Lord, Lord Mayhew, said, it was the court martial system, its speed and so on. Then my father said one thing else: “Mind you, I think probably one or two of them deserved it”. That is probably true. In this instance, I go along with the noble Lord, Lord Dubs. He and I have spoken fairly briefly on the matter. I do not consider that enough has been said about the people who had to put these laws into action. Fortunately, Members of the Committee have today rightly spoken about exonerating all those who sat on the courts martial. It was not much fun being on such a court martial, particularly if an officer had fought through the night and had been pulled back to sit on a court martial. We should look forward. As the noble Lord, Lord Garden, rightly said, we are considering a forward-looking Bill. If a soldier has stuck it out in the line for a long time and has done his duty—“done the business”, as they say today—he does not think much of a chap who deserts or throws his rifle down, lies in the bottom of a slit trench and takes no further part in the battle. Whether that is cowardice or desertion is probably for a lawyer to decide, but men who stick out a battle do not think much of a chap who behaves like that. Therefore, when making law on mutiny or desertion, as we are doing in the Bill, we must think of that aspect. It is not just a case of lawyers or governments making law but of the view of men who behave perfectly correctly in battle not thinking much of a chap who chucks in the towel. We must be very careful not to make a habit of this sort of clause, even though today we do not shoot people accused of these offences. The soldier who does his duty in battle and does it well is perfectly entitled not to think much of a chap who does not.

Lord Craig of Radley: I wish to make one comment on the amendment. I accept its thrust but I am disappointed that it should be included in this Bill. It seems to me that this is a rather half-hearted way on the Government’s part of going about what is a very significant and unique change of direction. As it is of such significance, it deserves its own Bill. I am extremely disappointed that it should be included in this one, which, as has been said, concerns the future rather than the past. From the Government’s point of view it would be difficult to find legislative time. Nevertheless, such a Bill would not be heavy and would generally enjoy support. The Government would have strengthened their position if they had taken the full up-front approach on this. The Government have sought to include the amendment in this Bill for convenience. I wonder whether they considered the Charities Bill a vehicle for it. I am sorry that it should be included in this Bill.

Lord Tebbit: I hope that the Committee will forgive my speaking, not having heard the earlier speeches, but I was committed—curiously, in view of the subject of the amendment—to be with the Czech ambassador at the laying of a wreath to the last of the Czech fighter pilots who fought in the Battle of Britain, and who was remembered today at the Battle of Britain monument on the Embankment. So the enormously difficult circumstances in both the Second, and even more so, in the First World War, have been much in my mind. Like most noble Lords, it is the case for my family that my father and his younger brother volunteered to join the Army in 1914 and fought through the war as infantrymen in the Middlesex Regiment. Quite remarkably, both survived. I found myself wondering what my father or my uncle would have said about this. I think they would have been very understanding about the sheer horror of the man whose nerve cracks; the man who is in fact simply no longer in control of himself. But I think they would have had the gravest of reservations about exercising any form of pardon for those, for example, who had deserted their post, or had simply fallen asleep while they were on duty as sentries and thereby imperilled their colleagues. Therefore, there is some hesitation in my mind about the amendment. It is both a pity and perhaps also a good thing at the same time that, as I understand it, the records are now so imperfect that there can be little distinction between the offences of which men were accused and found guilty and for which they paid with their lives. It is probably an act of humanity and generosity towards the families of those who suffered this fate; recognising that almost by any standards, even perhaps by the standards of the time, some of these sentences were unjust. We have to recognise that; but we also have to recognise that some of those who will receive pardons under this proposal do not deserve to have been pardoned. I always have hesitations about revisionism of history. What happened did happen. We are edging onto very dangerous ground in what we are doing, because it is being done in a manner that does not distinguish between those who genuinely suffered an injustice and those who deserved punishment. Once we start going into that second area, we are substituting our views today of what would have been the right punishment for that crime in the views of the people of that time. I think that is dangerous. I do not like saying that that which happened did not; or that that which was, was not. So I do not think that I can bring myself to vote against this, but we should understand that it is an amendment with very many faults, and if it is accepted it should be accepted as being a very imperfect instrument.

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Lord Ashdown of Norton-sub-Hamdon: Like the noble Lord, Lord Tebbit, I apologise to the Committee for having come in just a few minutes after the debate started, again for unavoidable reasons. In quite a long political career, I have not on many occasions found myself agreeing with the noble Lord, Lord Tebbit, and disagreeing with a man whom I respect very much, the noble Lord, Lord Dubs. But this amendment gives me very grave cause for concern. Is this a sentimental thing to do? Yes, it is. Is it an understandable thing to do? Yes, it is. Is it a good thing to do? I listened to the right reverend Prelate. In so far as it relieves suffering today among the relatives and families; yes, no doubt it is. Is it a human thing to do? I think it is that, too. Is it a political thing to do? I say to the Minister that I suspect that there is a good deal of politics in this issue, not least because it has been introduced in this strange way and because there has been a complete 180 degree turn, but the Minister will no doubt have his own comments to make about that. But is it a wise thing to do? I do not think that it is, in part for the reasons articulated by the noble Lord, Lord Tebbit. I do not believe that it is open to us, by revisiting history in this way, to reverse decisions taken legally at the time, according to a law passed by the Parliament expressing the public will at the time. I do not believe that it is right for us to revisit the judgments made at the time. The argument was put forward that some of these cases were inadequately proceeded with and that the procedures were fallible, but fallibility is part of the human condition and it has to be part of the condition of justice. If we said that we should pardon people simply because some of the trials were fallible, where would it end? Above all, I cannot accept the case that, by doing this very human thing and pardoning those people without full knowledge of the facts, we do not in some way impugn the judgments of those who made the decisions according to law passed by Parliament under the conditions of the day. The Minister says that we will not do that, and noble Lords have said in several interventions that the amendment does not in any way draw those decisions into question. But it must—it can have no other effect. You cannot, simply by stating the case that it does not impugn the judgments of those who made these decisions at the time, say that therefore there is no impugnment of their judgments. You cannot, simply by putting a clause in law, give substance to that wispy claim. The reality is that if we say that, according to the judgments of our time, these people are pardoned, then according to the judgments of our time the decisions made at the time were wrong. I do not believe that it is open to us to do that. Therefore, although I understand all the sentiments behind the amendment and although I wish to relieve the suffering of the relatives, this is an unwise move for us to make. It is one that could create precedents for the future and it cannot but have the effect of impugning the judgment of the people who made those very difficult decisions at the time. It cannot but have the effect of revisiting history, which is very dangerous, and putting the gloss and judgments of today on decisions made in conditions which we cannot in our time and at this distance make proper judgments about.

Lord Drayson: I am extremely grateful for the sensitivity shown by all Members of the Committee who have spoken and for the thought which has clearly gone into what they have said. This has been the most moving debate in which I have had the honour to participate in this House. A number of specific questions have been raised and I shall cover them briefly. On the issue of compensation, I stress that this measure is aimed specifically to address those who suffered the ultimate penalty. These cases stand out for the stigma attached to them and thus to their families. The clause states clearly that this pardon creates no new right to compensation. This matter has never been about money, and it would not be right to consider it after this length of time.

The noble Lord, Lord Luke, asked whether this is a legal pardon. It is clearly not a traditional prerogative pardon. Unlike a prerogative pardon, this measure does not quash convictions or lift sentences. It is a statutory measure whose aim is to lift the stigma. We call it a pardon because, although it is not the same as a traditional prerogative pardon, it achieves the effect of lifting the stigma. By way of comparison, the sole legal consequence of a free pardon under the prerogative is to lift the penalty. It would not remove the conviction. Where campaigners have sought free pardons in the past the moral significance has far outweighed the practical legal effect, which would be redundant when a man has already been executed. The noble Lord also asked about pardoning other offences. The offences listed in the new clause are those associated with the stresses of war. We do not believe that other offences such as murder, or offences associated with treachery, such as assisting the enemy, should be included. There are no plans to extend the pardon to other campaigns, as this pardon relates to the particular circumstances of the First World War.

The noble Lord, Lord Luke, referred to his role as an historian, and raised the point about us rewriting history. We are not aiming to rewrite history. We cannot change what happened in the past. We are aiming to address the memory of the men who were executed and the feelings of the surviving families by finally removing the stigma. I stress again that we are not calling into question the original trial processes or the judgments of individual officers.

I listened very carefully to the noble Lord, Lord Astor of Hever. It is very important for us to recognise the pressures and stresses that the men who had to take these very difficult decisions were under. He mentioned his grandfather who had to lead our army in that terrible war. I stress again that the amendment does not call into question the action of the officers who were responsible for discipline. Without their actions we would not have won that war.

The noble Lord, Lord Tebbit, asked why pardon them when some of them may have been guilty? He raises an important point, and I am grateful to him for describing the nature of what the amendment is aiming to achieve in the very difficult circumstances of the imperfect records that we have. It is very difficult to make distinctions between individual cases. As a result of the Blitz in 1940, we lost a lot of the records that would have helped to make these distinctions. We need to recognise the pragmatic reality of the data that we have. None the less, we hope that by lifting the stigma in all cases, we may do more justice—it is a balance—than by doing nothing at all.

The noble and gallant Lord, Lord Craig, raised his disappointment at our doing this as part of the Armed Forces Bill. I recognise his concern, but having reached the conclusion with regard to this policy and recognising the age of the families concerned—I stress that our primary objective relates to our thoughts for the families—we believed that it was more important to do something as quickly as we could. The Bill provides us with the opportunity to do that. As I said in my opening speech, it enables us to do it at a time that we feel is particularly poignant for the families concerned.

I have to say, too, as the Minister bringing the Bill to the House, it is appropriate that in a Bill that aims to provide for the Armed Forces a structure for the future, it is at the same time resolving what is probably the most difficult issue of the past. This is a wonderful opportunity to do that, which we should take.

I disagree strongly with the noble Lord, Lord Ashdown, although he expressed his concerns eloquently. I fundamentally believe, as he said, that if something is human and good, it must be wise to do it.

The question of the future, which has been raised, is one that we have taken seriously. We have spoken to the commanders of our Armed Forces today. I spoke a few days ago to the current Chief of the General Staff about this matter, and he raised no concerns relating to current morale. I really do not believe that in passing this amendment we would cause any concerns to the current morale of our Armed Forces.

The suggestion that this is a political gesture is unfair. In the short time I have been in this House, I have been subject to some considerable grilling over Oral Questions but none as vehemently as the grilling I received over this matter just a few months ago. The strength of feeling made a deep impression on me, the feeling that the Government should look at this again and not be satisfied with there being no solution because we had been unable to find one. For me, politics is about doing the right thing in the most difficult and complex circumstances. Yes, the Government have looked at this again and found a solution which meets the need. We have acted in a spirit of compassion and humanity to do something good. I ask the Opposition to join the Government, in the spirit of that compassion, and support us in this amendment.

On Question, amendment agreed to.

The Conclusion of the Shot at Dawn Campaign Irl Effort

The passing into British law of  the PARDONS FOR SERVICEMEN EXECUTED FOR DISCIPLINARY OFFENCES: RECOGNITION AS VICTIMS OF FIRST WORLD WAR on Wednesday 8th November 2006 meets the objective of the Shot at Dawn Campaign Irl, in that, the amendment is a political mechanism which allows for restrospective pardons in world war one execution cases with an extra safeguard (the amendment will not affect the Royal Prerogative of Mercy) giving families the right to petition for the Royal Prerogative of Mercy, if they so wish. It should be noted that the NEW ZEALAND PARDON FOR SOLDIERS OF THE GREAT WAR ACT 2000 and Mr Justice Burnton’s opinion ¹ in the Farr case (May 2005), set both the political and legal parameters for future British action on the pardons issue. While this amendment is flawed, we believe, that  it goes some way towards meeting the NZ pardons Act, which was primarily introduced to remove in so far as practible the stigma of dishonour attached to the executions of New Zealand soldiers and which also did not quash the conviction or sentence of their executed.

Despite the fact that this British pardon will not overturn the original verdicts or sentence we are satisfied taking into account DES BROWN'S STATEMENT OF CLARIFICATION ON THE 18TH SEPTEMBER 2006 together with the Minister’s concluding remarks during the COMMONS DEBATE - 7TH NOVEMBER 2006, that the intention of the pardon is to remove the dishonour of the execution and that it stands as a recognition that execution was not a fate that the servicemen deserved. This will conclude the Irish campaign effort. The SHOT AT DAWN CAMPAIGN IRL, would like to take this opportunity to commend the moral courage of DEFENCE SECRETARY, THE RT HON DES BROWN MP for his positive action on the WW1 pardons issue. We would also like to express our gratitude to the MINISTER FOR FOREIGN AFFAIRS MR DERMOT AHERN TD and his staff in Iveagh House for their enduring support for our efforts. There have been many organisations, politicians of different hues, councils, trades unions, the media and particularly the ordinary man and woman in the street throughout Ireland and further afield who supported the Irish Shot at Dawn Campaign over the years and who are now entitled to share in the collective credit. On behalf of our families we thank you all.

1 In an application in May of 2005, Mr Justice Stanley Burnton found that there was 'room for argument' that he (Private Harry Farr) had been wrongly refused a conditional pardon. However Mr Justice Burnton also declared inter alia that the family of Private Farr lacked the legal grounds for a free pardon......thereby ruling out the *free pardon/full pardon option in a leading case which many observers believe to be one of the most deserving of a free pardon/full pardon.  Significantly, Mr Justice Burnton's opinion effectively raised the legal bar by setting a precedent insofar as future applications for pardons in world war one execution cases would only be dealth with on the basis of the 'room for argument' principle via the conditional pardon route...legally capping future British political outcomes to the pardons issue.  Consequently, the legal limitations of the 'room for argument' principle via the conditional pardon  route first enunciated by Mr Justice Burnton in the Farr case in May 2005, are now reflected in the 2006 British Pardons Amendment. *A free pardon/full pardon is understood to mean a pardon not encumbered by any expressly stated constraint or weighted legal, parliamentary or royal impediment narrowing its scope or effect.

Re an Irish Pardon for Irish born British soldiers Shot at Dawn: On the pretext that such a measure would be persuasive in encouraging a British Government to look more sympathetically at the pardons issue it was suggested during the campaign particularly by Andrew MacKinlay MP and some individuals in the UK associated with the British Shot at Dawn Pardons Campaign, that the Irish Government should independently proceed and pardon all our Irish born executed British soldiers irrespective of any British determination on the matter, effectively calling for an Irish panacea to a British dilemma prior to any final adjudication in the Farr case and significantly without consulting with the Irish campaign effort ignoring our concerns. Those that mooted such a course of action should note the following. Constitutional obstacles and political sensitivities would have dictated that any pardon an Irish Government might have considered would only have effected those Irish born in the Republic of Ireland, would have excluded those who were born in Northern Ireland, would not have effected the soldiers courts martial file it being held by the Ministry of Defence outside Irish jurisdiction, and taking into account historical concerns would ultimately have been divisive. Such an Irish pardon is, and was, never worth a penny candle, and if introduced would have needlessly jeopardized the interests of our Irish families during a very sensitive time in the Irish Shot at Dawn Campaign. It is to their inestimable credit that the Irish Government took the advice of the Shot at Dawn Campaign Irl resisted that pressure and disregarded those UK representationson behalf of the British Shot at Dawn Pardons Campaign, a decision later vindicated by the introduction of the 2006 British Pardons Amendment.