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Armed Forces Bill

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.