HC Deb 15 July 1948 vol 453 cc1411-545

Lords Amendment, in page 1, line 9, leave out Clause 1, read a Second time.

3.59 p.m.

The Attorney-General (Sir Hartley Shawcross)

I beg to move, "That this House doth disagree with the Lords in the said Amendment."

I understand that it will be in Order and for the convenience of the House if, on this Motion, we were to discuss the proposals which appear on the Order Paper for the amendment of Clause 1 by the substitution of the Government's present proposal.

  1. [(1) During the continuance in force of this section, no person shall be sentenced by a court to death for murder unless it is charged in the indictment or inquisition and found by the jury that the murder was committed with express malice as defined by this section, and either—
    1. (a) that the murder was committed in the course of, or immediately before or after and in connection with, the commission of an offence described in the Schedule to this Act (Offences involving death penalty for murder), or an attempt to commit such an offence; or
    2. 1412
    3. (b) that the murder was committed in the course of or for the purpose of resisting or avoiding or preventing an arrest in course of law, or of escaping or assisting an escape from legal custody, or for the purpose of obstructing a constable acting in the execution of his duty or any person assisting a constable so acting; or
    4. (c) that the murder was committed by means of, and in the course of the systematic administration of, poison or any other noxious substance; or
    5. (d) that the murder was committed by a person detained in a prison or other institution to which the Prison Acts, 1865 to 1898, apply, and that the person murdered was an officer of any such institution acting in the execution of his duty or a person assisting such an officer so acting; or
    6. (e) that the accused has been convicted of murder committed on a previous occasion.
  2. (2) Where, by virtue of the foregoing subsection a court is precluded from passing sentence of death on a person convicted of murder, the court shall sentence the offender to imprisonment for life.
  3. (3) If in any indictment or inquisition for murder it is charged that the accused has been convicted of murder committed on a previous occasion, the accused shall in the first instance be arraigned on so much only of the indictment or inquisition as charges the murder for which he is to be tried; and if on arraignment he pleads guilty or is found guilty by the jury, the jury shall, unless he pleads guilty to having been previously convicted as aforesaid, be charged to inquire whether he has been so convicted, and in that case it shall not be necessary to swear the jury again.
  4. (4) For the purposes of this section, a murder shall be deemed, in relation to every person guilty thereof, to be committed with express malice if the act causing the death is done with intent to kill or maim any person, and in the latter case is an act which might reasonably be expected to endanger life.
  5. (5) For the avoidance of doubt it is hereby declared that where a person is charged with murder on an indictment or inquisition charging any of the matters specified in subsection (1) of this section, and the jury are of opinion that those matters are not established by the evidence but that the accused is shown by the evidence to be guilty of murder or any other offence of which a person charged with murder may lawfully be convicted, the jury may return a verdict of guilty of murder or of any such other offence as aforesaid.]
Before I deal with the nature or details of the Government's proposals, I should like, if I may, to say a little about the reasons and general principles which led the Government to recommend to the House that it should adopt a course which we think is consistent with the whole development of our criminal jurisprudence in this country, and which is a middle course between the conflicting views so strongly and sincerely held by people of very varying political opinions in regard to this very difficult matter.

I suppose it is a characteristic of the development and reform of our criminal law down the centuries that we have proceeded on a rather empirical basis, following the maxim festina lente—hurry slowly—and, sometimes, perhaps, we have hurried very slowly indeed. There has never been, and I do not say this by way of criticism—but rather to the contrary, any attempt such as has been made in other countries to codify our criminal law, to make it a logical and systematic whole, to classify and adjust the punishments by reference to the degree of moral guilt which may be assumed to attach to particular classes of offences. The criminal law of this country—indeed, I suppose, it is really a characteristic, and, perhaps, a very fortunate characteristic of all our institutions—has rather grown up like Topsy. But, although a stranger coming here and examining our different institutions and our system of law might very easily riddle them with nice and logical criticisms, and point to defects and inconsistencies, on the whole, our system works, and works pretty well.

From time to time, amendments are introduced and reforms are made, not, I think, as a rule, according to any particularly logical pattern, and not, I am afraid, always very easily, and sometimes, I fear, with strenuous opposition from my own profession which occasionally seems, as Lord Loreburn once said about it, to have an ingrained predisposition to resist reform. Not infrequently the reforms which have been made in our system of law, and particularly, I think, in our criminal system of law, have been made in the face of very dire prophecies of evil, and even of disaster. But this House has taken its courage in its hands and the reforms have been made; they have worked, and, before long, they have been accepted without question, and, indeed, as elementary necessities.

It is very curious, when one looks back on the history of the development of our criminal law and procedure in this country, to see the tremendous struggles that took place in regard to matters which, nowadays, we should have thought were quite beyond question, matters like the right of a prisoner to give evidence in his own defence, the right of a prisoner to be represented by counsel, and, in quite recent times, the proposal to establish a Court of Criminal Appeal. All these matters were opposed by distinguished judges at the time, very often on the ground that they would lead to illogical results. In regard to that last matter—one of the aspects of which we are going to consider in connection with another Amendment on the Order Paper tonight—the establishment of the Court of Criminal Appeal within the lifetime of a good many of us here, Lord Halsbury said that the proposals would be absolutely unworkable just as, I have no doubt, some hon. Members will say with regard to this new Clause. But, none the less, the proposal was accepted, the court came into being, and it has worked with notable success, and tonight we shall be discussing the proposal actually to enlarge its powers.

In this question of severe punishment, the law has gone through a gradual and rather slow process of amelioration, and with it—I am not saying because of it—there may have been—and I am sure there were—a great many other considerations playing their part but I think it is right to say that with that amelioration in the severity of our law there has been a general improvement in our standards of morality and social behaviour.

We have abolished the torture, except in so far as squeamish people think that this horrible business which we are now discussing involves some measure of torture. Disembowelling has been done away with, and, in spite of the strong objections of my distinguished predecessor at the time, who said that so to do would involve breaking down the bulwark of the Constitution, we have done away with drawing and quartering—godly butchery, as they called it at that time. We have done away with all these things, and I think we were right in so doing, although I suppose that if mere severity of punishment—and not, as I believe, certainty of conviction—is the real deterrent, it may be that we ought to go back to those old methods. But I doubt whether the right hon. Gentleman will, take it upon himself to commend to the House that logical course in regard to this matter.

On the question of capital punishment, it has been said that in the reign of Henry VIII there were 72,000 executions; there were certainly very many hundreds of capital offences of one kind or another. One by one those different capital offences have been eliminated, often, in fact I think almost invariably, in the face of very strong and powerful legal opposition. Today, apart from two grave offences against the State, in which the law really only comes into practical operation in time of war, capital punishment remains the only irrevocable punishment in the case of murder, although I should have thought that there was no crime, no offence in the whole calendar of crime, in which both the moral blame and the possible deterrent effect of punishment varied so infinitely as it does in regard to murder. Even in regard to homicide, we already accept in our law degrees—I am not using the expression in any exact or technical sense at the moment—of liability. Manslaughter is not subject to the capital penalty, and comparatively recently, in the lifetime of most of us, child killing was taken out of the category of capital crimes.

Accordingly, consistently with what we believe is our tradition, our practice, and our history in these matters, the Government now propose further to restrict the capital penalty to certain categories of murder in which it is possible that it may still be necessary for the protection of the public, and, on the other hand, to exclude from the capital category the cases where the death sentence has to be passed under the existing law, but where its infliction would shock public opinion.

That brings me to what is, perhaps, the fundamental question which the House may have to consider in this matter, although I hope—and I think I am entitled to hope it with some confidence—that we shall all be agreed about it, and that is the question of what is the justification for the existence of the capital penalty. I think I am right in saying, from my recollection of the Debate which took place here on the Clause, the Amendments to which we are now considering, that, perhaps with one exception, everybody was agreed that the protection of the community is the only possible justification for the retention and the imposition of this grave and irrevocable penalty. I should like to remind the House in this connection of what was said by the right hon. Member for the Scottish Universities (Sir J. Anderson) speaking, if he will not think me guilty of presumption for saying it, with the care and authority with which one expects him to speak. He said this: I think there is general agreement, at any rate on certain aspects of this matter. I think there would be general agreement that the justification for the capital sentence, as for other salient features of our penal system, must be sought in the protection of society, and in that alone. I pass on, omitting paragraphs dealing with other matters, to a point where the right hon. Gentleman came back to that subject: There is no longer in our regard of the criminal law any recognition of such primitive conceptions as atonement or retribution. We have, over the years"— the right hon. Gentleman is referring there to the same progressive development in our system of criminal jurisprudence which I sought to draw to the attention of the House— fortunately succeeded to a very large extent, if not entirely, in relegating the purely punitive aspect of our criminal law to the back-ground."—[OFFICIAL REPORT, 14th April, 1948: Vol. 449, c. 998–999.] I hope that everybody without exception will agree with that statement of the basic principles underlying the penal law of our country as at least it ought to be for the future.

On that basis the Government have examined again in the light of the decision of the House of Commons, in the light of the discussion which has taken place about this matter in another place, and in the light of those manifestations of public opinion which have occurred in the meantime, the desirability of proceeding now with this reform in our law in regard to the capital penalty for which for so long so many of us have striven and in which we have believed. I do not propose to canvass, whatever may be done by the right hon. Gentleman and others who may follow in the course of this Debate, the general question for or against capital punishment; that was very fully debated in this House upon the last occasion, and this House gave its decision upon it.

The Government fully accepted that decision, given as it was upon a free vote of the House, but since that time two fresh circumstances have intervened, neither of which it would be proper or indeed possible for us to ignore completely. The matter has been the subject of discussion in another place, and in that other place a different conclusion was arrived at. Moreover, the matter has undoubtedly been the subject of a good deal of discussion and thought amongst the public at large, and I would not attempt to conceal from the House that, no doubt, amongst certain sections of the public there is some anxiety about the position.

I am not one of those, if any there be, who would carry Burke's famous dictum about the independence of Members of Parliament to the point of saying that Members of Parliament are entitled entirely to disregard manifestations of public opinion on particular matters. On the contrary, I think we are bound to have close regard to it. But, of course, in deciding what weight we should attach to particular manifestations of public opinion, we are also perhaps entitled to consider to what extent these expressions of the public view upon the part of some section of the community may have been artificially stirred up by those who have been playing party politics—

Hon. Members


Mr. Godfrey Nicholson (Farnham)

What does the right hon. and learned Gentleman mean by "artificially"?

The Attorney-General

—and to what extent that public opinion is based on proper information, to what extent it is well-informed and properly instructed. The right hon. Member for West Bristol (Mr. Stanley) is muttering. Does he wish to intervene?

Mr. Oliver Stanley (Bristol, West)

I was only talking to my colleague, but if the right hon. and learned Gentleman would like to hear what I said, I said that in all my experience there had never been a Law Officer who had been so partisan.

The Attorney-General

I am very much obliged to the right hon. Gentleman. I cannot attempt to contradict the right hon. Gentleman, because he and others who sit opposite are, of course, masters of partisan polemics. Nobody, except one who desired to make cheap political points—[Laughter.] I hope I have not been guilty of trying to introduce or, in fact, of introducing any heat into this Debate, because this seems to me to be a matter on which we ought to be able to divide, if divide we must, on lines which are not political lines. I am bound to say that to me it has always been a matter of surprise, disturbance and disappointment to find that hon. Members opposite, for some reason, were united or almost united—because there are notable, significant and important exceptions to it, but hon. Members opposite are largely united—in their desire to retain the gallows in this country. I should not have thought that that would have been a matter of politics here, but apparently it is and we must accept it.

Mr. Harold Macmillan (Bromley)

So was the Cabinet united.

The Attorney-General

I shall come to the view of the Cabinet, but that was not the view of the Cabinet on this matter. I shall deal quite faithfully with that point when I come to it.

I want to deal with the extent to which we should have regard to public opinion, because I am certainly of the view that it is not right for a Government or for an individual Member of Parliament to disregard manifestations of public opinion about a matter upon which Parliament is about to legislate; but in deciding to what extent effect should be given to manifestations of public opinion, I think one must try to ascertain to what extent that public opinion is well-informed and instructed. Fortunately, owing to the important inquiry conducted by the "Daily Telegraph" we are able to form an extremely good view about that matter. The "Daily Telegraph" conducted what, I believe, is sometimes called a Gallup Poll—I think this is the wrong expression—in which it canvassed the views of a cross-section of the public about this problem. It was good enough to circulate to Members of Parliament, and I daresay to others, the result of that poll with an analysis of the reasons upon which the different answers were based. I think it is right to say—I am not going into this in any detail; those who wish to challenge it, if any there be, in the course of the Debate, will have an opportunity of doing so—that that poll made it quite clear that the anxiety of the public in regard to this matter is based almost entirely on reasons which were unanimously rejected in this House as being invalid and irrelevant.

On the other hand, it is also true to say that the Lord Chief Justice clearly demonstrated, in one of those, if I may say so, characteristically robust speeches, that the present notable increase in crime—crime of all kinds; not only of violence, but including violent crimes—has neither been prevented nor stamped out by severity of punishment because, of course, up to now severe punishments, the "cat" and the gallows, have been available by our law and have not been neglected by His Majesty's judges. And this is the point, I think, which we have really to consider in this Debate. Of course, this is quite true: it may be that in the absence of severe punishments of that kind the present crime wave would be greater still than it is at the moment. I do not say; that is a matter which nobody can say with certainty or as a matter of absolute proof. It is a question of opinion.

For myself—and my opinion is worth no more than that of anybody else—I believe the statistics in a score or more of foreign countries which have abolished capital punishment, some in very recent years and some in years gone by, prove as clearly as any matter of this kind can be proved, and prove with a most notable and significant consistency, that the abolition of capital punishment does not result in an increase in violent crime. For my own part, I just cannot convince myself that the people of our country are so much deterred or frightened by severe punishments, or so much more inclined to commit violent crime, than all the peoples of all those foreign countries, that the result of abolition would be different in, say, Dundee from what it was in Detroit or different in Birmingham from what it was in Brussels. That is a matter upon which different views may be held and I do not attempt to say for one moment that my view is inevitably the right one.

What is certain and what I think we can all agree about, is that if there is any deterrent effect in capital punishment at all, that effect must be greater in some classes of cases than it is in other classes. The right hon. Member for the Scottish Universities dealt with that matter at some little length in the course of his important speech on the Second Reading Debate. For instance, in the passionate crime, the crime that is committed without any premeditation or thought of the future, nobody really supposes that the punishment, however severe it may be, is likely to stop that sort of crime. On the other hand, it is arguable, and I concede at once the force of the argument, that where for instance you have a man who has committed a crime for which if he were apprehended he might be sentenced to a long term of imprisonment, only the fear of a much more severe punishment might prevent that man, for example, from stopping the mouth of a possible witness or shooting a policeman who was attempting to arrest him. Accordingly, the Government intend to advise the House to retain capital punishment in cases of that kind and to abolish it in others.

Although I am afraid that course falls far short of what was decided by this House, it is consistent with the policy which the Government have always adopted in regard to this matter. In that regard, I want to read what was said by the Home Secretary on the Second Reading of the Bill: The Government have given most careful consideration as to the course which should be pursued on this occasion. They think it right to bring before the House certain details of criminal statistics which indicate the relative position of crimes involving violence in 1938 and 1946."—[OFFICIAL REPORT, 27th November, 1947; Vol. 444, c. 2150.] He then stated those details of the statistics with which we are not unfamiliar, and he added this: In 1938 I voted for that Amendment"— that is, the Amendment abolishing the death penalty— and were the circumstances the same as in 1938, I would vote for it again. My mind is not static on any subject."—[OFFICIAL. REPORT, 27th November: 1947; Vol. 444, c. 2151.]

Mr. Churchill (Woodford)

He said a lot of other things, too.

The Attorney-General

I agree he said quite a lot of things besides that.

What we now propose is to abolish the death penalty in respect of those offences the circumstances in relation to which remain much the same as they were in 1938, whilst retaining the penalty for those crimes in which, in view of present circumstances, it is believed, rightly or wrongly, by a large section of the public that the retention of the penalty is needed for the protection of the community. We propose in the Clause we have put down on the Order Paper fully to meet the anxiety which has been expressed by public opinion in regard to the matter. That involves a compromise. It involves asking my hon. Friends to accept less than most of them would have liked to see achieved, but I dare say those who believe, as I believe, that capital punishment is wrong in principle, also believe, and again as a matter of principle, that half a loaf is better than no bread. And, after all, we shall be making—and I say this to my hon. Friends—an important and significant step forward on the uphill and gradual process of reform. It is for that reason we introduce this new Clause.

Is it logical? Who ever heard of a compromise that was really logical? If we want to be logical I am convinced there are only two things we can do about this matter; one is abolish the death penalty altogether and the other is not merely to retain it but to retain it and extend it to all crimes—murder is certainly not the only one—which are of equal moral obliquity and of equal danger to the community, and also to an attempt to commit such crimes, since the act, the intention, the danger is the same, and it is only quite fortuitously that the full result has not been achieved. I think that was what the Bishop of Truro had in view in the notable speech made by him in another place.

Those are the only two logical alternatives, but hon. Members on both sides of the House will probably agree that this is a matter on which it is not possible to be strictly logical, and I would give this to the right hon. Member for Woodford (Mr. Churchill)—any of his hon. and learned Friends, any lawyer in this House who is worthy of a brief, ought to be able to riddle this Clause, as he ought to be able to riddle large sections of our criminal law on the statute book, now with nice, neat, logic-chopping criticisms of the kind no doubt we shall hear in the course of our discussions. I do not know, when we are discussing this sort of problem, that great human causes are always laid best on strictly logical foundations. Sometimes I think, and I believe the right hon. Gentleman will agree with me in this, that perhaps, particularly in ethical and religious matters, we are safer in relying on our instincts and our beliefs than upon what the logicians may say.

I am quite sure that if the right hon. Gentleman in 1940 had relied only on logic and not upon his great instincts and beliefs he would not have led this country to victory in the way that he did. So here today, in regard to a great moral matter, we shall invite the House not to be worried too much by logic-chopping and hair-splitting. We aim here to deal with this matter as a matter in which great moral standards are involved, a matter in which, to some extent, we ought to be influenced by our instincts and beliefs.

What does this new Clause actually do? [HON. MEMBERS: "Hear, hear."] I am much obliged to the hon. Members who say "Hear, hear." If they do not understand it I will do my best to explain it in a simple and elementary way.

Captain John Crowder (Finchley)

On a point of Order. The right hon. and learned Gentleman keeps talking about a new Clause, but I understand that we are dealing with an Amendment to a Clause which has not yet been reinserted in the Bill. Would you tell us, Mr. Speaker, what is exactly before the House?

Mr. Speaker

I thought this course was for the general convenience of the House. The Attorney-General is moving to disagree with the Lords Amendment, and it is obvious what alterative is to be substituted. Therefore, the two, surely, as a matter of convenience, may be discussed together. I have no doubt that eventually the new Clause will be moved. There are hon. Members who have Amendments to the Government's proposed new words. Then, no doubt, will be the time to discuss the Amendments. Meantime we have a general discussion on the Lords Amendment, and the reasons why the alternative words are to be substituted, and the reasons for disagreeing with the Lords. I hope that is clear.

The Attorney-General

This is a little complicated, because by the Rules of Order we have to put a new Clause down in the form of Amendments to the old Clause that has been deleted from the Bill. The whole of the new Clause was on the Order Paper yesterday, but it is not today. However, for the convenience of the House we have made available in the Vote Office a print of the new Clause as it will stand, as I hope, in the Bill when this House has finally reached its decision upon it.

Mr. Anthony Greenwood (Heywood and Radcliffe)

Further to the point of Order. May I ask if it is intended to discuss, during the general discussion which the Attorney-General has initiated, the Amendment, in my name and in the names of hon. Friends of mine, to the Government's Amendment? [In line 2, leave out from "murder," to end of line 42, and add: and every enactment requiring a court to pronounce or record a sentence of death in any case of murder shall be construed as requiring the court to sentence the offender to imprisonment for life. (2) Nothing in this section shall affect the provisions of section fifty-three of the Children and Young Persons Act, 1933 (which prohibits the passing of sentence of death against a person under the age of eighteen years, and requires the court, in lieu thereof, to sentence him to be detained during His Majesty's Pleasure). (3) This section shall come into force on such day as the Secretary of State may by order appoint and shall continue in force for a period of five years from that date, and shall then expire, but without prejudice to the validity of anything done thereunder: Provided that if at any time before the expiration of the period aforesaid an Address is presented to His Majesty by each House of Parliament praying that this section be continued in force without limitation of time or for any extended period specified in the Address, His Majesty may by Order in Council make provision for that purpose; and where any such Order in Council continues this section for any such extended period, the provisions of this subsection (including this proviso) shall have effect as if that extended period were substituted for the period of five years mentioned in this section. (4) In the application of this section to Scotland—

  1. (a) any reference to murder shall be construed as including a reference to any offence mentioned in section two or section three of the Criminal Law (Scotland) Act, 1829 (which sections make punishable by death certain crimes of violence against His Majesty's subjects);
  2. (b) the reference to imprisonment for life shall be construed as a reference to penal servitude for life;
  3. (c) for the reference to section fifty-three of the Children and Young Persons Act, 1933, there shall be substituted a reference to section fifty-seven of the Children and Young Persons (Scotland) Act, 1937."]

Mr. Speaker

If the hon. Member prefers to discuss that point in the general discussion, I am quite agreeable to that course.

The Attorney-General

Let me make quite clear to the hon. Members who said "Hear, hear," what the new Clause—if I may so call it, although I think I am not technically accurate in so doing, because it is an Amendment to a Lords Amendment—what the new Clause does not do. I think that is important because there has been a good deal of misconception about it. It does not attempt to define degrees of murder, to classify cases according to the heinousness or moral gravity of the offence. It does not attempt to make any distinction between crimes according to their moral culpability. It does not, for that reason, distinguish between premeditated and unpremeditated murders. Some heinous crimes may be outside the scope of the capital provisions of the new Clause. Some less heinous offences, on the other hand, may be caught up in the capital provisions of the new Clause.

The purpose of the new Clause, to put it in a phrase, is to include those cases in which public opinion feels that the suspension of the existing arrangements in regard to the death penalty might involve risks which ought not to be taken at this time. The scheme of the Clause is this. In effect, it divides murder into two categories, capital and non-capital. To get into either category there has first of all to be a murder. To come within the capital class the murder must be committed with express malice, and that is defined in the new Clause in Subsection (4). Express malice exists—I am paraphrasing what is in the new Clause—if the murder is committed either with intent to kill or, if not with that intention, with the intention to maim, and in that latter case if the act done was, in fact, an act likely to kill.

I say, "with intention." Of course, as has been said many times in our courts—it was originally said by some distinguished judge—"The Devil himself knoweth not the mind of man." The juries, in dealing with this matter, will be assisted by the presumption that a man intends the natural and probable consequences of his acts. Juries, as a matter of fact, have to deal with this problem, and do so without any kind of difficulty, in a score or more of cases every day If an act is done which, in fact, kills, or which, in fact, maims, the intent to kill or maim will be presumed, unless the prisoner succeeds in satisfying the jury that the blow which was struck was what I remember Mr. Justice Swift once called simply "a little love tap." The object of that provision in regard to express malice is to do away with the notorious and ill-favoured doctrine of constructive murder.

I remember my first murder case—almost my first case, as a matter of fact—was that of a man whose tendency to violent crime had not been deterred by the fact that only a few years before he had received three years' penal servitude and 20 strokes of the cat; and immediately on coming out of prison, in some quarrel he hit somebody else on the head with a bottle. He did not for a moment intend to kill. It was not an act which was calculated to kill. Unexpectedly the injury went wrong; sepsis set in, and the man died. The man who struck the blow was charged with murder, and after a long and, to me—because I was very young in these days—anxious trial, the jury found him guilty of manslaughter. Everyone will agree that capital punishment could not be justified on any view in a case of that kind. In dealing with that matter of constructive murder the right hon. Member for the Scottish Universities said: I think that in regard to what is called constructive murder, where a person setting out on some felonious enterprise unwittingly causes death, where he ties up a night watchman or chloroforms someone on premises he has entered, and death results, in a case of murder for which he is hanged, the death penalty—I want to avoid undue dogmatism—has no deterrent effect at all."—[OFFICIAL REPORT, 14th April, 1948; Vol. 449, c. 998.] If there is no intent to kill the death penalty does not effect such a person at all.

Mr. Churchill

It does not matter how near one goes to the edge, so long as one has no intention of going over, but merely pushes the other one over it.

The Attorney-General

The right hon. Gentleman must invite his right hon. Friend the Member for the Scottish Universities, or the right hon. and learned Gentleman the Member for the West Derby Division of Liverpool (Sir D. Maxwell Fyfe), who know far more about this question, to give him some instruction and advice as to what the doctrine of constructive murder is. I do not know whether the right hon. Gentleman, in his desire to retain the gallows in this country, is going to throw over everything which was said by the right hon. Member for the Scottish Universities. We are seeking in this Clause to embody what was said by the right hon. Member for the Scottish Universities, and we are seeking to do away with a doctrine which for years has been regarded as wholly inappropriate in the administration of our criminal law. If the right hon. Gentleman wishes to dispute that, and to say that we should continue to retain this doctrine, he will have ample opportunity of so doing and the House will have to judge.

Having got to that point, having got to a killing where there is express malice, as so defined, the jury will have to decide, under the direction of the judge, whether or not the case comes within one or another of the five categories that are set out in paragraphs (a), (b), (c), (d) and (e) of Subsection (1) of the new Clause. It may be said that that is unworkable. It may be said that that will be difficult, and the judges will have trouble in summing up to juries on this matter. That is the sort of thing which has been said before with regard to almost every reform in the criminal law. I, for my part, as a member of the Bar am not prepared to be a party to so grossly under-estimating the capacity of His Majes'y's judges or the intelligence of juries as to suppose that they will have the slightest difficulty in dealing with the administration of this Clause when it becomes the law.

This is what the Clause provides. In the first of these five cases the murder will be a capital one if it was committed "in the course of, or immediately before or after and in connection with" one of the offences set out in the Schedule. The offences set out in the Schedule—I will not read them in detail—deal with robbery, burglary and house-breaking; what I may call colloquially the gangster offences of wounding by three or more persons acting in concert together; offences committed with explosives or destructive substances of that kind; rape, indecent assault and sodomy. These are the cases which come within the first category. Take, for instance, the case of rape, which most hon. Members pose on the House, where a man commits that offence and knows that the woman he has offended against is the only witness of what he has done, and, in order to shut her mouth, kills her—that kind of case will be termed a capital offence.

The second type of case under paragraph (b) covers the murder of a police officer or a civilian who is assisting a police officer in the execution of the law—arresting a burglar, or in circumstances of that kind. The third type of case concerns poisoning, but only when, in the view of the jury, the poison has been systematically administered. That may cause some question, and I will tell the House at once why we feel it right to do that. If we included poisoning generally, we would at once cover the mercy murder and the suicide pact—exactly the kind of case in which public feeling is revolted at present by the passing of the death sentence. I suppose that it is true to say this is an ethical question, about which I cannot speak with special authority but I think that it is true to say that the systematic, premeditated murder is by far the more blameworthy class of the two cases. There, you may have a man who is possibly taking advantage of his confidential relationship with somebody, and who, day after day, is administering poison; each time he has administered it he has formed afresh the intention to do a wicked and murderous thing. It is that kind of case which arouses, quite rightly, great public indignation, and so we propose in such cases to retain capital punishment. The next case concerns the murder of a prison officer or anyone assisting such an officer; it may be a prisoner who, in the case of some mutiny starting, assists the prison officers in the course of their duties. The last case concerns the second murder. We had in mind the notorious type of case which occurred recently when a man called Heath committed more than one murder before he was apprehended.

That is the effect of that part of the Clause. It is not very different in principle, except perhaps in one particular, from the Amendment put down by the hon. and learned Member for Chester (Mr. Nield). Let me say this about it: If hon. Members opposite, in a genuine desire to reach some compromise to this difficult problem, think that the language or the structure of this Clause can be improved, then we shall very much welcome their assistance. If, on the other hand, their object is to compromise or whittle away the effect of the present proposals on the Order Paper, then the Government intend to adhere, and to adhere firmly, to the policy which is here laid down.

I come to Subsection (2). The rest of the proposal is merely procedural, and I do not think that we need discuss it at this stage. In non-capital cases, the penalty will be penal servitude for life. It may be said that in truth this is an even more terrible penalty than the death penalty. If it is, and if the purpose of punishment is deterrent, we ought, of course, at once to resort to that penalty; but it is not. I believe that in one case—a case in which the right hon. Member for the Scottish Universities was concerned when Home Secretary—the prisoner, who had been reprieved, committed suicide. Murderers often do commit suicide. I do not think that there is any case on record in which a man who has been offered the alternative of life has chosen to be choked to death on the gallows, and I think it is unlikely that any such case would arise.

It may be said—and I dare say that it will be said—that these proposals could be covered and the same result achieved by extending the use of the Royal Prerogative; and it may be suggested that the Secretary of State should do the very thing which only a week or two ago it was insisted that he was not to do—to suspend or dispense with the operation of the existing law in regard to particular categories of cases. It would be constitutionally quite wrong for him to do that.

Mr. Churchill

The decision is taken by the Home Secretary in individual cases.

The Attorney-General

It would be quite wrong for us in this House to lay down any general proposition or to reject the present Clause on the ground that in the future the Home Secretary ought to exercise his discretion in the category of cases set out in this Clause. We must not attempt to turn the Home Secretary into a kind of legislator in regard to these matters. Exactly the same proposal was made in 1909, when it was suggested that child-killing should be taken out of the category of capital murders.

Mr. Churchill

Infanticide is a better word.

The Attorney-General

Infanticide was a word coined subsequently when child-killing was taken out of the category of capital murders. When this was proposed it was suggested that the matter should be dealt with under the Royal Prerogative. The Lord Chief Justice, at the time, said so but the Lord Chancellor, at the time, pointed out how wrong it would be to introduce any practice—and this applies generally to this proposition—of pronouncing sentence of death which it is not intended to carry out. That whole solemn process would become a cruel and horrible mockery, bringing the whole administration of the Law into disrepute, and the Government are not prepared to adhere to the view that it would be right to pursue any practice of that kind in this matter.

It may be said that there are other cases of equal moral obloquy not caught by the Clause. That is true. Lord Simon the other day made the grey clouds at a garden fete at Hawarden Castle even blacker by giving a whole catalogue of crime that might not be within the scope of the Clause. That is relevant only if we are looking at this matter from the point of view of retribution and vengeance, and not from that of a deterrent. So far as deterrence is concerned, the moral culpability of the crime is not in point. If retribution is in question—and I hope that we agree that it is not—there are many cases, murder and others outside this Clause, which are not caught at all.

I come to the end of what I want to say. When I was at the Bar myself I was involved on one side or the other, for the prosecution or for the defence, in about 40 capital cases. I had to be, because it is the duty of a member of the Bar, as it is the duty of a judge, to assist in administering the law as he finds it. We cannot select the cases which we try or appear in according to the view which we may have as to whether the particular law involved is just or expedient.

Apart from the Nuremberg case, a case of men who really had "shut the gates of mercy on mankind"—which I think was in a class completely apart, I do not myself recall a single capital case in which I was concerned—and the right hon. and learned Member for West Derby was concerned in some of them as well—in which I would have been prepared to say that the moral guilt of the condemned man was manifestly greater than that which had existed in many other cases in which the capital penalty was not available at all. Nor do I recall a single case in which I would have felt that the whole process—the sensational trial, the solemnity of the sentence, the black cap, the three weeks or more of waiting, with morbid excitement on the one hand and bitter anguish and anxiety on the other, and then the final thing, the hanging of some person who, after all, was some mother's son—had really made any contribution to the fundamental dignity of man. And is that not, after all, what we ought to try to set out to achieve in this matter? In this time, following our experiences in the terrible war, human life is, I am afraid, sometimes very cheap indeed. What better time could there be than now for taking the lead and making a stand for the sanctity of that human life which God alone can give?

No one, if I may say so—and I say this with all sincerity—has a greater regard and, may I say, respect and, indeed, affection, for the right hon. Gentleman than I have; and I hope that when he follows me in this matter he will allow his real human instincts to come into play, and will not play the game of party politics. But let the House be on its guard. No one possesses a greater capacity than the right hon. Gentleman for drawing red herrings—it may be very tempting and very succulent herrings, but none the less, herrings which are dyed deep red—across the trail. No one in this country has ever been so great a "confusionist"—if I may so call him—as the right hon. Gentleman.

The issue in this case is one which the House ought not to allow to be muddled by any kind of confusion. It is a simple issue. [HON. MEMBERS: "Hear, hear."] Indeed, it is a very simple issue, and I hope it will be as clear after the right hon. Gentleman has spoken as it will be clear when I have completed my next sentence. The issue is this: Is it necessary—that is all—for the protection of the community, to retain the gallows in all respects as they exist at present? That is the issue, and there is no other issue involved in this matter. I believe it is not necessary. I believe that the best way in which the State can encourage respect for human life is by refraining from taking life itself, unless it is compelled to do so by the direst and most certain necessity.

4.55 p.m.

Mr. Churchill (Woodford)

The right hon. and learned Gentleman has managed to occupy, in a fashion not disagreeable to the House, three-quarters of an hour—[HON. MEMBERS: "An hour"]. Well, it did not seem an hour—in speaking upon this issue. But I feel myself that we cannot consider this new proposal without passing in review the series of events which have led up to it. A great deal of the speech of the Attorney-General—the opening part and the end—might well have been presented by him to the Cabinet before the Criminal Justice Bill was drafted and given to the House. The Criminal justice Bill as presented to Parliament did not deal with the issue of capital punishment at all. On first thoughts the Government were content with the existing practice, and they advised the House not to disturb the existing practice. So those were their first thoughts. As the cynic has said: Distrust first thoughts—they are usually honest. That is exemplified by what has happened here.

An Amendment was put down by a number of hon. Members of the party supporting the Government—

Mr. Sydney Silverman (Nelson and Colne)

Not entirely.

Mr. Churchill

Not entirely, no, but the great majority. I do not want to rob them of any credit which may belong to them. An Amendment was put down for the abolition of capital punishment. The Cabinet had to decide how this Amendment should be treated, and they decided, as a result of a sort of bargain, that it should be left to a free vote of the House. This, no doubt, appeared a convenient method of disposing of the differences of opinion which prevailed among Members of the Cabinet and in the Socialist Party.

Mr. S. Silverman

And in your party.

Mr. Churchill

The Government were considering their own party in this matter. But it was not a proper way of dealing with a matter of this gravity, on which the Cabinet on any given occasion should have a united and collective view. We know from the Home Secretary's speech in the house that this, above all others, was in his opinion not the time to make such a change in the law, and he stated his reasons to the House in, the strongest terms. He even said that there might have been an increase in the number of murders but for the enforcement of the death penalty, and added: in conclusion … the Government, having very carefully considered this matter over a period of months, recommend the House not to pass this new Clause tonight."—[OFFICIAL REPORT, 14th April, 1948; Vol. 449, c. 1090.] Well, then, with what effrontery does the Attorney-General get up and say that when we follow the considered, unbiased opinion and recommendation given by the responsible Minister in this House we are guilty of playing party politics? Such nonsense would hardly earn a fee at the meanest court in this country.

We know that the Home Secretary told us his opinion and we may presume that he imparted that opinion to his colleagues. I have sat in many Cabinets, and I find it astonishing that when his advice was not accepted, or when it was not accepted and while the matter was still in the balance, the right hon. Gentleman should not have tendered his resignation. He could with great propriety have said, as he did later in the House, that he had a special responsibility and that quite apart from the general principle, all the evidence at his disposal showed that this was not the time for such a change. I must say that it was the plain duty of the Home Secretary, if his colleagues would not support him, to safeguard the dignity and character of his office by freeing himself from responsibilities which, on his own showing, he was not able to discharge in accordance with his own view of the public interest.

However, he was no doubt assured that if he made the strongest speech setting forth his views, and was supported by leading members of the Cabinet, it was probable that his views—indeed it was almost certain—would be accepted by the House. On this assurance the right hon. Gentleman—for whom we have the greatest respect and whose fortitude in discharging his functions in times of personal grief we all admire, but we, too, must do our duty—drifted incontinently forward. He committed himself in public, to Parliament, with all his responsibility, to the conviction that it would be detrimental to our country to make this change at the present time. He was supported by the Leader of the House, but all this was of no avail. A gamble on a free vote of the House did not come off. By a chance majority of 25 the Amendment abolishing capital punishment—

Mr. S. Silverman


Mr. Churchill

—suspending capital punishment was added to the Bill and the long-established custom of our country was suspended against the advice of the Government and especially of the Minister publicly and personally responsible. That in itself was a very grave matter.

It was incidentally a gamble with the lives of four convicted murderers, whose executions were imminent, but who were reprieved in consequence of the vote. There was, in fact, an issue of principle, on which it was the duty of the executive Government to make up their minds. Instead, it was settled by a casual vote, as a result of which Ministers and no doubt the Whips were stultified, and the Home Secretary himself stripped of authority and responsibility in the discharge of his duties.

Fortunately, in this country we still have a Second Chamber and this lapse from civic and public duty by Ministers was corrected in another place. No one can effectively dispute the fact that in rejecting the abolition of capital punishment at this time the Second Chamber did their duty. They were naturally bound to attach great importance to the arguments which had been used in the House of Commons by the Home Secretary. It was not for them to try to measure the differences of view between individual Ministers, which had led the Cabinet to believe that they would find an easy way out of their difficulties by throwing the burden upon the House by a free vote. They had also to take into consideration the advice tendered them by eminent members of the Judiciary, who spoke for the overwhelming majority of the Judges on the Bench. The Attorney-General, preening his ministerial plumes, spoke in disdainful fashion of the opinion of high legal authorities, and quoted examples from by-gone generations where they had proved themselves out of step with the march of events. But I think these matters should be settled not only by professional authorities, but by the weighing of the reasons that are involved. The House of Lords had besides to consider the merits of the case at the moment not only on abstract principles, but in relation to the crime wave which the Home Secretary had reminded us was so violent at the present time.

In acting as they did in accordance with their convictions and those of the Government and the Home Secretary, the Second Chamber were only discharging the duties which fell upon them. Scarcely less important than this, they were undoubtedly expressing the views and the wishes of the overwhelming majority of the nation. There is no doubt whatever that they showed themselves far more truly representative of public opinion than did the majority of the House of Commons. I am an old House of Commons man and I was sorry to see the popular Chamber so far out of harmony with the opinion and wishes of those whom they claim to represent.

Although I entirely agree with the action of the House of Lords in referring the matter back to us for further consideration and am myself opposed to the abolition of capital punishment, I was sorry to see that the House of Commons show itself at so great a disadvantage not only in the voting but even more in the Debate. One has only to read the Debates in the two Chambers to feel that the House of Lords on this occasion showed a higher sense of dignity and truer instinct than the House of Commons, deprived, as it was, of its proper leadership from the Government and also I must say that the whole character of the Debate in another place was far superior in seriousness and intellectual quality to that which happened here, excluding, of course—

Mr. Benson (Chesterfield)

On a point of Order. May I ask whether the right hon. Gentleman is entitled to compare or to give his views on the relative quality of the Debates in the two Houses and whether we also shall be entitled to give reasons and instances?

Mr. Deputy-Speaker (Major Milner)

We will consider that question when we come to it, but so far I see nothing unparliamentary in what the right hon. Gentleman has already said.

Mr. Warbey (Luton)

Is it in order for an hon. Member of this House to make comparisons between this House and another House in such a way as to bring disrespect upon this House?

Mr. Deputy-Speaker

The rule is that no reflection should be made on either House.

Mr. Churchill

With great respect, a natural and healthy emulation between the two Chambers may be conducive to their ultimate efficiency and improvement.

As I was saying, I was sorry that the matter has been put so that the House of Commons is at a disadvantage in the view of the country by the way it has come out of this difficult business. It is no service to the cause of democracy to exhibit the people's Chamber, chosen by universal suffrage, in so inferior a position where they can be criticised, comparatively as well as actually, alike in their standard of duty and in their interpretation of the public will. The burden for this misfortune falls directly upon the Cabinet, particularly upon the Prime Minister, the Leader of the House of Commons, and the Home Secretary, who have shown levity in so sombre an issue and have shown their readiness to sacrifice what they clearly knew was their duty in order to reach agreement in the Cabinet and party circles. That is a lamentable transaction, from which the leading Ministers concerned can derive nothing but discredit.

Let me recall what was the original Amendment which this House carried and which the House of Lords has rejected. It was for a five years' experiment without capital punishment. Let us see what happened. I did not agree with that—and I do not—but at least it expressed a principle and a policy. The principle was that a court of law should never pronounce a capital sentence because of the sanctity of human life—the murderer's life, but, still, the sanctity of human life—and the policy was to try this experiment for five years and see what happened. This original Amendment compares favourably with the new proposal now before us, in which no experiment is to be made, and in which there is neither thought nor theme.

The Attorney-General

If the right hon. Gentleman will look at the Clause he will find that the last statement he has made is wholly inaccurate. That is not the only statement he has made that is wholly inaccurate, but I am dealing only with the last one.

Mr. Churchill

I have read the Clause, and I do not think I have been inaccurate in any way.

Mr. S. Silverman


Mr. Churchill

If the hon. Gentleman will tell me what it is he wants me to withdraw I will repeat it twice over. In my view, this Clause is not an experimental one. [HON. MEMBERS: "It is."] It has neither thought nor theme—

The Attorney-General


Mr. Churchill

I am comparing the original Clause which was put down by so many Members and put into the Bill with the one which we have before us now. I am certain—

The Attorney-General


Hon. Members

Give way.

Mr. Churchill

The Attorney-General has much more experience of courts of law than he has of the House of Commons, and I will tell him for his own benefit that interruptions which have no purpose but to continue the argument are not a fair use of the right of interruption.

Mr. Ede

I am quite sure that no one in the House, least of all the right hon. Gentleman, wishes to go wrong on what is a mere question of fact. If the right hon. Gentleman will look at Subsection (8) he will find that the Clause we are now asking the House to adopt is experimental in exactly the same way as was the original Clause.

Mr. Churchill

But experimental in relation to an entirely different set of facts. We all remember how Queen Elizabeth dealt with poetry and blank verse"—"Marry, this is something. This is rhyme! But this"—the blank verse"—"is neither rhyme nor reason." That is what we have before us now—a mere jumble of points which seem popular at the moment to deal with cases in which, to quote the Attorney-General, public opinion feels that the suspension of the death penalty involves risk—public opinion having been measured in less than a few weeks. It is a mere jumble of points which seem popular at the moment, and which have been suggested by the more recent batch of murders as recorded in the newspapers. It has been put together not with the object of making a better and more humane system of criminal justice but of getting round an awkward Cabinet or Parliamentary difficulty. The Attorney-General said it was a compromise. Confusion is not compromise. A bargain between politicians in difficulties ought not to be the basis of our criminal law. This is an attempt, as the Attorney-General said, to steer a middle course, to steer a course of "no meaning" between the "No" of the abolitionists and the "Yes" of the mass of ordinary folk.

This transaction stands in sorry contrast with the long, majestic evolution across the generations of our Common Law. It is disheartening to see such questions being settled by mere expediency and current party embarrassments. Those who favour the abolition of the death penalty ought to vote against this new proposal which is utterly contrary to their conscientious opinion, or to any opinion about which the plea of conscience can be advanced. Conscience and muddle cannot be reconciled; conscience apart from truth is mere stupidity, regrettable, but by no means respectable.

I come now to a case in which I took some interest myself, and in which an interest was also taken by the hon. Member for Nelson and Colne (Mr. S. Silverman), who is so anxious to interrupt, and who, I hope, will be fortunate in being able to catch your eye, Sir, in the Debate. I am unable to understand how Members opposite, who supported the execution of the West Africans a few months ago, after these men had been brought three or four times to the scaffold or to the verge of it can explain their position, even to themselves. According to the principles I learned at the Home Office, and the feelings I derive from my own heart, it is an act of inhumanity to "cat and mouse" human beings in this way. This was the most horrible and cold-blooded execution to which the House of Commons, in my long experience, has ever positively and to a large extent directly approved and enforced. I would never have allowed it in any Department or Government of which I was the head. Yet some of those Members, the humanitarians, who approved or acquiesced in this grim deed, now tell us that their consciences and sentiments are outraged by the ordinary long-established procedure of British justice. It is not possible to exhibit a more complete lack of consistency or indeed conviction upon these poignant issues.

The same House of Commons, in the same Session, has, by its vote, saved the life of the brutal lascivious murderer who thrust the poor girl he had raped and assaulted through a port-hole of the ship to the sharks and has sustained the Colonial Secretary in making these five or six Africans, who were under the spell of a degraded superstitution, go through the agony of death three or four times over and hanging them in the end. The number of lives taken on this occasion is nearly equal to half the executions in Britain in a whole year. But that is not the point. The point I have in mind is the degree of suffering inflicted. Hanging, under English law, if properly conducted, is, I believe, an absolutely painless death—

Mr. Stubbs (Cambridgeshire)

Try it.

Mr. Churchill

Well, it may come to that. It is in the weeks and days and hours before hanging that the ordeal to which criminals are subjected arises. In this case the men I am speaking of were made to go through this ordeal again and again, without being considered to have expiated their crime.

It is impossible to comprehend the mental processes which in a single Session exhibit such devasting contradictions. Although I do not agree with them, I respect those idealists who wish to abolish the capital penalty. In an age which has reduced the value of human life more than any other of which there is record, and which has multiplied executions in cold blood to an extent which would be amazing to former generations, the abolitionists stand against the storm and hold up their mild Victorian lamp in the blackness of the 20th Century. That is, morally and intellectually, a respectable and comprehensible position. But there is a consideration which I would venture to submit in its proper place and proportion at this point.

I wonder myself whether, in shrinking from the horror of inflicting a death sentence, hon. Members who are conscientiously in favour of abolition do not underrate the agony of a life sentence. To many temperaments—to some at least—this is a more terrible punishment. In any case, the gulf of suffering between the two, death and life, is not so wide as is represented.

I found it very distressing nearly 40 years ago to be at the Home Office. There is no post that I have occupied in Governments which I was more glad to leave. It was not so much taking the decisions in capital cases that oppressed me, although that was a painful duty. I used to read the letters of appeal written by convicts undergoing long or life sentences begging to be let out. This was for me an even more harassing task.

I remember one capital case in particular, to which the Attorney-General referred. This was the case of a soldier of about 45 years of age, who in a fit of rage killed his wife or the woman with whom he had long lived. After the crime he walked downstairs where a number of little children to whom he used to give sweets awaited him. He took all his money out of his pocket and gave it to them saying, "I shall not want this any more." He then walked to the police station and gave himself up. I was moved by the whole story and by many features in the character of this unhappy man. The judge who tried the case advised that the sentence should be carried out. The officials at the Home Office, with their very great experience, suggested no interference with the course of the law. But I had my own view, and I was unfettered in action in this respect.

One of the great privileges and advantages we have in our present system of procedure is that the Home Secretary is unfettered as to the advice which should be tendered in the use of the Royal Prerogative. At every point in our system of criminal justice the benefit of the doubt is given to the accused. At every point in the subsequent consideration of a capital sentence, when it has been passed, the same bias is shown in favour of the convicted person. But when justice and the law have done their best within their limits, when precedents have been searched and weighed, mercy still roams around the prison seeking for some chink by which she can creep in.

In this case I decided to advise a reprieve and commutation to imprisonment for life. This was accordingly done. However, a few weeks afterwards this man committed suicide. He hanged himself in his cell and left behind him on his slate the following letter, which I will read to the House because I am anxious that the whole of this question between capital punishment and life imprisonment shall be seen in its true proportion. While I fully agree that capital punishment is a supreme penalty and that mercy is extended in converting it to a life sentence, yet I do feel that the gulf between them is not nearly so wide as people suppose, at any rate in some cases. I will read the letter: I hope you will be as good as to let my sister, Mrs. Susan Fenton, 8, Oldfield Road, Oldfield Lane, Wortley; and my brother George William Woodcock, 36, Mickley Street, Tong Road, Armley, bury me in my own grave in Wortley Cemetery, Oldfield Lane. I was pleased at the reprieve for the sake of you; not for myself, because I knew it meant 'for life' in gaol, and there is no pleasure in that. I think I had rather be dead than be in gaol for life. I've been studying ever since how to do away with myself, because I do not intend doing it. I have kept a cheerful look to keep them off thinking that there was anything going on. But I have been studying this above a week. I think I will be a lot better oil in my grave, because if I had to get out with 15 years I should be 61 years old. Where could I find work at that age? So I hope I manage alright, so goodnight and God bless you all. Your poor unfortunate brother, E. Woodcock. I mention this case in order that those who shrink from the horror of inflicting the death penalty may not underrate the gravity and torment of the alternative. Indeed, they must be on their guard lest they should be soothing their own personal susceptibilities at the expense of what is in many cases a more severe punishment of the guilty.

No one can suppose that if the death penalty were abolished, murderers of the most ferocious type could be released after 15 or 20 years. In the United States sentences of 30 years are often imposed, and in some other countries the life sentence is rigidly carried out to the end. There is no official capital punishment in Soviet Russia. Murderers, like political dissentients, are just toiled to death in prison or slave camps, and we are assured that this is a proof of the enlightenment of the Communist ideology. There is a danger that our humanitarians may sleep comfortably in their beds, feeling that they have lifted a burden from the world and from themselves, and never think again of the long years of awful gloom, deprivation and misery of mind and soul which they have inflicted on those whom they meant to benefit.

Personally, I believe that our administration of criminal justice in capital cases reaches a very high standard of justice, compassion and good sense. I am sure the House would be wise to put the same confidence in our present processes as do the overwhelming majority of the British nation. In my time at the Home Office there were only about a dozen executions a year, and I believe that is not very different from the figures today; that is to say, more than half the convicted murderers are reprieved, and the law is administered in a way which commands the confidence and the approval of the vast majority of our community of 47 million, among whom murder is exceptionally rare compared with many other countries.

We may put our trust in the wide and flexible use of the Royal Prerogative. No reasons have to be given by the Home Secretary, and no limits are put. I am sure that it would be a dangerous mistake to impose, as this Clause does, all kinds of arbitrary rules. Although the full freedom of the Prerogative will no doubt remain under the new proposals of the Government, there is a danger that conventions will grow up in practice which will, in fact, canalise clemency. I am told, and I believe, that you might well have just as many executions—if not indeed, more—under this proposal as you would have by adhering to the existing system. How then can the abolitionists dwell upon the moral and conscientious issue? How can they invoke that when a very large proportion of the executions which now take place will still continue?

One of the ideas behind the Clause is to prevent the death sentence being passed on certain categories of killing. In many of those, the sentence will never be carried out, and in some it ought to be. The intentional taking of human life for private motives is always a terrible crime against society, and nothing should be done to detract from the awe and solemnity of the death sentence. Even in cases where, in all probability, it will be commuted by the exercise of the prerogative of mercy, its omission may weaken the general reprobation of the crime which has been committed. This affects the community as a whole, but it is worse for the jury, to which I now come.

The ancient Anglo-Saxon foundation of all our system of criminal justice is trial by jury. I say that this new and complicated proposal will weaken the jury's sense of responsibility and by introducing in many cases distinction without difference it will puzzle and baffle juries and make their hard task even more difficult and painful. The inconsistencies and absurdities of the Clause in practice will also prejudice the comprehension by the public of the law of the land and will tend to bring that law into disrepute. Innumerable cases can be cited which will expose this present proposal to derision. It is no use hon. Members saying that they can pick holes in the present law. I dare say they can, but nothing like what I am going to cite to the House now can be picked in our present system of law. Innumerable cases will be cited, discussed and debated in every part of the country, and this will impair the high structure of our criminal justice. Let us examine this proposal for a few minutes.

The Government Clause provides that the death penalty will only apply when two conditions are fulfilled. First, there must be, as the Attorney has explained, express malice, which is described as an intent to kill or maim by an act which might reasonably be expected to endanger life. Secondly, the murder must be of a certain type. For example, it must be done in connection with robbery, housebreaking, rape, sodomy, etc., or done in connection with avoiding arrest, escape, prison officers, etc., or second murder. Such are the proposals of the Clause. The result is that all the most frequent types of murder, that is to say, wounding, stabbing, strangling, drowning, etc., committed for all the most wicked motives, jealousy, greed, revenge, etc., will not carry the death penalty, because that penalty will only apply in such cases if the offence is committed by three or more persons.

Secondly, most of the murders committed in the course of committing a felony with violence, that is to say, robbery, rape, etc., and most of the murders committed in connection with burglary and housebreaking, will also not be punishable with death, because for that it will be necessary to prove an intent at least to maim. Let us take only two examples of the problems to be put before the jury. A housebreaker is disturbed. He fires his gun and kills. His defence at the trial is that he fired only to frighten. How can it be proved beyond reasonable doubt that he intended at least to maim? Again, a ravisher kills a woman he is raping, by strangling or throttling her. His defence is accident. How can an intent to maim be proved?

Let us now apply more directly the new version of the law which we are now asked by the Government to lay down. I am bound to state the facts, however shocking they may be to our accepted methods of reasoning. The Attorney-General has referred to a case which has been much mentioned in public, the systematic administration of poison. That is punishable by death, but if the crime is committed by a single dose, no death sentence can be passed. A man may deliberately kill his wife with a chopper without being sentenced to death. The Government in fact—this is what we are asked to agree to—say to all and sundry, and ask us to say to all and sundry: "If you decide to kill your wife because, after cold, calculated and deliberate consideration you come to the conclusion that you will live more agreeably alone or with another woman, or because you will benefit under the terms of her will, you have a variety of methods at your disposal, without risking your life even if found guilty. You can strangle her or hold her head in the gas oven until she expires" [Interruption.] This is not my language—it is what we are asked to place on the Statute Book. "You can stab her. You can cut her throat or dash her brains out, each of which will be quicker. If you can arrange the procedure, you can set her on fire, push her off the station platform in front of an oncoming train or push her through the porthole of a ship. Or, more easily, you can drown her in the bath. There is a reciprocal set of cases which can arise on the part of the weaker sex. "But whatever you do," say the Government, "you must be careful not to invite more than one confederate to help you, otherwise your immunity will be gone."

These are revolting declarations to be presented to Parliament, and still more to be put in the statute book, by any Government or by any House of Commons that has ever been known in this island. I repeat them with disgust in order to show the folly of trying to categorise murderous brutality and to expose the levels of thought and principle to which we are now invited to descend. If the amending Clause now before us becomes law, the murderer will, in all the cases I have mentioned, be able to sleep soundly in the knowledge that, in the event of detection, he cannot be put to death. These cases can be multiplied indefinitely, and will be undoubtedly, as the matter is argued out all over the country among all classes of people. Thus the whole of our system of justice in capital cases will be brought into public contempt. I say that this is a high price to pay for party manoeuvres, to unite a Cabinet, or "to bring our fellows together in the Lobby." It is a shameful exhibition that we have been presented with in the whole of this story.

I am told by very high legal authorities that great difficulties will be placed upon the judges in summing up. That is brushed aside by the Attorney-General, for no other reason than that it was necessary to fill in this part of his argument with an assertion resting on his own personal opinion. Practically the whole of this lengthy Clause, which few newspapers have had the space to print in its entirety under present conditions, will have to be explained to juries on many occasions. I am assured that is so by people whose knowledge, authority and repute in the law are as a pyramid to a molehill compared to that of the Attorney-General. I cannot take his advice against the advice of the people whom I have had the opportunity of consulting. I say that practically the whole of this lengthy Clause will have to be explained to the jury. [Interruption.] What did the Attorney-General say?

The Attorney-General

I said "rubbish."

Mr. Churchill

That may be what the right hon. and learned Gentleman has in his head, but it does not carry conviction. We all know that Law Officers in his position have to be trotted out to cover up the most difficult and unsatisfactory situations into which Governments get. I have often seen it done, but never have I seen it done with such an undue parading of his own particular opinion on a matter upon which a great profession could form its own judgment.

Mr. James Hudson (Ealing, West)

Who advised the right hon. Gentleman?

Mr. Churchill

I take full responsibility for everything I say. The jury will have to be instructed and will have to decide whether a killing was in the course of or in connection with the offences described in Subsection (1, a) of the Clause or whether it was for any of the specified purposes in Subsection (1, b), or whether it was in the case of poisoning by systematic administration under Subsection (1, c).

The Attorney-General

Quite wrong.

Mr. Churchill

Well, the Government will have an opportunity of speaking. The Home Secretary can say what it is. I am told by people who have studied this and have great professional attainments that what I have just said is correct because the jury will in many cases have to be advised—

The Attorney-General

indicated dissent.

Mr. Churchill

The right hon. and learned Gentleman may shake his head till he shakes it off, but it does not affect the argument. Intense difficulty will occur in the case of a murder alleged to have happened during a rape. I am advised that the judge would have to direct the jury first as to constructive malice under the law as it is at present—that is to say, the malice that is implied from death resulting from a felony involving violence—and secondly, express malice under the law introduced by the Amendment—that is to say, an intention to kill or maim by an act which might reasonably be expected to endanger life. If that is not correct, when the Home Secretary or any other person of authority winds up, no doubt we shall be told, but it is not much good the Government proclaiming facts which are not correct in regard to the existing interpretation of the law of the land.

Mr. Hector Hughes (Aberdeen, North)

Would the right hon. Gentleman—

Mr. Churchill

The offence—

Mr. Hector Hughes


Mr. Deputy-Speaker

No hon. Member is entitled to speak unless the right hon. Gentleman or the hon. Member having possession of the House gives way.

Mr. Churchill

I really would not say anything more controversial than that the Home Secretary would have the power to answer these points and let us know the view of the Government on them. If I am told that the defence of the ravisher in this case could be that he did not intend to use more force than was necessary to make the unfortunate woman submit to his approaches, is he then to escape the supreme penalty because there is no proved intention to kill or maim? All those points, I am assured, will have to be put to ordinary jurymen and jury-women who have never before been called upon to split such hairs.

Mr. Hector Hughes

It is on that point—

Hon. Members

Sit down.

Mr. Churchill

Ordinary jurymen and jurywomen who have never been called upon to split such hairs will now have to do it for the first time with a human life at stake. This Clause will in consequence give rise to endless legal arguments both before the judge and in the Court of Criminal Appeal. The result will be to make it more likely that certain categories of murderers will be hanged while other categories, equally heinous, cannot be. Secondly, it must tend in the long run to hamper the Home Secretary or some other Home Secretary in the exercise of his unlimited discretion which is by far, the most elastic, sympathetic and comprehending process that can possibly be used. But it is the ordeal to which juries will be subjected on which the main weight of the practical case rests.

We do not allow the decision of guilt or innocence to be decided in the first instance by trained legal minds or persons of exceptional education. The prime guarantee of British justice is the honest opinion of the ordinary man or woman. Very striking words are used in the jurymen's oath: I swear that I will well and truly try the issue joined between our Sovereign Lord the King and the defendant"— or prisoner— and a true verdict give according to the evidence. Some systems of society seek to substitute for this the decisions of State stipendiaries or officials acting under the influence of the Government of the day. We regard it as a fundamental safeguard of our democratic liberties and life and a principle which has been woven into the whole history of our judicial system that the supreme question. "Guilty or Not Guilty?" shall be decided by ordinary folk. At the present time this process of decision by a jury has the merit of simplicity. The jury are asked only one decisive question: "Have the facts given in evidence proved that the crime was committed?" There is the alternative of manslaughter which was mentioned, but in principle that is the issue required of the ordinary people on whom this stress is cast from time to time.

Even now there are disagreements on juries, in which case all the disadvantage of a second trial have to be faced, but by loading the issues to be decided by a jury with the almost metaphysical subtleties of this Clause, the Government will be placing on British juries a task which, however carefully it is defined by the judge, however keenly and lengthily it has been argued by counsel, will be beyond their compass to fulfil. This will greatly increase the probabilities of disagreement.

I say then, that this new Clause constitutes an assault, no doubt not intentional but none the less consequential, upon the system of trial by jury in capital cases and that as such it strikes at the democratic principle inherent in the life of our country that a man is entitled to the judgment of his equals. It seems almost incredible that such a rigmarole of wrong-thinking and right-thinking, of pandering to sectional sentiment and party currents, could have been produced by the collective ability of a British Cabinet. It makes one shudder to feel that this may be only a sample of the processes by which the most overwhelming decisions for this country and for the whole world are now being arrived at.

I would say without hesitation that if I had to choose myself between voting for the original Amendment inserted by the House two months ago, or for this new proposal which the Government now thrust before us, I would rather vote for the original proposal and see what happens. Fortunately we are not condemned to a bleak choice between two kinds of error. We are free at this moment, thanks to the moral courage of the Second Chamber, to pass the Bill in the form in which it was first introduced by His Majesty's Government and commended to us so strongly by the Home Secretary and by other leading Ministers. That would be by far the most sensible thing for us to do in the interests of the public, in the interest of this House of Commons, and even in the interests of the Government themselves, for they have no surer way of earning mockery and discredit than by persisting in their present course. I trust that, even now, good sense and reason will prevail. If not, our duty is clear, and we must not fail to discharge it.

5.50 p.m.

Mr. Sydney Silverman (Nelson and Colne)

I am delighted to begin by offering, if I may in all humility, a somewhat unusual congratulation to the right hon. Gentleman the Leader of the Opposition. I have listened to many of his speeches in days when this country was passing through its darkest and yet its finest hours. His place, if I may say so with humility and respect, in the political history of this country will rest to no inconsiderable extent upon those speeches made in those times. The congratulation that I would like to offer him today is that he has just made a speech which he himself would not wish, I think, to be read, say, at the same time or to form part of the same series as the speeches that he made in those days. I think he is deserving of congratulation because, when the heat of what has now become, unfortunately, a party controversy has died away, the right hon. Gentleman will regret that he made the speech which he made this afternoon—

Mr. Churchill

indicated dissent.

An Hon. Member


Mr. S. Silverman

—and, therefore, may be inclined to congratulate himself upon not having made a good one. I do not know whether the right hon. Gentleman still complains at the description of the efforts which are now being made to alter the decision which the House of Commons made a little while ago, as a party manoeuvre. I should think the right hon. Gentleman would be the first to admit that the speech he has made this afternoon was deliberately and designedly a party speech and nothing else. He would have made a better speech and a more useful contribution to this extremely difficult question if he had quoted the words of the juryman's oath at the beginning of his speech instead of at the end, and had himself taken an oath before he made his contribution this afternoon to endeavour to reach a true verdict according to the evidence, because he made no attempt whatever to do so. [An HON. MEMBER: "He did not know the evidence."] He knew the evidence and he deliberately ignored and distorted it.

His first complaint made against the Government was that they had not given a lead, not laid down a policy, not put on the Whips but, as he would say, had shuffled off their responsibility on to the House of Commons. That was his first complaint. The right hon. Gentleman did not say, and perhaps he did not remember, that he was a party to that plan. So was the whole of the Opposition Front bench. The decision that this matter should be decided by a free Vote of the House of Commons was a decision taken by the whole of the House of Commons with the consent of everybody, and with the consent of the Leader of the Opposition. It really is a very shabby thing that, having agreed to that, having lost in the result, he should now come and complain of the Government for having carried out the bargain which he himself made with them.

Mr. Churchill

The responsibility rests entirely with the Government.

Mr. Silverman

The right hon. Gentleman is not doing himself justice. Is he really suggesting that the responsibility for what he does rests with anybody but himself?

Mr. Churchill

The responsibility for the course pursued in the House and the decision as to putting the Whips on or not, is the responsibility of the Government, surely. It is quite true we did not object at the time—

Mr. Silverman

But it is not true to say, merely, that the right hon. Gentleman did not object. That is untrue. It was not merely the withholding of objection. The right hon. Gentleman himself stood up in his place at the Box and warmly welcomed the decision of the Government to do it in this way. Is that the responsibility of the Government? Was it the responsibility of the Government that the Conservative Opposition Whips were taken off just as the Government Whips were taken off? [Interruption.] Who said they were not?

Earl Winterton (Horsham)

The hon. Gentleman knows perfectly well. He sat on the Committee. I have never heard an argument more dishonest than his. [HON. MEMBERS: "Oh."] I challenge him—

Mr. Silverman

I gave way—

Earl Winterton

A dishonest statement.

Mr. Silverman

I gave way to the noble Lord because I thought he wanted to say something; not because he wanted to indulge his characteristic impudence. The noble Lord has said that I made a dishonest statement—he has told a deliberate lie.

Hon. Members


Mr. Quintin Hogg (Oxford)


Mr. Deputy-Speaker (Major Milner)

That expression must be withdrawn, but may I also say that I hope we shall have a moderate and good-tempered Debate, and that applies to both sides of the House.

Mr. Silverman

I withdraw the word, Mr. Deputy-Speaker; I ought not to have used it, and I apologise to the House for having used it.

Earl Winterton


Hon. Members

Sit down.

Mr. Silverman

I will not give way again.

Earl Winterton

On a point of Order. In view of what the hon. Gentleman has said, Mr. Deputy-Speaker, it is only fair that I should withdraw the term "dishonest" but I would like to have an opportunity of explaining it later.

Mr. Silverman

Perhaps we may now get back to the facts. The noble Lord intervened with his remark which he has now withdrawn—and I accept his withdrawal—with a reference to what happened in Committee. I was not talking about the Committee. The noble Lord knows very well that it was part of the agreement that this matter should not be raised in Committee—

Earl Winterton

indicated dissent.

Mr. Silverman

Oh, but it was, and the noble Lord must not deny it. Let him go away and read HANSARD. The arrangement was made on the Floor of this House, and the right hon. Member for North Leeds (Mr. Peake) himself joined in the arrangements made across the Floor: first, that it should not be raised in Committee; secondly, that it should be raised on Report stage; thirdly, that on Report stage it should be left to a free vote of the House, with the Whips off on both sides. The Leader of the Opposition himself made the proposal whereby this proposed Amendment on the Report stage was taken out of its order so that it could have a full run of Debate the whole day. [Interruption.] Certainly, and having done that, the right hon. Gentleman now complains that the vote when it was taken showed a catch majority—

Mr. Churchill


Mr. Silverman

Chance—I beg his pardon. The right hon. Gentleman in his speech said that the decision of the House was taken on a casual—chance majority—[An HON. MEMBER: "Not 'chance'."] Well, the implication was that it was a mere accident that the majority fell that way, and that it could have fallen the other way. But the right hon. Gentleman himself made the proposals and himself secured even that the Division was delayed to enable so many of his colleagues to get here from another function. It comes very badly indeed from the right hon. Gentleman, and is a rather shabby thing for him to have done, to have complained of arrangements to which he was a party throughout.

Why was it done? Why was it that we all felt at the time, whatever we or some people may feel now, that it was a proper thing not to have a Government lead, not to have a Government policy, not to have the Whips on on either side but to leave this matter so that every Member of the House of Commons could make up his own mind without pressure, without influence, without consideration for party ties or for party obligations of any kind, and reach his own honest, conscientious judgment on the argument? Why was that decided, and why did the right hon. Gentleman agree to it? As he said himself in his speech he is, above all else, a House of Commons man, and I think he will agree with me that the House of Commons is never better than when it discusses and decides an important question in an atmosphere of that kind. Our Debates are always best when the Whips are off. Our decisions are always soundest when they are our own individual judgments, conscientiously arrived at after hearing the argument. That is why we wanted it done that way; that is why everybody wanted it done that way—there was no other reason.

It was common to all sides in this dispute that in a matter of this kind we are not justified in deciding purely on the merits of the case. That may sound strange but we all agree that it was so, because the merits of the case might take us further than public opinion was prepared to go; and that in this matter of the criminal code, and especially in this most important part of the criminal code, it was quite wrong for Parliament to make reforms, no matter how justified they were in themselves, if they were so far in advance of what public opinion would tolerate that they would bring the law into disrepute. It was for that reason—and, I think, that reason alone—that my right hon. Friend the Home Secretary advised the House against adopting the Clause which ultimately was adopted. It was not that he thought himself that it was wrong—in 1938 he was in favour of it—but he was saying that, in the state of the public mind and in the light of what had happened since 1938, due to abnormal conditions, such a reform could not now be carried without being so far in advance of public opinion that it ought not to be carried. That was the case put forward.

What is the state of the public mind? The state of public opinion on a difficult question is a matter of opinion and can be nothing but a matter of opinion. We cannot test public opinion by a random reaction of buttonholing somebody in the street, in a pub, in a club, or in a railway station and getting his random casual answer to a question of this kind. We cannot test public opinion by a mere casual counting of the first heads we happen to come across. It is instructed and informed public opinion that counts, and what was felt in all quarters of the House was that the proper way of testing public opinion in this matter was to get a cross-section representative of the community at large and, having got that cross-section—largely, widely and broadly representative of the community as a whole—then present it with the facts, the figures and the arguments both ways and accept its verdict, as we would accept a jury's verdict, as being broadly representative of what public opinion generally would feel about it if they had the same opportunity of hearing all the facts and arguments, weighing them up and coming to a conclusion. And we asked, "Where will we find in this country a cross-section of the community more broadly representative of it than this House of Commons?"

That was said and accepted at the time. As to this business of Gallup Polls and Mass Observation I do not know whether the right hon. Gentleman has taken the trouble to read the leaflet put out by the "Daily Telegraph," containing not merely the bare figures but a much more careful account of how the analysis was taken and what people said. I will not delay the House with a lot of quotations, but let me read just one, which I hope will horrify hon. Members at least as much as it horrified me. One gentleman explains why he thought the change was wrong. I will read the paragraph: A very substantial group amongst those who disapprove the abolition thus do so from reasons of principle. The phrases 'an eye for an eye' and 'a life for a life,' etc. are recurrent. Religious reasons"— that is put in heavy type— merely emphasise the same principle as Christian doctrine. Then there follows this quotation from a man who is a N.A.A.F.I. club manager, aged 47: I think it's all wrong. He means the proposed change. I'm a Christian to all intents and purposes"— [Laughter.] I want to go on. The man's opinion must be respected. This is what he says: I'm a Christian to all intents and purposes and it's our creed that it's an eye for an eye and a tooth for a tooth, and we are going against our own religion by doing away with something that has been taught to us for donkey's years. [Laughter.] That is a representative opinion. I have not sought out one for its uniqueness or its peculiarity. The reasons given here are all of that calibre and of that kind. It is not this gentleman's fault. He never had the opportunity of listening to the careful Debate in this House. He never had the opportunity of hearing speaker after speaker, whether he was in favour of the abolition or against it, saying, "I do not believe in 'a life for a life' or 'an eye for an eye.' I do not believe that you can hang people merely for revenge." If he had had that opportunity he would have come to the same conclusion as the majority of this House came to, including quite a considerable number of hon. Members who do not sit on these benches—the whole of the Liberal Party, with one exception, and quite a number of Conservative Members, some of whom collaborated with us most usefully in the early preparation of the Clause and the organisation of the Debate.

It is really very wrong for the right hon. Gentleman to complain of it now. Let me say to him—he talks about being logical, rational and reasonable—[An HON. MEMBER: "Elementary."] Perhaps that is a good thing too. We are entitled to know what he really believes, whether he calls it logical or not, and I should like to know from him, if he were satisfied that the death penalty could be abolished without increasing the number of murders, whether he would wish to retain it?

Hon. Members


Mr. Churchill

It is a hypothetical question. I am quite sure that in the present state of affairs it would have been much better to leave matters where they were, as the Government proposed.

Mr. Silverman

Of course the right hon. Gentleman is entitled to say that he prefers not to answer and if he prefers not to answer, I will not press him, but at his time of life and with his length of membership of this House he must not think he can answer a question in that way and persuade anyone that he is doing anything but evade the question. I ask him again: In his opinion does the death penalty remain justifiable even where it is unnecessary for the protection of society, or is it only the protection of society that justifies it? This goes to the root of the question. We must make up our minds about this before we can begin to examine whether any proposals are right proposals, or not. Will the right hon. Gentleman tell us? I will repeat the question in case I was not understood, or was not heard. I am doing my best to make myself both audible and clear. I ask, does the right hon. Gentleman agree that the sole justification for retaining the death penalty is that if we have it there are fewer murders than if we do not have it? Is that right, or wrong?

Mr. Churchill

If I were assured that abolishing the death penalty would bring all murders to an end—[HON. MEMBERS: "No."]—I would certainly be in favour of that course.

Mr. Silverman

I should not have troubled to waste the time of the House in order to ask that question. Of course we would all be in favour of anything that abolished all murders. I ask the question again and perhaps we may get a plain answer some day.

Mr. Hogg

On a point of Order. I really do not want to prolong a discussion that may be out of Order, but it occurs to me that what we are discussing now is a proposed Government Clause which does not propose to abolish the death penalty but expressly proposes to retain it in certain cases. I submit that this elaborate inquisition as to whether or not my right hon. Friend would in certain circumstances be in favour of the abolition of the death penalty is no more in Order than if we were to discuss at length the whole of the various arguments we went into some two or three months ago. I should like your Ruling, Mr. Deputy-Speaker, because it may well affect the nature of what some of us want to say on this question. I should Ike your Ruling for our guidance as to how far we are entitled in this Debate on this Clause—and it is a matter of some difficulty to me—to reiterate the arguments in favour of or against the original Clause which we were discussing three months ago.

Mr. Deputy-Speaker (Mr. Hubert Beaumont)

If I have gathered rightly what the hon. Member has said, which was difficult owing to a certain amount of noise in the Chamber, I have not yet heard anything said by the hon. Member for Nelson and Colne (Mr. S. Silverman) which was out of Order.

Mr. Silverman

In case the question has been forgotten, may I perhaps repeat it? I should like to know from the Leader of the Opposition whether it is his view that even though the death penalty could be abolished without increasing the number of murders, it would still be right to retain it?

Mr. Churchill

Certainly I should not consider the grounds which the hon. Member advances as sufficient justification for altering the long-established custom.

Mr. Silverman

I still do not know what the right hon. Gentleman means. I am putting a perfectly plain question to him. I do not know whether the right hon. Gentleman is ever capable of a monosyllabic answer to anything, but it ought to be possible to give a monosyllabic answer to this. I am putting a perfectly plain question to him. [An HON. MEMBER: "It is a hypothetical question."] Certainly, it is hypothetical. We are dealing with the future. It is just as hypothetical to say that we cannot withdraw the death penalty without increasing murders as to say that we can withdraw it without increasing murders. But those are hypotheses we have to weigh, as best we can. We have to find an answer to them and I want to know what is the answer of the right hon. Gentleman. I ask, if he is satisfied, as so many countries have been satisfied, as the Royal Commission of this House was satisfied in 1930, that the death penalty is not necessary in order to protect society, that we could abolish it without affecting the rate, or the number, or the incidence of murders, or crimes of violence; if he agrees with all those countries and all those witnesses and with the Select Committee of this House, would he still think it right to retain the death penalty for some other reason?

An Hon. Member

He said "Yes."

Mrs. Middleton (Plymouth, Sutton)

"An eye for an eye."

Mr. Silverman

Does he say he would retain it, or not?

Mr. Churchill

The hon. Member has occupied 10 minutes—

Mr. Silverman

It is not my fault.

Mr. Churchill

—in asking the same hypothetical question of me across the Floor of the House. I have made my speech, and a very long one. I have certainly not any intention of taking up the time of the House in dealing with this hypothetical question. I should have thought that my position was very clear from what I have said, that it is a great mistake that the Government have made to disturb the practice which was going on when this Parliament came in.

Mr. Silverman

If the right hon. Gentleman was so careful of the time of the House, he could have conserved a great deal of it by answering in one word. He could have said "yes" or "no," but he does not say "yes" or "no," because he is not prepared to face up to the issues in the question. All he wants to do is to make a little capital out of a party political question so that it will make it easier for him when the quarrel with the Lords arises on other issues. He thinks he is on a good wicket and that because the gentleman who manages a N.A.A.F.I. thinks it is Christianity to have "an eye for an eye" it will make it easier for him, some day or other, to persuade the people of the country that the Lords are right and the Commons wrong on other issues. That is why he is not prepared to look at the question on its merits. I do not propose to press him further on the point.

Mr. Henderson Stewart (Fife, East)

Will the hon. Member give way?

Mr. Silverman

No, I will not.

Mr. Stewart

Why not?

Mr. Silverman

Because I do not want to take too long. But if the hon. Member wishes to put something to me I will give way.

Mr. Stewart

I think it would be helpful to the practical outcome of the Debate if the hon. Member addressed precisely the same question to the Government, as they are the persons who should answer it.

Mr. Silverman

I have already said that in my opinion the Government took the right attitude about this from the beginning and are taking the right attitude today. Their attitude was that on a matter of this kind it would be wrong for the Government to give a strong lead on policy or call upon the party loyalties of anybody. It was much better to leave it to a free vote of the House of Commons because that was the best way of ascertaining what instructed and careful and conscientious public opinion was and, having ascertained what that view was, then to adopt it and make it Government policy.

Mr. Henry Strauss (Combined English Universities)

This is another Clause.

Mr. Silverman

I know there is another Clause on the Order Paper. I can read too, and I will come to that. Up to the stage to which I have so far gone, the Government said: "Let the House of Commons decide it on a free vote of the House and then we will adopt it as our policy," and that they did. I contend that is right. What I complain of in the Opposition is that, being a party to the same arrangement, and having consented to it, then, being dissatisfied with the result, as some of my right hon. Friends were, they did not play the game, although the Government did play the game. Certainly. The Government undertook to adopt the result whether they agreed with it or not. The Opposition undertook to adopt the result whether they agreed with it or not. The Government carried out the bargain, the Opposition did not.

Now we come to what subsequently happened and the Amendment to that Clause which the Government are now proposing. All this falls in very well with what Government policy had been. When this Bill went to the House of Lords it was found that a large majority of them, especially those who never come to the House of Lords on any other matter or at any other time, were against this proposal. They found that their conscientious convictions would not allow them to remain at home on this question. They had to come along and vote for the retention of the gallows, as the right hon. Gentleman votes for the retention of the gallows.

Mr. Churchill

And as the hon. Member is going to do tonight.

Mr. Silverman

As I understand it, the right hon. Gentleman is going to vote for the gallows even where he does not believe it to be necessary.

Mr. Churchill

The hon. Member is going to vote for the gallows even though it is abhorrent to his conscience.

Mr. Silverman

I have not said what I am going to vote for yet. The right hon. Gentleman is presuming a little. I shall say in a moment what I am prepared to vote for, on what terms and why. At the moment, I am dealing with the question that was put to me about the Government's attitude.

Having heard from the House of Lords that there were crimes which were not in themselves more blameworthy than others but which, nevertheless, by their very nature, caused in the public mind a degree of revulsion which other crimes equally blameworthy did not, the Government have said, "We wish to restore Clause 1. We wish to try this experiment of suspending the death penalty for five years but we will, in deference to the opinions expressed by judges and bishops and others in another place, and to meet their criticisms and ease their anxieties, make a number of exceptions." I think that the exceptions to be found in the Schedule are precisely the exceptions to which speakers in the House of Lords Debate called attention, and for which they asked.

I read in "The Times" the other day a letter by Lord Simon in which he poured scorn on the inclusion in the Schedule of the systematic poisoner. I shall have a word to say about the systematic poisoner in a moment. I attended the House of Lords throughout the Debate, and I heard Lord Simon's speech, and unless I misheard the Debate I thought it was Lord Simon himself who called special attention to the horror in the public mind of the systematic poisoner and to how wrong it would be to exempt him from the death penalty. It is a little hard on the Home Secretary and the Government, whatever I might think about the proposal on the grounds of pure logical consistency, for a man to make a complaint, to level a criticism, to voice an anxiety, and then complain when it is met and use the fact that it has been met, as an argument for rejecting the compromise. That is equally true of every one of the things in the Schedule.

I said that I would say a word about the systematic poisoner. I do not think that there is any justification for the death penalty except deterrence. I think that its efficacy to prevent murders is its only justification. I think that of the people who are not likely to be deterred by the threat of the death penalty the systematic poisoner is the first. He is a systematic poisoner because he does not expect to be found out and the deterrent effect of the penalty has nothing to do with him. As a matter of fact, unless I am greatly mistaken there has not been a case in the courts of a systematic poisoner since the case of Mrs. Bryant in 1936. But this crime was put in the Schedule, and I understand why it was put in—because the public naturally feel an increased horror, as anyone would, as between a man who commits one act by which somebody dies and a man who, month by month, week by week, day by day, makes up his mind afresh to kill someone, makes a new intention to kill, commits a new fatal act. Of course people are horrified by that. If hon. Gentlemen say that we ought not to go too far ahead of public opinion, and if we are picking out the cases against which public opinion would most revolt, obviously the systematic poisoner is one.

Mr. Beverley Baxter (Wood Green)

Has it occurred to the hon. Gentleman that in the case of a systematic poisoner the would-be victim has a chance to grow suspicious after a few weeks that he or she is being poisoned and can leave home or seek advice? The immediate poisoner gives the victim no chance at all.

Mr. Silverman

In that case I imagine there never would be any systematic poisoning. It would be difficult to understand how people could do it, and, in fact, few people do.

The point I am making is that the principle on which these exceptions are founded, the quite understandable principle—I do not say defensible, that is another matter, but quite understandable principle—is that if we are trying to bring people along to accept things which we think they ought to accept, but which as yet they do not accept, we have to take account of matters which seem to them to be the hardest stumbling blocks, the greatest handicaps. We have to satisfy them on points of this kind. I would not do it myself. I am not pretending for a moment that this Clause can be defended on any rational or logical principle. Of course it cannot. If I say, as I have repeatedly said, that only the deterrent effect of the death penalty justifies its retention, I cannot distinguish between different kinds of murder. Certainly it cannot be done on any logical or rational basis or principle.

The whole case against Clause 1 as it left this House was, like the case being made against the Government, that it was too logical and too rational for public opinion. I know that there were people who did not think so, I quite accept that. I know that the hon. Member for Oxford (Mr. Hogg) and the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) and a great many others took the other view.

Mr. Boyd - Carpenter (Kingston-upon-Thames)

Would the hon. Member allow me to clear this point up? I did not have the good fortune in that Debate to catch Mr. Speaker's eye.

Mr. Silverman

The hon. Member did have the good fortune of delivering his judgment in the Division Lobby where, I understand, his vote was cast against the new Clause. I do not complain at all. The hon. Member always looks at a case fairly and squarely and makes up his mind on understandable grounds—I do not often agree with him, but that is by the way—and I know that he did that upon that occasion, and that he decided that the case for the suspension of the death penalty was not made out. He voted the other way, as he was entitled to do, and I make no complaint of that. I am saying that a great majority or, at any rate, a sizable and significant majority of the House of Commons decided otherwise.

Now the question is, what should those of us, who do not believe that this is a logical or rational Clause, do about it at this stage? I say at once that the right hon. Gentleman did correctly anticipate what I was going to do. I shall vote for this Amendment. I shall explain at once why. Because it is the only choice. The only choice that is left to this House is between more hangings and less hangings. If I had the opportunity of retaining Clause 1 as it stood, I should obviously prefer to retain it. On the first vote that Mr. Speaker will put from the Chair tonight, that we disagree with the Lords in their Amendment, I shall vote enthusiastically in support of the Government.

When it comes to the second vote I shall vote for them, but not enthusiastically. I shall then have to decide for myself, as a matter of conscience, whether I am entitled to preserve my own, shall we say, intellectual integrity, by voting against a compromise which I cannot rationally justify, and, by so doing, at least double the rate of executions between this date and the next opportunity that Parliament is likely to have—perhaps not for a generation—of dealing with this matter again. In those circumstances, though I do it reluctantly and with misgivings, I cannot feel that I have any option.

It was said by the right hon. Gentleman that this would make very little difference. He is mistaken. Those of us who have looked at the matter, not as a matter of party controversy, but as a matter of the penal code, will have looked at the actual cases over the past four years. So far as I can make out, of the 51 executions that have taken place in the past four years under the existing code, in 28 there would have been no capital sentence at all, had this compromise Clause been the law.

But that is not the whole of the story, because the Clause does one thing which I thought everybody would have agreed to. I am sorry to see that the hon. Member for Oxford (Mr. Hogg) has an Amendment down on this specific point. I should have thought that nobody in this House would wish that a man should be hanged on the gallows for a murder he never intended to commit. Is there really anybody who wants people to be executed, at this time of day, in this country, for murders that there was never any intention of committing at all?

I say that if that particular part of the Clause had been the law during the past four years, then it is very doubtful how many capital convictions there would have been in the other 23 cases. If we apply that yard-stick, not to the abnormal period of the past three or four years, but to the period more nearly approaching normality of the 20 years between the wars, I think it is quite safe to say that had this Clause been the law, the number of executions would have been reduced by two-thirds or more. As a matter of conscience, whether I am to vote for that Clause which will reduce the number of executions in normal periods by two-thirds, and begin to reduce them now, or whether I am not, again I do not know what others will do, but I shall vote for reducing where I cannot vote for abolishing.

May I say one word to the hon. Member for Heywood and Radcliffe (Mr. Anthony Greenwood)? He has an Amendment on the Order Paper which you, Mr. Speaker, said could be referred to in the course of this discussion. He wishes to retain Clause r, subject only to the modification that it shall not come into operation until the Home Secretary desires. All I can say about that is that if that had been offered to me by the Government as a compromise I should have rejected it. I say to hon. Members on this side who feel so strongly on this matter, as I do myself, that it is not enough to have a demonstration on the statute book. What we want to do is to stop hangings, and to begin now.

We are doing that if we pass this Clause. We are not abolishing all hangings now, but two-thirds of them, and we are beginning at once. Under my hon. Friend's Clause the hangings would go on until there came a time when some Home Secretary felt that he was entitled to do, on his own initiative, what Parliament had not the courage to do. I say that that is a burden that this House has no right to place on the shoulders of one man. It is hard enough to decide in individual cases whether executions shall be carried out or not. To ask a single individual to carry out what can only decently be carried out by an Act of the Legislature, is to ask of that man more than any man should be asked to do. It is laying upon his conscience a burden that no individual can bear.

Mr. Anthony Greenwood

Would not my hon. Friend agree that on capital punishment, the Government are indivisible?

Mr. Silverman

I do not know. I do not think they are. On the matter of reprieve, as I understand it the Cabinet have nothing to do with it at all. I know that my hon. Friend might say it would not be one man who decided whether it should become operative or not, that that is only nominally in the Clause, and that the Cabinet of the day would have to decide. That reduces the strength of my argument to some slight extent, but not very much. If I understand the argument, logically, we would have to say, "It is not the Home Secretary at all, but the Cabinet; and it is not the Cabinet at all, because it is the party that supports the Cabinet." And so we are back to the House of Commons which is to decide it. And if the House has to decide it, then decide it now—why wait? That is the argument I would advance on that matter.

I think there is something in the criticism of the Government on the ground that they appear, in the House and in the country, to have changed their minds several times. I think I know why they did, and I have said something about that already. I do not complain of it, but I do say to my right hon. Friends on the Front Bench that if they call upon those of us who carried this Clause to abandon some part of what we achieved by it, as part of a compromise and part of an attempt to deal with a difficult political situation, then at least it ought to be quite clear that that is the last concession that anybody is to be asked to make on this subject.

I shall vote for this Clause, and advise my friends to do so, only on the clear understanding and confidence that the Government, having persuaded us to abandon some part of what has been achieved, and having got, as I am sure they will get, the overwhelming majority of support of the House of Commons for this compromise, will, in another place, whoever may oppose them and whatever the difficulties, insist that at last the House of Commons on this matter shall have its way.

6.40 p.m.

Mr. Boyd-Carpenter (Kingston-upon-Thames)

It was in the latter stages of his speech, which at some stages appeared to suggest an attempt to talk out this Measure, that the hon. Member for Nelson and Colne (Mr. S. Silverman) desisted from his attempts to give the House the views of hon. and right hon. Members other than himself, and came down to the more material consideration of the attitude which he was himself going to adopt in this matter. It was just as well that he did, because I fully understand the great difficulty in which the hon. Member for Nelson and Colne finds himself, and which is no doubt the explanation of the lengthy, but, I am glad to say, ultimately successful wrestle with his conscience in which he has just been indulging.

On the previous occasion the hon. Member for Nelson and Colne committed himself very fully on this matter. The hon. Gentleman said: It was, I think, Lord Sumner, who once said—and I think that this is one of the cardinal factors in the controversy—that until human judgment is infallible, we have no right to inflict an irrevocable penalty."—[OFFICIAL REPORT, 14th April, 1948; Vol. 449, c. 9818.] As the hon. Member for Nelson and Colne has been arguing this afternoon for an intention to vote in favour of an irrevocable penalty, I think it would have been just as well if the hon. Gentleman had spent a little more time discussing, and indeed justifying, his own attitude than in attempting to cross-examine my right hon. Friend the Leader of the Opposition in a manner rather reminiscent of a provincial police court. The hon. Gentleman must face up to a very serious matter—as must many of his hon. Friends—and it is just no use his attempting to divert attention from that grave difficulty in which he finds himself by going into all sorts of subsidiary arguments.

Mr. S. Silverman

I do not know what the hon. Gentleman calls a subsidiary argument. I rather thought that I had made my position perfectly plain. What I was saying was that I still believe what the hon. Gentleman quoted. I think that we ought tnot to inflict an irrevocable penalty. I am against it. If there is any way of ending this irrevocable penalty altogether. I should be for it. The vote tonight will give me one opportunity to say so, and I shall take it, but after that I am left with the choice of voting for more hangings or less hangings, and I shall vote for less hangings. Does the hon. Member wish me to vote for more?

Mr. Boyd-Carpenter

The hon. Gentleman has simply repeated the concluding passages of his speech. I referred to his subsidiary arguments and he challenged that phrase. I am perfectly willing to withdraw the word "argument." They were certainly subsidiary, but they were not arguments. In particular, there was that amazing parody of Lord Simon. Apparently the hon. Member for Nelson and Colne takes the attitude that when a noble Lord in another place draws attention to the evil of permitting a systematic poisoner to go free, that implies an acceptance by that noble Lord of the desirability of allowing what I might term a once-for-all poisoner to go free. That appears to be his argument and it need only be repeated for its fallacy to be demonstrated. Except perhaps for the hon. Member for Nelson and Colne, most hon. Members and noble Lords put a limit of time on their speeches. Therefore, they can only draw attention to the more conspicuous evils of the matter. It really is the most arrant nonsense for the hon. Member for Nelson and Colne to try to ride off on these subsidiary matters.

I challenge him only on one further point. He said, not once but several times, that the Opposition had undertaken to accept the result of the vote on 14th April. I should be very grateful if the hon. Member, to refresh at any rate my mind, would tell me when, in what words, and through whose mouth that undertaking was given. So far as my recollection is concerned, it is perfectly accurate to say that the Home Secretary gave such an undertaking on behalf of the Government. I make no comment on that. But I have no recollection—and perhaps the hon. Member has now had time to turn up the reference—of any official undertaking on behalf of His Majesty's Opposition to accept the result of a vote which was not taken on party lines at all but on which, as it so happened, a great majority of His Majesty's Opposition voted for the retention of capital punishment.

Mr. S. Silverman

If I went too far, I shall be very happy to withdraw and to express my regrets for having done so. My authority for my statement is this: when the Home Secretary announced the decision of the Government, he was, unless my recollection is at fault, followed by the right hon. Member for North Leeds (Mr. Peake), who said that he thought that the proposal of the Home Secretary was an admirable one, that for the Opposition he accepted it and that on his side, too, the Whips would not be put on because he thought that this was the proper way of dealing with the matter. I am afraid that I was bold enough to infer that if a man thinks that a certain course is the proper way of dealing with a matter he accepts it, but, of course, if he thought it was the proper way of dealing with it but wished to reserve the right not to accept it, I suppose he would be within his rights.

Mr. Boyd-Carpenter

That is really the most fantastic argument. The hon. Member is saying that if one accepts a certain procedure as the right procedure to follow on a particular occasion one is to be bound forever after by the result of adopting that procedure.

Mr. S. Silverman


Mr. Boyd-Carpenter

No, I will not give way again. That is precisely what the hon. Gentleman is saying. What I asked him for—and he has not attempted to answer—was any statement made on behalf of His Majesty's Opposition that they would accept the result of the vote on 14th April. Any amount of comment on what my right hon. Friend may have said about the procedure to be followed on 14th April is really quite beside the point. I stress this matter because the hon. Member for Nelson and Come attacked my right hon. Friend the Leader of the Opposition at great length on precisely the ground that he was suggesting that my right hon. Friend had backed down from an undertaking. When I asked what the undertaking was and when it was given, all the hon. Gentleman did was to go into certain irrelevant observations made before the decision was taken on 14th April and at a time, therefore, when no hon. Member knew what that decision would be. [Laughter.] The hon. Gentleman laughs, but how could there have been any such undertaking? I will ask him once more to give the reference in HANSARD of the statement made on behalf of His Majesty's Opposition that we accepted the decision that capital punishment be abolished.

Mr. S. Silverman

I will do my best for the hon. Gentleman, as I have done. I cannot think that the right hon. Member for North Leeds (Mr. Peake) will thank him for what he is now doing. I repeat that if one says that what the Government propose is the proper way of reaching a decision, nearly everybody except the hon. Member will imply that one will accept the decision. It is irrelevant to say that one did not know at that time what the result would be. It is like going to court and saying, "I will accept the judgment of the court provided it is in my favour." Of course, none of us knew what the decision would be. We all accepted the proposal of the Government to test it out and abide by the result, and I think that the right hon. Gentleman who accepted the proposal intended it to be so understood.

Mr. Boyd-Carpenter

The hon. Gentleman has simply repeated what he said before, and that is a frank admission that no undertaking whatever was given to accept that result or to abide by it.

The very fact that we are holding this Debate is a considerable tribute to this House and to this country. It is really remarkable that at a time when millions of men are in grave danger, at a time when persecution and ill-treatment are to be seen all over the world, this House of Commons should solemnly be debating whether or not ten or eleven people a year—all of them people for whose crimes, as the Home Secretary said, there has been no possible excuse—should or should not be hanged. It is a remarkable tribute to this House and to the humanity of the British people that we should be seriously concerned about that at this moment. It is a matter upon which it is right that every one of us should seek to add such contribution as we feel it in our power and our experience to add.

I cannot claim the experience of the legal profession and of the courts which many of my hon. and learned Friends and hon. and learned Gentlemen opposite can claim, but I can claim one item of experience which perhaps is a little rare. It has not fallen to me to appear as counsel very often in cases of this type, but it has fallen to me to impose capital penalties. As president of military courts in Italy towards the end of the war, a very considerable responsibility fell upon me—a heavier responsibility than that which falls upon His Majesty's judges in this country, since my colleagues and I had a discretion in all such cases as to whether we did or did not impose the capital penalty.

The difficulty was made the more trying by the fact that the people with whom we were dealing were, generally, people for whom, as men, we could not but feel the highest admiration. They were not the misanthropic misfits and ill-adapted persons to be found in the criminal courts of this country. They were mainly people who had run great risks in support of the cause in which they believed, and I recollect at this moment, the sergeant-major of the Italian parachutists from the North, whom it fell to my lot to sentence to death at Bari in September, 1944, who took the supreme sentence with a dignified bow to the court and died with the words "Viva Italia Fascista" on his lips. We were dealing with people for whom we had the profoundest regard.

When I say that I support, in general, the present state of the law in this country, I am therefore not in any comfortable ignorance of the strain imposed on those who have to deal with these matters. I think it is right to say that, because there has been much ill-informed discussion obscuring the facts as to what that responsibility is; but the fact is that, while it is a responsibility which no person of sensibility undertakes without a good deal of discomfort, it is not one that is beyond ordinary human capacity to undertake, and I feel that there was a little unnecessary extravagance in the rhetoric of the learned Attorney-General's concluding passage when he sought, on somewhat emotional grounds, to confuse this issue. It seems to me that his peroration would have been far more appropriate to the support of a Motion to abolish capital punishment than to this Motion.

For we are not mainly concerned tonight with the question of capital punishment or no capital punishment; nor are we concerned, as the learned Attorney-General suggested, with the question whether it is necessary for as many people as at present to go to the gallows. That is not the issue. The issue is whether the Clause which the Attorney-General is putting forward on behalf of the Government does or does not amount to an improvement of our English law. That is the practical issue which he seemed to confuse, both by his rhetoric and the somewhat misleading observation to which I have just referred.

If one looks at this Clause, one sees that it fails, as I believe any such attempt must fail, in its purpose. It is an attempt to compromise between those people like the hon. Member for Norwich (Mr. J. Paton), who believe that capital punishment is a foul thing, unjustified in any circumstances whatever, and those who believe that it is a useful and powerful deterrent. I do not believe that a compromise between those two fundamentally opposed points of view is possible. On 14th April, the hon. Member for Norwich—whose patent and manifest sincerity we all respect—said: I believe capital punishment is a foul thing. I believe it to be an unmitigated evil in our community, a centre of pollution sending out constantly-spreading ripples throughout our whole community."—[OFFICIAL REPORT, 14th April, 1948; Vol. 499, c. 1014.] The hon. Member for Central Leeds (Mr. G. Porter) said in the same Debate: … I feel that the actual carrying out of the penalty of hanging is a crime against humanity and a crime against the social conscience of the whole nation."—[OFFICIAL REPORT, 14th April, 1948; Vol. 449, c. 1053.] One cannot compromise between that attitude, which everybody respects, whether one accepts it or not, and the attitude of those who say that this deterrent must be maintained. All that the Attorney-General has apparently sought to do has been to retain capital punishment in those cases in which public opinion is perhaps a trifle inflamed and to get rid of it in others. It seems to me to be an untenable compromise. The Attorney-General refused to face up to a perfectly straight moral issue. The moral issue which has faced civilised communities for centuries is whether they are entitled to kill or not. If we come down on the side of those who say, with great reluctance and regret, that it is necessary for the State to take the power to kill in order to protect the community, it is essential to provide that the penalty shall be imposed intelligently and efficiently and not merely in a manner which appeals to the whims of public opinion.

If one looks at this Clause, one sees the complete inconsistency of it, and of the principle claimed in its support. What is the justification for differentiating between the systematic poisoner and the once-and-for-all poisoner? The Attorney-General referred to cases of suicide. It is perfecty true that the suicide pact is sometimes undertaken by poison, but is very often undertaken by the use of the gas oven. It really is carrying the matter to the point of the ludicrous to say that, if one gives a sufficient dose on the first occasion to kill, one will survive, but that, if one under-estimates the dose on the first occasion and has to give a second, one will be liable to be hanged.

There is also the inevitable practical difficulty of administering the provisions in each system. Let me take by way of illustration a case which has already been referred to—the case of the steward on the Union Castle liner who, after murdering a girl passenger, pushed her body through a porthole into the shark-infested seas. I do not believe it would be possible under this Clause to convict that man of what is now called first degree murder. It is true that one could allege that one of the other offences mentioned in the Schedule had been committed on the body of this girl, but one could not prove that. The body of the girl was in the ocean. There was no conceivable evidence, not a scrap of evidence of that other offence, and therefore we would have had this horrible crime, in its way one of the most ghastly in recent years, apparently treated under this Clause as second degree murder, or, as the Attorney-General puts it, of a less heinous character.

The more one looks at this Clause, the more one is forced to realise its inadequacy for the purpose for which it was designed. It is not sufficient to make it a capital offence for a man who shoots his way out of a robbery. Are we not making it all the more important for a man, if he shoots at all, to shoot sufficiently effectively in order to secure that there is no evidence of that robbery and that the witness's mouth shall be closed? Are we not involving ourselves in all these complex technicalities for no reasonable purpose whatever?

The Home Secretary, on 14th April, gave a most impressive description of the actual working of the present system, and he made it abundantly clear to anyone who is prepared to listen to reasoned argument that, in fact, the death penalty was only imposed, as he put it, in cases where there was no possible excuse for the crime. That is the system as it has been evolved in this country over a number of years. Is it not retrogressive to proceed from that flexible, efficient and humane administration of the law to a system in which we surround these difficult questions with a maze of abstruse legal technicalities, some of which may be overcome by the ingenuity of the judiciary, but all of which serve merely to confuse the issue in the minds of the people of this country and indeed in the minds of prospective criminals themselves?

That, surely, is the issue before us at the moment. It is not whether we should kill or not; it is simply whether we should kill by law if we satisfy certain elaborate conditions, or whether we should kill by law where a Home Secretary of experience, aided by experienced and humane-minded officials, decides that it is right to carry out the penalty. I am not saying that everything is perfect. I hold views in favour of many reforms, not the least of which is as to the actual method of execution. I think that hanging is an archaic, horrific, and degrading method of execution; I believe there are cleaner, less trying, less painful methods which modern science has evolved, but, of course, I should be out of Order if I pursued that matter further.

On this point, while supporting the existence of the present law, I am not excluding the possibility of appropriate action, but we are at the moment concerned with the Government's Clause. That Clause is itself an attempt to compromise between every irreconcilable point of view. It is the result of an ill-matched union; it is clumsy, ill-drafted and will cause difficulties in the courts. It will diminish the deterrent effect of having the death penalty on the Statute Book, and will please nobody in this country except, perhaps, a very small class—those who intend to commit the crime of murder.

7.2 p.m.

Mr. John Paton (Norwich)

I do not wish to detain the House too long because I explained my view on this subject very fully on the first occasion on which we debated it. Therefore, I do not propose to attempt to cover a great deal of the ground that has already been covered by previous speakers. For instance, I do not propose to attempt to enter into the completely futile and irrelevant controversy as to who was right and who was wrong in the matter of the free vote on the last occasion. What in Heaven's name that has to do with the question now before us I just do not know. There was a whole series of utter irrelevancies in the speech of the right hon. Member for Woodford (Mr. Churchill), but, again, I do not wish to follow him into the realm of irrelevance; I want to get to the things which I feel I ought to say.

I must confess to the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) that I am wrestling with a conscience. I thought I detected a cynical sneer in the hon. Member's remark that my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) was wrestling with his conscience. I do not know whether the sneer was forthcoming because my hon. Friend was the possessor of a conscience, or just because he was wrestling with it. I am going to confess that I have been having a wrestle with what I believe is my conscience, and in saying that, of course, I am quite prepared to endure the sneers of hon. Members opposite.

I am in a position of very great difficulty and perplexity, and I frankly confess it. I stand tonight exactly where I stood on 14th April. I stand by the words I then uttered, quoted by the hon. Member for Kingston-upon-Thames, that the death penalty is a foul thing. It was because I thought that on 14th April that I spoke and voted as I did. Nothing has happened since which has changed my point of view. All the subsequent happenings and the adverse decision in another place have not made me change my mind. Indeed, when did another place at any time in the last 100 years ever do anything but throw out the successive stages in the humanisation of our penal code? The action of the other place was precisely what I expected it would be.

We have had a clamour from our less responsible newspapers. I anticipated that. When did they ever do anything else but clamour about the crime of murder? We have had the Gallup Polls of ill-informed public opinion upon which certain hon. Members tend to base their attitude in this House. All these things I expected; all of them I was prepared for, but they have not changed by one jot or tittle the opinion which I held on 14th April about the evil associated with the practice of capital punishment by a modern State.

In my view, the case that was made here for abolition stands completely unchanged and unweakened. The position I am in tonight is not that I am given a choice, once again, of voting for abolition or for the maintenance of the status quo. That is not the issue at all. The issue that I have to face tonight, and about which I have to make up my mind, as have other hon. Members who think as I do, is not the simple uncomplicated issue for or against capital punishment. The issue has completely changed. I profoundly regret the change, but nothing that I can now do can alter the fact that the change has been made. The Government have made a decision and have made it plain to this House that they are proposing to stand by the Clause. If that Clause is accepted by the House, they are prepared to insert it in the Bill, and to back it in another place with all the force and power at their disposal.

But the Government have made absolutely plain—altogether too plain for my liking—that they will not stand behind a proposal to re-insert the original Clause. Therefore, I have to make up my mind whether or not I can tonight support a Clause which permits hanging to be continued. That, of course, is how it appears to many people. Am I, who am a convinced abolitionist and who believes capital punishment to be an unmitigated evil, to agree by my vote tonight with a limited form of capital punishment being permitted to continue? That is the issue now.

My hon. Friend the Member for Heywood and Radcliffe (Mr. Anthony Greenwood) has an Amendment on the Order Paper which, of course, as a Member of this House, he is perfectly entitled to put down, and to which he will speak. I wish to assure him in advance, however, that he will be completely wasting his time, and that the only thing which is before the House, and which will be determined in the Debate and the Vote tonight, is whether or not we propose to retain capital punishment in all its former glory, or whether we are now going to prune and limit it in an effective way. That is the issue as I see it, and that is why I have very reluctantly decided that I am not going to sit in my place tonight ostentatiously abstaining.

I am going to take the responsibility of the decision at which I have arrived, and I shall go into the Lobby in support of this Clause. I shall do so knowing that if this Clause is put upon the Statute Book, although it will, of course, continue a practice which I believe to be evil, it will, nevertheless, abridge and limit that practice in an extremely important and valuable way. Who am I to say that, because I cannot get rid of the evil all at once, I am not going to look at any possibility of limiting the evil? Because under the present system of the operation of capital punishment, for four years an average of nearly 13 men a year were hanged, whereas under the new Clause if it had been in operation over the same period an average of only a little over five a year would have been hanged, who am I to say that, because my conscience is so tender, I shall allow the other eight men on an average to hang every year rather than go into the Lobby in an attempt to stop it? I have no hesitation, therefore, in advising my hon. Friends who take my point of view that it is a wise and sensible thing in the situation in which we find ourselves, with the choice that is now presented, to go into the Lobby tonight, and let us have, so far as we can, a united support behind the Government for even this half-measure which is put before us.

There are one or two other things that I want to say about the Clause itself. It is easy to ridicule a Clause like this on the score of illogicality, but that same case of illogicality—the ridicule that can be applied on grounds of illogicality—can be applied in the operation of the present law relating to murder. Every criminal lawyer in this House, as well as everybody who has studied this question, knows perfectly well of the cases in which an accused man was fortunate in his jury and sometimes even fortunate in his judge.

All of us could cite case after case in which one man went to the gallows and another went to penal servitude for life for precisely similar crimes. These things cannot be defended on grounds of logic. Practically every part of our criminal law is shot through with illogicality. Who can defend the illogicality, for instance, of the law with regard to larceny? If I steal £10,000 by simple larceny the maximum punishment that can be inflicted upon me is five years' imprisonment, but if I steal 2s. 6d. from the pocket of one of my hon. Friends here by larceny from the person, I can be given a maximum sentence of 14 years.

Fortunately, of course, as everybody knows, our judges limit the possibility of error arising from absurdities of that kind, but it should be noted by hon. Members that these illogicalities exist in as great measure as they do with reference to the Clause under discussion. Let us remember further that it is solely with regard to the punishment of this crime of murder that error caused by illogicality cannot be limited by the discrimination of judges, because once a verdict of wilful murder is found in a court no judge can do any other than sentence the culprit to death, although all of us know that the degrees of culpability and responsibility with regard to the various crimes of murder are almost infinite. Therefore, this question of the illogicality of the Clause or its Subsections does not worry me over much, since it is in keeping with so much that goes on already.

I have already spoken a little longer than I intended. I want to finish by saying more or less what I began with. As I said, I believe that this capital punishment is an evil thing. I think it is an abhorrent punishment, and I am perfectly sure that the right hon. Member for the Scottish Universities (Sir J. Anderson) would never seek to challenge that statement. It is a loathsome and horrible thing for a civilised State to contemplate punishment of this kind and see it put into operation. I believe that to be true. I think, as a matter of fact, that a civilised State, having true regard for its standards of social conduct, should not dare to operate a punishment of this kind which I believe is positively evil.

I am fortified in that view by a quotation which I think I ought to give to the House, because it is a quotation of very high importance and expresses a point of view with regard to these matters in language of wisdom and sentiment so noble in character that I should like to enshrine it once again in the records of this House where it was first uttered many years ago. The words which I am going to quote were uttered by the right hon. Gentleman the Member for Woodford in a Home Office Debate in 1910. This is what he said: The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm and dispassionate recognition of the rights of the accused against the State, and even of convicted criminals against the State, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate in the world of industry all those who have paid their dues in the hard coinage of punishment, tireless efforts towards the discovery of creative and regenerative processes, and an unaltering faith that there is a treasure, if only you can find it, in the heart of every man—these are the symbols which in the treatment of crime and criminals mark and measure the stored up strength of a nation, and are the sign and poof of the living virtue in it There are wise words and noble sentiments, and it is with these thoughts in one's mind that I think we ought to approach this problem. It is because I knew of these sentiments uttered by the right hon. Gentleman that I listened today with real regret to the speech with which he opened the Debate for the Opposition. I thought it was a deplorable speech, and I much preferred the young and sober Philip of 1910 to the not so young and not so sober Philip that we heard in his speech today. I think the reply to the speech he made today was contained in that quotation which I have read to the House. It is in that spirit and with these thoughts in mind that I regard even this new Clause, with all its imperfections, as at least a considerable step in the right direction, and I shall go into the Lobby in support of it this evening.

7.18 p.m.

Viscountess Davidson (Hemel Hempstead)

It is always with very great interest that I listen to the speeches of the Attorney-General, but I must say that I resented very much some of the words in his speech. We do not bring politics into a question such as this, and we certainly do not bring politics into a question affecting the lives of men and women—a question of whether they die or live. The right hon. and learned Gentleman knows perfectly well that in the Standing Committee no politics were brought into the discussion. We are all speaking and acting today as we have done all through the Debates on this question—according to our own consciences.

Those of us who had the privilege of sitting in both the Standing Committees—one before the war and one since the war—are extremely anxious to see this Bill on the statute book. We believe that there are great possibilities when once this Bill becomes law. I am thinking particularly of how it affects children and young persons. We are very hopeful that once this Bill becomes law, the handling of young children and young persons will be a great deal wiser in the future than it has been in the past. We hope that by that means we may see growing up a different type of citizen who will not make the criminal of the future. But that will take a long time. The Bill has not become law, and when it has become law, it will be a long time before we are able to recruit sufficient specialised persons to handle these young people and obtain sufficient suitable accommodation. That is a long-term policy.

Perhaps in the future, perhaps even in our lifetime, it may be possible that we shall all be in favour of the abolition of capital punishment because the new type of treatment given to the young offenders under this Bill will be showing results, but at the moment we are dealing with the immediate problem. As the law stands today, is the public safeguarded or not, and if capital punishment is abolished, will the public suffer?

I voted in favour of the retention of capital punishment. It is not that I want to see men or women hanged—certainly not—but I believe it acts as a deterrent. That is the reason why I voted as I did. As a Member of the Standing Committees and in other discussions, I have been very much impressed with the humanity of those who administer the law. It is not the case that those who administer the law want to administer it in a brutal fashion—far from it. Under the existing law every criminal has a fair chance of reprieve.

I do not, however, like this compromise. I am convinced that the country will not benefit by it. I am sure that the majority of those who disagree with me are absolutely sincere but when I was sitting in the Standing Committee I was worried by the lack of balance which appeared in their speeches and in their attitude of mind. That lack of balance was shown by the fact that, again and again, one felt they did not appreciate that the welfare of the 46 million citizens of this country who are not criminals was of far greater importance than the welfare of those who have committed a crime. Surely our responsibility is towards those who, after all, I am thankful to say, form the very large proportion of the population—those who have kept the law and are law-abiding citizens of the State.

We all have a very profound admiration for the Home Secretary, and when he spoke in Committee and on the Floor of this House we listened with attention. I know that he is absolutely sincere in his beliefs. I know that before the war, when we sat in that Standing Committee, he was in favour of the abolition of capital punishment, but I could not understand, having listened to his very fervent speech and heard his views on many occasions, why others who listened to him would not follow his advice when on the Floor of the House, he advocated the retention of capital punishment. I understood that he was expressing the view of the majority of the Cabinet and that he considered that, with the growing figures of crime and the serious deterioration that has taken place in the morals of the country, this was not the right moment to do away with capital punishment. After he had spoken I felt sure we would see the large majority of those sitting behind him take his advice and follow him into the Lobby.

I rather thought that after what had happened in another place, after hearing the views expressed there, the Home Secretary would say to the House of Commons, "They have adopted the same attitude as I have adopted myself; the majority there believe—and I am certain it is the opinion of the bulk of the people in the country—that this is not the moment to remove capital punishment." I thought, therefore, he would advise the House to stand by the opinion expressed in another place. Unfortunately, we have become rather accustomed to witnessing weakness on the part of His Majesty's Government. We are becoming very accustomed to Ministers expressing views and then changing their minds when supporters behind them express different opinions. But I do not believe we have ever witnessed such an example of weakness as we have seen on this occasion.

I have the greatest respect for hon. Members who do not believe in capital punishment and stand by their opinions. This is a moral issue. Some of us believe that it is better to retain capital punishment for the sake of the safety of the public. Some, I know, believe sincerely that that attitude is wrong. I quite understand those who hold those views voting in favour of doing away with capital punishment and I respect them, but I cannot understand, and I do not respect those who, holding those views, propose today to vote for a compromise in which capital punishment is to be retained in part. I ventured to make a few remarks on the Second Reading of the Bill and, because I did so, I do not want to repeat those remarks tonight, but I see no reason to alter my decision. I intend, therefore, to vote against the Government tonight.

7.27 p.m.

Mr. T. J. Brooks (Rothwell)

We have listened to a great deal of eloquence tonight on this question of hanging, and I personally agree with the sentiments which have been expressed that murder is a crime against humanity. I would also say that hanging is a crime against humanity. I hope my remarks will not be misunderstood if I dwell a little on the spiritual side of this matter, because I am very sincere in what I am about to say.

Life is sacred. We have not the power to create it artificially, still less is it ours to take away. War-time expedients are no criterion for judging this matter; clearly, a man must fight for his life even unto death, but that is a far cry from deciding an issue in a court of justice in time of peace. The foulness of the crime may be established, but will a second death put it right? Will it bring back the victim to life? Will it compensate his kith and kin? Will it do anything desirable, save close a sordid chapter in his life? It will not even do that, for by capital punishment we settle nothing. All we do is to cast adrift in some other world another of the failures of this life.

Can two wrongs make a right? Murder is always impassioned, insane, revolting; clearly those who perpetrate it are unbalanced. They have lost for the time being the hold on their passions, allowed their emotions to get out of hand. But they are our responsibility, socially and morally. Learned counsel may seek to probe their motives. Judges may adumbrate on the enormity of their lust, but can the whole transaction be written off with the barbaric rites of the gallows? Unfortunately, there are still people to whom this world is the whole reality. To such, capital punishment must appear and offer a simple and sensible solution.

After all the arguments that have been heard in the House today, one question will still be decisive: Is human life sacred? Is it immortal? Is there a beyond? We cannot morally thrust our misfits precipitately into this other life. There is no way of washing our hands of them. Can the murderer get away from his victim? I submit that there is no escape. We ourselves here cannot get away from ourselves, go as high as we like or as low as we like. I repeat, the murderer cannot shake off his victim. If we want really to punish him, as has been said today, put him by himself, for conscience makes cowards of us all. Are not most of our mental patients in our institutions today suffering merely from obsession? That is a consideration that we ought to think of seriously.

I have often wondered why the bishops and our spiritual leaders in this country did not lead a crusade years ago against capital punishment. Is there no hope for the lost sheep? Apparently not. We must get rid of them. They are two or three, perhaps, in a million. We are still hearing the doctrine of "an eye for an eye and a tooth for a tooth." But the very basis, the very principle of every religion throughout the world is immortality. How can we account for the attitude of the spiritual leaders? Are they giving us a religion that is really unrelated to life?

Another argument of which much has been made is that the time for the reform is not opportune—that the time is not opportune for the abolition of the death penalty. But time has never been opportune for any reform, and that would not be denied by any of the hon. and right hon. Gentlemen on the Front Bench. I should like to quote an extract from "The Times," which, in November last, commenting on the absence of any provision in the Bill to deal with the question of capital punishment said: The profound philosophical and theological principles that compel some consciences to stand out uncompromisingly on one side or the other are difficult to debate in Parliament. On the plane of politics, Parliament can scarcely do other than think in terms of high expediency, and ask whether, by the retention or the abolitiion of the gallows, it is most likely to diminish the frequency of violent death. It is fair, however, to impose the burden of proof on those who would retain it. Capital punishment is so repulsive that no civilised people would continue it unless convinced that there is no other means of protecting life. Moreover, the morbid sensationalism that surrounds the execution of the penalty is not only a most unhealthy social influence, but may actually deflect towards violence that self-dramatising vanity which so many murderers have been observed to display, Any debate will and should turn mainly upon an unbiased examination of the abundant evidence which may now be found in the comparative experience of countries, of like social conditions, which have or have not dispensed with the death penalty. Each side can make out a case, and, no doubt, both will be heard at considerable length; but it may be remarked at the outset that the majority decision among European and American States already supports the less drastic policy. There is no evidence that countries that have adopted abolition are worse because they have abolished capital punishment. What proof have we that hanging anywhere in the world has been a deterrent?

The Criminal Justice Bill has been framed to treat the mind, particularly of our young people. We are to have better trained probation officers. They are to be appointed to guide and direct our young people of today. We are to have full and complete reforms of prison life. Flogging has to be abolished. Rehabilitation is the new order, and over the horizon there is a new outlook on life. But not for the murderer. He, it appears to be thought, is too far gone for any help or reform physically or spiritually. The House of Commons has decided to abolish capital punishment for a trial period of five years, but some bishops and law lords have said, "No." We are asked to obey their decision. The Government, in spite of the decision of this House, are asking now for a compromise to appease the hangman. I am reminded that Joan of Arc was burned at the stake as a witch, but that she was recognised by the Church after 500 years as a saint. How long are we going to employ the hangman?

If the executions were done in the open instead of behind closed gates, the public conscience would soon do away with this ancient practice. While we fully appreciate the reforms contained in the Bill, the major issue is still in doubt. Some of us are torn between two loyalities, loyalty to conscience and loyalty to the Government. I think it was Pope who said: All are but parts of one stupendous whole, Whose body Nature is, and God the soul. If we could enter into that philosophy we should appreciate more and more the sanctity of human life.

7.38 p.m.

Mr. Derek Walker-Smith (Hertford)

It must be a matter of some gratification to the Patronage Secretary that, by happy coincidence, the conscientious resolve of hon. Members opposite who voted for the suspension of the death penalty is tonight in accord with dictates of the Government Whip. To me, I must confess, public references to one's conscience are somewhat distasteful. However, I do fully accept the position as laid down for so many years that a Member of Parliament owes to the House and to his constituents the exercise of his judgment. Therefore, I must start by saying that the exercise of my judgment in this case does not enable me wholly to associate myself with the line recommended by my hon. and right hon. Friends.

I speak as one of those who on 14th April voted for the suspension of the death penalty for an experimental period. My position is rather different from that of, for example, the hon. Member for Norwich (Mr. J. Paton), in that I am not what he calls a "convinced abolitionist" who believes on religious grounds that it is wrong ever to forfeit life in that way. I cast my vote as one who sincerely believes that the natural march of human progress must, within a measurable distance of time, include this step; and it was in that conviction that I cast my vote that night.

We have had reference tonight, and rightly so, to the position arrived at since then as a result of the expression of public opinion. I agree that public opinion, so far as it is ascertainable, was against the decision that we came to that night. Of course, it is difficult, as the hon. Member for Nelson and Colne (Mr. S. Silverman) pointed out, to assess the exact force of public opinion on any issue; but, broadly speaking, I accept the position that public opinion was against that decision. Not that that means that that decision was wrong or that those who voted in favour of it were wrong. Social and legal reforms have to be judged not by the popular opinion of the day but by the popular opinion of the future.

That is the test which I personally always try to bring to bear on these matters. After all, popular opinion was, at one time, as hon. Members know, in favour of the slave trade, and the degrading spectacle of public executions, but no one now would say that public opinion at that time was right on these issues. Therefore, it does not mean that we were wrong to cast that vote the other night. What it does mean is that this would be an unfortunate and unfavourable time in which to start this experiment.

I agree with the Attorney-General that although it is not the business of Members of Parliament simply to follow what they deem to be popular opinion, they cannot disregard it, if they are convinced of its trend. I have to decide what it is my duty to do tonight. I believe, if the death penalty is retained, that probably the principle of two degrees in murder is right. I say "probably" because I do not seek to be dogmatic about that. My own professional experience in the main has been in less dramatic and less sombre fields than that of the criminal law, and I speak with diffidence on this aspect of the question. But I believe in principle that is so. Nevertheless, it seems to me that the way in which this Clause is drafted is unnecessarily clumsy and complex, and that it will lead to contradictory results. It has exposed itself already to the ingenious and imaginative industry of Lord Simon, and there have been other references to the difficulties which it creates.

In my view, the definition of the hon. and learned Member for Chester (Mr. Nield) is preferable to and certainly a good deal clearer than that of the Government. I do not feel able to go into the Lobby with the Government tonight in support of this Clause. Nevertheless, I am equally clear that I cannot see my way to oppose this Clause in the Lobby tonight for the reasons which have been advanced and, no doubt, will be advanced against it. I cannot associate myself with any claim that no change is required or that no change should be contemplated in the death penalty; nor can I associate myself with the view that one should leave border-line cases to the administrative action of the Home Secretary. I do not think that it has ever been the view of the party to which I belong that the death penalty itself is inviolable and must not in any circumstances be amended.

We have the experience of Section 51 of the Children and Young Persons Act, passed under a Conservative Government and initiated by a Conservative Home Secretary, which did in fact do away with the death penalty for persons under 18. That was a modification of the death penalty in the case of murder, and one cannot therefore come to the House now and say that it is wrong or impossible in any way to lessen the scope of the death penalty in cases of murder. So far as administrative action goes, I believe that there must come a time when legislation should try to catch up with administrative action. We cannot forever be extending the scope of administrative action by way of the exercise of the prerogative of mercy, without, from time to time, reviewing the position and seeing whether in practice it is not right to make legislative provision for what is in fact going on in individual cases by administrative action.

I am grateful to you, Mr. Speaker, for this opportunity of explaining my position. I personally rather regret a good deal of the controversy on all sides which has taken place on this matter. I think that there has been too much emotion, too much sentimentality and too much rhetoric, and I have steadily tried, when I have addressed myself to this subject, to eschew all those things. I regret that this is a party matter now. I hoped that it need not be a party matter at any time. The Government have put on their Whips; and I do not criticise my right hon. and hon. Friends for the action which they feel compelled to take. Speaking as an individual, I regret that this could not have ended as it started, as a non-party matter. If it must be a party matter, I in all honesty say that I regret that from our side we should appear to be quite as uncompromising in our general attitude to this question as, I fear, we will seem to be from our vote this evening.

Whatever the result of the Division tonight, and whatever another place will do, in 50 years' time, it is highly probable that either the death penalty will not exist or, if it does, that it will be governed by the principle of two degrees. I think that when the clamour of argument has abated hon. Members on all sides will realise that that is so. I think that that is the answer to the test which I strive to apply by projecting myself into the future and saying, "How will public opinion at that time regard the issues on which we are called upon to pass judgment in all our human fallibility today."

Although I do not agree with the majority of my hon. Friends on this matter, I claim to be in the tradition of my party in the view that I take. We have always sought in the tradition of Disraeli and Joseph Chamberlain to keep our minds open on these great questions of social reform, and I hope that we shall not close our minds to this problem, whatever our view of it may be tonight. It would I think be a regrettable thing if we should seem to close the door to the possibilities of the future by perhaps a too close acquiescence in the practices and, it may be, in the prejudices of the past. For that reason, I shall be unable to vote against this Amendment tonight, and I must abstain from the Division that will take place.

7.49 p.m.

Mr. Anthony Greenwood (Heywood and Radcliffe)

Although I agree with much that the hon. Member for Hertford (Mr. Walker-Smith) said tonight, he will forgive me for not following him in the argument he deployed. Similarly, I do not want to concentrate very much on what has been said on the other side of the House. Between those hon. Members, on the whole, and myself, there is a clear-cut division of opinion. Most hon. Members opposite believe in hanging. I do not believe in hanging. I prefer, therefore, to concentrate my attention on those hon. Members on this side of the House whose flexibility of conscience in this respect has left me breathless.

Although in criticising the Government tonight, I find myself in company with hon. Gentlemen opposite, so far I have heard only two points with which I have been in agreement. One was in the dislike which they have expressed for the Clause which my right hon. Friend has introduced and their doubts as to its workability. The other is in the sympathy which they feel for the Attorney-General in having had to perform a task which was clearly distasteful to him. I hope that it will be some consolation to the Attorney-General to know that, even at this late stage, there is a way out of the difficulty which confronts hon. Members on this side of the House tonight. That is, when later, I formally move the Amendment standing in the names of my hon. Friends and myself. I hope even at that late stage the Government will find it possible to accept this Amendment, in order that this important Measure may go to another place with the almost unanimous backing of hon. Members on this side of the House.

When this matter was discussed here on a previous occasion the hon. Member for Wood Green (Mr. Baxter) interrupted the Home Secretary and asked this question: Suppose a Member of Parliament finds himself at variance with the majority opinion in his constituency, should he then speak and vote against his conscience? My right hon. Friend replied: No, he should not. I share the view of Burke that we are not delegates but, on the other hand, one of our duties is to ensure in matters like this that we keep respect for the law alive in the hearts of people who have to submit to its administration."—[OFFICIAL REPORT, 14th April, 1948; Vol. 449, c. 1085.] That statement of the Home Secretary makes it easier for me tonight to make this last stand for principles which I learned from my right hon. Friend the Lord President of the Council, from my right hon. Friend the Minister of Education, from my right hon. Friend the Secretary of State for Commonwealth Relations and other leaders of my party.

The Minister of Education (Mr. Tomlinson)

indicated dissent.

Mr. Greenwood

I see the Minister of Education shaking his head, but unless my memory is at fault, in 1938 my right hon. Friend voted in this House in support of the abolition of capital punishment.

I say it makes it easier that on a previous occasion my right hon. Friend expressed that opinion. It is in the spirit of the view which my right hon. Friend the Home Secretary expressed on that occasion that I am hoping later to move the Amendment which stands in my name. I propose that Amendment, not merely on grounds of principle, but because I want to do what my right hon. Friend said then: to keep respect for the law alive in the hearts of people who have to submit to its administration. I do not believe that by putting on the statute book the Clause which my right hon. Friend has introduced tonight we are behaving in a way calculated to bring the law of this country into respect. Indeed, if my right hon. Friend is asking us to do one thing tonight, it is to drag the law of this country and the House of Commons into contempt and disrepute throughout the country.

The Attorney-General said that it was against the tradition of this country to attempt to codify the law. That is a very sound instinct, and a very sound tradition, because the extraordinary hotch-potch of inconsistencies and illogicalities comprised in the Clause which has been put forward is evidence of the kind of difficulty we get into when we attempt to codify the law on matters of this kind. I thought that it ill-became the learned Attorney-General to gibe at what he called the logic-chopping and hair-splitting criticisms which he said were going to be made later in the Debate, because, after all, logic-chopping and hair-splitting criticisms are the very life-blood of the profession of which my right hon. and learned Friend is so distinguished an ornament. If it is not for us tonight to put forward these criticisms, my right hon. and learned Friend can rest assured that when this clause goes on to the Statute Book, if it does, it will be subjected in courts throughout the country to just such logic-chopping and hair-splitting criticisms by members of the Attorney-General's own profession.

My right hon. and learned Friend attempted to draw a comparison between the degrees of liability which we have at the present time and those which are proposed under the Bill as it is now proposed to send it back to another place; and he called attention to the distinction drawn at present between manslaughter and murder. It seems to me quite clear that the distinction between those two offences is essentially one of moral culpability. But nobody can attempt to justify the claim that there is any ground at all for distinguishing between the offences mentioned in the Home Secretary's Clause on grounds of moral culpability. I, unfortunately, cannot take a legal view of the Clause which is before us. As Mr. Speaker said on a previous occasion, I cannot take a legal view; I can only take a commonsense view of what is before me.

It seems to me that there are many inconsistencies in the Clause. I want to draw attention to three of them which have struck me, as an ordinary back bench Member of this House. The first, of course, applies to systematic poisoning, which has already been discussed to some extent. If I understand this Clause correctly, it is proposed to hang a man who kills somebody by administering three doses of arsenic, but not to hang somebody who gives a good stiff overdose of prussic acid. Where is the difference in moral culpability between the perpetrators of those two heinous offences?

To continue with the inconsistencies, I cannot see that it is less culpable to cut somebody's throat after the most careful and systematic planning of the murder—arranging the necessary circumstances, and providing oneself with an alibi—than to commit murder by any of the methods for which my right hon. Friend proposes to retain the death penalty. The third inconsistency is that, if I understand the Clause correctly, if a man batters an old woman to death because he expects to benefit under her will, he will not be hanged; but if he batters her to death in order to steal half a crown out of her purse, he will be subject to the supreme penalty. Where is the difference in moral responsibility between the perpetrators of those two offences?

In any event, suppose my right hon. Friend is saying that capital punishment is a deterrent. Why should it be a deterrent for the perpetrators of some murders and not for the perpetrators of others? I can understand the point of view of the noble Lady the Member for Hemel Hempstead (Viscountess Davidson), who sincerely believes that capital punishment is a deterrent which should be kept for all cases. I can understand the point of view which was expressed in another place, that capital punishment should be extended to cover other offences for which it is not at present provided. But I cannot understand the attitude and the logic of my hon. Friends who say that capital punishment will discourage one form of murder, but apparently will not discourage another form of murder. That seems to me completely indefensible.

Mr. Donovan (Leicester, East)

Who says so?

Mr. Greenwood

My hon. and learned Friend asks, "Who says so?" That very distinction is implicit in everything said in support of the Clause which is now before us. But is not the truth this? The Home Secretary knows perfectly well that it is not capital punishment, or any kind of punishment, which is the deterrent in offences of this kind. The real deterrent is the fear of detection; the belief that a person will be found out. If we are to put an end to the wave of crime which we have at the present time, the solution is not to maintain hanging; the solution is to have an effective police force, properly manned, in order to protect the people of this country.

If we abandon the pretence that we are retaining capital punishment as a deterrent, what is the logical outcome? Is it the old cry of blood to blood? Are we getting back to the position where we are to keep capital punishment as a sop to the public, as a kind of retribution, as a kind of revenge? Because if that is the attitude of my right hon. Friend and Members of the Government tonight, I say that is an interpretation which I cannot accept. Very humbly, I say that I prefer the old version of the Sermon on the Mount as it was delivered, rather than the attempt of my right hon. Friend and his colleagues to restate the Christian ethic in the language of the Home Office as used in the Clause before the House tonight.

Apart from these criticisms, why did we originally come to the conclusion that we did come to, about suspending the death penalty in this country? It was not a hasty decision. There were five months between the time the Bill was introduced and the time this question was discussed on the Report stage in this House. It is quite clear from the Debate which took place on that occasion that it was a decision taken with full knowledge of the consequences of our decision. The speeches which were made were sincere, as we believed at the time, and, indeed, extremely well-informed. It was probably one of the best Debates we have had in this Parliament. Now suddenly I find hon. Members on this side of the House evaporating, disappearing, running away from their own consciences which they paraded in this House only three months ago.

When I have looked back on what took place on that occasion, I have tried to analyse why it was that I went into the Division Lobby in support of the new Clause, so ably proposed by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), whose speech today would have been much better suited to a criticism of the Government's Amendment rather than a plea in support of it, as it purported to be. On looking back, I find that the motives which inspired me were these—that I did not believe we had any right to arrogate to ourselves the power of life and death over every man and woman in this country. I find myself going further and saying that we have no power to say that any of our fellow countrymen are incapable of reform. If they are incapable of reform, they are the victims of mental illness of some form or another. Men are not hanged because they have cancer or tuberculosis, and I see no reason why we should hang men for diseases of the mind.

We are at the very beginning of the development of brain surgery in this country and if hon. Members will look at the report issued by the Board of Control only last year they will find remarkable achievements already to the credit of that brain operation known as prefrontal leucotonomy. There have been a large number of cases of people, manic-depressives and schizophrenics, who have gone into hospital with a tendency to violence and have come out after the operation, once again ordinary, reasonable, co-operative, decent citizens. Are we to condemn our fellow men without making an effort to cure them and enable them to become decent citizens if it is in our power to do so?

I find, too, on looking back that I objected on the grounds of the effect that capital punishment has on society as a whole. The hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) quoted part of what my hon. Friend the Member for Norwich (Mr. J. Paton) said on that occasion. May I complete the quotation, because I think it expresses movingly what most of us on this side of the House felt on that occasion. My hon. Friend said this: I believe that every time we hang a criminal guilty of a foul murder, we are striking at the real defences of social order in any community—a high regard for human life and personality that is equally as grave in its effects upon the community as the crime it seeks to punish."—[OFFICIAL REPORT, 14th April, 1948; Vol. 449, c. 1014.] My hon. Friend the Member for Norwich is offering this kind of sop to the conscience of this House, that they should be content with half the number of hangings in this country because the evil would be halved by this Clause. I cannot accept the view that what is important in this issue is the number of probably worthless lives we are seeking to save. What is important is the moral effect not only upon this House but upon everyone in this country.

My hon. Friend the Member for Nelson and Colne had great influence on the previous occasion when we debated this subject, but I think that all of us on that occasion, in spite of the moral objections we had, thought that if it could be proved that hanging was, in fact, a deterrent to murder we should perhaps be prepared for a time to put our consciences in suspense to retain it, in order to pro- tect innocent people rather than guilty people. My hon. Friend on that occasion argued with typical cogency about the position in other countries. Referring to those other countries he said: … a barbaric penalty with which they have been able to dispense without harm to their community or their society, can be dispensed with in our case with no greater harm than in theirs."—[OFFICIAL REPORT, 14th April, 1948; Vol. 449, c. 982.] That seems to be a reasonable point of view, and I am sorry that my hon. Friend, who has now left the House, appears to have departed from the stand he took on that occasion.

I remember the morning that the Debate took place, "The Times" had a leading article, which I think was one of the best which that newspaper ever published. It said that people had discussed year after year whether capital punishment was a deterrent and it argued that both sides could marshal a formidable array of statistics in support of their point of view. "The Times" went on to say that the only way the matter could be put to the test was to suspend capital punishment in this country and to see what the result of that suspension would be. These were the words with which the leading article concluded: If the proposed experiment is authorised, we shall in five years have some means of comparison with the state of affairs that would be left if the threat— that is the threat of the death penalty— were withdrawn. The experience of foreign countries gives assurance that the risk of increased killing during the experimental years is not large; and if there is a risk it is well worth taking if thereby a foundation of ascertained fact can be laid for a lasting decision. There was another argument which my hon. Friends advanced. My hon. and learned Friend the Member for Northampton (Mr. Paget) who I hope is in the House at this moment, based his view on human fallibility. My hon. and learned Friend cited two cases where he said that injustice was done to two men who were sentenced to death for murder. The first was the case of Bradford, the innkeeper, who was sentenced to death and hanged for robbery with murder. Under this Clause proposed by my right hon. Friend, Bradford would still have been hanged. Human fallibility is no more infallible than when my hon. and learned Friend the Member for Northampton put forward that argument over three months ago.

The second example was the case of Hebron who was sentenced to death, but was not hanged, for killing a policeman. There again, that case would come within the scope of the new Clause. The previous Sunday my hon. and learned Friend wrote an article in "Reynold's" newspaper, in which he dealt with the case of Crippen and proved to his satisfaction that Crippen was wrongfully condemned to death. Unless I misunderstand the Clause, Crippen would come within the category of murder and would be hanged just as much under the new Clause as at the time when he was condemned to death. My hon. Friend the Member for Oldham (Mr. Hale) says that Crippen was not systematic. As I understand it Dr. Crippen was in the habit of administering this drug at frequent intervals to his wife so that he would be free from interference while he devoted his attentions to Miss Le Neve.

Since the Debate three months ago the only new facts that have come to light were those in the White Paper issued by the Home Secretary, which, if it proved anything, supported the point of view of those who were prepared to give this experiment a chance. We have been told by the Attorney-General of the bitter public opposition to the suggestion to suspend the death penalty at the present time. It would be idle to deny that the public is not enthusiastic about the step we took on a previous occasion. The hon. Member for Hertford (Mr. Walker-Smith) dealt very effectively with that point. Although the public are not enthusiastic, I do not think there is the same bitter opposition that one gets the impression there is from some of the newspapers, who have been working up an opposition to the suspension of the death penalty.

I will tell the House what I have done in my constituency. It is next door to the urban district of Farnworth where that unfortunate little boy was brutally done to death just about the time when we were proposing to suspend the death penalty. If there was anywhere in this country where one might expect to find a retributive spirit it would be there. What has happened? I have written articles in two of my three local newspapers saying that I have favoured the suspension of capital punishment. I addressed a meeting, at which I spoke on my attitude at some length. The result was that I have had six letters from my constituency on the subject—four supporting the line I took, and two criticising it. If, out of 60,000 electors, only six think it necessary to write and, of those six, two-thirds are on my side, where is the bitterness and opposition which it is claimed exist against this proposal today?

I agree that it would be a pity if we were to go too far ahead of public opinion in this matter. That is why I have put on the Order Paper the Amendment which I shall formally move later. Its effect is this: It is to restore the period of five years' suspension, but to make that period begin only at such time as the Secretary of State may, by order, appoint. That means that when the Government in their wisdom, and with all their experience and the machinery they have at their disposal, have decided that the time is ripe they can put into operation this great moral experiment which we sanctioned three months ago.

My hon. Friend the Member for Nelson and Colne may think that that is "passing the buck." I do not think it is. We are accepting the moral responsibility of saying, "So far as we are concerned capital punishment must go; it is an evil thing, which serves no useful purpose" What is this unfair responsibility we are said to be putting on the Home Secretary? We are saying to Members of the Government, "You are the people who want to retain capital punishment and, that being so, you must accept responsibility. If you believe that this is not the proper time to abolish capital punishment do not put it into operation until you believe that the time is ripe." Where is the unfair responsibility? The Secretary of State will merely have to retain capital punishment for a little longer.

Three months ago, my right hon. Friend was asking the House to endorse the indefinite continuation of capital punishment. All we are asking him to do now is to continue it for an indefinite period which can be brought to an end when he so wishes. That is not placing a heavy responsibility upon him. The compromise of my suggestion is one of time, and not of principle. As my hon. and learned Friend the Member for Northampton said on an earlier occasion, "this is a principle that admits of no compromise."

Tonight. I have advanced what I believe to be the moral, intellectual and practical objections to the course which the Government, by means of their three-line Whip, are asking us to adopt. I appeal finally, to Members on rather different grounds—on the grounds of the dignity of this House and the prestige that this House has throughout the country and the world, and especially the English-speaking nations. What are the Government asking us to do tonight? They are asking those who voted for suspension on a previous occasion to say one of two things; either that we took a wrong decision three months ago, that we were foolishly irresponsible to take that decision, that we took it in ignorance of all the facts, or, to say, "Yes, we took the right decision; it was a sound and moral decision but, unfortunately, we have not got the guts to put that decision into operation." I do not think that that is the way to enhance the prestige and honour of the House of Commons. If I were to adopt either of these lines I do not believe that my constituents would respect me for having surrendered to pressures from above instead of sticking to what my conscience and principles tell me is right.

8.15 p.m.

Mr. Quintin Hogg (Oxford)

The hon. Member for Heywood and Radcliffe (Mr. Anthony Greenwood) has just made a great impression on the House. Certainly he made a great impression upon me, if he will allow me to say so, and I must say, quite frankly, that if I had been among those who, on a previous occasion, voted for the suspension of the death penalty, I should have found his arguments absolutely irresistible. Indeed, I could see no answer to them. However, I hope the hon. Gentleman will not think that I am in any way seeking to be guilty of a political trick if I say that my case against this Clause is exactly the same as his, although my view as to the death penalty is diametrically opposite to his view. My case against this Clause is that it is not a respectable compromise. No man who honourably holds the view of those who voted for suspension on 14th April, and no man who honourably opposed that view, ought to support this Clause. There are things which are suitable for compromise; there are limits to the scope and potentialities of compromise, but this Clause is outside those limits, for reasons which I shall endeavour to show and which largely, if not entirely, conform to the arguments so well put forward from the opposite point of view by the hon. Member for Heywood and Radcliffe.

I do not know whether many hon. Members will agree with me when I say that I, at any rate, found the earlier part of this Debate somewhat distasteful. We are, after all, talking about the lives of men and women who, whatever our decision, will be murdered in the future, and the lives of those who have been wicked enough to take those innocent lives. In all humility, I must say that I do not think that this is a subject which lends itself very favourably to the acrimony of political debate, whether or not party politics are introduced into the subject. It would be naïve of me to regret that this has become a party issue, because I think it is inevitable. To anyone who has really studied the working of our party system it was inevitable from a relatively early stage that this would ultimately become a party issue. It is enough to say that on this occasion, for reasons which I think will be obvious on reflection, the Government have gone to their party at a party meeting and have secured apparently adherence to a compromise of some kind. They have put a three-line Whip on, and the Opposition, having decided that the compromise is not one which they can support, have put on a three-line Whip against it.

But what we owe to one another is this: not to endeavour to make a kind of debating speech, such as that which was made by the hon. Member for Nelson and Colne (Mr. S. Silverman) earlier today, in sharp contrast to the speech which he made some time ago, but to attempt to put forward arguments for and against this Clause in an objective manner, without consciously seeking, at any rate, to allow natural party feeling to influence those arguments. We should endeavour to put them forward in a manner in which we believe they ought to appeal to those from whom we differ on so many other matters. That is what I shall endeavour to do. The Attorney-General based his case for this Clause upon what he described as a broad, human approach. He condemned, in advance, what he described as logic-chopping as a means of criticism of the proposed Clause. It is precisely because I believe that only logic-chopping can support this Clause that I am fundamentally opposed to it. Any broad, human approach which is taken must, I believe, lead to a condemnation of this Clause as something which is not what anyone would desire to see put upon the statute book.

The charge I bring against this Clause, in plain and simple terms, is lack of sincerity, lack of intellectual integrity. That is what I say is wrong with this Clause, and if I bring criticisms to show that it introduces anomalies, it is only for the same reason that the hon. Member for Heywood and Radcliffe brought his criticisms. It is because it is not intellectually respectable that I am deeply convinced the House should not accept it. The only defence I have heard of it is that it is a compromise. The Attorney-General sought to impose upon us who oppose it, the dilemma of saying either that we will accept the change in the present arrangement of the law regarding the death penalty, or that we will accept a compromise on these lines. I deny the dilemma. You cannot compromise between the principles of those who think that the death penalty is inherently wrong, and those who think it is a legitimate method of punishment.

We on this side are not committed and do not seek to commit ourselves to the view that the present law of capital punishment is perfect. It would be rather more difficult than some people think to improve it; because after many years of continuous and careful reform of the law it would be a surprising thing if some of the more obvious improvements had not already been carried out. We do not commit ourselves to the view that the present system of applying the death penalty, or the circumstances in which it has to be applied, is incapable of improvement. If the Attorney-General were to come to this House and say, "Let us now, upon some rational principle, accepting the death penalty as part of our criminal law, try to introduce reforms to our law," I should certainly be ready to discuss any constructive proposals he sought to put forward. But that is not what the right hon. Gentleman is doing. What he is trying to sell to the House is not a rational improvement of the law of capital punishment, but a shabby compromise between those who think it is wrong to inflict it at all, and those who think that in principle it is a good thing to do. I, for one, am not prepared to discuss proposals which are based on that principle, because that is the sort of compromise that can lead to nothing but anomalies, and nothing but dishonour to anyone who touches it. That is why I feel bound to point out the anomalies and inconsistencies into which this Clause inevitably puts those who seek to support it.

I can understand the case which we had to face on 14th April. We were then told in a number of eloquent and well-reasoned speeches, first, that the death penalty was wrong in itself, and, secondly, that it acted as no deterrent to the crime of murder and no deterrent to any crime for which it was proposed. We differed about that, but it was a consistent and logical case founded upon a respectable principle. But the Clause proposed by the Attorney-General concedes both these arguments of principle against himself. It concedes the principle that the death penalty is right, and it concedes the principle, or clearly implies the principle, that in certain cases the death penalty is an effective deterrent. That is what the Clause does, and it cannot be morally justified at all unless it concedes those principles.

If what the Attorney-General said conceded these principles and asked us to accept any rational basis whatever for applying the death penalty, we should be open-minded about it, but what he did, on his own showing, was to hotch-potch together, not the things as to which he believes the need for a deterrent is greatest, but the crimes for which he thinks the public has got the greatest degree of repulsion. In other words, the Clause which he is introducing tonight, for the first time for many years, is expressly based upon the theory of retribution, and every Member who votes for the Government tonight, whatever his or her convictions may be, will be recording his or her vote in favour of a Clause which is expressly based upon the principle of retribution, and upon no other principle at all, and no amount of logic-chopping by the Attorney-General can conceal that fundamental want of respectability about the Clause.

It is for that reason, and not for any mere incompetence in draftsmanship, that the Clause produces a number of anomalies. I do not want to detain the House at any great length by running over those anomalies which have already been pointed out by Members on all sides—the completely arbitrary character of the offences which it is now proposed will give rise to the death penalty. The most deliberately planned, systematic, brutally sadistic murder is free from the death penalty, unless it is accomplished by poison, and then only if the poison is administered systematically, although what is a system for this purpose is, conveniently left undefined.

I do not indulge very much in advising people myself as to the circumstances in which murder may be committed, but I can imagine a lawyer—not an English lawyer in this country—saying "Remember, madam, one glass of poison only, otherwise we shall have to forswear the use of poison altogether." That would be good legal advice under this Clause. The only ascertainable reason I can think of why it should be morally respectable to put to death a systematic poisoner would be the theory that the death penalty imposed upon such a criminal would have a deterrent effect. But if it is morally respectable for that reason, why not extend the deterrent to other cases of premeditated and deliberate murder? There can be no logical answer to that question.

Consider, too, the fantastic anomaly inherent in the proposal to protect only special classes of victims. Constables, prison warders and persons assisting constables are apparently to be expressly protected, but why not a person assisting other people? If, for instance, a ward sister in the hospital where that little girl was so brutally raped and murdered had sought to interfere with the criminal, not for the purpose of arresting the criminal but simply for the purpose of rescuing the child, and had got murdered in consequence, the Attorney-General would not have been able to prosecute on a capital charge if this Clause had been the law. Yet the only ascertainable reason why it is morally respectable to put to death the murderer of a policeman or the murderer who seeks to avoid arrest is, so far as I can see, that it is a deterrent. If it is a deterrent to the would-be murderer of a policeman, why should a ward sister be denied the like deterrent when she seeks to rescue a child from rape and murder? If it is not a deterrent, why have the death penalty at all?

Consider the extraordinary situation created by the definition of "express malice" contained in subsection (4) of the Clause. Hitherto, when summing up in murder cases, the learned judges have found the situation already complicated and difficult by reason of two factors. The first is the necessity of explaining to the jury the doctrine of manslaughter and provocation. The second is the doctrine of constructive malice. Consider the complications now. The learned Attorney-General, with the same assurance as that with which he condemned the judgment of a judge seated in an obscure court of Chancery Division on one occasion, now airily assures us that the common law judges and their juries are so astute in understanding the niceties of the law that they will experience no difficulty. The Attorney-General has had a very much more extensive practice than I have had, but I venture to suggest to him some reasons why I differ from him.

Consider what a judge would have to tell the jury if he were summing up in a case in which a man was accused of what, under the proposed new Clause, will be a capital charge. Consider, first, the alternative verdicts which the jury can give. The first verdict would be that of guilty of the offence as charged, that is to say, guilty of murder, capital murder or murder in the first degree. The second verdict is, of course, "Not guilty" of anything. The third verdict is guilty of murder, but not in the degree charged. The jury could bring in that verdict, under the proposed Clause. Then there is the verdict "Not guilty of murder but guilty of manslaughter" owing to provocation. In addition to that, the jury will have to consider verdicts of guilty of any one of those three offences but insane.

The learned judge will, first of all, have to go through this proposed Clause, to explain the meaning of "express malice" and each of the five categories, or whichever of them are relevant to the particular charge to render it a first degree offence. Secondly, he will have to draw breath and then explain to the jury the entire doctrine of constructive malice, for the purpose of enabling them to arrive at the alternative verdict of murder, but not murder in the first degree. He will have to explain the whole range of the complication of the existing law of murder. Thirdly, he will have to deal with the possibility that provocation may be a defence and he will then have to explain to the bewildered jury the difference between murder as it is now and manslaughter, carefully warning the jury that mere words do not amount in law to provocation. Fourthly, he will have to cover the ground of the burden of proof and the question of criminal sanity and criminal insanity, within the Macnaghten Rules if, as I apprehend will not often be the case, the murderer puts that forward as a contention.

Can anyone suppose that anybody short of a metaphysician could make sense of a summing up in which all those issues had to be set up seriatim? In a very large number of cases that is what the learned judge will have to do, and if he fails in any one particular satisfactorily to sum up the law, be the case never so plain, the Court of Criminal Appeal will upset the verdict and a guilty man will go free. That is the position to which we are reduced in the present situation.

Mr. Hector Hughes

The hon. Gentleman is building up a case against this Clause by attempting to argue that the learned judge will have to sum up this and sum up that, but are not most of the matters to which he has referred, already the subject of the judge's summing up?

Mr. Hogg

No; some are and some are not. I have already explained that the summing up in a murder case is by no means child's play, as the hon. and learned Member will no doubt discover when he eventually achieves judicial preferment. My argument was that this Clause piles Pelion upon Ossa. In addition to the already complicated structure of the law, the learned judge will have to go through what is by no means an easy Clause and explain that to the jury, not instead of the existing law but in addition to the existing law. It was to this that I was drawing the attention of the House.

Mr. Hector Hughes


Mr. Hogg

I do not think I ought to give way. I mean no discourtesy to the hon. and learned Gentleman, but I feel that there are many hon. and learned Members who wish to speak—[HON. MEMBERS: "Hear, hear."]—and every time one gives way, one probably helps to deprive some great orator of a decisive contribution to the Debate. It is not from any desire to be discourteous to the hon. and learned Gentleman that I do not give way.

The next point to which I wish to draw the attention of the House is the fantastic position with regard to the doctrine of constructive malice. The Attorney-General spoke as if the doctrine of constructive malice were either being abolished or somehow waved on one side; but it is not being abolished. It remains present in every case to which this Clause applies, first of all as the basis of a possible alternative verdict.

Not only that; it remains present in every case in one of the categories to which this Clause applies, because this Clause is expressly designed to apply to the case of second murder. We get the extraordinary position that a deliberate murderer who has deliberately murdered somebody in the most brutal way, otherwise than by systematic poisoning, is not subject to the death penalty, but by virtue of the doctrine of constructive malice, a person who has been guilty of murder once who subsequently kills somebody in circumstances amounting to murder and with intent to maim, will be subject to the death penalty. All that has to be explained to the public sense of morality, and some of it, although not all of it, will have to be explained to juries.

Consider, too, the possibility of a perverse verdict under the new law. When we were arguing this case on the basis of suspension, we were treated by the other side to a number of very cogent arguments to the effect that if we suspended the death penalty, there would be fewer perverse verdicts of acquittal. Consider how the matter will stand now. One of the great arguments—to my mind, the conclusive argument—against the proposal which some of my hon. Friends favour of two degrees of murder in the strict sense is that it puts upon an untrained tribunal an intolerable burden that they and they only—not the judge, not the Home Secretary, but they and they only—are the people who decide whether what the man has done comes within capital murder or murder in the second degree.

If we are to appeal to the experience of other countries, surely it is this: that when juries are placed in that intolerable position, they nearly always try to find a way out by a compromise verdict. And remember, too, that a compromise verdict may be just as harsh upon an accused person as it may be unfair to the public, who do not get a conviction for the crime of which a man is really guilty, because a compromise verdict very often means that an innocent man is convicted of a less heinous offence than the maximum with which he is charged. It just as often means that as it does that a guilty man is acquitted of the highest offence.

How does that apply in the present Clause? Imagine the burglar who shoots the policeman—which, after all, is one of the great cases which this Clause is introduced with the idea of covering. The Attorney-General admitted that it was intended to cover, amongst other cases, the case of the burglar who shoots the policeman with a design of closing his mouth as the only evidence against him. What is the position in practice under this Clause? The position is this: one has to prove not merely that the murder was the murder of a policeman in the course of his duty or, alternatively, that it was done in the course of committing the crime, but one has to prove that it was done with express malice, in the sense of having the intent either to kill or to maim, and to do so in circumstances which may reasonably be expected to endanger life. That is what the prosecution has to prove. But now the murderer will say, "Oh dear, no, I never used a revolver before. I carried it with me to frighten the policeman, and I shot it into the air, but my hand quivered and it was just bad luck that the poor fellow was hit in the heart."

Take another case that the Attorney-General is seeking to cover by his brave new Clause, the case of the sexual murder—the man who, in the course of a rape, kills the woman, very often by the most disgusting act upon her body and not with the idea of killing her at all; by biting portions of the body off, kills the woman not in order to evade arrest, not in order to close her mouth—to quote the instance given by one of my hon. Friends—but simply in order to gratify his inordinate lust. That is not by any means an impossible case. Where does he stand? The man who throttles a woman or kills her in some other way during the course of rape obviously has no express malice—he does not hang.

Mr. Paget (Northampton)

When the hon. Gentleman says that, is he on deterrency or revenge?

Mr. Hogg

I am saying frankly that I think that man ought to hang. I have considered all the possibilities—

The Attorney-General

An eye for an eye.

Mr. Hogg

No. I resent the Attorney-General's misquotation of the Scripture. I have considered all the possibilities and I do not consider in that particular case, although there are very few other cases where I should say it, that any good purpose is done to the criminals of this country or to the society of this country by keeping that man in prison. I think that he is a man who had better be hanged, unless he comes within the Macnaghten Rules, which is a very different story.

Again, in all these cases, we are told that the only respectable reason which will justify putting these murderers to death is as a deterrent but, if it is, and if this be the reason, why not extend the deterrent to other innocent victims? If, however, it is not a deterrent, then why on earth have this Clause at all in place of the Clause which was passed in April? The Attorney-General, I thought, showed his own position very plainly at the close of his speech. He made it abundantly plain that he is really an abolitionist—

The Attorney-General

indicated assent.

Mr. Hogg

He admits it. If he were a respectable abolitionist, I would not mind it; I would know where I stood; but what cannot be justified in any circumstances whatever, in my submission, is an attempt to compromise on no principle whatever between those who think that capital punishment ought to be abolished altogether and those who want to apply it rationally as a deterrent, because the only result of that is to get capital punishment imposed upon people in such circumstances that it cannot conceivably be a rational deterrent. It thereupon becomes retribution and nothing else.

There are only two other observations I want to add. Some of us have been following this Criminal Justice Bill since 1939. We thought it was overdue then; it is still more overdue now. We want this Bill to become law, and as soon as possible. I cannot help thinking that the only effect of introducing this particular issue into this Bill, from which it has been absent and from which it was kept absent, very largely because it was so controversial, has been to postpone the first great codification and reform of our criminal law that I, at any rate, can remember in my political lifetime. I beg the Government to reconsider the matter from that point of view.

If they must go on with proposals to abolish the death penalty, let them intro duce a one-Clause Bill. Let them bring it into this House and, if it is passed, if it becomes law by a constitutional process, let them have it; but—and I beg hon. Members opposite to listen to my plea, because I know that some of them have this Bill at heart every bit as much as I have—do not let them continue to have this Bill held up because of our disagreements about capital punishment. It is far too important. It is idle for one side to say that the other side ought to give in—I am not asking for that; but I beg the Government to dissociate the capital punishment issue from the Criminal Justice Bill and bring them in as two different Measures. If they do so, whether they get their new Bill or whether they do not, they will at any rate have avoided an undue delay in the necessary social reforms which this country requires.

8.47 p.m.

Mr. Benson (Chesterfield)

Those hon. Members who voted last time for the suspension of the death penalty and are now going to support this new Clause have come in for a good deal of criticism from both sides. I can understand hon. Gentlemen opposite, who are only pleased to cause as much trouble as they can. The hon. Member for Oxford (Mr. Hogg) objected to the Attorney-General, who believes in abolition, supporting the Clause. He said that he could have understood it if the Attorney-General were a respectable abolitionist. A respectable abolitionist is apparently one who is not prepared in any circumstances to compromise. That apparently is the interpretation put upon it by the hon. Member for Oxford. I do not know whether I am a respectable abolitionist or not. I am an abolitionist, and have been for many years, but I am going to vote for the Government's Clause, and I am not ashamed.

I do not mind the hon. Member for Oxford attacking us, but what I do object to is the attitude of the hon. Member for Heywood and Radcliffe (Mr. Anthony Greenwood), who I am sorry to see has now gone. His position is that he is an abolitionist, but he is not prepared to spot himself by supporting the Government Clause. His conscience will not allow it. I respect his conscience but I cannot understand it. I do not understand people's consciences being so strong without those consciences having any effect upon their conduct. When has the hon. Member for Heywood and Radcliffe lifted a finger for penal reform?

Dr. Morgan (Rochdale)

He is young yet.

Mr. J. Hudson

He has spoken in his constituency.

Mr. Benson

Spoken in his constituency—

Mr. Hudson

Has the hon. Member for Chesterfield (Mr. Benson) done that?

Mr. Benson

—while I have spent my life in penal reform and working for the abolition of the death penalty.

Dr. Morgan

Not at his age.

Mr. Benson

I have put a great deal of work in and I object to these people who have suddenly awakened to the fact that there is a death penalty, turning round—

Mr. Yates (Birmingham, Ladywood)

Me hon. Member ought to welcome that.

Mr. Benson

—turning round and sneering at those of us who have spent long years in penal reform. I am prepared to compromise, for I have spent long years working for penal reform.

Mr. Warbey (Luton)

Will the hon. Member permit me—

Mr. Benson

No. I am not going to give way.

Mr. Hector Hughes

The hon. Member is attacking an absent Member and will not give way.

Mr. Benson

I am attacking because I was attacked. One thing that work for penal reform has taught me is how slow is the progress and how heavy is the work of getting any small reform through. We would still be back in the du Cane system if everyone had said, "No reform at all, unless it is perfection." I am prepared to take this Clause because it gives me something—

Mr. Boyd-Carpenter

However silly.

Mr. Benson

—however small. It may be silly from the point of view of the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter), but from the point of view of us who object to capital punishment, it is not silly. It will reduce death sentences to something like one-half under present circumstances and to about one-third under normal conditions, and if I can get that in one blow I shall be very satisfied indeed. The hon. Member for Kingston-upon-Thames said there was no possibility of compromise between the two sides of the House. He said that views were absolutely apart. Our view is that capital punishment is wrong. Apparently the view of the hon. Member is that capital punishment is right. What does he mean by right? Under all circumstances?

It is quite meaningless to say that there is no possibility of compromise. The very fact that almost half the hon. Members who have spoken in favour of retention of capital punishment have suggested that we should allow it to fall into desuetude by the use of the Prerogative shows they know that it is not an absolutely right thing. They themselves know that it must go sooner or later. We would prefer it to go rather more rapidly under this Clause. They themselves admit, by their suggestion that the Prerogative should be used to bring the matter into desuetude, that it is an evil thing. I know they are afraid of the results. The fears they express are not new fears; they are very old fears. They are fears which have been expressed every time any great step in penal reform has been advocated in this House. I ask them to remember that and I ask them further to remember that in the event, those fears have never yet been justified.

8.55 p.m.

Mr. Basil Nield (City of Chester)

I have promised to be brief in view of the lateness of the hour but I am anxious to say a word or two on this important matter. The new Clause which the Government seek to introduce into this Measure has been described as a compromise proposal. Indeed the hon. Member for Chesterfield (Mr. Benson) suggested that there might be a compromise between the two sides of the House—a most extraordinary suggestion. What I am putting to hon. Members at the outset of my speech is whether it is really worthy to have a compromise as an objective in this immensely important question. Surely the objective of this House of Commons in a matter which, for once in a way, is literally a matter of life and death should be to achieve a solution of the problem which accords with justice and right.

I have, after careful thought, to say quite unequivocally that I am against the abolition or suspension of the death penalty for four principal reasons. The first is that I believe the sternest of all deterrents to be the fear of death. I have sufficiently frequently talked with men in the condemned cell to take the view that when the last moment comes, they prefer life in any conditions to death. Therefore, I say that the sternest deterrent is death. The second reason for my holding this view is that this time, when we all know that the increase in crimes of violence is unprecedented, is a most inopportune moment to experiment in abolition or suspension. My third reason is that whereas some argue that one should abolish the death penalty in case a mistake should be made and an irrevocable penalty exacted, it is in truth a safeguard against the danger of wrongful conviction because a jury will never convict, knowing of this dire penalty, unless they are wholly and absolutely convinced of the guilt of the accused. Finally, while hon. Members must of course make up their own minds upon this question, is it not sensible and right to pay due heed to the Minister of the Crown charged with the maintenance of law and order? The right hon. Gentleman, who is known for his humanity, takes the view, as I understand it, that he needs this weapon to fight the crime wave which is with us.

Those are my reasons for my first decision. I am also of the opinion that the severity of the law can be mitigated in order to achieve what our ends should be—justice and right. I believe, not without wide experience in the criminal courts—and it is only right that I should say it—that the law operates harshly in three specific respects. In the first place, while, as we all know, murder is the killing of another with malice aforethought it has been judicially decided over the years that malice aforethought does not necessarily mean premeditation but merely the intention which precedes the act. In the second place, as the House knows, the crime of murder may be reduced to the crime of manslaughter if there is sufficient provocation, but the law says that that provocation must be such as to deprive a reasonable man of his self-control. The test, I suggest, is that it should not be "a reasonable man," but the accused man who is being tried, who may be of another race, who may have perhaps some mental instability short of insanity or some other idiosyncrasy. In the third place, as we all know, if the defence of insanity is advanced, the onus of establishing it is upon the defence.

In those circumstances I have put on the Order Paper an Amendment, to which the Attorney-General referred in his opening observations. I do not know whether it is the first time he has seen it, but it has been on the Order Paper from the inception of our discussions upon this matter. I take this view, and I am speaking solely for myself, I hope according to conscience and experience, when I say that justice can best be achieved by the classification of the crime of murder into two degrees, based largely upon the system which obtains under the criminal code in the United States of America, the vital and essential test being, was there premeditation: if so, the death penalty; if no premeditation, then imprisonment. There we have a clear-cut, reasonable and, I suggest, logical and rational solution to this problem.

During the Second Reading Debate I ventured to seek to illustrate this argument by pointing to two sets of circumstances for which the same dire penalty alone is now recognised. For the long, wicked, deliberate poisoning by a husband of his wife for gain, the penalty is death. On the other hand for the sudden attack and killing, in a moment of passion, of an enemy who has perhaps done the assailant grievous wrong, again the penalty is death. Surely the House would agree that those two sets of circumstances are not comparable in the culpability which must be attributed to the offender. It is in those circumstances that I advance this proposal.

The Clause which is now proposed by the right hon. Gentleman, as the Attorney-General has pointed out, has not as its basis that which I regard as essential, premeditation or no premeditation. Here we have been told that various sets of circumstances which are regarded by the public as revolting have been selected to be dealt with by the death sentence and the others by no death sentence. When we are told by responsible Ministers that they cannot base this upon logic or upon rational reasons, and when we are told that the Clause can be riddled by the lawyers, it does seem much to ask the House to accept the Clause which is being put forward. I find it impossible to agree to this Amendment and I have suggested a counter proposal, which I hope will be considered.

In two or three sentences it is this. For an overriding class of case where the killing is wilful, deliberate and premeditated, the death penalty. Poisoning also, because that involves premeditation—the purchase of the poison and the rest of it—and lying in wait, which again involves premeditation. Lastly, special cases where there is a killing in the course of the commission of another offence when the offender is armed, which seems to be necessary for the protection of the community. I still hope that consideration may be given to these proposals. I assure hon. Members with great sincerity and earnestness that along these lines, we have a better hope, not for a compromise but for a reform in our great legal system which will accord with justice and humanity.

The Attorney-General

Perhaps the hon. and learned Gentleman would help me about this. I have listened to what he has said with very great care. I referred to his new Clause in my opening remarks. I was anxious to know exactly what there was between us. Would I be right in thinking that the main difference between us in this matter is that his new Clause is, on the whole, based on the principle of retribution, whereas ours is, on the whole, based on the principle of deterrence?

Mr. Nield

No, I would not put it in that way at all. In my view, the essential reason for such a penalty is deterrent—to deter others from similar dreadful crimes. I would say that that is the essential matter. It follows from that—I agree so far with the right hon. and learned Gentleman—that the main purpose is the protection of the community.

9.7 p.m.

Sir John Anderson (Scottish Universities)

I have no desire to take advantage of this opportunity to go into considerations which are relevant to the general issue of capital punishment. If I were to do so, I should find, in the last general Debate in this House, many points raised on both sides upon which I should wish to comment, but I must resist the temptation. After all, an entirely new issue has now been raised. It is proposed that the Lords Amendment should not be accepted and that we should make now an entirely different approach to the whole question.

Before coming, however, to the new Clause there is just one point which has been suggested to my mind by a study of the earlier Debates both here and in another place, because I think it is of considerable importance and has not so far been brought out sufficiently. It is something which is relevant to an observation that the Attorney-General made when he referred to the familiar argument that certainty of detection and not severity of punishment is the thing that matters. Of course, I agree that severity of punishment is no substitute for certainty of detection, but I would not go so far as to say that severity of punishment added to certainty of detection may not make a very powerful contribution to deterrence.

The point I have to make is that the fact that murder is marked out by our criminal law from all other crimes, with two exceptions which do not matter for this purpose, contributes directly and substantially to the chance of detection. It is a trite saying that there is honour among thieves. That is true in so far as members of the criminal classes, as a rule, do not give one another away. But that kind of solidarity does not apply where the use of lethal weapons is concerned. Experience has shown time and again that members of the criminal classes are perfectly ready, even anxious, to give information to the police which will help in the detection of one of their number who has so far forgotten the rules that members of that fraternity apply to themselves as to be found in possession of a lethal weapon when he was engaged in crime.

That is, I believe, how it came about that the murderers of Gutteridge were brought to justice. Some of their associates in crime, though not in that crime, were willing to give information to the police which led to the discovery of evidence which resulted directly in the conviction of these people. That, I believe, is a fairly common experience, and that is because murder is in a special category. In my view, that is a powerful argument against assimilating the penalty for murder to that for other serious crimes.

Now I come to the new Clause on the Order Paper, and I hope my hon. and learned Friend the Member for Chester (Mr. Nield) will forgive me if I do not go into the merits or demerits of the new Clause standing in his name. I confess at once that I have no love for capital punishment, and that I would be in favour of the classification of murders if I could be satisfied that that course was practicable. I have toyed with the idea myself. I believe that capital punishment, as I made clear in my previous speech on this subject, is of value as a deterrent in, at any rate, certain classes of crime. If I were not so satisfied, I would be in favour of the abolition of capital punishment if, but only if, I was satisfied that that course was acceptable to public opinion.

Here I would like to make clear how I view public opinion in this connection. I think that public opinion has a very peculiar significance in relation to this problem of the capital sentence which we are now discussing. It is not, in my view, an opinion to be consulted as an aid to forming a sound judgment. It is not an opinion of selected persons, but the general public opinion of the people of the country, and I think it is that opinion which, right or wrong, is itself a material and it may be a determining factor in deciding whether the abolition of capital punishment is or is not justified—apart from the question of deterrence which was my first point—because the decision on this question is something which will affect not only the peace of mind of large classes of people of this country, but also, it may be, in many cases, their own course of action. Therefore, I say that we have to pay regard to public opinion in a very special sense in this matter. There are many matters in regard to which we can say that the opinion of people outside who are competent to judge is in a certain direction and that is all that matters. That, in my judgment, is not all that matters here. It is the general opinion of the people of the country which is relevant.

I said a moment ago that I should be inclined to favour the classification of murders if I felt satisfied that it could be done effectively. I cannot bring myself to think that the new Clause on the Order Paper represents a satisfactory solution. I will give the House very briefly the reasons for that view. My first reason is the general one that it seeks to substitute a rigid and elaborate statutory code for the existing flexible, well-tried system. The complicated wording of this very elaborate provision is, in my view, bound to give rise to very grave difficulties of interpretation in the courts. The Attorney-General used, I think, the expression "rubbish" when my right hon. Friend the Member for Woodford (Mr. Churchill) was making this point.

The Attorney-General

indicated dissent.

Sir J. Anderson

Perhaps I am mistaken, but he has used the word "rubbish."

The Attorney-General

I used the expression "rubbish," but not in relation to that point.

Sir J. Anderson

At any rate, I hope the right hon. and learned Gentleman will not use the expression "rubbish" in regard to what I am about to say.

The Attorney-General

I am almost certain that I shall not.

Sir J. Anderson

I shall not attempt to go into this matter in the detail which is proper to any of my learned Friends on this side of the House. I want to make a perfectly simple approach. Let me put this to the Attorney-General. Will not the "express malice," as it is defined in the Clause, give rise to serious difficulties in a number of cases?

Let me quote one particular case. The Attorney-General may remember the case of the Coventry murder—Barnes and Richards were convicted and sentenced to death for what was known as the Coventry murder in, I think, the year 1940. They were engaged in a felonious enterprise; they had explosives in the carrier of a bicycle; something happened to disturb them; they left the bicycle leaning against the wall of a post office in Coventry and ran away; and while they were absent the explosives, for some reason, went off, blew in the wall of the post office and killed two innocent passers-by. Was there or was there not "express malice" in that case? They were engaged in a felonious enterprise in which they intended to use those explosives. I think that is a difficult case. They were hanged and if they had not been hanged public opinion would have expressed itself very forcibly.

The Attorney-General

I do not know whether the right hon. Gentleman wanted me to intervene and express my view, for what it is worth. If so, I am bound to tell the right hon. Gentleman that in my view there is not the slightest doubt that in that case since there was no intention to kill or to maim and, therefore, no "express malice."

Sir J. Anderson

I am much obliged to the Attorney-General, because that is what I thought he would say. Other people, I am sure, would seek to argue that there was some form of "express malice" in that case because of the felonious enterprise in which they were engaged, but, if not, it is surely a great weakness of the proposed Clause that persons found guilty of murder in such circumstances should escape the death penalty.

Let me pass to another point. I am making a layman's approach to this and want to be clear, if possible, on the meaning of this very elaborate Clause.

Mr. S. Silverman

Would the right hon. Gentleman say, as a very experienced layman indeed, whether he means he would recommend the House to retain the death penalty in cases where demonstrably there was no intention to kill?

Sir J. Anderson

No, but in this case the hon. Member will see there was intention to kill, though not the particular people who happened to be killed. That is what the explosives were for.

Let me pass to another point. There is, in this Clause, the word "immediately"—it reads: in the course of, or immediately before or after … Will not that give rise to some difficulty of interpretation? Yet another point. There are the words "in the course or for the purpose of." Words like that are very familiar to some of us; they occur in the Workmen's Compensation Acts. Will the Attorney-General say that such words as those do not present very serious difficulties in interpretation? It was many years before the interpretation to be placed on the words "arising out of and in the course of" in the Workmen's Compensation Acts had been determined by the highest tribunal of the land. Cases went to the House of Lords. We do not want to have that sort of thing arising in criminal cases where the question is whether the penalty should be capital punishment or penal servitude for life.

My next reason for criticising this Clause is based on the very many anomalies to which, in practice, it must give rise. My right hon. Friend the Member for Woodford (Mr. Churchill) referred to a number of instances where the effect of the Clause might be exceedingly anomalous. Reference was made to systematic poisoning as against poisoning by a single dose. Is it really justifiable to have, for systematic poisoning, the capital penalty, and for poisoning, however premeditated, by a single dose, penal servitude for life? The hon. Member for Nelson and Colne (Mr. S. Silverman) said he thought the systematic poisoner was a person who would not be deterred by capital punishment but, in my view, it is exactly the opposite. Because the systematic poisoner is afraid of the rope he attempts to carry out his purpose by a method by which he thinks it might be possible to escape attention.

I have seen a great many of these cases. Now it is to be said that if he comes to the conclusion that it is no longer safe to do it by instalments, in the hope that his victim's condition will not be correctly diagnosed—and one dose of weed killer has been known to be used as a means of getting rid of somebody—he is to suffer the lesser penalty. What about murder by shooting? Is it or is it not the case that murder by shooting is, under this Clause, capital murder? I think it is. I think the reference in Section 2 of the Explosive Substances Act brings in any form of shooting. That means the capital penalty. The Attorney-General shakes his head. He must know what this Clause means. After all, this is very important, especially in relation to political assassination. Would the persons who shot Sir Henry Wilson have been subject to the death penalty under this Clause? Yes or no? The question must be capable of a simple answer.

The Attorney-General

I could have in tervened on a number of occasions already during the right hon. Gentleman's speech, and I hope he will not think me discourteous, but my view is that that case would not be covered, assuming that there was only one person in it.

Sir J. Anderson

My recollection, from 10 years at the Home Office, is that the Explosive Substances Act, under which heavy penalties can be imposed, has been used in cases where the only explosive substance was the charge in the barrel of a gun. It is inconceivable to me that the Government should have put forward a Clause of this kind without knowing the position of a person who attempts assassination by the use of a firearm. If the Attorney-General says that such a person could not be liable, if his attempt succeeds, to a capital sentence is that the position, in present day conditions, in which we should be content to leave the law on the subject of murder? I thought better of the Attorney-General than that. I thought he had quite deliberately put in a reference to explosive substances in order to make quite sure that a planned murder by the use of firearms would carry the capital sentence, but he says, "No." Perhaps he will look into it. It is not for me to say what is the law, but I wonder very much if he is really right.

Let me take the case or a multiple murder. I do not expect the Attorney-General to rise and answer every point I raise, but I think these are serious points. Take the case of the multiple murder. Someone is discovered to have committed a murder, and investigation discloses a whole graveyard of victims. Is that person to be dealt with under the provision with regard to previous murders, and if so how is the Crown going to proceed? How is it going to pick out the first victim in respect of which proceedings are to be taken? Or does this Clause only contemplate a person who sometime in the past has been convicted of murder? These are all simple questions which ought to be capable of an immediate and simple answer.

The Attorney-General

My right hon. Friend will be able to answer these very simple questions. In that case I think there would be no difficulty, because medical examination would no doubt indicate that some body had been in the graveyard rather longer than the others.

Sir J. Anderson

I am very obliged to the Attorney-General. Then what happens when the Landru of this country is discovered, as he will be sooner or later? There will be a long investigation into all the circumstances, and someone will pick out the body which he thinks represents the earliest crime, and then there will be proceedings in respect of that offence. The victim may not be known. Surely the simplest way to proceed would be with the latest case which led to the discovery of the first murder? But that is not to happen. Is that satisfactory? Is it satisfactory that the procedure in a murder case should have to be manipulated in order to produce a particular result? That is my third objection to this Clause. It involves, as I have said, a manipulation of procedure in order to bring about a substantive result.

It does seem to me as a layman that under the provisions of Subsection (3), when a man known to the police to have committed a previous murder is brought up for trial, the proceedings are to be confined in the first instance to evidence relating to the later murder. The jury are, I suppose, to be invited to deal with the matter in ignorance of what is really involved, because only the prosecution know that they have this bombshell ready after the first proceedings have been completed. The jury do not know, and at the second stage when they are asked to consider what may be a perfectly simple presentation of facts in regard to a previous conviction they will then discover for the first time that the effect of the decision they have just arrived at is that the man they thought they were condemning to penal servitude for life was being sentenced to death. Is that satisfactory? If I were learned in the law I could no doubt develop this point in great detail with devastating effect, but I think that the simplest presentation in an assembly of this kind is sometimes the best. My approach to the whole subject is not unsympathetic, if this can be done in a satisfactory fashion. I am arguing that it has not been done in a satisfactory fashion, and I am prepared in a moment to concede that it probably cannot be done in a satisfactory fashion.

Let me first put my fourth point. It is that if the Clause becomes law, the task of the Home Office in administering the prerogative of mercy will be exceedingly, and I believe overwhelmingly, difficult. What will arise will be this: A man is convicted of murder in the first degree, or capital murder, or major murder, or whatever you like to call it. The review takes place, in the ordinary course. Then it appears that while, on a consideration of that case itself, there would be no sufficient reason for exercising the prerogative, the advisers of the Home Office will be in a position to put before the Home Secretary a whole series of cases bearing some resemblance to the are in question but differing in detail and which, for technical reasons, came within the second category, minor murder, where only the penalty of penal servitude was imposed. Representations will be made with great force and conviction that it would be wrong and inhuman to allow the law to take its course.

In regard to the man so unfortunate as to be convicted of murder in the first degree, there would be other people whose crimes were more heinous and were premeditated crimes but got off, because, as the result of the wording of this new Clause, they could only be convicted of murder in the second degree. I think that in the course of a very short time the administration of the prerogative will be brought into a condition in which the conduct of a Home Secretary can no longer be defended on any logical principle. I would ask the Home Secretary to consider that point very carefully. I think it is a very serious consideration indeed. It may be that it was in the minds of some of the hon. Gentlemen who are responsible for this Clause that that would be the result; that, as a result of passing the Clause in this form, the prerogative of mercy would be widely extended side by side with a limitation of the criminal law in regard to murder. That might have been their intention. If so, we had better know. The Clause will have this effect. I say without hesitation at all that that will inevitably be its effect.

My conclusion from all this is that the task which the Government have set themselves to try to classify murders by a series of rigid definitions is, if not impossible, certainly very difficult. If it had not been very difficult I cannot think that the Government would have made such a mess of it as I think they have. I have no objection whatever to departing from strict logic in matters of this kind. The Attorney-General devoted a few sentences of his speech to making the point that we ought not to try to be too logical, but an argument in justification of a departure from logic is not a justification for stupidity. The effect of this Clause, for reasons which I have tried to show very briefly, would be to produce a state of things which, from any standard of commonsense, could not possibly be defended.

If the Clause is so unsatisfactory that we cannot give it support, what alternative is there? We could give a discretion to juries and judges, as is done in some countries. The suggestion made by my hon. and learned Friend in his Clause would have very much that affect. We would fall back not on a series of rigid definitions but on a very general definition, somewhat on the lines of what is found in the United States, and then we could leave it to judge and jury to decide whether the case fell on one side of the line or on the other. That would be possible. I do not think it would be acceptable in this country. I am sure the judges would not like it. However, it would be possible. That would involve so great and radical a departure from our traditional position that I do not think I would support it.

If that were to be rejected, what is left? I say again to the House what in my opinion is the only possible and sensible course for those who believe that the capital sentence is an evil—perhaps an unavoidable evil—and who would like to see it got rid of to the fullest extent and as speedily as possible. The proper way is to proceed by exercise of the Prerogative. I believe—I am going to be rather bold here—that it would be possible to define categories for the purpose of the exercise of the Prerogative and to let it be known publicly what these categories were. I thought the Attorney-General was a little too downright in his condemnation of the course the Home Secretary had taken. I think the Home Secretary took an unfortunate course in what he decided to do in regard to capital sentences after the first vote in this House, and he was condemned in another place.

However, I think it would be possible to proceed in the way I suggest, always provided that the Home Secretary reserved to himself a discretion to take account of exceptional circumstances on one side or the other. The difficulty about what the Home Secretary said he was going to do was that he denied him self all discretion. He said he would take a certain course whatever the facts in all the cases as they came along. I think it would be possible—and he would not lay himself open to any condemnation anywhere—for him to define categories and to say that in all cases in category A, other things being equal and in the absence of special circumstances, he would think it right to advise the exercise of the Prerogative and that in the other cases, again in the absence of special considerations, the law would be allowed to take its course.

If anyone should be disposed to question what I have said, I would like to quote one precedent which supports it. As the law stands, no person under the age of 18 can be sentenced to death. That was not always the law. A change was made in the law quite recently. For quite a long time before that change was made, the rule obtained in the Home Office that every person under the age of 18 sentenced to death was immediately reprieved. That was laid down by Mr. Asquith when he was Home Secretary. He laid it down in this form. He said: Over the age of 18, youth alone will not be a justification for the exercise of the Prerogative. It was put in that form. The obvious implication was that under the age of 18 youth would be a justification for the exercise of the Prerogative, and it was exercised in every such case without exception without a change in the law. That fact, which I quote on the authority of no less a person than Mr. Asquith, who was very strict in matters of constitutional propriety, I think justifies me in what I have just said to the Home Secretary. My strong advice—

Mr. Thurtle (Shoreditch)

Is it not a fact that about 1923 a boy named Jacoby, who was under 18 was executed?

Sir J. Anderson

The hon. Gentleman cannot catch me like that. Jacoby was just under the age of 19, and he committed a most deliberate murder in the course of a robbery, hitting an old woman over the head with a hammer. He was just under the age of 19.

That is the advice which I would give to the House and to the Home Secretary. I do not believe that any good at all will be done, on the contrary, I believe that infinite harm will be done if this Clause goes on the statute book and an attempt is made to administer it. I hope very much indeed that the Home Secretary and his advisers will give further consideration to the suggestion I have thrown out, which I believe represents the practical method of doing what I know he wants to do, and what many friends of mine have wanted to do, and that is to reduce the area in which capital punishment is enforced to the smallest possible dimensions with the hope that that will be a progressive movement in a direction which he desires.

9.40 p.m.

The Secretary of State for the Home Department (Mr. Ede)

The House has had a full discussion on this matter and speeches have been made from more than two points of view with regard to the subject. I think we can say that, although there has been rather more heat engendered today than there was on 14th April, the Debate still has been one that has been worthy of the seriousness of the subject which we are discussing. I must thank the right hon. Gentleman the Member for Woodford (Mr. Churchill) for the very generous personal reference he made to me in his remarks and, if I may be allowed to do so, other hon. Members of the House who, privately, have expressed sentiments on the same lines.

I had to point out to the right hon. Gentleman that in the course of his speech he had rather neglected Subsection (8) of our Clause, which leaves this matter on the same experimental basis as the Clause which my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) moved on the previous occasion. From that the right hon. Gentleman went on to make some remarks about Queen Elizabeth, which certainly added to the grace of the speech, only I gathered he thought that Queen Elizabeth had a rather poor opinion of blank verse. The astonishing thing is that it is the blank verse of the reign of Queen Elizabeth which is the greatest literary monument of the period, and, therefore, although this Clause does not make any more appeal to the right hon. Gentleman than Shakespeare apparently made to Queen Elizabeth, it may be that future ages will judge it rather more leniently than the right hon. Gentleman did this afternoon.

May I say this also: The right hon. Gentleman wrote to me a short time ago and asked for a copy of the letter which he read this afternoon. I at once acceded to his request that he should have a copy of the letter.

Mr. Churchill

It is entirely in accordance with custom that Ministers should have access to the documents of the period for which they were responsible.

Mr. Ede

And I at once sent it to the right hon. Gentleman. I want to say this, and I think it is necessary that it should be said, that I heard with a twinge of regret the right hon. Gentleman allude to what he stated was the fact—and I have no doubt it was—that in that case he apparently acted against the advice of his official advisers. It would be rather regrettable if it should be thought that there were cases in which it could be identified that the decision was that of the Minister taken against advice—and rightly taken against advice because it is his final responsibility—that it should be known that in particular cases it was the Minister's act, and other cases where it was the act of the Minister in accordance with the advice of his officials.

Mr. Churchill

Nearly 40 years—there is a considerable time lag.

Mr. Ede

Yes, but there may still be alive relatives of a person whose life was involved. I do not want to say more than that, but I should regret it being thought that it was possible to attempt in this very important matter to distinguish between the personal act of the Minister, not in accordance with the advice he has received, and his act when he has acted in accordance with that advice.

The right hon. Gentleman the Member for the Scottish Universities (Sir J. Anderson) and the right hon. Gentleman the Member for Woodford both suggested that the proper way to proceed in this matter is by some extension by the Home Secretary of the day—and presumably by successive Home Secretaries—of the use of the Royal Prerogative, which would virtually mean that the Home Secretary, and not the House, would be legislating in this matter. I am bound to say that that is not a course that appeals to me. I should feel that, if one were to say that some category of murder would, except in special circumstances, as the right hon. Gentleman said, be regarded as almost inevitably to carry the exercise of the Royal Prerogative, that would involve the Home Secretary in very considerable difficulties; because when he thought there were special circumstances it might well be that other people thought the special circumstances were absent, or that in cases where he thought special circumstances did not exist other people would think they did.

One of the great advantages of the exercise of the Royal Prerogative by successive Home Secretaries including, the right hon. Member for Woodford, is the fact that this House over the years has steadily declined to question the Home Secretary about the way in which this great power of mercy is exercised. I imagine that every Home Secretary, on taking office, receives the book which was given to me, recording instances in the past where hon. Members of this House have attempted to question Home Secretaries and the way in which the issue has generally been avoided of forcing anything which would be uncomfortable for the Home Secretary. I am quite certain that if I or my successors were to adopt the lines suggested by the two right hon. Gentlemen, each of whom has been Home Secretary, they would very soon be regarded very jealously by the House as having taken for themselves powers that ought only to be within the jurisdiction of Parliament itself. Therefore, I do not think that a widening of the exercise of the recommendation of the Prerogative is one which will help us in this matter.

Sir J. Anderson

I am sure that the right hon. Gentleman realises that there has been a progressive extension over a long period of years. I am sure he recognises that, for years before the Infanticide Act was passed, the Home Secretary was governed by the general principle that persons who would now be convicted under the Infanticide Act should not be hanged. That is a well-known fact.

Mr. Ede

Yes, Sir. It was very severely criticised from time to time and I think that the criticism was sound. I agree that the Home Secretary has the duty of examining—

Sir J. Anderson

I apologise to the Home Secretary, but, surely, what was criticised was the fact that under the law persons were subjected to the ordeal of being sentenced to death when everyone knew that, by the exercise of the Prerogative, reprieve would be automatic.

Mr. Ede

The right hon. Gentleman is asking me to re-establish that over what I understood was a much wider area. I think it is a deplorable thing that the awful solemnity of the death sentence should ever be uttered in a case where everybody in court knows that it is not going to be enforced. To suggest that that area should be extended in the way in which it has been extended seems to me to be one of the answers to the suggestion which has been made.

On 14th April the House had before them only two absolute alternatives in this matter. They could either vote for retention of the law as it stood, or they could vote for the five years' suspension in all cases of murder. By a majority, that was not large, that was contributed to by every party in the House—I am quite sure neither of the right hon. Gentlemen opposite would deny that—the House decided in favour of suspension over the whole range. The issue had been left to a free vote of the House, and I did not quite understand what the right hon. Gentleman meant this afternoon when he said he thought I ought to have resigned—[HON. MEMBERS: "Hear, hear."]—at the stage when the matter was left to a free vote of the House, because I supported, not merely as a member of the Cabinet, but I supported personally—I make that disclosure—the view that this matter should be left to the free vote of the House.

I intimated to the House at the time that this was a matter on which the conscience of Members should not be coerced. [An HON. MEMBER: "It will be to night."] The right hon. Gentleman dealt with the matter chronologically; surely I might be allowed to deal with the matter chronologically also. We are faced with the fact that the decision reached by this House by a small majority has not proved acceptable in another place. [HON. MEMBERS: "Or in the country."] That is what I suggested on the last occasion, that the decision of the House, if it turned out to be what it was, would not be in accordance with feeling in the country, and I withdraw nothing I said on that occasion. We are faced with the fact that there was a majority in the House in favour of a certain course of action. I do not believe that the country as a whole regards the death penalty as something that should not be touched. I think that from time to time opinion in the country does tend to become more merciful in this matter.

What I did say in the course of my speech on 14th April was that there were certain categories of crime now being committed which led to murder on which I thought public opinion required that the extreme penalty should be exacted. I think that the country does believe that in the kind of cases we have scheduled in this Amendment the death penalty would act as a deterrent. What the right hon. Member for the Scottish Universities said indicates that. I think it is well known that where criminals engaged on a felonious enterprise find that one of their number is in fact armed, they are apt to push him out of the particular enterprise for that night and to take good care that on a future occasion he does not come armed.

I believe that it is necessary, with the present recklessness among a certain new type of criminal, that the deterrent of the death penalty should be retained. That we retain in our proposed new Clause. Siilarly with regard to the other categories which we have included I believe that public opinion would regard those as suitable cases in which this deterrent should still be quite clearly available. I would go further and say that by selecting these offences we mark them out more clearly as those in which this deterrent is used, and where we think its existence will be effective.

My hon. Friend the Member for Heywood and Radcliffe (Mr. Anthony Greenwood) made a speech with regard to the Amendment which he has placed upon the Order Paper. I want every hon. Friend of mine to be quite clear on what the effect of carrying that Amendment would be. The effect would be, and clearly must be, after what I have said this evening, that nothing would be done at all. The effect of passing the new Clause proposed by the Government would be that while the death penalty is retained, with the full exercise of the Prerogative of mercy by the Home Secretary for certain classes of offences, it is not retained for others. My hon. Friends may be interested to know exactly what the effect of this new Clause would have been had it been in operation during the past four years. If we take 1944, 1945, 1946 and 1947, there were 51 persons executed. Of those 28 would not have been sentenced to death if this Amendment had been the law of the land. The alternatives before my hon. Friends therefore are these: if they vote for the Amendment of my hon. Friend the Member for Heywood and Radcliffe, sentences of death and executions will go on at the same rate as they have been going on in the past, assuming that the same number of offences are committed.

Mr. Anthony Greenwood

And assuming the same Home Secretary as well.

Mr. Ede

With another Home Secretary it might not follow that there would be fewer executions. The effect of voting for the Government Amendment will be that the number of sentences of death will be reduced in about the proportions I have named, and possibly, as some of my hon. Friends have assumed, if the particular crimes aimed at by this sentence become fewer, the proportion of sentences of death will be even lower than during the past four years. My hon. Friends therefore have the opportunity of voting for my hon. Friend's Amendment, under which nothing will be done and the law will remain as it is, or they have the opportunity of voting for the Government Clause which will reduce the number of sentences of death and executions in about the proportion that I have mentioned.

Mr. Emrys Roberts (Merioneth)

Will the Home Secretary allow me to intervene. I apologise for interrupting him, but I think there is a real point here. At the time the Government new Clause is put, assuming that the House has previously carried the Government Motion to disagree with the Lords, the state of this Bill will be that the death penalty will be suspended for five years. On that argument every vote against the Government's new Clause is a vote for the suspension of the death penalty for five years.

Mr. Ede

But again, after the history of the last three months, knowing that that will be completely ineffective. After the speeches made in another place, I cannot assume that if we sent Clause 1 back, as we sent it in April, there would be any other result than that it would again be rejected.

Mr. Frank Byers (Dorset, Northern)

May I ask the right hon. Gentleman whether it is a fact that he is reasonably sure that another place will accept his compromise Amendment?

Mr. Ede

I am not going to pre-judge what another place will do when they are presented with a new issue. I have no doubt myself, and I would have thought that hon. Members would have no doubt, what they would do if they were again presented with the old issue.

Mr. Keeling (Twickenham)

The right hon. Gentleman has said that during the last four years 28 people were hanged who, under his new Clause, would not have been sentenced to death at all. I presume that the majority of those 28 were hanged at a time when he had a full right to recommend that they should be reprieved. How can he ask this House to reprieve, as it were, retrospectively a large number—[Interruption]—to reprieve retrospectively or posthumously a large number of men whom he did not think it right to reprieve in the exercise of his discretion?

Mr. Ede

I have tried to be helpful to the House in this matter and I do not think that the hon. Gentleman has been quite helpful in the interruption he has made.

Mr. Keeling

What is the answer?

Mr. Ede

The answer is, that there were 28 people sentenced to death under the law as it was and under the custom that then prevailed, in whose cases no recommendation was made for the exercise of the Prerogative. Under the Government Clause, those 28 people could not have been sentenced to death. I am not talking of retrospective reprieves. I am suggesting that, with regard to the future, if those same 51 cases, or similar cases came up, the effect would be that only 23 sentences of death would in fact have been passed.

The House has been asked by the right hon. Member for the Scottish Universities to have regard to the difficulties that will be created by the Clause, but according to the best legal authorities the present law is not without its difficulties. I have been handed a copy of Stephen's "Digest of the Criminal Law" in which he deals with the way in which the law on this matter has been created. He says: The intricacy, confusion, and uncertainty of this branch of the law may be traced to the statute 23 Hen. 8 … which took away the benefit of clergy in cases of 'wilful murder of malice prepensed,' and which thus created the necessity of preserving the expression 'malice prepense,' and at the same time explaining it away. Coke endeavoured to effect this by the doctrine of constructive or fictitious malice, of which, if not the author, he was the most conspicuous expounder, and he showed in his exposition of it that utter incapacity for anything like correct language or consecutive thought which was one of his great characteristics.

Mr. Churchill

What is the date of the quotation?

Mr. Ede

I do not know. The book is 1894— Hale amplifies Coke, Foster rationalises Hale, and the judges have, in an unsystematic occasional way, worked out, bit by bit, the result recorded in the text. I suggest that what the Government are putting before the House tonight is a method by which the steady amelioration of the law can be carried forward at this stage in a way which will not violently affect public opinion in this country, that will enable a very substantial improvement to be made and, at the same time, will assure that part of public opinion which we believe to be reasonably alarmed at too wide an extension of mercy at this time to feel that this Clause amply safeguards those things about whose safety they have misgivings.

Mr. H. Strauss

Does the right hon. Gentleman agree that under the Clause no wife murderer in future can be condemned to death unless he uses either

systematic administration of poison or an explosive?

Mr. Ede

I should think that that is probably the result.

Question put, "That this House doth disagree with the Lords in the said Amendment."

The House divided: Ayes, 332; Noes, 196.

Division No. 261.] AYES. [10.8 p.m.
Acland, Sir Richard Davies, Haydn (St. Pancras, S.W.) Hoy, J.
Adams, Richard (Balham) Davies, R. J. (Westhoughton) Hubbard, T.
Adams, W. T. (Hammersmith, South) Deer, G. Hudson, J. H. (Ealing, W.)
Alexander, Rt. Hon. A. V. de Freitas, Geoffrey Hughes, Emrys (S. Ayr)
Allen, A. C. (Bosworth) Delargy, H. J. Hughes, Hector (Aberdeen, N.)
Allen, Scholefield (Crewe) Diamond, J. Hughes, H. D. (W'lverh'pton, W.)
Alpass, J. H. Dobbie, W. Hutchinson, H. L. (Rusholme)
Attewell, H. C. Dodds, N. N. Hynd, H. (Hackney, C.)
Attlee, Rt. Hon. C. R. Donovan, T. Irvine, A. J. (Liverpool)
Awbery, S. S. Driberg, T. E. N. Irving, W. J. (Tottenham, N.)
Ayles, W. H. Dugdale, J. (W. Bromwich) Isaacs, Rt. Hon. G. A.
Ayrton Gould, Mrs. B. Durbin, E. F. M. Janner, B.
Bacon, Miss A. Dye, S. Jay, D. P. T.
Baird, J. Ede, Rt. Hon. J. C. Jeger, G. (Winchester)
Barnes, Rt. Hon. A. J. Edelman, M. Jeger, Dr. S. W. (St. Pancras, S.E.)
Barstow, P. G. Edwards, John (Blackburn) Jenkins, R. H.
Barton, C. Edwards, Rt. Hon. N. (Caerphilly) Johnston, Douglas
Battley, J. R. Edwards, W. J. (Whitechapel) Jones, Rt. Hon. A. C. (Shipley)
Bechervaise, A. E. Evans, Albert (Islington, W.) Jones, D. T. (Hartlepools)
Belcher, J. W. Evans, E. (Lowestoft) Jones, Elwyn (Plaistow)
Benson, G. Evans, John (Ogmore) Jones, J. H. (Bolton)
Berry, H. Ewart, R. Jones, P. Asterley (Hitchin)
Beswick, F. Fairhurst, F. Keenan, W.
Bevan, Rt. Hon. A. (Ebbw Vale) Farthing, W. J. Kendall, W. D.
Bing, G. H. C. Fernyhough, E. Kenyon, C.
Binns, J. Field, Capt. W. J. Key, Rt. Hon. C. W.
Blackburn, A. R. Fletcher, E. G. M. (Islington, E.) King, E. M.
Blenkinsop, A. Follick, M. Kinghorn, Sqn.-Ldr. E.
Blyton, W. R. Foot, M. M. Kinley, J.
Bottomley, A. G. Forman, J. C. Kirby, B. V.
Bowden, Flg. Offr. H. W. Fraser, T. (Hamilton) Lang, G.
Braddock, Mrs. E. M. (L'pl. Exch'ge) Freeman, J. (Watford) Lawson, Rt. Hon. J. J.
Braddock, T. (Mitcham) Gaitskell, Rt. Hon. H. T. N. Lee, F. (Hulme)
Bramall, E. A. Gallacher, W. Lee, Miss J. (Cannock)
Brook, D. (Halifax) Ganley, Mrs. C. S. Leonard, W.
Brooks, T. J. (Rothwell) George, Lady M. Lloyd (Anglesey) Leslie, J. R.
Brown, George (Belper) Gibbins, J. Lever, N. H.
Brown, T. J. (Ince) Gibson, C. W. Levy, B. W.
Burden, T. W. Gilzean, A. Lewis, J. (Bolton)
Burke, W. A. Glanville, J. E. (Consett) Lindgren, G. S.
Butler, H. W. (Hackney, S.) Gooch, E. G. Lipton, Lt.-Col. M.
Byers, Frank Gordon-Walker, P. C. Longden, F.
Callaghan, James Granville, E. (Eye) Lyne, A. W.
Carmichael, James Greenwood, A. W. J. (Heywood) McAdam, W.
Castle, Mrs. B. A. Grey, C. F. McAllister, G.
Chamberlain, R. A. Griffiths, Rt. Hon. J. (Llanelly) McEntee, V. La T.
Champion, A. J. Griffiths, W. D. (Moss Side) McGhee, H. G.
Chetwynd, G. R. Guest, Dr. L. Haden Mack, J. D.
Cobb, F. A. Gunter, R. J. McKay, J. (Wallsend)
Cocks, F. S. Guy, W. H. Mackay, R. W. G. (Hull, N.W.)
Coldrick, W. Haire, John E. (Wycombe) McKinlay, A. S.
Collindridge, F. Hale, Leslie McLeavy, F.
Collins, V. J. Hall, Rt. Hon. Glenvil MacMillan, M. K. (Western Isles)
Colman, Miss G. M. Hamilton, Lieut.-Col. R. McNeil, Rt. Hon. H.
Comyns, Dr. L. Hannan, W. (Maryhill) Macpherson, T. (Romford)
Cook, T. F. Hardman, D. R. Mallalieu, E. L. (Brigg)
Cooper, Wing-Comdr. G. Hardy, E. A. Mallalieu, J. P. W. (Huddersfield)
Corbet, Mrs. F. K. (Camb'well, N.W.) Harris, H. Wilson (Cambridge Univ.) Mann, Mrs. J.
Corlett, Dr. J. Harrison, J. Manning, C. (Camberwell, N.)
Cove, W. G. Hastings, Dr. Somerville Manning, Mrs. L. (Epping)
Crawley, A. Haworth, J. Marquand, H. A.
Cripes, Rt. Hon. Sir S. Henderson, Rt. Hn. A. (Kingswinford) Marshall, F. (Brightside)
Crossman, R. H. S. Henderson, Joseph (Ardwick) Mathers, Rt. Hon. George
Daines, P. Herbison, Miss M. Mayhew, C. P.
Dalton, Rt. Hon. H. Hewitson, Capt. M. Mellish, R. J.
Davies, Edward (Burslem) Hobson, C. R. Messer, F.
Davies, Ernest (Enfield) Holman, P. Middleton, Mrs. L.
Davies, Harold (Leek) Holmes, H. E. (Hemsworth) Mikardo, Ian
Millington, Wing-Comdr E. R. Roberts, Emrys (Merioneth) Thurtle, Ernest
Mitchison, G. R. Roberts, Goronwy (Caernarvonshire) Tiffany, S.
Monslow, W. Roberts, W. (Cumberland, N.) Timmons, J.
Moody, A. S. Rogers, G. H. R. Titterington, M. F.
Morgan, Dr. H. B. Ross, William (Kilmarnock) Tolley, L.
Morley, R. Royle, C. Tomlinson, Rt. Hon. G.
Morris, P. (Swansea, W.) Sargood, R. Ungoed-Thomas, L.
Morrison, Rt. Hon. H. (Lewisham, E.) Segal, Dr. S. Usborne, Henry
Mort, D. L. Shackleton, E. A. A. Vernon, Maj. W. F.
Moyle, A. Shawcross, C. N. (Widnes) Viant, S. P.
Nally, W. Shawcross, Rt. Hn. Sir H. (St. Helens) Wadsworth, G.
Neal, H. (Clay Cross) Shurmer, P. Walker, G. H.
Nichol, Mrs. M. E. (Bradford, N.) Silkin, Rt. Hon. L. Warbey, W. N.
Nicholls, H. R. (Stratford) Silverman, J. (Erdington) Watkins, T. E.
O'Brien, T. Silverman, S. S. (Nelson) Weitzman, D.
Oldfield, W. H. Simmons, C. J. Wells, W. T. (Walsall)
Oliver, G. H. Skeffington, A. M. West, D. G.
Orbach, M. Skeffington-Lodge, T. C. Westwood, Rt. Hon. J.
Paget, R. T. Skinnard, F. W. Wheatley, Rt. Hn. John (Edinb'gh, E.)
Paling, Rt. Hon. Wilfred (Wentworth) Smith, C. (Colchester) White, H. (Derbyshire, N.E.)
Paling, Will T. (Dewsbury) Smith, Ellis (Stoke) Whiteley, Rt. Hon. W.
Palmer, A. M. F. Smith, H. N. (Nottingham, S.) Wigg, George
Parker, J. Solley, L. J. Wilcock, Group-Capt. C. A. D.
Parkin, B. T. Sorensen, R. W. Wilkes, L.
Paton, Mrs. F. (Rushcliffe) Soskice, Rt. Hon. Sir Frank Wilkins, W. A.
Paton, J. (Norwich) Sparks, J. A. Willey, F. T. (Sunderland)
Pearson, A. Steele, T. Willey, O. G. (Cleveland)
Peart, T. F. Stewart, Michael (Fulham, E.) Williams, J. L. (Kelvingrove)
Perrins, W. Stokes, R. R. Williams, R. W. (Wigan)
Popplewell, E. Strachey, Rt. Hon. J. Williams, Rt. Hon. T. (Don Valley)
Porter, E. (Warrington) Strauss, Rt. Hon. G. R. (Lambeth) Williams, W. R. (Heston)
Porter, G. (Leeds) Stubbs, A. E. Willis, E.
Proctor, W. T. Summerskill, Dr. Edith Wills, Mrs. E. A.
Pryde, D. J. Swingler, S. Wilson, Rt. Hon. J. H.
Pursey, Comdr. H. Sylvester, G. O. Wise, Major F. J.
Randall, H. E. Symonds, A. L. Woods, G. S.
Ranger, J. Taylor, R. J. (Morpeth) Wyatt, W.
Rankin, J. Taylor, Dr. S. (Barnet) Yates, V. F.
Rees-Williams, D. R. Thomas, D. E. (Aberdare) Young, Sir R. (Newton)
Reeves, J. Thomas, George (Cardiff) Younger, Hon. Kenneth
Reid, T. (Swindon) Thomas, Ivor (Keighley)
Rhodes, H. Thomas, I. O. (Wrekin) TELLERS FOR THE AYES:
Ridealgh, Mrs. M. Thomas, John R. (Dover) Mr. Snow and Mr. G. Wallace
Robens, A. Thorneycroft, Harry (Clayton)
Aitken, Hon. Max Donner, P. W. Hogg, Hon. Q.
Anderson, Rt. Hn. Sir J. (Scot. Univ.) Dower, E. L. G. (Caithness) Holmes, Sir J. Stanley (Harwich)
Assheton, Rt. Hon. R. Drayson, G. B. Hope, Lord J.
Astor, Hon. M. Drewe, C. Howard, Hon. A.
Baldwin, A. E. Dugdale, Maj. Sir T. (Richmond) Hudson, Rt. Hon. R. S. (Southport)
Barlow, Sir J. Duncan, Rt. Hn. Sir A. (City of Lond.) Hulbert, Wing-Cdr. N. J.
Beamish, Maj. T. V. H. Duthie, W. S. Hurd, A.
Beechman, N. A. Eccles, D. M. Hutchison, Lt.-Cm. Clark (E'b'rgh W.)
Bennett, Sir P. Elliot, Lieut.-Col. Rt. Hon. Walter Hutchison, Col. J. R. (Glasgow, C.)
Birch, Nigel Erroll, F. J. Jarvis, Sir J.
Boles, Lt.-Col. D. C. (Wells) Fleming, Sqn.-Ldr. E. L. Jeffreys, General Sir G.
Bossom, A. C. Fletcher, W. (Bury) Jennings, R.
Bower, N. Foster, J. G. (Northwich) Joynson-Hicks, Hon. L. W.
Boyd-Carpenter, J. A. Fox, Sir G. Keeling, E. H.
Bracken, Rt. Hon. Brendan Fraser H. C. P. (Stone) Kerr, Sir J. Graham
Braithwaite, Lt.-Comdr. J. G. Fraser, Sir I. (Lonsdale) Kingsmill, Lt.-Col. W. H.
Bromley-Davenport, Lt.-Col. W. Fyfe, Rt. Hon. Sir D. P. M. Lambert, Hon. G.
Buchan-Hepburn, P. G. T. Gage, C. Lancaster, Col. C. G.
Butcher, H. W. Galbraith, Cmdr. T. D. Law, Rt. Hon. R. K.
Butler, Rt. Hn. R. A. (S'ffr'n W'ld'n) Gammans, L. D. Legge-Bourke, Maj. E. A. H.
Carson, E. Gates, Maj. E. E. Lennox-Boyd, A. T.
Challen, C. George, Maj. Rt. Hn. G. Lloyd (P'ke) Lindsay, M. (Solihull)
Channon, H. Glyn, Sir R. Linstead, H. N.
Churchill, Rt. Hon. W. S. Gomme-Duncan, Col. A. Lloyd, Maj. Guy (Renfrew, E.)
Clarke, Col. R. S. Grant, Lady Low, A. R. W.
Clifton-Brown, Lt.-Col. G. Gridley, Sir A. Lucas, Major Sir J.
Cooper-Key, E. M. Griffiths, D. (Rother Valley) Lucas-Tooth, Sir H.
Corbet, Lieut.-Col. U. (Ludlow) Grimston, R. V. Lyttelton, Rt. Hon. O.
Crookshank, Capt. Rt. Hon. H. F. C. Hannon, Sir P. (Moseley) MacAndrew, Col. Sir C.
Crosthwaite-Eyre, Col. O. E. Harden, J. R. E. McCallum, Maj. D.
Crowder, Capt. John E. Hare, Hon. J. H. (Woodbridge) Macdonald, Sir P. (I. of Wight)
Cuthbert, W. N. Harris, F. W. (Croydon, N.) McFarlane, C. S.
Daggar, G. Harvey, Air-Comdre. A. V. Mackeson, Brig. H. R.
Darling, Sir W. Y. Haughton, S. G. McKie, J. H. (Galloway)
Davidson, Viscountess Headlam, Lieut.-Col. Rt. Hon. Sir C. Maclay, Hon. J. S.
De la Bère, R. Henderson, John (Cathcart) Maclean, F. H. R. (Lancaster)
Digby, S. W. Herbert, Sir A. P. MacLeod, J.
Dodds-Parker, A. D. Hinchingbrooke, Viscount Macmillan, Rt. Hon. Harold (Bromley)
Macpherson, N. (Dumfries) Poole, O. B. S. (Oswestry) Stoddart-Scott, Col. M.
Maitland, Comdr. J. W. Prescott, Stanley Strauss, Henry (English Universities)
Manningham-Buller, R. E. Price, M. Philips Stuart, Rt. Hon. J. (Moray)
Marlowe, A. A. H. Price-White, Lt.-Col. D. Studholme, H. G.
Marples, A. E. Prior-Palmer, Brig. O. Sutcliffe, H.
Marsden, Capt. A. Raikes, H. V. Taylor, C. S. (Eastbourne)
Marshall, S. H. (Sutton) Ramsay, Maj. S. Thomas, J. P. L. (Hereford)
Maude, J. C. Rayner, Brig. R. Thorneycroft, G. E. P. (Monmouth)
Mellor, Sir J. Reed, Sir S. (Aylesbury) Thornton-Kemsley, C. N.
Molson, A. H. E. Reid, Rt. Hon. J. S. C. (Hillhead) Thorp, Brigadier R. A. F.
Moore, Lt.-Col. Sir T. Roberts, H. (Handsworth) Touche, G. C.
Morris-Jones, Sir H. Roberts, P. G. (Ecclesall) Turner-Samuels, M.
Morrison, Maj. J. G. (Salisbury) Robertson, Sir D. (Streatham) Vane, W. M. F.
Morrison, Rt. Hon. W. S. (Cir'cester) Robinson, Roland Wakefield, Sir W. W.
Mott-Radclyffe, C. E. Ropner, Col. L. Ward, Hon. G. R.
Neven-Spence, Sir B. Ross, Sir R. D. (Londonderry) Watt, Sir G. S. Harvie
Nicholson, G. Sanderson, Sir F. Wheatley, Colonel M. J. (Dorset, E.)
Nield, B. (Chester) Savory, Prof. D. L. White, Sir D. (Fareham)
Noble, Comdr. A. H. P. Sharp, Granville White, J. B. (Canterbury)
Nutting, Anthony Shepherd, S. (Newark) Williams, C. (Torquay)
Odey, G. W. Shepherd, W. S. (Bucklow) Williams, Gerald (Tonbridge)
O'Neill, Rt. Hon. Sir H. Smiles, Lt.-Col. Sir W. Willoughby de Eresby, Lord
Orr-Ewing, I. L. Smith, E. P. (Ashford) Winterton, Rt. Hon. Earl
Osborne, C. Smithers, Sir W. York, C.
Peake, Rt. Hon. O. Snadden, W. M.
Peto, Brig. C. H. M. Spearman, A. C. M. TELLERS FOR THE NOES:
Pickthorn, K. Spence, H. R. Sir Arthur Young and
Pitman, I. J. Stanley, Rt. Hon. O. Major Conant.
Ponsonby, Col. C. E. Stewart, J. Henderson (Fife E.)
Mr. Ede

I beg to move as an Amendment, to the words so restored to the Bill, in page 1, line 9, to leave out Subsection (1), and to insert:

  1. "(1) During the continuance in force of this section, no person shall be sentenced by a court to death for murder unless it is charged in the indictment or inquisition and found by the jury that the murder was committed with express malice as defined by this section, and either—
    1. (a) that the murder was committed in the course of, or immediately before or after and in connection with, the commission of an offence described in the Schedule to this Act (Offences involving death penalty for murder), or on attempt to commit such an offence; or
    2. (b) that the murder was committed in the course of or for the purpose of resisting or avoiding or preventing an arrest in course of law, or of escaping or assisting an escape from legal custody, or for the purpose of obstructing a constable acting in the execution of his duty or any person assisting a constable so acting; or
    3. (c) that the murder was committed by means of, and in the course of the systematic administration of, poison or any other noxious substance; or
    4. (d) that the murder was committed by a person detained in a prison or other institution to which the Prison Acts, 1865 to 1898, apply, and that the person murdered was an officer of any such institution acting in the execution of his duty or a person assisting such an officer so acting; or
    5. (e) that the accused has been convicted of murder committed on a previous occasion
  2. (2) Where, by virtue of the foregoing Subsection, a court is precluded from passing sentence of death on a person convicted of murder, the court shall sentence the offender to imprisonment for life.
  3. 1534
  4. (3) If in any indictment or inquisition for murder it is charged that the accused has been convicted of murder committed on a previous occasion, the accused shall in the first instance be arraigned on so much only of the indictment or inquisition as charges the murder for which he is to be tried; and if on arraignment he pleads guilty or is found guilty by the jury, the jury shall, unless he pleads guilty to having been previously convicted as aforesaid, be charged to inquire whether he has been so convicted, and in that case it shall not be necessary to swear the jury again.
  5. (4) For the purposes of this section, a murder shall be deemed, in relation to every person guilty thereof, to be committed with express malice if the act causing the death is done with intent to kill or maim any person, and in the latter case is an act which might reasonably be expected to endanger life.
  6. (5) For the avoidance of doubt it is hereby declared that where a person is charged with murder on an indictment or inquisition charging any of the matters specified in subsection (1) of this section, and the jury are of opinion that those matters are not established by the evidence but that the accused is shown by the evidence to be guilty of murder or any other offence of which a person charged with murder may lawfully be convicted, the jury may return a verdict of guilty of murder or of any such other offence as aforesaid."

Question, "That the words proposed to be left out stand part of the words so restored to the Bill," put, and negatived.

Question proposed, "That those words be there inserted."

Mr. Anthony Greenwood

I beg to move, to leave out from the first word "murder" to end, and insert instead thereof: and every enactment requiring a court to pronounce or record a sentence of death in any case of murder shall be construed as requiring the court to sentence the offender to imprisonment for life. (2) Nothing in this section shall affect the provisions of section fifty-three of the Children and Young Persons Act, 1933 (which prohibits the passing of sentence of death against a person under the age of eighteen years, and requires the court, in lieu thereof, to sentence him to be detained during His Majesty's Pleasure). (3) This section shall come into force on such day as the Secretary of State may by order appoint and shall continue in force for a period of five years from that date, and shall then expire, but without prejudice to the validity of anything done thereunder: Provided that if at any time before the expiration of the period aforesaid an Address is presented to His Majesty by each House of Parliament praying that this section be continued in force without limitation of time or for any extended period specified in the Address, His Majesty may by Order in Council make provision for that purpose; and where any such Order in Council continues this section for any such extended period, the provisions of this subsection (including this proviso) shall have effect as if that extended

period were substituted for the period of five years mentioned in this section (4) In the application of this section to Scotland—

  1. (a) any reference to murder shall be construed as including a reference to any offence mentioned in section two or section three of the Criminal Law (Scotland) Act, 1829 (which sections make punishable by death certain crimes of violence against His Majesty's subjects);
  2. (b) the reference to imprisonment for life shall be construed as a reference to penal servitude for life;
  3. (c) for the reference to section fifty-three of the Children and Young Persons Act, 1933, there shall be substituted a reference to section fifty-seven of the Children and Young Persons (Scotland) Act 1937."

Mr. Royle

I beg to second the Amendment to the proposed Amendment.

Question put, "That the words proposed to be left out stand part of the Amendment."

The House divided: Ayes, 319; Noes, 186.

Division No. 262.] AYES. [10.20 p.m.
Acland, Sir Richard Carmichael, James Evans, E. (Lowestoft)
Adams, Richard (Balham) Castle, Mrs. B. A. Evans, John (Ogmore)
Adams, W. T. (Hammersmith, South) Chamberlain, R. A. Ewart, R.
Alexander, Rt. Hon. A. V. Champion, A. J. Fairhurst, F.
Allen, A. C. (Bosworth) Chetwynd, G. R. Farthing, W. J.
Alpass, J. H. Cobb, F. A. Field, Capt. W. J.
Attewell, H. C. Cocks, F. S. Fletcher, E. G. M. (Islington, E.)
Attlee, Rt. Hon. C. R. Coldrick, W. Follick, M.
Awbery, S. S. Collindridge, F. Foot, M. M.
Ayles, W. H. Collins, V. J. Forman, J. C.
Ayrton Gould, Mrs. B. Colman, Miss G. M. Fraser, T. (Hamilton)
Bacon, Miss A. Comyns, Dr. L. Freeman, J. (Watford)
Baird, J. Cook, T. F. Gaitskell, Rt. Hon. H. T. N.
Barnes, Rt. Hon. A. J. Cooper, Wing-Comdr. G. Ganley, Mrs. C. S.
Barstow, P. G. Corbet, Mrs. F. K. (Camb'weil, N.W.) George, Lady M. Lloyd (Anglesey)
Barton, C. Corlett, Dr. J. Gibbins, J.
Battley, J. R. Cove, W. G. Gibson, C. W.
Bechervaise, A. E. Cripps, Rt. Hon. Sir S. Gilzean, A.
Belcher, J. W. Crossman, R. H. S. Glanville, J. E. (Consett)
Benson, G. Daggar, G. Gooch, E. G.
Berry, H. Daines, P. Gordon-Walker, P. C.
Beswick, F. Dalton, Rt. Hon. H. Granville, E. (Eye)
Bevan, Rt. Hon. A. (Ebbw Vale) Davies, Edward (Burslem) Grey, C. F.
Bing, G. H. C. Davies, Ernest (Enfield) Griffiths, D. (Rother Valley)
Binns, J. Davies, Harold (Leek) Griffiths, Rt. Hon. J. (Llanelly)
Blackburn, A. R. Davies, Haydn (St. Pancras, S.W.) Griffiths, W. D. (Moss Side)
Blenkinsop, A. Deer, G. Guest, Dr. L. Haden
Blyton, W. R. de Freitas, Geoffrey Gunter, R. J.
Bottomley, A. G. Delargy, H. J. Guy, W. H.
Bowden, Flg. Offr. H. W. Diamond, J. Haire, John E. (Wycombe)
Bowles, F. G. (Nuneaton) Dobbie, W. Hale, Leslie
Braddock, Mrs. E. M. (L'pl. Exch'ge) Dodds, N. N. Hall, Rt. Hon. Glenvil
Bramall, E. A. Donovan, T. Hamilton, Lieut.-Col. R.
Brook, D. (Halifax) Driberg, T. E. N. Hannan, W. (Maryhill)
Brooks, T. J. (Rothwell) Dugdale, J. (W. Bromwich) Hardman, D. R.
Brown, George (Belper) Durbin, E. F. M. Hardy, E. A.
Brown, T. J. (Ince) Dye, S. Harris, H. Wilson (Cambridge Univ.)
Bruce, Maj. D. W. T. Ede, Rt. Hon. J. C. Harrison, J.
Burden, T. W. Edelman, M. Hastings, Dr. Somerville
Burke, W. A. Edwards, John (Blackburn) Henderson, Rt. Hn. A. (Kingswinford)
Butler, H. W. (Hackney, S.) Edwards, Rt. Hon. N. (Caerphilly) Henderson, Joseph (Ardwick)
Byers, Frank Edwards, W. J. (Whitechapel) Herbison, Miss M.
Callaghan, James Evans, Albert (Islington, W.) Hewitson, Capt M.
Hobson, C. R. Mellish, R. J. Smith, C. (Colchester)
Holman, P. Messer, F. Smith, Ellis (Stoke)
Holmes, H. E. (Hemsworth) Middleton, Mrs. L. Smith, H. N. (Nottingham, S.)
Horabin, T. L. Millington, Wing-Comdr E. R. Solley, L. J.
Hoy, J. Mitchison, G. R. Sorensen, R. W.
Hubbard, T. Monslow, W. Soskice, Rt. Hon. Sir Frank
Hughes, Hector (Aberdeen, N.) Moody A. S. Sparks, J. A.
Hughes, H. D. (W'lverh'pton., W.) Morgan, Dr. H. B. Steele, T.
Hutchinson, H. L. (Rusholme) Morley, R. Stewart, Michael (Fulham, E.)
Hynd, H. (Hackney, C.) Morrison, Rt. Hon. H. (Lewisham, E.) Strachey, Rt. Hon. J.
Irvine, A. J. (Liverpool) Mort, D. L. Strauss, Rt. Hon. G. R. (Lambeth)
Irving, W. J. (Tottenham, N.) Moyle, A. Stubbs, A. E.
Isaacs, Rt. Hon. G. A. Neal, H. (Clay Cross) Summerskill, Dr. Edith
Janner, B. Nichol, Mrs. M. E. (Bradford, N.) Swingler, S.
Jay, D. P. T. Nicholls, H. R. (Stratford) Sylvester, G. O.
Jeger, G. (Winchester) O'Brien, T. Symonds, A. L.
Jeger, Dr. S. W. (St. Pancras, S.E.) Oldfield, W. H. Taylor, R. J. (Morpeth)
Jenkins, R. H. Oliver, G. H. Taylor, Dr. S. (Barnet)
Johnston, Douglas Orbach, M. Thomas, D. E. (Aberdare)
Jones, Rt. Hon. A. C. (Shipley) Paget, R. T. Thomas, Ivor (Keighley)
Jones, D. T. (Hartlepools) Paling, Rt. Hon. Wilfred (Wentworth) Thomas, I. O. (Wrekin)
Jones, Elwyn (Plaistow) Paling, Will T. (Dewsbury) Thomas, John R. (Dover)
Jones, J. H. (Bolton) Palmer, A. M. F. Thorneycroft, Harry (Clayton)
Jones, P. Asterley (Hitchin) Parker, J. Thurtle, Ernest
Keenan, W. Parkin, B. T. Tiffany, S.
Kendall, W. D. Paton, Mrs. F. (Rushcliffe) Timmons, J.
Kenyon, C. Paton, J. (Norwich) Titterington, M. F.
Key, Rt. Hon. C. W. Pearson, A. Tolley, L.
King, E. M. Peart, T. F. Tomlinson, Rt. Hon. G.
Kinley, J. Perrins, W. Turner-Samuels, M.
Kirby, B. V. Popplewell, E. Ungoed-Thomas, L.
Lang, G. Porter, E. (Warrington) Usborne, Henry
Lawson, Rt. Hon. J. J. Price, M. Philips Vernon, Maj. W. F.
Lee, F. (Hulme) Proctor, W. T. Viant, S. P.
Lee, Miss J. (Cannock) Pryde, D. J. Wadsworth, G.
Leonard, W. Pursey, Comdr. H. Walker, G. H.
Leslie, J. R. Randall, H. E. Watkins, T. E.
Lever, N. H. Ranger, J. Weitzman, D.
Levy, B. W. Rankin, J. Wells, W. T. (Walsall)
Lewis, J. (Bolton) Rees-Williams, D. R. West, D. G.
Lindgren, G. S. Reeves, J. Westwood, Rt. Hon. J.
Lipson, D. L. Reid, T. (Swindon) Wheatley, Rt. Hn. John (Edinb'gh, E.)
Lipton, Lt.-Col. M. Rhodes, H. White, H. (Derbyshire, N.E.)
Longden, F. Ridealgh, Mrs. M. Whiteley, Rt. Hon. W.
Lyne, A. W. Robens, A. Wigg, George
McAdam, W. Roberts, Emrys (Merioneth) Wilcock, Group-Capt C. A. B.
McAllister, G. Roberts, Goronwy (Caernarvonshire) Wilkes, L.
McEntee, V. La T. Roberts, W. (Cumberland, N.) Wilkins, W. A.
Mack, J. D. Rogers, G. H. R. Willey, F. T. (Sunderland)
McKay, J. (Wallsend) Ross, William (Kilmarnock) Willey, O. G. (Cleveland)
Mackay, R. W. G. (Hull, N.W.) Sargood, R. Williams, J. L. (Kelvingrove)
McKinley, A. S. Segal, Dr. S. Williams, R. W. (Wigan)
McLeavy, F. Shackleton, E. A. A. Williams, Rt. Hon. T. (Don Valley)
MacMillan, M. K. (Western Isles) Sharp, Granville Williams, W. R. (Heston)
McNeil, Rt. Hon. H. Shawcross, C. N. (Widnes) Willis, E.
Macpherson, T. (Romford) Shawcross, Rt. Hn. Sir H. (St Helens) Wills, Mrs. E. A.
Mallalieu, E. L. (Brigg) Shinwell, Rt. Hon. E. Wilson, Rt. Hon. J. H.
Mann, Mrs. J. Shurmer, P. Wise, Major F. J.
Manning, C. (Camberwell, N.) Silkin, Rt. Hon. L. Woods, G. S.
Manning, Mrs. L. (Epping) Silverman, S. S. (Nelson) Wyatt, W.
Marquand, H. A. Simmons, C. J. Young, Sir R. (Newton)
Marshall, F. (Brightside) Skeffington, A. M. Younger, Hon. Kenneth
Mathers, Rt. Hon. George Skeffington-Lodge, T. C.
Mayhew, C. P. Skinnard, F. W. TELLERS FOR THE AYES:
Mr. Snow and Mr. G. Wallace.
Agnew, Cmdr. P. G. Braithwaite, Lt.-Comdr. J. G. De la Bère, R.
Aitken, Hon. Max Bromley-Davenport, Lt.-Col. W. Digby, S. W.
Anderson, Rt. Hn. Sir J. (Scot. Univ.) Buchan-Hepburn, P. G. T. Dodds-Parker, A. D.
Assheton, Rt. Hon. R. Butcher, H. W. Donner, P. W.
Astor, Hon. M. Carson, E. Dower, E. L. G. (Caithness)
Barlow, Sir J. Channon, H. Drayson, G. B.
Baxter, A. B. Churchill, Rt. Hon. W. S. Drewe, C.
Beamish, Maj. T. V. H. Clarke, Col. R. S. Dugdale, Maj. Sir T. (Richmond)
Beechman, N. A. Clifton-Brown, Lt.-Col. G. Duncan, Rt. Hn. Sir A. (City of Lond.)
Bennett, Sir P. Conant, Maj. R. J. E. Duthie, W. S.
Birch, Nigel Crookshank, Capt. Rt. Hon. H. F. C. Eccles, D. M.
Boles, Lt.-Col. D. C. (Wells) Crosthwaite-Eyre, Col. O. E. Elliot, Lieut.-Col Rt. Hon. Walter
Bossom, A. C. Crowder, Capt. John E. Errol, F. J.
Bower, N. Cuthbert, W. N. Fernyhough, E.
Boyd-Carpenter, J. A. Darling, Sir W. Y. Fleming, Sqn.-Ldr. E. L.
Bracken, Rt. Hon. Brendan Davidson, Viscountess Fletcher, W. (Bury)
Foster, J. G. (Northwich) Lloyd, Maj. Guy (Renfrew, E.) Raikes, H. V.
Fox, Sir G. Lloyd, Selwyn (Wirral) Ramsay, Maj. S.
Fraser H. C. P. (Stone) Low, A. R. W. Rayner, Brig. R.
Fraser, Sir I. (Lonsdale) Lucas, Major Sir J. Reed, Sir S. (Aylesbury)
Fyfe, Rt. Hon. Sir D. P. M. Lyttelton, Rt. Hon. O. Reid, Rt. Hon. J. S. C. (Hillhead)
Gage, C. MacAndrew, Col. Sir C. Renton, D.
Galbraith, Cmdr. T. D. McCallum, Maj. D. Roberts, H. (Handsworth)
Gammans, L. D. Macdonald, Sir P. (I. of Wight) Roberts, P. G. (Ecclesall)
Gates, Maj. E. E. McFarlane, C. S. Robertson, Sir D. (Streatham)
Gomme-Duncan, Col. A. Mackeson, Brig. H. R. Robinson, Roland
Grant, Lady McKie, J. H. (Galloway) Ropner, Col. L.
Greenwood, A. W. J. (Heywood) Maclay, Hon. J. S. Ross, Sir R. D. (Londonderry)
Gridley, Sir A. Maclean, F. H. R. (Lancaster) Savory, Prof. D. L.
Grimston, R. V. MacLeod, J. Shepherd, W. S. (Bucklow)
Hannon, Sir P. (Moseley) Macmillan, Rt. Hon. Harold (Bromley) Smiles, Lt.-Col. Sir W.
Harden, J. R. E. Macpherson, N. (Dumfries) Smith, E. P. (Ashford)
Hare, Hon. J. H. (Woodbridge) Maitland, Comdr. J. W. Smithers, Sir W.
Harris, F. W. (Croydon, N.) Manningham-Buller, R. E. Snadden, W. M.
Harvey, Air-Comdre. A. V. Marples, A. E. Spearman, A. C. M.
Haughton, S. G. Marsden, Capt. A. Stanley, Rt. Hon. O.
Haworth, J. Marshall, S. H. (Sutton) Stewart, J. Henderson (Fife E.)
Headlam, Lieut.-Cot. Rt. Hon. Sir C. Maude, J. C. Stoddart-Scott, Col. M.
Henderson, John (Cathcart) Mellor, Sir J. Stokes, R. R.
Herbert, Sir A. P. Mikardo, Ian Strauss, Henry (English Universities)
Hogg, Hon. Q. Morris-Jones, Sir H. Stuart, Rt. Hon. J. (Moray)
Hollis, M. C. Morrison, Maj. J. G. (Salisbury) Studholme, H. G.
Holmes, Sir J. Stanley (Harwich) Morrison, Rt. Hon. W. S. (Cir'cester) Sutcliffe, H.
Hope, Lord J. Mott-Radclyffe, C. E. Taylor, C. S. (Eastbourne)
Hudson, J. H. (Ealing, W.) Nally, W. Thomas, George (Cardiff)
Hughes, Emrys (S. Ayr) Neven-Spence, Sir B. Thorneycroft, G. E. P. (Monmouth)
Hulbert, Wing-Cdr. N. J. Nield, B. (Chester) Thornton-Kemsley, C. N.
Hurd, A. Noble, Comdr. A. H. F. Thorp, Brigadier R. A. F.
Hutchison, Lt.-Cm. Clark (E'b'rgh W.) Nutting, Anthony Touche, G. C.
Jarvis, Sir J. Odey, G. W. Wakefield, Sir W. W.
Jeffreys, General Sir G. O'Neill, Rt. Hon. Sir H. Ward, Hon. G. R.
Jennings, R. Orr-Ewing, I. L. Watt, Sir G. S. Harvie
Joynson-Hicks, Hon. L. W. Osborne, C. Wheatley, Colonel M. J. (Dorset, E.)
Keeling, E. H. Peake, Rt. Hon. O. White, Sir D. (Fareham)
Kerr, Sir J. Graham Peto, Brig. C. H. M. White, J. B. (Canterbury)
Kingsmill, Lt.-Col. W. H. Pickthorn, K. Williams, C. (Torquay)
Lambert, Hon. G. Pitman, I. J. Williams, Gerald (Tonbridge)
Lancaster, Col. C. G. Ponsonby, Col. C. E. Willoughby de Eresby, Lord
Langford-Holt, J. Poole, O. B. S. (Oswestry) Winterton, Rt. Hon. Earl
Law, Rt. Hon. R. K. Porter, G. (Leeds) Young, Sir A. S. L. (Partick)
Lennox-Boyd, A. T. Prescott, Stanley
Lindsay, M. (Solihull) Price-White, Lt.-Col. D. TELLERS FOR THE NOES:
Linstead, H. N. Prior-Palmer, Brig. O. Mr. Royle and Mr. McGhee.

Question put, "That the proposed words be there inserted."

The House divided; Ayes, 307; Noes, 209.

Division No. 263.] AYES. [10.32 p.m.
Acland, Sir Richard Bowden, Flg. Offr. H. W. Cove, W. G.
Adams, Richard (Balham) Bowles, F. G. (Nuneaton) Cripps, Rt. Hon. Sir S.
Adams, W. T. (Hammersmith, South) Braddock, Mrs. E. M. (L'pl Exch'ge) Crossman, R. H. S.
Alexander, Rt. Hon. A. V. Bramall, E. A. Daines, P.
Allen, A. C. (Bosworth) Brook, D. (Halifax) Dalton, Rt. Hon. H.
Allen, Scholefield (Crewe) Brooks, T. J. (Rothwell) Davies, Edward (Burslem)
Alpass, J. H. Brown, George (Belper) Davies, Ernest (Enfield)
Attewell, H. C. Brown, T. J. (Ince) Davies, Harold (Leek)
Attlee, Rt. Hon. C. R. Bruce, Maj. D. W. T. Davies, Haydn (St Pancras, S.W.)
Awbery, S. S. Burden, T. W. Deer, G.
Ayles, W. H. Burke, W. A. de Freitas, Geoffrey
Ayrton Gould, Mrs. B. Butler, H. W. (Hackney, S.) Delargy, H. J.
Bacon, Miss A. Callaghan, James Dobbie, W.
Baird, J. Carmichael, James Dodds, N. N.
Barnes, Rt. Hon. A. J. Castle, Mrs. B. A. Donovan, T.
Barstow, P. G. Chamberlain, R. A. Driberg, T. E. N.
Barton, C. Champion, A. J. Dugdale, J. (W. Bromwich)
Bechervaise, A. E. Chetwynd, G. R. Durbin, E. F. M.
Belcher, J. W. Cobb, F. A. Dye, S.
Benson, G. Cocks, F. S. Ede, Rt. Hon. J. C.
Berry, H. Coldrick, W. Edwards, John (Blackburn)
Beswick, F. Collindridge, F. Edwards, Rt. Hon. N. (Caerphilly)
Bevan, Rt. Hon. A. (Ebbw Vale) Collins, V. J. Edwards, W. J. (Whitechapel)
Bing, G. H. C. Colman, Miss G. M. Evans, Albert (Islington, W.)
Binns, J. Comyns, Dr. L. Evans, E. (Lowestoft)
Blackburn, A. R. Cook, T. F. Evans, John (Ogmore)
Blenkinsop, A. Cooper, Wing-Comdr. G. Ewart, R.
Blyton, W. R. Corbet, Mrs. F. K. (Camb'well, N.W.) Fairhurst, F.
Bottemley, A. G. Corlett, Dr. J. Farthing, W. J.
Field, Capt. W. J. Lindgren, G. S. Shawcross, C. N. (Widnes)
Fletcher, E. G. M. (Islington, E.) Lipton, Lt.-Col. M. Shawcross, Rt. Hn. Sir H. (St. Helens.)
Follick, M. Longden, F. Shinwell, Rt. Hon. E.
Foot, M. M. Lyne, A. W. Shurmer, P.
Forman, J. C. McAdam, W. Silkin, Rt. Hon. L.
Fraser, T. (Hamilton) McAllister, G. Silverman, J. (Erdington)
Freeman, J. (Watford) McEntee, V. La T. Silverman, S. S. (Nelson)
Gaitskell, Rt. Hon. H. T. N. Mack, J. D. Simmons, C. J.
Ganley, Mrs. C. S. McKay, J. (Wallsend) Skeffington, A. M.
Gibbins, J. Mackay, R. W. G. (Hull, N.W.) Skeffington-Lodge, T. C.
Gibson, C. W. McKinley, A. S. Skinnard, F. W.
Gilzean, A. McLeavy, F. Smith, C. (Colchester)
Glanville, J. E. (Consett) MacMillan, M. K. (Western Isles) Smith, Ellis (Stoke)
Gooch, E. G. McNeil, Rt. Hon. H. Smith, H. N. (Nottingham, S.)
Gorden-Walker, P. C. Macpherson, T. (Romford) Solley, L. J.
Granville, E. (Eye) Mallalieu, E. L. (Brigg) Sorensen, R. W.
Grey, C. F. Mallalieu, J. P. W. (Huddersfield) Soskice, Rt. Hon. Sir Frank
Griffiths, Rt. Hon. J. (Llanelly) Mann, Mrs. J. Sparks, J. A.
Griffiths, W. D. (Moss Side) Manning, C. (Camberwell, N.) Steele, T.
Guest, Dr. L. Haden Manning, Mrs. L. (Epping) Stewart, Michael (Futham E.)
Gunter, R. J. Marquand, H. A. Strachey, Rt. Hon. J.
Guy, W. H. Marshall, F. (Brightside) Strauss, Rt. Hon. G. R. (Lambeth)
Haire, John E. (Wycombe) Mathers, Rt. Hon. George Stubbs, A. E.
Hale, Leslie Mayhew, C. P. Summerskill, Dr. Edith
Hall, Rt. Hon. Glenvil Mellish, R. J. Swingler, S.
Hamilton, Lieut.-Col. R. Messer, F. Sylvester, G. O.
Hannan, W. (Maryhill) Middleton, Mrs. L. Symonds, A L.
Hardman, D. R. Millington, Wing-Comdr E. R. Taylor, R. J. (Morpeth)
Hardy, E. A. Mitchison, G. R. Taylor, Dr. S. (Barnet)
Harris, H. Wilson (Cambridge Univ.) Monslow, W. Thomas, D. E. (Aberdare)
Harrison, J. Moody, A. S. Thomas, George (Cardiff)
Hastings, Dr. Somerville Morgan, Dr. H. B. Thomas, Ivor (Keighley)
Henderson, Rt. Hn. A. (Kingswinford) Morley, R. Thomas, I O. (Wrekin)
Henderson, Joseph (Ardwick) Morrison, Rt. Hon. H. (Lewisham, E.) Thomas, John R. (Dover)
Herbison, Miss M. Mort, D. L. Thorneycroft, Harry (Clayton)
Hewitson, Capt. M. Moyle, A. Thurtle, Ernest
Hobson, C. R. Neal, H. (Clay Cross) Tiffany, S.
Holman, P. Nichol, Mrs. M. E. (Bradford, N.) Timmons, J.
Holmes, H. E. (Hemsworth) Nicholls, H. R. (Strafford) Titterington, M. F.
Horabin, T. L. O'Brien, T. Tolley, L.
Hoy, J. Oldfield, W. H. Tomlinson, Rt. Hon. G.
Hubbard, T. Oliver, G. H. Ungoed-Thomas, L.
Hughes, Hector (Aberdeen, N.) Orbach, M. Vernon, Maj. W. F.
Hughes, H. D. (W'lverh'pton, W.) Paget, R. T. Viant, S. P.
Hutchinson, H. L. (Rusholme) Paling, Rt. Hon. Wilfred (Wentworth) Wadsworth, G.
Hynd, H. (Hackney, C.) Paling, Will T. (Dewsbury) Walker, G. H.
Irvine, A. J. (Liverpool) Palmer, A. M. F. Warbey, W. N.
Irving, W. J. (Tottenham, N.) Parker, J. Watkins, T. E.
Isaacs, Rt. Hon. G. A. Parkin, B. T. Wells, W. T. (Walsall)
Janner, B. Paton, Mrs. F. (Rushcliffe) West, D. G.
Jay, D. P. T. Paton, J. (Norwich) Westwood, Rt. Hon. J.
Jeger, Dr. S. W. (St Pancras, S.E.) Pearson, A. Wheatley, Rt. Hn. John (Edinb'gh, E.)
Jenkins, R. H. Peart, T. F. White, H. (Derbyshire, N.E.)
Johnston, Douglas Perrin, W. Whiteley, Rt. Hon. W.
Jones, Rt. Hon. A. C. (Shipley) Popplewell, E. Wigg, George
Jones, D. T. (Hartlepools) Porter, E. (Warrington) Wilcock, Group-Capt C. A. B.
Jones, Elwyn (Plaistow) Proctor, W. T. Wilkes, L.
Jones, J. H. (Bolton) Pryde, D. J. Wilkins, W. A.
Jones, P. Asterley (Hitchin) Pursey, Comdr. H. Willey, F. T. (Sunderland)
Keenan, W. Ranger, J. Williams, J. L. (Kelvingrove)
Kenyon, C. Rankin, J. Williams, R. W. (Wigan)
Key, Rt. Hon. C. W. Rees-Williams, D. R. Williams, Rt. Hon. T. (Don Valley)
King, E. M. Reeves, J. Williams, W. R. (Heston)
Kinghorn, Sqn.-Ldr. E. Reid, T. (Swindon) Willis, E.
Kinley, J. Rhodes, H. Wills, Mrs. E. A.
Kirby, B. V. Ridealgh, Mrs. M. Wilson, Rt. Hon. J. H.
Lawson, Rt. Hon. J. J. Robens, A. Wise, Major F. J.
Lee, F. (Hulme) Roberts, Goronwy (Caernarvonshire) Woods, G. S.
Lee, Miss J. (Cannock) Rogers, G. H. R. Wyatt, W.
Leonard, W. Ross, William (Kilmarnock) Young, Sir R. (Newton)
Leslie, J. R. Royle, C. Younger, Hon. Kenneth
Lever, N. H. Sargood, R.
Levy, B. W. Segal, Dr. S. TELLERS FOR THE AYES:
Lewis, J. (Bolton) Shackleton, E. A. A. Mr. Snow and Mr. G. Wallace
Agnew, Cmdr. P. G. Baxter, A. B. Bowen, R.
Aitken, Hon. Max Beamish, Maj. T. V. H. Bower, N.
Anderson, Rt. Hn. Sir J. (Scot Univ.) Beechman, N. A. Boyd-Carpenter, J. A.
Assheton, Rt. Hon. R. Bennett, Sir P. Bracken, Rt. Hon. Brendan
Astor, Hon. M. Birch, Nigel Braithwaite, Lt.-Comdr. J. G.
Baldwin, A. E. Boles, Lt.-Col D. C. (Wells) Bromley-Davenport, Lt.-Col. W.
Barlow, Sir J. Bossom, A. C. Butcher, H. W.
Butler, Rt. Hn. R. A. (S'ffr'n W'ld'n) Hurd, A. Pitman, I. J.
Byers, Frank Hutchison, Lt.-Cm. Clark (E'b'rgh W.) Ponsonby, Col. C. E.
Carson, E. Hutchison, Col. J. R. (Glasgow, C.) Poole, O. B. S. (Oswestry)
Challen, C. Jarvis, Sir J. Prescott, Stanley
Channon, H. Jeffreys, General Sir G. Price, M. Philips
Churchill, Rt. Hon. W. S. Jennings, R. Price-White, Lt.-Col. D.
Clarke, Col. R. S. Joynson-Hicks, Hon. L. W. Prior-Palmer, Brig. O.
Clifton-Brown, Lt.-Col. G. Keeling, E. H. Raikes, H. V.
Conant, Maj. R. J. E. Kendall, W. D. Ramsay, Maj. S.
Cooper-Key, E. M. Kerr, Sir J. Graham Rayner, Brig. R.
Corbett, Lieut.-Col. U. (Ludlow) Kingsmill, Lt.-Col. W. H. Reed, Sir S. (Aylesbury)
Crookshank, Capt. Rt. Hon. H. F. C. Lambert, Hon. G. Reid, Rt. Hon. J. S. C. (Hillhead)
Crosthwaite-Eyre, Col. O. E. Lancaster, Col. C. G. Renton, D.
Crowder, Capt. John E. Langford-Holt, J. Roberts, Emrys (Morioneth)
Cuthbert, W. N. Law, Rt. Hon. R. K. Roberts, H. (Handsworth)
Daggar, G. Legge-Bourke, Maj. E. A. H. Roberts, P. G. (Ecclesall)
Darling, Sir W. Y. Lennox-Boyd, A. T. Roberts, W. (Cumberland, N.)
Davidson, Viscountess Lindsay, M. (Solihull) Robertson, Sir D. (Streatham)
De la Bère, R. Linstead, H. N. Robinson, Roland
Digby, S. W. Lipson, D. L. Ropner, Col. L.
Dodds-Parker, A. D. Lloyd, Maj. Guy (Renfrew, E.) Ross, Sir R. D. (Londonderry)
Donner, P. W. Lloyd, Selwyn (Wirral) Sanderson, Sir F.
Dower, E. L. G. (Caithness) Low, A. R. W. Savory, Prof. D. L.
Drayson, G. B. Lucas, Major Sir J. Sharp, Granville
Dugdale, Maj. Sir T. (Richmond) Lucas-Tooth, Sir H. Shepherd, S. (Newark)
Duncan, Rt. Hn. Sir A. (City of Lond.) Lyttelton, Rt. Hon. O. Shepherd, W. S. (Bucklow)
Duthie, W. S. MacAndrew, Col. Sir C. Smiles, Lt.-Cot. Sir W.
Eccles, D. M. McCallum, Maj. D. Smith, E. P. (Ashford)
Elliot, Lieut.-Col. Rt. Hon. Walter Macdonald, Sir P. (I. of Wight) Smithers, Sir W.
Erroll, F. J. McFarlane, C. S. Snadden, W. M.
Fletcher, W. (Bury) Mackeson, Brig. H. R. Spearman, A. C. M.
Foster, J. G. (Northwich) McKie, J. H. (Galloway) Spence, H. R.
Fox, Sir G. Maclay, Hon. J. S. Stanley, Rt. Hon. O.
Fraser H. C. P. (Stone) Maclean, F. H. R. (Lancaster) Stewart, J. Henderson (Fife E.)
Fraser, Sir I. (Lonsdale) MacLeod., J. Stoddart-Scott, Col. M.
Fyfe, Rt. Hon. Sir D. P. M. Macmillan, Rt. Hon. Harold (Bromley) Strauss, Henry (English Universities)
Gage, C. Macpherson, N. (Dumfries) Stuart, Rt. Hon. J. (Moray)
Galbraith, Cmdr. T. D. Maitland, Comdr. J. W. Studholme, H. G.
Gammans, L. D. Manningham-Buller, R. E. Sutcliffe, H.
Gates, Maj. E. E. Marlowe, A. A. H. Taylor, C. S. (Eastbourne)
George, Maj. Rt. Hn. G. Lloyd (P'ke) Marples, A. E. Thomas, J. P. L. (Hereford)
Glyn, Sir R. Marsden, Capt. A. Thorneycroft, G. E. P. (Monmouth)
Gomme-Duncan, Col. A. Marshall, D. (Bodmin) Thornton-Kemsley, C. N.
Grant, Lady Marshall, S. H. (Sutton) Thorp, Brigadier R. A. F.
Gridley, Sir A. Maude, J. C. Touche, G. C.
Griffiths, D. (Rother Valley) Mellor, Sir J. Turner-Samuels, M.
Grimston, R. V. Molson, A H. E. Usborne, Henry
Hannon, Sir P. (Moseley) Moore, Lt.-Col. Sir T. Vane, W. M. F.
Harden, J. R. E. Morris, Hopkin (Carmarthen) Wakefield, Sir W. W.
Hare, Hon. J. H. (Woodbridge) Morrison, Maj. J. G. (Salisbury) Ward, Hon. G. R.
Harris, F. W. (Croydon, N.) Morrison, Rt. Hon. W. S. (Cir'cester) Watt, Sir G. S. Harvie
Harvey, Air-Comdre. A. V. Mott-Radclyffe, C. E. Wheatley, Colonel M. J. (Dorset, E.)
Houghton, S. G. Neven-Spence, Sir B. White, Sir D. (Fareham)
Headlam, Lieut.-Col. Rt. Hon. Sir C. Nicholson, G. White, J. B. (Canterbury)
Henderson, John (Cathcart) Nield, B. (Chester) Williams, C. (Torquay)
Herbert, Sir A. P. Noble, Comdr. A. H. P. Williams, Gerald (Tonbridge)
Hinchingbrooke, Viscount Nutting, Anthony Willoughby de Eresby, Lord
Hogg, Hon. Q. Odey, G. W. Winterton, Rt. Hon. Earl
Hollis, M. C. O'Neill, Rt. Hon. Sir H. York, C.
Holmes, Sir J. Stanley (Harwich) Orr-Ewing, I L. Young, Sir A S. L. (Partick)
Hope, Lord J. Osborne, C.
Howard, Hon. A. Peaka, Rt. Hon. O. TELLERS FOR THE NOES:
Hudson, Rt. Hon. R. S. (Southport) Peto, Brig. C. H. M. Mr. Buchan-Hepburn and
Hulbert, Wing-Cdr. N. J. Pickthorn, K. Mr. Drewe.

Further Amendments made to the words so restored to the Bill: In page 2, line 3, at end, insert: (7) This section shall apply to Scotland, subject to the following modifications—

  1. (a) for any reference to the Prison Acts, 1865 to 1898, there shall be substituted a reference to the Prison (Scotland) Acts, 1860 to 1904, and for any reference to section fifty-three of the Children and Young Persons Act, 1933, there shall be substituted a reference to section fifty-seven of the Children and Young Persons (Scotland) Act, 1937;
  2. 1544
  3. (b) any reference to imprisonment for life shall be construed as a reference to penal servitude for life;
  4. (c) for the purpose of establishing that a person charged with murder has been convicted of murder committed on a previous occasion section sixty-six of the Criminal Procedure (Scotland) Act, 1887, shall apply and such conviction shall be deemed to have been found by the jury if it is admitted by the accused or is held to apply to him in pursuance of that section or is proved in accordance with the provisions thereof;
  5. (d) subsections (3) and (5) shall be omitted and the following subsection shall be inserted after subsection (2):
'(3) During the continuance in force of this section, sections two and three of the Criminal Law (Scotland) Act, 1829 (which make punishable by death certain crimes of violence against His Majesty's subjects), shall be construed as requiring the court to sentence any person convicted of any of the crimes therein set forth to penal servitude for life.'

In page 2, line 19, to leave out Subsection (4).—[Mr. Ede.]

Consequential Amendment made: In page 67, line 1, at end, insert the following new Schedule:

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