HC Deb 09 February 1955 vol 536 cc1951-85
Mr. Elwyn Jones

I beg to move, in page 17, line 23, to leave out from "morale" to "or" in line 25.

I observe that those words do not appear in the old Section 4 (5) dealing with this matter. Section 4 (5) reads: Having been made a prisoner of war, voluntarily serves with or voluntarily aids the enemy. The word "voluntarily" has been omitted from the present Bill—no doubt for good reasons—but there have been added to it the words: … or in any other manner whatsoever not authorised by international usage. To what is that a reference? I imagine that the answer probably is that it is a reference to the various international conventions affecting prisoners of war. If that is the intention, there should be more guidance in the Bill itself to that which those who have drafted the Bill have in mind. Clause 24 (1, c) now says that: Any person subject to military law who with intent to assist the enemy— having been made a prisoner of war, serves with or aids the enemy in the prosecution of hostilities or of measures calculated to influence morale, or in any other manner whatsoever not authorised by international usage, is liable to suffer death.

What is the manner in which he may be authorised by international usage to serve with or aid the enemy? Under the 1929 Prisoners of War Convention there are certain permitted matters that the Power holding the prisoner may call upon him to perform. I take it that that is what the Bill has in mind, but there is one very serious difficulty that the Army has to face if we let this Clause go through. In 1950, this country signed a new Prisoners of War Convention. For some reason or other that Convention has still not been ratified by the Government.

I take it, therefore, that if the intention of those words is to refer back to what a prisoner may properly be required to do under international law by the holding Power, the soldier or officer in question has to be referred, in the present state of affairs, to the 1929 Prisoners of War Convention. It seems to me a highly unsatisfactory state of things.

In the present Manual of Military Law there is, from what I can see in the copy supplied to me by the House of Commons Library, no indication of the duties which a prisoner of war may properly perform, when he is a prisoner of war, without running the risk of a charge which may result in his being sentenced to death. I really think that there are grave matters arising from the insertion of these words, for the first time, in the Army Act—matters about which we should have an assurance before we part with the Clause.

The position of a prisoner of war on trial for an offence in regard to this kind of thing has already, to some extent, been weakened by the omission of the word "voluntarily" in Clause 24 (1, c). The former words were: Having been made a prisoner of war, voluntarily serves with or voluntarily aids the enemy. It is quite true that, in the present draft, if the prisoner of war can prove coercion it is a sufficient answer to the charge, but where that much has been taken away from the soldier I feel that the addition of these words might confront the prisoner of war in the camp—and the prisoner of war when he returned from it—with a position of very great difficulty. These words are obscure and need definition. That definition is missing from the terms of the Clause.

Mr. Head

I entirely appreciate the hon. and learned Member's anxiety that the position of prisoners of war should be safeguarded. These words were inserted to make it clear that there is no offence if the work undertaken is work which is agreed upon by international usage. The intention, in fact, is the opposite to that which the hon. and learned Gentleman suggested.

The second point, which should, I think, reassure him is that this Clause 24 (1, c) is governed by the words … with intent to assist the enemy— That, really, is the governing phrase, and is the primary consideration in any offence with which a prisoner of war is charged.

Mr. Elwyn Jones

Would the Secretary of State be good enough to indicate to what source the officer, or the commanding officer—or the men in the prisoner-of-war unit—is to look to see what he or the soldiers under him in a prisoner-of-war camp may do in accordance with international usage? What is their source of authority? Is it, at the present time, the Prisoners of War Convention of 1929? Although that would appear to be the answer, I do invite an answer from the Secretary of State.

If it is the answer—although it does not directly arise on the Amendment—I do ask the Members on the Front Bench opposite to give urgent consideration to the fact that, though in this Bill we are referring soldiers and officers to the 1929 Convention, we have, since 1950, approved a new and more adequate Prisoners of War Convention which protects the prisoner far more than does the 1929 Convention. Is it not really time that we did something about ratifying the 1950 Convention?

Mr. Head

The question of the ratification of the Prisoners of War Convention is something which has to be done not solely by ourselves but by a great many other countries and that is something which we very much wish to see achieved. At present, the hon. and learned Member is right in saying that this refers to the 1929 Convention.

Mr. Elwyn Jones

I am sorry to return to this matter, but I regard it as important. With respect to the Secretary of State, it is not right to say that our hand is held up in this matter by reason of inaction by other Powers. I think that I am right in saying that most. European Powers have now ratified the 1950 Convention. Even the West German Government have passed a Measure approving of it, or something of that kind. The Soviet Union have ratified it. A substantial number of countries have ratified it and we are holding back. If we were to ratify, as it is our clear duty to do, we would give a lead to all the others. It is a remarkable thing that we have hesitated where on this matter even the West German Government, and, I think, the Russians, have moved.

The excuse given hitherto has been the lack of Parliamentary time, but this is the proper moment for the Secretary of State to raise this matter at the appropriate level, as he is introducing in the Bill new legislation referring to international usages and it is essential that the soldier should know where he stands.

Mr. Head

I appreciate the point which the hon. and learned Member raised and its application to the Clause. If I may, I should like to look further into this question of the Conventions and inform the Committee or the House at a later date.

Mr. Wigg

There is a footnote to Section 4 of the existing Army Act, on page 194 of the Manual of Military Law, which is equivalent to the proposed Clause 24. I am grateful to my hon. and learned Friend the Member for West Ham, South (Mr. Elwyn Jones) for having placed the Amendment on the Notice Paper, and I hope that the Secretary of State will study the footnote.

Mr. Hale

I am sorry, but I did not hear that intervention on the part of my hon. Friend at all.

Mr. Wigg

I am sorry that I cannot speak any louder. I have a cold, but I will do my best. I was asking the Secretary of State to look at the footnote to Section 4 of the present Army Act which is equivalent to Clause 24 of the Bill. The wording of footnote number 8 is a little worrying, and had I noticed it during the sittings of the Select Committee I might have taken a similar line to that which my hon. and learned Friend the Member for West Ham, South is now taking, but I am doing no more than to ask the Secretary of State to reconsider the matter.

Mr. Hale

I entirely agree. The Secretary of State has made a very reasonable reply in the circumstances. After all, we are dealing with an offence in respect of which the death penalty can be imposed. This is not a matter about which I would wish to be fractious. I feel too deeply on the subject to give even the appearance of being fractious. The difficulty is whether, when the Secretary of State looks at the matter, there will be an opportunity on Report of raising it again if we leave it now. The difficulty about the Report stage is that sometimes there is no Report stage if no Amendments are carried.

Mr. Elwyn Jones

There is a Government Amendment.

Mr. Hale

If that is the case it deals with my point, and I need not dwell on it further.

Mr. Elwyn Jones

In view of the statement by the Secretary of State, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.15 p.m.

Mr. Emrys Hughes

I beg to move, in page 17, line 30, to leave out "death" and to insert "imprisonment."

The Deputy-Chairman (Sir Rhys Hopkin Morris)

It may be agreeable and convenient for the Committee to discuss this Amendment together with the Amendment to Clause 25, page 17, line 41, to leave out "death" and to insert "imprisonment"; and the Amendment to Clause 31, page 20, line 34, to leave out "death" and to insert "imprisonment." They deal with the same subject.

Mr. Hughes

The effect of the Amendments would be to abolish the death penalty under military law. I hope that the doubts which have been expressed in our discussion on the previous Amendment will add point to my Amendments. I believe that the Minister should not only consider the point which has been discussed on the previous Amendment but should be prepared to take back the whole Clause. I know that it disturbs military minds to think that we should abolish the death penalty in the Army.

Mr. M. Follick (Loughborough)

But they do not think.

Mr. Hughes

That is very unjust.

This is a point which the House of Commons considers only very rarely. This is the time when we should give some consideration to the offences which might be committed by a soldier, and the penalties which might be imposed on a soldier as on a civilian. We know that during the last eight years the House of Commons has frequently discussed whether the death penalty ought not to be abolished under civil law. We have had very vigorous debates, and the question has become a big controversial point in British public life.

I do not want to anticipate what may be said tomorrow, but if we are going to provide time to discussing whether, in civil life, a man should be executed for shooting a person, we should give some consideration to what might happen to a man in uniform. A man's a man for a' that whether he is in uniform or whether the offence is against a soldier or a policeman, and the same arguments should be carefully considered.

I do not want to enter into a lengthy argument on the subject, except to say that on the question of the penalty in civil law I am prepared to agree to the suspension of the death penalty for five years. Why should there not be a Royal Commission to inquire into the case of the soldier? The Clause provides five different reasons for which a soldier might be prosecuted and shot. A good many of these reasons are obscure.

I ask the Secretary of State whether he really thinks that these cases of people trying in all these devious ways to assist the enemy, which might give rise to very difficult circumstances, do not warrant examination by a Royal Commission, so that we may discuss, in relation to military law, the same matter as we have discussed in relation to civil law. I ask the Secretary of State if the number of cases which occurred in the last war were sufficient to justify the enumerating of these five different reasons why a soldier should be sentenced to the extreme penalty.

We know from our examination of the civil law that a case might be overwhelmingly against a prisoner and yet three or four years afterwards we might find that some irreparable injustice had been done.

Mr. Follick

What about the generals?

Mr. Hughes

My hon. Friend can put that point of view.

However, if we seriously entertain the belief that public opinion has reached the stage where very large sections of enlightened people believe that society would not fall to pieces if we abolished the death penalty, I believe that there are soldiers and authorities on military law who would also say that the whole apparatus of military law and the whole system of military operations would not collapse if there were no death penalty for soldiers, and there were instead some penalty which could be altered if it were found that an injustice had been perpetrated.

The Secretary of State for War ought not merely to say, "All this has been done for centuries and centuries, and we shall not give any thought to it." It is the same sort of argument that Pontius Pilate would have used if anyone had suggested the abolition of the penalty of crucifixion in the Roman legions. I urge the Secretary of State, whom we believe to be an enlightened Minister, to withdraw the provision or consider its suspension for five years so that those with great experience in military and legal matters can give the same attention to securing justice for soldiers as many people are giving to securing justice for civilians.

Mr. Hale

I consider this to be the most important Amendment that has been moved today and perhaps the most important that is likely to be moved. I hope we shall have some little time to consider it and that we shall consider it as fairly and as impartially as we can.

Everyone will appreciate that in time of war circumstances of very great difficulty occur. Everyone will appreciate that an act of treachery in time of war can endanger the lives of a great many people. Everyone will appreciate the necessity for stern discipline if one is to engage in war and a stern method of enforcing it. I have never tried to put the case in this matter unfairly. Everyone realises that there is very great difficulty.

On the other hand, everyone will realise that in time of war, when passions and fears are aroused, when unusual events are taking place and when troops are constantly on the move, there is always the very serious risk that a trial may be held in circumstances of great difficulty and, indeed, perfunctorily. There will be difficulties about the provision of evidence, and the defence may have difficulty in calling witnesses. In such circumstances, there may be considerable difficulty about holding a fair trial. This is essential and inherent in the very grave difficulties of such a situation.

It is right that we should look at the Clause. I want to say this as modestly as I can. It is not good enough to say to the House—the House is quite conscious of the fact—that this is an improvement and that the Bill generally improves things. The Committee is equally conscious of the fact that we do not get many opportunities of discussing these matters in detail, and we must take advantage of whatever opportunities we are offered. The House is quite conscious of the fact that a very able Committee, consisting of hon. Members from both sides, has been meeting and discussing these matters for many months and has come in the main to agreed conclusions and has produced a very good bit of work. That does not, of course, answer the question put by my hon. Friend the Member for South Ayrshire (Mr. Emrys Hughes) and myself. This is the point at which we have to look at the work that has been done. We may very well say that, on the whole, we approve it, but there are some things of which we do not approve and some matters on which we feel that action should be taken.

I want to be quite fair. I am opposed to the death sentence in any circumstances. I think I always have been. I certainly have been for a great many years now, and I certainly have been since I had some experience of capital cases. Therefore, it may well be said that I am putting an argument as part of my own general opposition to capital punishment, and so I am. I do not for a moment want to be dishonest about it. If I were speaking tomorrow I should put the same point of view.

The House ought to look for a moment at the sort of offences which are being preserved as capital offences within the ambit of the Bill. For instance, Clause 24 (1) says: Any person subject to military law who with intent to assist the enemy … abandons or delivers up any place or post which it is his duty to defend, or induces any person to abandon or deliver up any place or post which it is that person's duty to defend … Let us be quite fair about it. It is always: … with intent to assist the enemy … That is the qualifying phrase which does not apply to people who desert their post far from the enemy or anything like that. I do not want to put this any higher than it should be, but it is as well that the House should understand the very great difficulty that there is.

Mr. John Mackie (Galloway)

On a point of order. Often this afternoon hon. Members have referred to "the House." Ought there not to be deference to the prestige of the Committee?

Mr. Hale

I am quite aware of the fact that we are in Committee, but in Committee we are reporting to the House, and as the House will determine the Bill on Third Reading I said that I should like the House to understand something, and my method of letting the House understand something is to address the Committee now and put the facts before it and let them be reported in HANSARD, and then the House will consider them on the Report stage and later.

The Under-Secretary will recall a case which occurred in Austria a few months ago. The War Office was good enough to let me have a transcript of the court-martial, a courtesy which I appreciated. It was the case of a man who was put in charge of a post and was given orders to fire if people who could be regarded as enemy advanced. This was not in time of war in the ordinary sense of war; it was in the technical sense war in that we were occupying a country in respect of which no peace treaty had been signed. This may be a very grave technicality during a transition period. People came, and they came for no good purposes, and the man fired and killed. He was tried by court-martial and was convicted of murder. It was not in dispute that he had been given orders to fire, but it was said that, as a soldier, he ought to have known that such orders were illegal and should not have obeyed them.

I do not doubt that this is good law as the law stands today, and I am not arguing that as the law stands today that was incorrect. It is perfectly true that one must say to a soldier "If someone gives you grossly and obviously illegal orders, you must not obey them."

Mr. Follick

How is he to disobey them?

Mr. Hale

That is the point I am making. How is the soldier to disobey the orders? He stands to be tried by court-martial if he fails to obey his orders to defend a post, and he also stands to be tried by court-martial if he carries out such orders with violence which the court thinks is too great. These are matters of very grave difficulty.

I would ask the Committee to recall that there has been a very considerable advance in this matter. In the years between 1914 and 1918 the death sentence was applied for what was called cowardice. Many people suffering from neurasthenia were shot. The death sentence for cowardice existed throughout the last war, but I do not think it was ever carried out. It still existed in the American Armed Forces throughout the war, and one sentence was carried out.

Mr. Elwyn Jones

The death penalty in our Armed Forces was not abolished, but no sentence was carried out.

Mr. Hale

That is what I said. I recall now that I was connected with a court-martial at which a man was charged with failing to carry out his duty in the presence of the enemy in that he failed to fire an anti-aircraft gun at an aircraft which was bombing a site. It was the first occasion that he had ever been on active service and the first occasion on which he had to fire a gun in anger. He was a volunteer and had never had an occupation likely to give him a sense of acute discipline or acute valour.

6.30 p.m.

These things do occur and we are not dealing with figments of the imagination, nor with unusual cases, nor with cases that I am dragging from obscure shelves. These are practical cases that are happening. An account was published three months ago of the one American soldier shot for cowardice in the war. This Clause does not deal with cowardice and I am glad to see that the next Clause does not ask for the death sentence for cowardice. It is well to remember this case which is relevant in the circumstances of a court-martial.

Eddie Slovak, an American airman, was shot for cowardice. At least he has a testamentary tribute in a volume describing his trial and life and a very moving document it is. It was said, of course, that he had the misfortune to be incapable of hate and did not hate even the Germans. The Committee will remember the years when hating the Germans was an obligatory duty and when we had not reached the stage when we were in favour of arming the Germans to partake in whatever military adventures might occur in the future. It was also said that he was essentially a very kindly fellow. His gaoler said he could not help liking him, because he was such a nice chap and was so very friendly. He must have been a good sort of chap to have created that impression knowing that he was to die. Dr. Johnson made some observations on that point and reached contrary conclusions in general.

The case of Eddie Slovak was the sort of case that could occur in military conditions. I do not want to use one word in the way of impugning the justice of military courts. I have had some experience of them. They try to act as fairly as they can and, given the time and civilian conditions, I think that a court-martial is generally a good tribunal. Some of the provisions for the protection of people tried by court-martial are far in advance of those in civilian courts and that includes the provision of evidence and the arrangement of counsel, and so on. If they are run properly—and I am not trying to make a fractious point in saying that they are not run properly—that is the case.

A point similar to that of the Eddie Slovak case was made by the author of "Ten Thousand Years in Sing Sing." It was said that one tries to find out why Jones hanged and Smith was reprieved. When one looks at their cases one cannot see why this man went to the scaffold for doing something that looks similar to that done by the man who was reprieved. The answer was that Jones did not have friends. There was no one to say a word for Jones, no one to say a word for Slovak. Slovak had a bad record. He had a history of petty crime.

That is the dilemma of the military courts. In time of war it is a very serious and difficult dilemma and I can think of no reason whatever for saying that in those circumstances one ought to impose an irrevocable sentence for a whole series of very vaguely set out offences which can be interpreted by one court as meaning one thing and by another court as meaning another thing.

I know how easy it is to say—I have heard it said recently—that there are always people concerned with murderers and not with the murdered. Here one has operations in which thousands of decent people are shot and thousands may lose their lives, because of a treacherous fellow who betrayed them. The answer to that is always simple and straightforward and I have never understood why it is not more clearly comprehended. When a bandit shoots a policeman, I can say that I did not do it, that I could not stop it and that there were no steps taken for which I bear any responsibility at all.

When we hanged Bentley, I hanged him and that is the case so far as I am concerned. I am here to be concerned about matters for which I am responsible. I am concerned about the fact that when a soldier is shot, he is shot by us and we in this Committee are deciding and being called upon to decide whether he shall be shot in future in these circumstances. That is why I think that the issue is important.

As I have said before, and say again, because I want to be clear and fair, the controlling words are "with intent to assist the enemy." Subject to that control, we get a series of offences which are abandoning or delivering up any place, or post, or getting someone else to do it, or any acts calculated to imperil the operations of Her Majesty's Forces, or of any forces co-operating therewith, or any part of those forces. That is a very wide definition.

This means that even in time of war, if a man suddenly became anti-English and pro-German during the last war and with that anti-English feeling made some observations in a public house about the location of the fleet in the Clyde, he would be more liable to the death penalty than the person who did something about it. That is what it says. That would apply to a civilian who did it carelessly, recklessly, or foolishly.

Mr. R. T. Paget (Northampton)

Equally, it would apply to a soldier who did it carelessly. The vital words here are "with intent to assist the enemy." If a civilian, with intent to assist the enemy, tells him where these ships are at Scapa Flow, it is treason and I find it difficult, and my hon. Friend knows how strongly I feel with him on this general issue, to find that there is anything here which goes beyond the plain definition of treason.

Mr. Hale

I am in favour of abolishing the death sentence for treason, too. I will deal with my hon. and learned Friend's point in a moment. But who proves intent? How does one prove intent? How does one establish intent? My hon. and learned Friend has argued time after time on this issue that intent is something which is almost impossible to prove. It is a state of a man's mind.

Mr. Paget

It is there in crime.

Mr. Hale

It is part of every crime, but it is, of course, implied in every crime almost from the acts that are done. But here one is applying a very specific test. Let me take my hon. and learned Friend's second charge. He says that these words come very near to treason: Having been made a prisoner of war, serves with or aids the enemy in the prosecution of hostilities or of measures calculated to influence morale, or in any other manner whatsoever not authorised by international usage,

Mr. Paget

What about William Joyce?

Mr. Hale

What about P. G. Wodehouse? He was not a soldier, so he lives prosperously and happily. Is it my hon. and learned Friend's case that the soldier should be shot? The Minister has said he will look at the phrase: or in any other manner whatsoever not authorised by international usage. It would not be fair to criticise that at the moment. But what is helping the enemy? Did the German prisoners who worked on our farms in 1945 help the enemy?

Mr. Paget

International usage. The Hague Convention provides that other rank prisoners of war may be required by the captor to do work which is not immediate war work. That definition by international usage certainly included agriculture. The Bill excepts that sort of work which a captor may, by international usage, require the prisoner to do.

Mr. Hale

My hon. and learned Friend was not present when we were told that The Hague Convention had not been signed by this country at all—the 1950 Convention. The 1929 Convention might have been, but certainly it is not that—

Mr. Paget

The 1929 Convention is still intra vires.

Mr. Hale

There has been no Convention since 1950, which places the position in some difficulty. I hope that my hon. and learned Friend will not make these points too often. In a day or two we shall be having a discussion about the difficulties affecting Formosa and international law, and I gather that there is some difference of opinion between hon. and learned Friends of mine as to the interpretation of international law in those circumstances.

My hon. and learned Friend has contributed one interpretation of the law in the correspondence of "The Times" and my hon. and learned Friend the Member for Hornchurch (Mr. Bing) has contributed another interpretation. They are interpretations arrived at by both my hon. and learned Friends after having spent their lives in the service of the law and devoting themselves to a knowledge of the law and of its understanding. Here we are dealing with a wretched private soldier—

Mr. Paget

Why does my hon. Friend say that my hon. and learned Friend the Member for Hornchurch (Mr. Bing) and I disagreed? We did not. We came to exactly the same conclusion. I took the conclusion rather further than did my hon. and learned Friend the Member for Hornchurch, but we came to the same conclusion.

Mr. Hale

I would advise my hon. and learned Friend to inquire of his hon. and learned Friend the Member for Horn-church whether he thinks that—

Mr. Paget

And the Attorney-General came to the same conclusion.

Mr. Hale

—and whether the Attorney-General—I think it was the former Attorney-General—writing on the following day, wrote to correct him, or if he was in agreement with him.

I am not saying who is right or who is wrong—I do not know. All I am saying is that I suspect that a private soldier might not know either. How does a private soldier know what is authorised in international law? If I am wrong about the employment of prisoners as farm workers, why should not a private soldier be wrong about something else? I remember that I was one of those who put down a Motion against the Labour Government about the employment of prisoners as farm labourers as being contrary to international usage—

Mr. Paget

Not after the war.

Mr. Hale

But the war was still on, we had not signed a peace treaty. The war was still on and the law applied.

Mr. Paget

The point was that "hostilities had ceased." Those were the words used in The Hague Convention.

Mr. Hale

Let us take the next one: harbours or protects an enemy not being a prisoner of war. There the controlling words, with intent to assist the enemy cease to have any effect. It might be said that the harbouring of a member of the enemy forces must be with intent to assist the enemy, because a member of those forces is being assisted. I may not be right about that. I am frequently wrong about many of the things I say, but I think it could be said in a court of law with some hope of acceptance.

This is really rather surprising. In the last few years we have seen released from prison men who were responsible for the extermination of millions of people. We have seen persons released from prison who had taken an active, deliberate and constructive part in the murder of millions of people. I have never raised a word of protest against that. I was against the war crimes trials being held at all. I do not believe in improvising law to deal with a particular situation. I believe in having an international law which people can understand and which can be applied on all occasions.

At this moment we see people occupying high positions who have committed crimes infinitely more grave than those for which we are now providing for the occasional extermination of a private soldier. That is why I hope that in the matter of the death penalty my hon. Friends will take the opportunity to record their votes to show that we are not in favour of preserving the death sentence, so that the oft-repeated declarations of the Labour Government on the subject may be implemented.

6.45 p.m.

Mr. Paget

As my hon. Friend the Member for Oldham, West (Mr. Hale) is aware, I feel as he does, and very intensely indeed, about the question of the death penalty. I feel that to kill someone ceremonially in cold blood is wrong, and that one does not obtain good results by doing things which one knows to be wrong.

Having said that, may I also say that I do not think that we can have a special law for the Army which differs from the general law? In the Select Committee, we favoured greatly reducing the scope of this Clause; and I think that, with the possible exception of paragraph (e), we brought its application well within the definition of treason. If, with the intention of helping the enemy during war, one does any of the things enumerated in paragraphs (a), (b), (c), and (d), then I think clearly that is treason, and a civilian would be equally liable. The Clause creates—

Mr. Sydney Silverman (Nelson and Colne)

Then would my hon. and learned Friend care to explain why this Clause is in the Bill at all? If he is saying that this Clause does no more than repeat the ordinary law of treason and its penalty, then at best it is redundant, and when we—

Mr. Paget

I have grasped my hon. Friend's point, and that is the position I am coming to.

Treason, like murder, admits of only one punishment, which is death. Here we have introduced the alternative punishment of imprisonment, and so this Clause puts the soldier in a different position from the civilian. If a civilian did these things and were charged with treason, there could be only one sentence, which would be death. If it is done by a soldier under the stresses and difficulties of war, we provide in this Clause that the court may, in its discretion, impose a lesser penalty. That is why we have included this Clause.

I think that paragraph (e), which is the part of this Clause that I like the least leaves open to argument whether an intention to assist a particular enemy is an intention to assist the enemy. I remember one case—I think it was a fictional story—of a man on, I believe, an antiaircraft site who adopted a German and used him more or less as his batman and looked after him; and then helped him to get back to Germany. Whether that would be regarded as with intent to assist the enemy I do not know, and I think it unfortunate that that ambiguity is present.

I am not happy about paragraph (e) being in this Clause at all, because I am sure that it covers the sort of situation in which a court would exercise the discretion given to it to impose a sentence less than death. I do not think that any court would condemn a man to death because he had helped a particular enemy. Suppose the situation were that a man found himself in an outpost by himself; that he caught some particular enemy soldier; that that human contact created a human relationship; that the war was forgotten and he did not want to bring the enemy back to his lines; that he helped the enemy to get back to his own lines. Of course, that is not a thing which a soldier should do. But if those were the circumstances it is equally clear that no court which has a discretion—and this Clause gives a discretion—would impose the death penalty.

What one really has to consider is whether it is better to have a Clause which, over a range of offences, gives a court the discretion not to resort to the death penalty, or whether it is better to leave the whole question as one of treason, in which case the court has no discretion and has to award the death penalty. Therefore, even upon this subject, about which I feel so very strongly, I advise the Committee to accept the Clause.

Mr. John McKay (Wallsend)

I feel that I should attempt to make my position as clear to myself as possible, and to the extent that I am successful I may make it clear to other people. When we begin to try to work out the kind of policy which we should pursue in matters of this character we sometimes have to go a long way back. I can understand the arguments put forward by those of my hon. Friends who are pacifists. I quite appreciate that they are against the death penalty in any circumstances. In that respect they differ from most people.

My difficulty arises over the question of discipline. Although I recognise that in the Army some kind of discipline has to be imposed, and that certain deterrents have to be created to help to keep the men upon the track which most people believe to be the right one, I cannot bring myself to understand the matter sufficiently to make me feel very strongly about why it is argued that the death penalty should not apply either in civil life or in the Army.

I feel that I have to go further afield to understand my own position. I am not quite clear—[Laughter.] Someone may laugh if a man confesses that he is not quite clear and is not sufficiently instilled with enthusiasm about his argument. It may be said that to that extent he is showing weakness. That does not follow. It may be that the man is trying to solve a problem to his own satisfaction but cannot do so at the moment.

I cannot understand the psychology of arguing against the death penalty both in civilian and army life while advocating killing under certain definite circumstances. We believe in training men to kill. We believe in conscripting men and fitting them to kill. That is our general attitude. Therefore, we, as a country—including many of the people who argue against the death penalty in civilian life and even in Army life—still believe that we should have an Army to defend ourselves and should train men to kill.

Not only that; we have a preference for training young men to do it: we believe that the tender youth of the country should be trained to kill. When I weigh up the position I begin to wonder where the logic is. If, as a nation, we believe in training men to kill, how can we logically argue that, in certain circumstances and in extreme conditions, we should not impose the highest possible penalty for certain actions?

7.0 p.m.

The question is whether the death penalty is a deterrent. Is it of such a character as to help to strengthen the morale of certain people under certain circumstances so that they will not assist the enemy? Let us consider the position of an army in battle. We must realise that hundreds of thousands of our people, mainly young men, have been trained, encouraged, and put there for one purpose—to "get on with the job and get as many Germans as you can," as somebody once said. That phrase might not be strictly applicable, but the fact is that we have an Army and we have trained it to kill in battle. Thousands of our people are ready to carry out that work while, at the same time, thousands of others are ready to try to kill us.

During an operation of war it may happen that some individual may try to assist the enemy. As I understand it, the Clause means in general that, when judgment is passed, it is passed on the basis that the whole of the situation has been weighed up by the military authorities, and that a man has committed an offence with intent and with understanding, when his mind was in proper balance, and when he knew what he had done. Therefore, we say that, in these special circumstances of assisting the enemy, a man ought to suffer the greatest penalty.

Some people say that this issue has a parallel in the question of the death penalty in civil life, but to me there is no parallel at all. In the case of the death penalty in civil life, we are usually dealing with an individual who has murdered another individual. On the field of battle, after we have trained hundreds of thousands of men to do certain actions—in our belief, to defend our country and in the interests of our country, and even when we go so far as to think it is also in the interests of the world, though it is a question whether we could ever prove it or not—the position is quite different. On the field of battle, it is not merely a question of an individual doing something which will harm another individual.

It might be that a man might assist the enemy to such an extent that, instead of one man being killed, the action might lead to hundreds of his own friends being killed. Therefore, to my mind, if we are satisfied—and that is the whole point—that an individual on the field of battle, with his mind in normal balance, for some ulterior reason which we cannot fathom, has deliberately betrayed his own friends and caused hundreds of them to die because of that betrayal, we should say that that situation has no analogy with the position of a murderer in civil life. It is a much more important and much bigger thing.

While I have every sympathy with the views of my hon. Friends, and do not speak with any great enthusiasm in this matter, I should say that, for the present, we should retain the death penalty. It is a grave and difficult question, and one cannot he enthusiastic about it, because, whichever side we take it is—like German re-armament—still a problem and a gamble. We are not quite sure, and, therefore, we cannot be quite as enthusiastic as some people are in various other matters.

After weighing up all the arguments, I have come to the conclusion, though without any enthusiasm, that when an individual has gone so far wrong and, as far as can be judged by a fair trial, is still apparently in a normal, balanced frame of mind, and we know perfectly well that such a betrayal has taken place, there is a stronger argument for the death penalty in those circumstances than there is in civil life. I leave the position there, not because I am confident that my attitude is correct, but because, after hearing all the great legal stars in this assembly, I think that this is an occasion when an ordinary layman might usefully express his opinion.

Mr. S. Silverman

Most of us would concede that if a case can be made out for the Clause unamended, it is the case which my hon. Friend the Member for Wallsend (Mr. McKay) has just made. That is the case for retaining the death penalty in those circumstances. As he rightly says, people might reluctantly come to the conclusion that the death penalty should be thus retained; they might look at the matter in that way and come to that conclusion, and no one could gravely quarrel with them if they did. That is a very different thing, and much easier to follow than the argument of my hon. and learned Friend the Member for Northampton (Mr. Paget).

I understood my hon. and learned Friend's argument to be that this is a mitigation of the law—that, without this Clause, soldiers, like civilians convicted of treason, must be sentenced to death, whereas the Clause amends the law by discriminating in favour of soldiers. If my hon. and learned Friend is right, and if we do not pass the Amendment, the position in future will be that any civilian who commits treason will be executed in any event so far as the sentence of the court is concerned, whatever the extenuating circumstances; but the court will be allowed to take the extenuating circumstances into account, not in any charge of treason, but in any charge of treason committed by a soldier. If my hon. and learned Friend is right, I do not think that that is a change in the law which I would approve.

Mr. Hale

When a soldier has been convicted by court-martial and sentenced to imprisonment, he will still be liable to be tried in a civil court for treason and sentenced to death.

Mr. Silverman

My hon. Friend may or may not be right about that; I do not know. I will not be drawn into the obvious complications of that proposition, though I should think that he is probably right. Whether he is right or wrong is not material to my present argument. I am content to accept the interpretation of the Clause as it stands which my hon. and learned Friend gave in his extremely lucid speech, and to say that that kind of alteration in the law would seem to me to be one which the Committee would be well advised not to accept.

Mr. Paget

In a general way, I agree with my hon. Friend, but he will realise that the Clause, in the overwhelming number of cases, covers people who are prisoners of war. Prisoners of war, in the overwhelming number of cases, are soldiers. I say that the Clause covers offences by prisoners of war who go over to the other side, and I think that, whatever the theoretical position may be, the advantage of giving the court a discretion as to the penalty in that type of treason is worth while.

Mr. Silverman

My hon. and learned Friend may think so; I remain unconvinced. Looking at paragraphs (a) to (e) of the Clause, I would not concede that the number of persons affected by it would be predominantly prisoners of war.

Mr. Paget

As to 99 per cent.

Mr. Silverman

So my hon. and learned Friend says; I beg leave to differ.

I think that, if my hon. and learned Friend looks at the paragraphs separately, he will find several in which a man who was a prisoner of war could not commit it at all. In a number of other cases, it might be committed by a man on active service still fighting, equally with a prisoner of war, but, in any case, I cannot see what possible difference it makes. I can very readily see a case—and I would enthusiastically support it—for saying that in treason, as in several other cases, the court should have a discretion, even if we retain the death penalty, as to whether in all the circumstances the death penalty should be inflicted or not. What I cannot understand is the suggestion that we should alter the law so as to give it a discretion of that kind only in the case of soldiers. Why should we?

Mr. Paget

Is not half a loaf better than no loaf at all?

Mr. Silverman

It is, but it all depends on who has the half. I am considering all those civilians who, under this Clause, would not benefit.

I will leave that point now—I think that I have said all I want to say about it—and will come to another point.

My hon. and learned Friend says—and I would agree with him—that if we are to retain the death penalty at all and wish to limit the circumstances in which it can be inflicted, this Clause is an improvement in the law in that it introduces a particular exception. My hon. and learned Friend will say that the prosecution, upon whom the onus always lies, would, under this Clause and in every case, have to prove an intent to assist the enemy. That may, he says, be a difficult onus to discharge, and is, therefore, a safeguard.

I think that that is verbally so, but not so in substance. It is quite true that the prosecution has to try to prove intent to assist the enemy, but my hon. and learned Friend and I both know perfectly well that certain presumptions of law come into operation here. One of them is that one cannot get inside a man's mind in order to determine under a microscope what his intent was or was not. One can only infer his intent from what he does. Therefore, there is a presumption of law that every man is presumed to intend the natural and ordinary consequences of the act which he actually performs.

If my hon. and learned Friend will apply that maxim—which I am sure he accepts as being good law—to the offences specified in this Clause, he will see how very tenuous and precarious are the safeguards and modifications on which he here relies. Let us look at the first offence, which is as follows: Any person … who … abandons or delivers up any place or post which it is his duty to defend … The prosecution would say to such a person, "That is where you were posted, and you were told to hold it. You abandoned the post. You must have known when you abandoned the post that it was an object of the enemy's attack. You must have known when you abandoned the post that the enemy would take it over, and that was the very thing that you were ordered not to do. There fore, since your abandonment of the post—as a necessary and certain consequence—involved yielding up the post to the enemy, there is a presumption of law that that is what you intended to do."

7.15 p.m.

Mr. Wigg

My hon. Friend's argument is entirely misconceived. A charge cannot lie against a man for abandoning a post; it can only lie against the superior officer who is charged with defending it.

Mr. Silverman

I am sure that my hon. Friend is right, but I do not know that I was basing my argument on any other supposition. Supposing that, in those circumstances, the officer is charged—

Mr. Wigg

My hon. Friend, I thought, had in mind a sentry who is charged with defending a post, which is altogether quite different.

Mr. Silverman

If, for the sake of brevity, I did not state the whole of the argument and, therefore, confused anybody, I apologise. What I was intending to say was that if a person is charged with that offence, be he the officer in command or a sentry in a forward look-out—by whom the offence could equally well be committed—he would be presumed by law to have intended the natural and the probable consequences of his abandonment of the post.

It is true that he would be able to advance another explanation. He could rebut the presumption of law, but that would transfer the onus from the prosecution to the defence, and would make the difficulty of proving intent an obstacle to the defence instead of to the prosecution. I would say that in the vast majority of cases of soldiers charged with this offence, they would be just as likely to be convicted of the full offence under this Clause as they would be under the old law.

My hon. and learned Friend said with regard to paragraph (e) that his argument would not fit in at all. That paragraph deals with Any person subject to military law who with intent to assist the enemy harbours or protects an enemy not being a prisoner of war. Does my hon. and learned Friend say that that is treason? Of course it is not treason, and yet, under this Clause, a person could, by a court-martial, be sentenced to death.

Mr. Paget

Not only is it treason, but it is one of the main definitions of treason—anyone who gives aid or succour to the Queen's enemies.

Mr. Silverman

My hon. and learned Friend has forgotten more law than I ever knew, but if he tells me that if an enemy ship is shipwrecked on the coast of Cornwall and a fisherman takes one of its crew into his cottage and succours him overnight, that fisherman would be guilty of treason, then I say that we should alter our law of treason.

Mr. Paget

My hon. Friend should look at decisions, of which the most famous took place at the Bloody Assizes, when a great number of people were convicted for just that act.

Mr. Silverman

I have yet to learn that there is any twentieth century lawyer who regards what took place at the Bloody Assizes as being good law, and I am sure that my hon. and learned Friend would be the first to say so if he were not committed to his own argument. It seems to me that though the un-amended Clause might conceivably be defended on the broad commonsense lines of my hon. and learned Friend's argument—although I do not share his opinion, I understand how he arrives at it, and recognise it as a tenable point of view which I would reject—I am afraid that he is a victim of his own intellectual subtlety in this matter and that he would be very much—

Mr. Hale

I hope that my hon. Friend will forgive me for refreshing his memory about the classic case at the Bloody Assizes, in which succour was given. It was the case of Lady Alice Lisle, and because of that conviction Judge Jeffreys' memory has been held up to odium through the centuries. It has been held against him as being the worst case of its kind.

Mr. Silverman

I am much obliged to my hon. Friend. I was about to say that I think that my hon. and learned Friend has been the victim of his own very considerable intellectual subtlety and that, on reflection, he would be better advised in this case to stick to the argument which he will be defending tomorrow.

Mr. Paget

I think it may be of some importance that the proposition that a man is held in law to intend the natural and probable consequences of his action is applicable to a criminal offence requiring a specific intention. The criminal law is entirely otherwise where a particular intent is required by the statute. That must be proved specifically, and it has been decided over and over again that it cannot merely be deduced because it is a probable consequence of what a man did.

Mr. Silverman

If a man goes into a shop and pretends to the shopkeeper that his name is Jones, a customer well known to him, when, in fact, his name is Smith and someone of whom the shopkeeper has never heard, and he obtains credit from him, the facts would be sufficient to enable the prosecution to say, unless the prisoner could explain them away, that intent to defraud had been proved.

Mr. Paget


Mr. Silverman

That is all that I was saying, and it is equally applicable to every single one of the subsections of the Clause.

Mr. Wigg

I hope that the Committee, when it comes to make its decision, will remember that it has not merely been engaged in enjoying the pleasure of legal niceties. We are engaged in laying down a code of discipline which governs men's lives at the very moment when they are most difficult to govern, when they are overridden by fear and when, in fact, it is absolutely vital for the success of the operation in which they are engaged that they should subordinate their will and their fears to the will of the commander who is directing the operation.

During the whole of the proceedings in the two and half years that the Select Committee sat, that was constantly in my mind, and I may have bored my colleagues by repeatedly going back to it, and saying, "Whatever we do we must not make up our minds merely on the niceties of legal judgment." This is a code of discipline. No one likes the death penalty—I certainly do not. I do not want to transgress the rules of order, but I would say that with my hon. Friends I shall vote against the death penalty tomorrow night.

This is something quite different. It a young man—or a body of troops—allows himself to be influenced by fear, that may cost the lives not of two or three people but of thousands. Indeed, it may jeopardise the future of millions. Therefore, I think that it is absolutely vital on this issue, while desiring above all to be just, that we should remember the consequences if authority is not given the power that the situation may demand. We must face that fairly and squarely.

In my submission, we should be failing in our duty if we were overborne by the compelling legal arguments of the very able debaters who sit below the Gangway. I believe that if they had sat with us on the Select Committee they would have come to the same conclusion as we have done, and I hope that they will accept the honest and sincere advice given by other hon. Members on this side of the Committee, and agree to the Clause as it stands, without calling a Division.

The Reverend Llywelyn Williams (Abertillery)

In subsection (1) we are dealing with what could be described, possibly correctly, as moral dereliction of duty. That, of course, is a very serious offence and should be seriously dealt with, although I personally would never find myself able to support the death penalty for moral dereliction of duty, even in this context.

I am rather concerned with one facet in which we are dealing with people who commit these offences not deliberately with intent, but for other reasons. I wonder whether this category would include the intellectual, if that is the right word to use, inability to accept a certain military situation. If it is not proved that a man acted with intent to assist the enemy, he is still liable to conviction if he is responsible for or guilty of committing any of the acts specified in paragraphs (a) to (e) of subsection (1).

I wonder if we can have a full interpretation of the reason why a person can be found guilty of these five derelictions of duty. For instance, everyone who has read the history of battles will know that thousands of people have been sent to an untimely death, not because of any moral dereliction of duty on the part of their superior officers, but because of the intellectual inability of the officers, in a given situation, rightly to assess its dangers and its consequences.

A simple illustration which would surely be relevant is this. A person takes for granted that the weather will be propitious for a certain military operation and finds out that in the event the weather is not propitious. I suggest that that is not a far-fetched argument. Cannot we have a clearer definition of the type of dereliction of duty which the Minister has in mind.

Mr. James Simmons (Brierley Hill)

I hope that hon. Members will bear in mind that we have passed Clause 2. Under Clause 2 we are taking into the Armed Forces men whose minimum age is 17 years and six months, or, in certain circumstances, 17 years. It is a very different thing to talk about the death penalty to a seasoned soldier and to talk about the death penalty to a lad of 18. It is possible for a lad of 18 to be on active service and under fire. That is a point worthy of consideration before we finally decide whether or not to support this Amendment, which asks us to refrain from imposing the death penalty in such cases as this.

For instance, a lad of 18 may be on a lonely post under heavy shell fire. He may retreat from the lonely post to a shell hole to get cover, because his nerves have given way. He will have abandoned his post. My hon. Friend the Member for Dudley (Mr. Wigg) said that only officers could abandon posts. That statement is beyond my comprehension. In battle, when an officer is killed, the senior N.C.O. takes charge. If all the N.C.Os are killed, the oldest soldier takes charge, and if there is only one man there, he, of course, is the only one to decide whether or not the post is to be abandoned.

Then there is the position of a man who, having been made a prisoner of war, furnishes the enemy with arms and ammunition. The man who is made a prisoner may be carrying arms and ammunition and be relieved of them by the enemy. He may have no choice in the matter. Yet, under the Clause, he can be shot for cowardice or desertion, or whatever it is. Then there is the paragraph which states: harbours or protects an enemy not being a prisoner of war. I think that is undermining the spirit of humanity. A soldier on the battlefield may find a very severely wounded enemy on the point of death. He may protect him and apply a tourniquet, or field dressing, or look after him in some way. The whole Clause is ambiguous; there are too many loopholes. The Clause uses the words "with intent." Who is to decide whether the soldier had intent to assist an enemy or not? Who could know the state of mind of the man? Who could know what a young man of 18, under shell fire, would do when his nerves gave way?

7.30 p.m.

We should be on the safest bet if we said we would have no death penalty at all. I see no argument for saying that we should oppose it in civilian affairs but support it in military affairs. Human life is human life whether those concerned are in uniform or civilian clothes. The taking of human life in cold blood is something not to be supported by any man or woman of humane feelings. This means taking the life of a young soldier—probably only 18—in cold blood for what he has done, perhaps involuntarily, because his nerves gave way under stress of war and battle. I support the Amendment.

The Under-Secretary of State for War (Mr. Fitzroy Maclean)

I cannot help feeling that the discussion has tended once or twice to drift rather far from the Bill. Some of the speeches have, to a large extent, anticipated tomorrow's debate. We have to remember that military law has to keep fairly closely in line with civil law and that is true of this Clause.

The Amendment does not seem to take account of the fact that under civil law treason attracts the penalty of death without any alternative. Nor does it seem to take account of the fact that under Clauses 32 and 70 cases of failure to suppress mutiny or civil offences attract the death penalty. From that point of view the Amendment is not very logical. This Bill does not seek to impose the death penalty where it did not exist before; on the contrary, it tends to restrict the number of offences attracting it and tends to impose a number of safeguards which did not exist before.

In the first place, in every case the court has discretion to award a lesser penalty. The hon. and learned Member for Northampton (Mr. Paget) said that he did not altogether like paragraph (e), under which the death penalty could be imposed for harbouring or protecting an enemy and various cases have been suggested. I should have thought that where that was done out of possibly mistaken humanitarian motives it would be very unlikely that any court would impose the penalty. I have known of cases where it was found more convenient both to the soldier making the capture and the prisoner captured to treat the prisoner on a friendly basis for a time because he made himself more useful than if he were handed over and put into a prisoner-of-war camp. That helped both parties.

I do not think anyone suggests that the death penalty would be imposed in cases of that kind or in cases where one felt sorry for a prisoner of war who was in a bad way. But a case might arise of someone who knowingly and deliberately harboured an enemy spy, an enemy agent, who intended to blow up a bridge or do damage of one kind or another. In that case, I think there would be a very good case for asking for the death penalty.

Mr. Paget

There is a difficulty here. The man who harbours an enemy for humanitarian reasons is doing so with the intention of assisting that enemy, but what the Clause is intended to mean is that there should be an intention, not to assist that particular enemy, but an intention to assist the enemy's cause in general. I wonder whether, before we reach the next stage, it would be possible to look at that and see whether some form of words could be found which would make it clear that under paragraph (e) an intent to help that particular chap is not good enough but there must be an intention to help the enemy's cause in general? I am sure that is the intention and we might try to find some words for it.

Mr. Maclean

I would not venture to argue with such a distinguished lawyer as the hon. and learned Member, but I should have thought at first sight that with intent to assist the enemy makes that clear. I know that my right hon. Friend would be quite ready to have another look at the wording to see whether he can find a formula which would dispel any doubt on that point.

Mr. Paget

I am much obliged.

Mr. Maclean

This Bill tends to restrict the number of offences which attract the death penalty. We are trying to do everything in our power to see that it does not impose the penalty where it is not absolutely necessary that it should be imposed. Already, my right hon. Friend has agreed to look into points raised by the hon. and learned Member for West Ham, South (Mr. Elwyn Jones) on the interpretation of international law. It is always extremely difficult to interpret international law, even for international lawyers. It is not our intention to ask the private soldier to show a greater knowledge of international law than the lawyers themselves possess.

On the whole, it should be quite clear from the Bill that what might be termed treacherous offences arising out of cowardice do not render a soldier who commits them liable to the death penalty. That is one of the most important features of the Bill.

A further safeguard is that the decision of a court has to be unanimous under Clause 96, by which the death penalty is imposed. That, again, makes it impossible for the death sentence to be imposed lightly. Hon. Members opposite have tended rather to give the impression that this could be a summary procedure in the heat of battle. That is certainly not the case.

It has also been suggested that the wording of the Bill is vague, and on two points we have agreed to look at it again; but the fact remains that the opening words of the Clause are not at all vague. They make it quite clear that the prosecution must prove intent to assist the enemy, and the onus of proving that rests with the prosecution and not with the prisoner.

The hon. Member for Brierley Hill (Mr. Simmons) spoke of wretched boys losing their nerve and running away and he suggested that they would be liable to the death penalty for doing that. That is quite clearly not the case, and it certainly is not what the Select Committee had in mind. The hon. Member for Oldham, West (Mr. Hale) mentioned the case of Private Slovak. I am not familiar with all the details of that case, but my understanding is that under this Bill he would not have been executed. He does not, therefore, enter into our discussion.

Mr. Hale

I thought I had made that clear. It was a case of cowardice and I said that the Clause would not apply, and that Clause 26, which deals with cowardice, does not impose the death penalty. What I did say of Private Slovak and what would apply was that the wretched man had no friends. The trouble sometimes in these cases is that at the front there are soldiers with no friends, and things can happen that would not happen on mature reflection.

Mr. Maclean

The feeling of the Select Committee was in one way extremely well summed up by the very sincere speech of the hon. Member for Wallsend (Mr. McKay), which, I think, everybody felt was a valuable contribution to our discussion.

I do not think that anybody likes the death penalty and nobody likes war very much, certainly nobody who has taken part in one. What was felt by the Select Committee was that it was necessary—and this has been pointed out by the hon. Member for Dudley (Mr. Wigg)—to produce rules of discipline to deal with the case of deliberate traitors who do not commit whatever action they commit out of cowardice or from a love of humanity in general, but who do it to procure the destruction of as many of their comrades as possible.

Mr. Arthur Henderson (Rowley Regis and Tipton)

I appeal to my hon. Friends who introduced the Amendment to consider whether there is any need to force this issue to a Division. I do not propose to comment on the legal aspects of the Clause. My hon. and learned Friend the Member for Northampton (Mr. Paget) has dealt adequately with them, and I do not think there is much difference on the legal aspects between the viewpoint of my hon. Friends below the Gangway and the views put forward by my hon. and learned Friend.

The real point at issue is the question of the death penalty. My hon. Friends have put forward powerful arguments, based on humanitarian grounds, against the imposition of the death penalty. Certainly, my hon. Friend the Member for Oldham, West (Mr. Hale) would advocate, as, I think, he suggested, that the death penalty should not be applied for any offence whatever.

7.45 p.m.

We cannot deal with this branch of the law by a side door. The law for civilians with regard to treachery still applies the death penalty. It is now suggested that we should set an example by agreeing to the deletion of that part of the Clause which applies the death penalty for acts of treachery committed by those who are subject to military law.

I am sure that my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), when he referred to the fishermen who succoured the shipwrecked enemy, was not applying that as an argument against the Clause, for, as he knows, the Clause refers only to persons who are subject to military law.

Mr. Hale

My right hon. and learned Friend is saying that we must not introduce the abolition of the death penalty by a side door by making special provisions for soldiers which do not apply to civilians. My hon. and learned Friend the Member for Northampton urged that specific argument as a reason for applauding this Measure and said that we have made special provision for soldiers that does not apply to civilians, because we have given to courts-martial the alternative of imposing the death penalty or imprisonment, and this does not apply to civilians.

Mr. Henderson

I am not suggesting that I disagree with my hon. and learned Friend the Member for Northampton.

What I am saying is that Parliament must face up to the question of treachery, whether committed by civilians or by those who are subject to military law, and must decide whether or not in any circumstances the death penalty is to be imposed. What my hon. and learned Friend the Member for Northampton rightly pointed out was that, in the case of a person who is subject to military law, there is the alternative of imprisonment as against the imposition of the death penalty.

I am saying that if we advocate the removal of the death penalty in any circumstances, either as an alternative, as under the Bill, or as it is under the law relating to civilians, Parliament must face up to that and we must not seek to do it in this way.

Mr. S. Silverman

My right hon. and learned Friend misses the point. I used my argument about the fishermen because I had put it to my hon. and learned Friend that the offence specified in subsection (1, e) was not treason, and my hon. and learned Friend said that it was. I therefore put the fishermen point to him, not for the purpose of saying whether the Bill applied, but for the purpose of testing whether that kind of thing was treason. But whether it is treason or not, what the Bill does, if my hon. and learned Friend is right, is to make the death penalty inevitable in the case of a fisherman and discretionary in the case of a soldier. I say that that is wrong.

Mr. Henderson

Whatever may be the position with regard to the civilian, the Clause deals with the person who is subject to military law; and the Amendment seeks to delete the death penalty provision in the Clause and not to alter the law with regard to the commission of an act of treason by a civilian.

We may on human grounds deprecate the imposition of the death penalty. We also deprecate death that results from warlike operation. If we want to avoid the necessity for taking life, even under the rule of law as contained in a Measure such as we are dealing with today, the only sure way is to abolish war. If we in this Committee were asked to vote, by raising our hands, for the abolition of war, there is not an hon. Member who would not raise his or her hand. But we have to deal with the realities of life. We have not got to the point where war can be abolished. We have to cater for what might happen in the event of war, and as we have our Armed Forces we have to have an Army. If there is an

Army there has to be a code of discipline, otherwise the Army will be something of a rabble.

That is the whole basis of the Bill which we are considering tonight, and all I am saying to my hon. Friends is that, with all respect, there is very little which divides hon. Members on this side of the Committee on this problem of capital punishment, certainly in relation to the question which will be debated tomorrow. But tonight we have to look at this question in relation to the maintenance of the discipline of the Armed Forces. It was because of that that those of us who served on the Select Committee felt that there was no alternative but to accept the provisions of Clause 24. That is why I would ask my hon. Friends not to force their Amendment to a Division.

Question put, That "death" stand part of the Clause:—

The Committee divided: Ayes 205, Noes 10.

Division No. 32.] AYES 7.52 p.m.
Aitken, W. T. Crowder, Petre (Ruislip—Northwood) Hollis, M. C.
Allan, R. A. (Paddington, S.) Davidson, Viscountess Holt, A. F.
Amery, Julian (Preston, N.) Deedes, W. F. Horobin, Sir Ian
Arbuthnot, John Digby, S. Wingfield Hudson, Sir Austin (Lewisham, N.)
Ashton, H. (Chelmsford) Donaldson, Cmdr. C. E. McA. Hudson, W. R. A. (Hull, N.)
Assheton, Rt. Hn. R. (Blackburn, W.) Donner, Sir P. W. Hulbert, Wing Cmdr. N. J.
Astor, Hon. J. J. Doughty, C. J. A. Kurd, A. R.
Attlee, Rt. Hon. C. R. Drewe, Sir C. Hutchison, James (Scotstoun)
Awbery, S. S. Duncan, Capt. J. A. L. Hyde, Lt.-Col. H. M.
Baldock, Lt.-Cmdr. J. M. Duthie, W. S. Hylton-Foster, Sir H. B. H.
Baldwin, A. E. Ede, Rt. Hon. J. C. Jenkins, Robert (Dulwich)
Barlow, Sir John Eden, J. B. (Bournemouth, West) Jennings, Sir Roland
Beach, Maj. Hicks Elliot, Rt. Hon. W. E. Johnson, Eric (Blackley)
Bell, Ronald (Bucks, S.) Errington, Sir Eric Jones, A. (Hall Green)
Bennett, F. M. (Reading, N.) Fell, A. Kaberry, D.
Bevins, J. R. (Toxteth) Finlay, Graeme Kerby, Capt. H. B.
Bing, G. H. C. Fisher, Nigel Kerr, H. W.
Birch, Rt. Hon. Nigel Fleetwood-Hesketh, R. F. Lambton, Viscount
Bishop, F. P. Fletcher, Eric (Islington, E.) Leather, E. H. C.
Boothby, Sir R. J. G. Fletcher-Cooke, C. Legh, Hon. Peter (Petersfield)
Follick, M.
Bottomley, Rt. Hon. A. G. Ford, Mrs. Patricia Lever, Leslie (Ardwick)
Bowden, H. W. Fraser, Sir Ian (M'cmbe & Lonsdale) Lindsay, Martin
Boyd-Carpenter, Rt. Hon. J. A. Galbraith, Rt. Hon. T. D. (Pollok) Linstead, Sir H. N.
Boyle, Sir Edward Galbraith, T. G. D. (Hillhead) Llewellyn, D. T.
Braine, B. R. Gammans, L. D. Lloyd, Maj. Sir Guy (Renfrew, E.)
Brooman-White, R. C. Godber, J. B. Lloyd, Rt. Hon. Selwyn (Wirral)
Browne, Jack (Govan) Gomme-Duncan, Col. A. Lockwood, Lt.-Col. J. C.
Buchan-Hepburn, Rt. Hon. P. G. T. Gower, H. R. Lucas, Sir Jocelyn (Portsmouth, S.)
Bullard, D. G. Graham, Sir Fergus Lucas, P. B. (Brentford)
Bullus, Wing Commander E. E. Gresham Cooke, R. Lucas-Tooth, Sir Hugh
Burden, F. F. A. Grimond, J. McCorquodale, Rt. Hon. M. S.
Butcher, Sir Herbert Grimston, Hon. John (St. Albans) Macdonald, Sir Peter
Carr, Robert Grimston, Sir Robert (Westbury) Mackie, J. H. (Galloway)
Cary, Sir Robert Hare, Hon. J. H. Maclay, Rt. Hon. John
Clarke, Col. Sir Ralph (East Grinstead) Harrison, Col. J. H. (Eye) Maclean, Fitzroy (Lancaster)
Clarke, Brig. Terence (Portsmth, W.) Harvey, Ian (Harrow, E.) McLeavy, F.
Colegate, Sir W. A. Heald, Rt. Hon. Sir Lionel Macleod, Rt. Hn. Iain (Enfield, W.)
Conant, Maj. Sir Roger Heath, Edward Macmillan, Rt. Hn. Harold(Bromley)
Cooper, Sqn. Ldr. Albert Henderson, Rt. Hn. A. (Rwly Regis) Macpherson, Niall (Dumfries)
Cooper-Key, E. M. Higgs, J. M. C. Mainwaring, W. H.
Craddock, Beresford (Spelthorne) Hill, John (S. Norfolk) Maitland, Cdr. J. F. W. (Horncastle)
Crookshank, Capt. Rt. Hn. H. F. C. Hirst, Geoffrey Manningham-Buller, Rt. Hn. Sir R.
Crosthwaite-Eyre, Col. O. E. Holland-Martin, C. J. Marlowe, A. A. H.
Marples, A. E. Price, Philips (Gloucestershire, W.) Thompson, Lt-Cdr. R. (Croydon, W.)
Marshall, Douglas (Bodmin) Prior-Palmer, Brig. O. L. Thornton-Kemsley, Col. C. N.
Maude, Angus Profumo, J. D. Tilney, John
Medlicott, Sir Frank Rayner, Brig. R. Touche, Sir Gordon
Mellor, Sir John Roper, Sir Harold Turner-Samuels, M.
Milligan, Rt. Hon. W. R. Ropner, Col. Sir Leonard Turton, R. H.
Morrison, Rt. Hon. H. (Lewisham, S.) Ryder, Capt. R. E. D. Vane, W. M. F.
Morrison, John (Salisbury) Savory, Prof. Sir Douglas Vaughan-Morgan, J. K.
Nabarro, G. D. N. Schofield, Lt.-Col. W. Vosper, D. F.
Nicholls, Harmar Scott-Miller, Cmdr. R. Wade, D. W.
Nicholson, Godfrey (Farnham) Sharpies, Maj. R. C. Wakefield, Edward (Derbyshire, W.)
Nicolson, Nigel (Bournemouth, E.) Shepherd, William Wall, Major Patrick
Nield, Basil (Chester) Smithers, Peter (Winchester) Ward, Hon. George (Worcester)
Noble, Comdr. A. H. P. Smyth, Brig. J. G. (Norwood) Ward, Miss I. (Tynemouth)
Nutting, Rt. Hon. Anthony Soames, Capt. C. Whiteley, Rt. Hon. W.
Oakshott, H. D. Speir, R. M. Wigg, George
O'Neill, Hon. Phelim (Co. Antrim, N.) Stanley, Capt. Hon. Richard Williams, Rt. Hn. Charles (Torquay)
Orr, Capt. L. P. S. Steward, Harold (Stockport, S.) Williams, Gerald (Tonbridge)
Page, R. G. Stewart, Henderson (Fife, E.) Williams, Paul (Sunderland, S.)
Paget, R. T. Stewart, Michael (Fulham, E.) Wills, G.
Perkins, Sir Robert Stoddart-Scott, Col. M. Wilson, Geoffrey (Truro)
Peto, Brig. C. H. M. Storey, S. Woollam, John Victor
Peyton, J. W. W. Sumner, W. D. M. (Orpington) Wyatt, W. L.
Pilkington, Capt. R. A. Sutcliffe, Sir Harold
Pitt, Miss E. M. Teeling, W. TELLERS FOR THE AYES:
Powell, J. Enoch Thompson, Kenneth (Walton) Mr. Studholme and Mr. Redmayne.
Carmichael, J. Rankin, John
Davies, Stephen (Merthyr) Silverman, Sydney (Nelson) TELLERS FOR THE NOES:
Fernyhough, E. Simmons, C. J. (Brierley Hill) Mr. Emrys Hughes and
Foot, M. M. Stress, Dr. Barnett Mr. Leslie Hale.
Paton, J. Thomas, George (Cardiff)

Question agreed to.

The CHAIRMAN, being of opinion that the principle of the Clause and any matters arising thereon had been adequately discussed in the course of debate on the Amendments proposed thereto, forthwith put the Question, pursuant to Standing Order No. 45 (Debate on Clause standing part), That the Clause stand part of the Bill:—

Clause ordered to stand part of the Bill.

Clauses 25 to 28 ordered to stand part of the Bill.