Clause 1.—(ABOLITION OF DEATH PENALTY.)

HC Deb 28 June 1956 vol 555 cc719-81

Mr. J. E. S. Simon (Middlesbrough, West)

I beg to move, in page 1, line 6, to leave out from "murder" to the end of line 9 and insert: and every enactment rendering an offender liable to suffer death in any case of murder shall be considered as rendering the offender liable to imprisonment for life: Provided that—

1. (a) the court may order the offender to be detained during Her Majesty's pleasure, if satisfied that the mental condition of the offender makes such a sentence more appropriate; and
2. (b) nothing herein shall be considered as affecting the exercise of the Royal prerogative of mercy or the power of the Secretary of State to release on licence a prisoner serving a sentence of life imprisonment."

The Amendment raises a question which was debated on Second Reading, whether the effective power of sentencing should be in the hands of the Executive or of the court. There was a general consensus of opinion in the Committee, both among abolitionists and retentionists, that it was desirable that the normal constitutional process, whereby the sentencing of a criminal is in the hands of the court rather than of the Executive, should be adhered to, provided that certain safeguards were admitted. The Amendment is an attempt to crystallise that consensus of opinion.

The very first recommendation of the Royal Commission contained these words: The outstanding defect of the law of murder is that it provides a single punishment for a crime widely varying in culpability. That outstanding defect is preserved in the Bill, in which a single penalty is provided

although a different one from that obtaining heretofore, for a crime widely varying in culpability. Normally, when the court passes from verdict to sentence, evidence is called about the character of the convicted man, the circumstances surrounding the crime and, in particular, his state of mind, so that the court may judge of the punishment, or even more, of the sentence suitable in all the circumstances. It may well be that the crime does not call for punishment. That is no less so in the crime of murder.

One of the cases which we have discussed very frequently in canvassing the main merits of the Bill is that of a woman who, finding herself about to go into hospital for an operation that might well prove fatal, murders her imbecile son, a fully grown man, who, throughout his thirty years or so of life, has been dependent upon her. Many hon. Members have drawn attention to the horrifying circumstances in which that woman, who everyone knows will be reprieved, is sentenced to death by the judge, as she has to be. Very properly the Home Secretary at the earliest possible opportunity releases her and advises the exercise of the Prerogative of mercy.

Under the Bill, the court will have to go through the horrible farce of sentencing that woman to be imprisoned for life. That is a strong reason for giving flexibility to the court, in sentencing for the crime dealt with in the Bill, such as is at its command in all other types of crime. As I understand it, the great argument in favour of the Bill is that murder is not an offence different from all other offences. On the contrary, as the Royal Commission pointed out time and time again, it varies immensely in culpability, and is only too often admitted to be the product of a miserable life.

Mr. R. T. Paget (Northampton)

I have great sympathy with what the hon. and learned Member for Middlesbrough, West (Mr. Simon) is saying. Previously there was one sentence for murder. Now we substitute for it imprisonment for life. Does the Amendment enable a judge to pass any sentence for a period less than life?

Mr. Simon

I shall not express any opinion on the law in the presence of my right hon. and learned Friend the Attorney-General, who is available to give us his view. I took the words from another Statute and I understand, subject to correction from my right hon. and learned Friend, that the words allow for a sentence of life imprisonment or for any other sentence which the court can impose. In other words, it can mean not only, as the hon. and learned Member for Northampton (Mr. Paget) suggests, a lesser sentence of imprisonment but those other sentences which the court can impose, such as conditional or unconditional discharge, probation, or even putting the offender on probation, particularly a young offender who is unbalanced, on condition that appropriate medical treatment is given.

4.30 p.m.

Mr. Sydney Silverman (Nelson and Colne)

The hon. and learned Member for Middlesbrough, West (Mr. Simon) naturally puts the point in the most attractive way, but he might put the other side. I was wondering whether, in his opinion and intention, this would give a trial judge the right to impose sentences, shall we say, of fifty years' imprisonment.

Mr. Simon

My understanding is that the Amendment does not give that power, any more than does any other Statute which permits a sentence of life imprisonment, but my statement, of course, is subject to the correction of my right hon. and learned Friend the Attorney-General. Before he intervenes, may I say that it was certainly the intention of my hon. Friends and myself that the sentence should be life imprisonment or a lesser sentence. Those words do appear in other legislation where the punishment is imprisonment for life and where there is a flexibility in the punishment. I should be very grateful to hear the view of my right hon. and learned Friend the Attorney-General.

The Attorney-General (Sir Reginald Manningham-Buller)

I think I can help the House on this point. In my view, as the Bill stands, the court would only have power to impose a sentence of imprisonment for life. There would be no discretion resting on the court on conviction for murder to pass a lesser sentence than the sentence of imprisonment for life. The wording of the Amendment is, I think, appropriate to ensure that the court could, if it so desired, pass a lesser sentence than a sentence of imprisonment for life, but, of course, in passing a lesser sentence, it could pass a sentence for a fixed term of years, such as 40 years, which might in fact be hardly less than life.

Mr. Simon

I am much obliged to my right hon. and learned Friend for his intervention, and I am sure we are all very grateful. As I understand it, these words do appear in other Statutes where the sentence is imprisonment for life. Curiously enough, the offences which attract liability to that sentence include such things as forging a will, and in these cases the court does not impose sentences of 30 or 50 years. Perhaps if the principle of the Amendment was accepted, that point could be further considered in another place to ensure that, since it is not our intention, a court of law cannot impose a sentence of 50 years.

The two points raised in the Committee stage were that the general principle was accepted that it is constitutionally desirable that the sentence on a convicted man should be imposed in public on evidence publicly tendered, and should be imposed under a code known to the law. Nevertheless, certain considerations should be borne in mind. The first was that there should be no trenching on the Royal Prerogative of mercy to be exercised on the recommendation of the Home Secretary and the Secretary of State for Scotland. It was feared that, as the Clause was originally drawn, there might be such an impinging on the Royal Prerogative of mercy and also on the power of the Secretary of State to release on licence a person serving a sentence of life imprisonment. It was for that reason that the second proviso was put in.

The other objection, which was voiced, notably by the hon. Member for Northfield (Mr. Chapman) in an intervention, was the very serious consideration that in the crime of murder there is a substantial proportion of persons whose mental stability may be in question, and that it may be impossible for the court at the time of sentencing to have sufficient information or sufficient certainty to be able to impose a sentence of a fixed term of imprisonment. It was to meet that objection, which was a perfectly valid one, that the first proviso has been put in. In other words, in that type of case, where the court could not be absolutely certain what was the appropriate punishment, owing to the mental condition of the offender, and particularly owing to the difficulty of prognosis of that mental condition, it was thought right that the appropriate sentence to be available should be detention during Her Majesty's pleasure. In that case, therefore, the Home Secretary would have the full power to review the sentence periodically, if sentence is the correct term, and to release whenever he could feel sure that it was proper.

I apprehend that the main objection, because the principle will be generally accepted, is that it is undesirable to carry on the present procedure, whereby the Home Secretary reviews, and in fact imposes, the effective [...]sentence of the court on secret evidence tendered in private and applying a code which is quite unknown to the public law of this land. The code of mental responsibility that is applied by the Home Secretary is something of which the law knows nothing, and it has been imposed on evidence privately tendered, when it might be said that it might be desirable to shorten the sentence. The answer to that is that that argument applies equally to all crimes. It is for the court to say what is the proper sentence. Murder is no different from any other crime in that respect, unless there is a question of the mental condition of the accused, and that is met by the first proviso.

The second argument which I apprehend may be put against the Amendment is that it might be desirable to lengthen the period. In other words, it is said that the judge, having reviewed the evidence, the circumstances of the crime and the mental condition of the accused, might make a mistake by ordering a sentence which is too short, say, a sentence of 10 years, and at the end of 10 years it might be unsafe to release the accused. That argument I have heard advanced in this type of case, but let us see where it leads us.

That might apply in any other type of case as well as murder, and yet we take the risk, because it is constitutionally desirable that the sentence should be imposed in public and be imposed by judicial rather than executive organs. If it is really unsafe, it means that if there is a danger of the accused showing homicidal tendencies which were obviously not envisaged by the learned judge when he imposed the sentence—because if they had been, he would have ordered detention during Her Majesty's pleasure—if these tendencies have superseded, the proper course would be to certify. I have no doubt at all that a doctor finding that a prisoner, or any other person, was showing homicidal tendencies, would undoubtedly certify him as insane.

It is for those reasons that I commend the Amendment to the House. The whole basis of the Bill is that murder is a crime like other crimes. Let us, therefore, take the opportunity of restoring the constitutional priorities, and restore the power of sentence to the courts.

Sir Thomas Moore (Ayr)

I beg to second the Amendment.

Mr. S. Silverman

The hon. and learned Member for Middlesbrough, West (Mr. Simon) has put his point with great persuasiveness and moderation. I am in complete agreement, in principle, with a large part of what he had to say. I should have been in even stronger agreement if I had had his support in getting rid of the death penalty, which alone enables him to move an Amendment to this effect. He is slightly inconsistent in speaking and voting against the abolition of the death penalty and then making the speech to which we have just listened.

Mr. Simon

I want to preserve flexibility in the court, and also preserve the death penalty. The two arguments are not really inconsistent.

Mr. Silverman

I should have thought that there was every inconsistency between voting in favour of the courts' retaining not merely the most inflexible but the supreme penalty in every case of murder and, in the course of the same proceedings, advising the House of Commons to adopt a flexible penalty. How the hon. and learned Gentleman can think it right to keep a penalty inflexible in the case of death but render it flexible in the case of imprisonment for life is something which I am quite unable to follow.

Apart from that, I remember that the hon. and learned Gentleman moved an Amendment to the original Motion which led to the proposed legislation now before the House. I read the most interesting pamphlet which he, with some of his colleagues, prepared in relation to the anomalies in the law of murder, and I take it that his real purpose now is to apply some of the things which he was recommending in that pamphlet. In the debate upon the Motion, in reference to his Amendment, I said that although I certainly could not dissent in principle from much of what was said in the pamphlet—and which has been repeated today—nevertheless, as a matter of practice, the anomalies had no importance at all except in relation to the death penalty. If we get rid of the death penalty those anomalies are a matter of mere academic importance.

Mr. Simon

I am sure the hon. Gentleman wants to answer the points which I have put forward and not those which I have not. The Amendment has nothing to do with the anomalies in the law of murder; nor was the question of the appropriate organ of sentence argued in the pamphlet.

Mr. Silverman

Whether the hon. and learned Gentleman meant the Amendment to have anything to do with it or not, as he has drafted it, I am afraid that it has a great deal to do with it. Proviso (a) says that: the court may order the offender to be detained during Her Majesty's pleasure, if satisfied that the mental condition of the offender makes such a sentence more appropriate … If that is not intended to remedy the anomalies in the M'Naghten Rules, I do not understand what it is all about.

Mr. Simon

It refers to the sentence; not to responsibility.

Mr. Silverman

Since the sentence must inevitably depend upon the degree of moral responsibility, and since it was the hon. and learned Gentleman's whole point, throughout this controversy, that the sentence should be apportioned and varied according to the varying degrees of moral responsibility, I cannot understand what he is quarrelling with me about.

With his intention to have that modification I have every sympathy, but if we once get rid of the death penalty it is quite sufficient to leave all these other questions, not merely to the discretion of the Home Secretary and Prison Commissioners, but also to their continuous review over the whole period during which the person concerned is in their charge. It may very well be true that upon the existing facts the trial judge may be able to decide what is the right thing to do.

4.45 p.m.

Do not let us forget, as abolitionists are sometimes unfairly accused of forgetting, that we are dealing with the crime of murder, and that where murder has been committed it is quite right that the culprit should be detained until the authorities best qualified to judge are satisfied that it is safe to release him. The position as to that may change from time to time, especially in the case of young offenders, and the promoters of the Bill prefer to leave it as it stands, relying with complete confidence upon the judgment, prudence and discretion of the Home Office to see that prisoners committed to its care as a result of this Measure are kept in proper custody, examined from time to time and released as soon as, but not before, it is safe to release them.

Mr. Rawlinson

Having heard the speech of the hon. Member for Nelson and Colne (Mr. S. Silverman), whom I have always thought to be motivated by considerations of mercy, I am rather surprised. In order to illustrate my argument, I should like to refer shortly to a personal experience which occurred only a few days ago, when I was defending a man who had killed his own child. He was originally charged with murder, but at the trial the prosecution accepted a plea of manslaughter and, because of that, the trial judge, having heard the facts of the case and had one adjournment, and having indicated that in certain circumstances he might have put the man on probation, was able to sentence him to nine months' imprisonment.

That shows that, upon exactly the same facts, the trial judge thought that the man's punishment for the crime—which was originally charged as murder but was altered to one of manslaughter—might have been probation, but in any case should be no more than nine months' imprisonment. That surely shows that when this question is weighed up the trial judge, upon the public evidence given before him by witnesses who are called, examined and cross-examined—as they can be in pleas of mitigation—should be left to decide for himself what the proper sentence should be.

If the hon. Member for Nelson and Colne had his way, in the case of a man pleading guilty to murder, a sentence of life imprisonment would have to be imposed by the judge, but in the case of manslaughter, apparently, the judge is allowed to exercise discretion. The only reason why there has been one fixed penalty in law for one crime, namely, murder, is that it is the supreme crime for which, in the past, the supreme penalty was demanded. If the promoters of the Bill had their way that penalty would be changed.

Why, therefore, should it not be within the discretion of a judge to decide what penalty a man should suffer for the crime he has committed? The hon. Member for Nelson and Colne said that he has great confidence in those persons who, behind the scenes, decide what should be done to a man. Why should not he be equally confident in the judges, before whom can be called evidence both for the prosecution and the defence? I know that it can be said that there may be a change in the circumstances, but in the hon. Member's experience—and, I am sure, in the experience of other hon. Members on both sides of the House—cases occur where the question of the charge being one of murder or manslaughter is a very technical one, and where a sentence of death, as it used to be, or life imprisonment, as it might be if the Bill were passed, would be quite shock-making, and where everyone appreciates that, because of the peculiar cir- cumstances of this crime, the man should be sentenced to a few months imprisonment, or may even be put on probation.

Some hon. Gentlemen seem to think that it could be better done behind the scenes. Why do not they argue that the responsibility for sentencing all other criminals should be handed over to the Home Office? How can it be said that a man convicted of attempted murder should not be handed over to the Home Office for that Department to decide how many months or years of imprisonment the man should suffer? Why should not the sentence be decided by the Home Office behind the scenes? Surely, the cardinal principle always has been that the man who commits a crime and is found guilty should appear before a court, before the public, the Press and everybody else. There he gives his explanation, pleads for mercy, and expresses the reason why he pleads for mercy, and then the judge decides. Surely, that is an honest and honourable principle of law which has been carried out in this country for many hundreds of years?

Now that there has been this change in the law where the supreme penalty has been altered and the penalty for murder is in the category of that imposed for other crimes, it is a case where it might be left to the discretion of the judge to decide the right punishment. That should be announced publicly, and the defence should have the opportunity of putting before the judge the reasons why mercy should be extended or refused.

Mr. Paget

When, day after day, we have heard hon. and learned Gentlemen opposite—even at the price of a not inconsiderable filibuster—seek to maintain a single, inflexible and rigid penalty for murder, it seems a little odd suddenly to find them demanding this flexibility. A few minutes ago I attended a meeting with a delegation from the Uganda Legislature. A member of the delegation told a story which seems to me not inappropriate to this matter. He said, "When you ride a bicycle, you may fall off the bicycle if you try to ride too fast or too slow". It would appear that hon. and learned Gentlemen opposite seem to favour the idea that, so long as this Bill "falls off a bicycle", they do not mind whether that happens because the bicycle is travelling too fast or too slow.

There is another highly important point. The judge should decide, on evidence given in court, what is the appropriate penalty commensurate with the proof in the evidence and for the protection of the public; and that sentence should always be subject to review by the Home Office, whether the crime be murder or anything else. There are a number of other questions which are relevant after the trial is ended. It must be decided whether a man should be kept in prison and denied his liberty. Consideration must be given to such questions as the way the man behaves in prison. It sometimes happens that he gallantly rescues a warder. All sorts of factors in his life are under consideration, and the Home Office must keep in mind that everyone in prison, whether for life or for a term of years, is in prison at the discretion of the Home Office; and that it is the duty of the Home Office to consider when it would be safe and proper to release them.

I agree entirely that this is not the appropriate time to introduce this proposal, unless the Government desire it. If the Government want it, I should not oppose it. There is a great variety of degree of guilt in murder. I remember once prosecuting in a case of murder and discussing the case with the judge. At one point he said, "The great difficulty with this case is that it is a plain case of murder and the appropriate sentence would be to suspend the gentleman's gun licence for six months." That is an indication of the variety and range of these things.

I am in favour of this proposal. It does not remove the discretion of the Home Office to consider every sentence. It introduces another and not undesirable discretion which could be, and is, exercised executively. I should not regret to see this brought about, provided the Government asked for it and were prepared to accept it. But it should not be imposed on the Government at this stage by anyone who regards this Bill with favour.

Mr. M. Turner-Samuels (Gloucester)

I am sure that the hon. and learned Member for Middlesbrough, West (Mr. Simon) considers that this Amendment is a good one and that it would assist in the administration of the law which would follow were this Bill placed on the Statute Book. But I think that the hon. and learned Gentleman asked for the soft impeachment which he received from my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), because it seemed to me that the hon. and learned Member was endeavouring to make out a case for this Amendment which does not exist. In my opinion, he put his case much too high, as did also his hon. Friend the Member for Epsom (Mr. Rawlinson), who supported him.

There was a time when I thought that an Amendment on these lines might possibly be necessary. But, on reflection, I do not think that the present Amendment is required for the purpose for which, apparently, the hon. and learned Member for Middlesbrough, West desires it. All that is sought to be done by this Amendment could, I suggest, be done more appropriately and effectively by the Prison Commissioners at a time after the trial when it is essential that it should be done, and when, in consequence, it would be much more appropriate to the circumstances of the case. Should this Bill ever become law, the sentence to be imposed in a case of murder would be imprisonment for life, which of course is the sentence that the court would have to impose. I am sorry that the Attorney-General is not now in the Chamber. The right hon. and learned Gentleman made a rather important pronouncement, following a request from the hon. and learned Member for Middlesbrough, West, about whether, were this Amendment passed, a trial judge would have the power to impose a lesser sentence than one of life imprisonment in the case of murder.

With respect to the Attorney-General, and in the hearing of the Solicitor-General, I must say that I was surprised to hear that opinion being expressed to the House. Of course, we are grateful for any help and advice given to us by the Attorney-General, and we only wish that he and the Solicitor-General were present more often to proffer such advice when it is needed.

5.0 p.m.

How the Attorney-General makes good the view which he gave the House I do not know. The terms of that Amendment are clear. They provide that as a substitute in certain circumstances for a sentence of life imprisonment, the court may order that the offender should be detained during Her Majesty's pleasure. That does not seek to confer upon the court or on Her Majesty's judges the right to make the sentence pronounced less than a sentence of imprisonment for life, other than in the circumstances to which I have already referred, of the offender being detained during Her Majesty's pleasure. Apart from that, it is only the Prison Commissioners who are empowered from time to time to review the case and, if proper to do so in the circumstances, they can either release the offender, or reduce the sentence. Any such power that it is said by the Attorney-General the court would have if this Amendment were passed is non-existent.

There is another reason why the proposed Amendment becomes unnecessary. It is rather not so much "unnecessary" as "unsuitable". This is because of the powers conferred upon the Home Secretary. He has the right and, indeed the duty to intervene in any case of imprisonment, for life or a shorter term, if the circumstances are such as to demand his attention and to require revision of the original sentence, and if the circumstances of a case should develop so that it is right that there should be a release or a diminution of the original sentence, then that power is in the hands of the Home Secretary. I say nothing about the Royal Prerogative, because that is another matter, and, in any event, it would be exercised only in a special case.

In those circumstances, I cannot see that the Amendment will add any useful purpose to the Bill. I have consistently been against the Bill altogether, but that does not mean that I should stand by and see added to the Bill a lot of unnecessary Amendments which would not improve it in any way. For these reasons, I shall vote against the Amendment.

The Joint Under-Secretary of State for the Home Department (Mr. W. F. Deedes)

I have listened to the arguments deployed in favour of the Amendment with close attention and a good deal of sympathy. The general principle will, of course, be accepted by my right hon. and gallant Friend that the determination of penalties is a matter for the courts and not for the Executive.

The many hon. Members who have urged my right hon. and gallant Friend to reduce sentences which they regard as excessive know that he will not, except in the most exceptional circumstances, use his power to recommend the exercise of the Royal Prerogative in order to substitute some other penalty for that which the court has thought it right to impose. I hope, therefore, that no hon. Member will think that my right hon. and gallant Friend and I are in favour of the Executive invading the proper sphere of the judiciary.

But I believe that when we come to murder the difficulty which would confront the courts in determining the length of the sentence and the disadvantages which flow from a fixed sentence are such that there ought to be a departure in this class of case from the general principle, as there is already in respect of life sentences, from which the Secretary of State has a statutory power to release on licence when he thinks fit.

Let me indicate briefly what these difficulties and disadvantages are. Some, but not all, were partly anticipated by my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon).

The appropriate period of detention for a murderer will often depend on considerations which it is either difficult or impossible for the court to have before it, but which can be considered by the Secretary of State. It would be difficult for the court, for example, to hear evidence about the character of the deceased, though it might be very relevant to the moral culpability of the offender.

Mr. Rawlinson

Does not that happen in a case of manslaughter?

Mr. Deedes

The immediate answer to that, as to certain other points made by my hon. Friend, is that we are still dealing with murder, which I accept as something quite apart from any other crime. The fact that we are altering the penalty has no bearing on that point.

Mr. Simon

I am sure that the Under-Secretary will try to meet the point put by my hon. Friend the Member for Epsom (Mr. Rawlinson), that the argument that one cannot call evidence as to the character of the deceased applies equally to murder and manslaughter.

Mr. Deedes

The arguments that I am advancing are in respect of murder, which I say is in a class apart.

I have mentioned the character of the deceased as a relevant factor to the court or to the Home Secretary. It would in the nature of things be impossible for the court to know how the prisoner's character would develop. Faced with a man in his early twenties, how could the court know whether it would be necessary to keep him in prison for the rest of his life or whether 20 years would adequately protect the public? That sort of decision can be taken only in the light of the development of the individual's character as it matures. How can the court foresee that in the case of a young man?

I now come to the second difficulty. One result of the difficulty of fixing the appropriate sentences might well be that there would be indefensible discrepancies between the sentences imposed in roughly similar cases. Some discrepancies in fixed sentences no doubt occur now, but they matter less in relation to relatively short sentences. The difference between a sentence of 20 years and one of 30 years would be another matter, and serious inequities might arise.

In Committee some hon. Members suggested that the difficulty which the court would have in fixing the appropriate sentence, and the possibility that it might fix sentences which turned out to be too long, could be overcome by the Secretary of State reviewing the sentences. But, except in the case of sentences of life imprisonment, where the Secretary of State has power to release on licence, a prisoner can be released before the normal term only by the exercise of the Royal Prerogative; and the Royal Prerogative should be used only in exceptional circumstances and not as a regular means of reviewing sentences imposed by the court. To use it in this way would be likely to lead to conflict between the Executive and the courts.

There is also the difficulty that a prisoner serving a fixed term would be released without the control which the licensing system gives, and murderers whom the Secretary of State had good reason to think to be still dangerous might have to be released without any power to supervise or recall them.

Then there is the opposite difficulty, which my hon. and learned Friend anticipated but did not, I think, completely answer. Suppose a court is mistaken in its estimate of the prisoner's character and gives a comparatively short term for a murderer whose mentality, character and conduct, as they become known in prison, make it obvious that he will be a danger to the public when he is released. The Secretary of State will have no option but to release him. There will be no control as there is when a life prisoner is released on licence, and no means of recall.

My hon. and learned Friend has attempted to overcome some of the difficulty of a fixed sentence by enabling the court to order detention during Her Majesty's pleasure on the ground of the prisoner's mental abnormality. This would introduce into English law something akin to the doctrine of diminished responsibility, but much wider in its scope. My right hon. Friend feels that this ought not to be done, as it were, by a side wind. The implications should be fully considered, and if diminished responsibility in any form is to be introduced, then it should be done by legislation specifically directed to that end. I would add that, because the Amendment is wider than diminished responsibility, it would create anomalies in Scotland.

In Scotland, a jury can bring in a verdict of culpable homicide on the ground of diminished responsibility only if the prisoner's mental state borders on insanity and is associated with some disease of the mind. A verdict of culpable homicide leads to a sentence of imprisonment and not to detention during Her Majesty's pleasure. It would be anomalous if, where a jury found insufficient mental abnormality to bring in a verdict of culpable homicide, the court could nevertheless sentence to be detained during Her Majesty's pleasure on the grounds of mental abnormality.

It is not apparent on the face of the Amendment what is to be done with people ordered to be detained during pleasure. No power is provided comparable with that in the Criminal Lunatics Act to order their removal from prison to a particular institution, and no provision is made for releasing them on licence. Are they to remain for the rest of their lives in prison? If so, I am not clear why they should not be sentenced to life imprisonment.

I have indicated why my right hon. Friend thinks that this proposal is impracticable, but the greatest objection to it seems to us to be this. If we are to forgo what I believe to be the uniquely effective deterrent of the capital penalty, then let us at least put in its place the heaviest alternative penalty available. Where is the deterrent if a murderer can cherish the hope that he will get off with five years? And what is the public to think if the House removes the death penalty and leaves it open to the courts to give murderers a conditional discharge?

Let us retain at least some distinction to set murder apart as the crime of crimes. This Amendment reduces murder to the level of burglary, except that it is not open to the burglar to say that he is not quite normal and ought, therefore, to be sent to something other than imprisonment. I hope that this Amendment will not be pressed. If it is, my right hon. Friend and I shall feel bound to vote against it.

Question, That the words proposed to be left out, to "requiring" in line 7, stand part of the Bill, put and agreed to.

5.15 p.m.

Mr. Douglas L. S. Nairn (Central Ayrshire)

I beg to move, in page 1, line 7, to leave out from "enactment" to "sentence" and insert: or rule of law whereby apart from this Act a court would be required to pass". While I certainly do not agree with the purpose of the Bill, I am quite convinced that the penalty for murder must continue to be the same throughout the whole of the United Kingdom. The Amendment in no way seeks to alter the law of Scotland. It seeks to make sure that the penalty attached to murder will remain the same throughout the whole country. The point raised by the Amendment can be stated briefly. In England the passing of sentence of death is a matter of statutory enactment. In Scotland the death sentence is passed by virtue of the common law. It is necessary in order to make it quite clear that the whole of subsection (1) of the Clause shall apply to Scotland, as it already applies to England, to refer not only to any statutory enactment but also to any rule of law which requires the death sentence to be passed on a person convicted of murder. The Amendment provides accordingly.

Mr. William Whitelaw (Penrith and The Border)

I beg formally to second the Amendment.

Sir William Anstruther-Gray (Berwick and East Lothian)

I rise to speak only because I was a little surprised by what my hon. Friend the Member for Central Ayrshire (Mr. Nairn) said about the law relating to murder being the same in Scotland as it is in England. Of course, that is not so.

That was the basis of an Amendment which I moved at an earlier stage to exclude Scotland from the operation of the Bill. It is quite clear that in Scotland the penalty for murder is not inevitably a sentence of death as in England, because there are two very definite positions where the penalty is reduced. Firstly, there is the question of diminished responsibility, and there the Scottish system is much more lenient to any murderer of whom it can be argued that he was not in full possession of his senses. Secondly, there is the question of constructive malice.

In England it is possible for a man to be convicted of murder and sentenced to death if, in fact, he did not intend to commit the crime of murder. In Scotland, it is very nearly true to say that we have practically reached the position where only intentional killing is murder. I make these comments only to support the line which my hon. Friends from Scotland and I have taken throughout, that there was an even stronger case for opposing this Bill in Scotland than there was in England.

Amendment negatived.

Mr. W. R. Rees-Davies (Isle of Thanet)

I beg to move, in page 1, line 9, at the end to insert: Provided that this subsection shall not apply to any offence on active service for which the penalty of death is prescribed by the Army Act, 1955, the Air Force Act, 1955, or the Naval Discipline Act. It will be remembered that on the Committee stage I moved an Amendment completely to exclude the Services from the effects of the Bill. It was one of those Amendments upon which there was a Division and a very close decision. In the course of the debate on that Amendment, a great many of those who favour abolition agreed that there was a great deal of merit in that Amendment. With the exception of a mere handful of hon. Members, almost the whole of the Committee agreed that the death penalty should be retained—I wonder whether this delightful parley below the Gangway opposite can cease for a moment? Even though I was trained on the Guards parade ground, I cannot compete with the promoter of the Bill, the hon. Member for Nelson and Colne (Mr. S. Silverman), when it comes to talking. I am accustomed to interruptions in another profession but not the steady stream of interjections between the hon. Member and his Chief Whip on this occasion.

I should like to come to what is really the one Amendment, as I see it, on which I hope to extract a concession, if not from the hon. Member, then out of the whole range of his supporters bar nine. There are ten Members of the House who have emphatically stated that they are against the death penalty at any time for anything, and I appreciate their views. I have a list of those ten Members. They represented their views in 1955, when they voted quite clearly, and they have stated that they would vote for the abolition of the death penalty for treason, for treason felony, for mutiny, for murder and for everything. The rest of the House has indicated that in certain circumstances it is prepared to retain the death penalty. The question now before the House is, what is to be the scope of that retention? By a very small margin, the House rejected the view that the Armed Forces should be excluded altogether at all times, a view which was closely argued and reasoned and lost, but by a small majority.

I think it quite clear that the House desires that on active service—by which I mean on active service overseas—under courts-martial, the death penalty shall be retained. The purpose of the Amendment is to ensure the retention of the death penalty in that very limited sphere.

Let me take one or two examples of what might arise. In the case of active service in time of emergency in a Colony, for example, such as Cyprus or Malaya, there would be the situation that whilst the local civil court retained the death penalty, none the less on court-martial a soldier would not suffer the death penalty. This would obviously cause the gravest resentment in the Colony. I have no hesitation in saying that on that basis any Colonial Secretary would be bound to support the Amendment.

If a soldier on active service during an outbreak of terrorism in an emergency in, say, Cyprus were convicted by court-martial of murder, he would be sentenced to life imprisonment, yet if he were engaged with another person who was a civilian, the civilian would go before the civil court and sustain the death penalty. That is one example. In time of actual war, on active service, is it really to be said that the soldier who shoots an N.C.O. or soldier or officer with intent to desert or other intent is to escape the death penalty by committing the act of murder, whereas if he is had up for mutiny or a lesser offence he would none the less sustain the death penalty?

The difficulty of the Bill, and I must repeat it, is that it is drafted in a thoroughly slipshod fashion. Since the Committee stage, the promoter of the Bill has had abundant opportunity to amend it and to clear the ambiguities. He has not done so, because he and a few odd Members who support him want to abolish the death penalty for everything. On the other hand, as I see it, the majority of the House wants to abolish the death penalty for civilian murders committed in the United Kingdom.

The purpose of the Bill as it is promoted and as the general public understand it is to cover the case of a civilian murder which takes place in this country, and nothing more. That is what the public believes that the House is dealing with at this stage. In fact, however, when the hon. Gentleman was asked in Committee whether he took the view that his Bill included courts-martial, he stated that it was his view that the word "court" in Clause 1 covered courts-martial as well. I take the contrary view.

It will be remembered that the Attorney-General on that occasion expressed the view of the Government that the matter was highly ambiguous and should be cleared up, and that it should be cleared up on the Committee stage. The hon. Gentleman has not cleared it up upon Report stage, and it is for that reason that I propose the proviso embodied in the Amendment. I urge the House and those, on both sides, who are abolitionists—not those who are retentionists, who would obviously support it, but those who have been consistently supporting abolition—to give some consideration to this matter.

I will give two or three brief examples. In time of war overseas in, say, Germany or in Soviet Russia, or in other circumstances, do we really want an anomaly in which a person on active service if tried for murder would not command the death penalty, whereas if he were tried for other offences, like treason, mutiny or desertion in the face of the enemy, he would command the death penalty? Secondly, do we really want a state of affairs which is violently in conflict with N.A.T.O. and with the Colonial Territories, when one law in the territories prescribes the death penalty and another law, emanating from this country, does not? It seems to me that the case is overwhelming, and I remind the House that when this matter was considered, many views were expressed by hon. Members opposite in which they made it plain that they did not want to exclude the death penalty in cases of those who were serving on active service.

I should say by way of clarification that the words "on active service" are defined in the new Schedule, "Murder committed on Active Service", which I have tabled and which appears on the Order Paper. It is true that "active service" is defined in Section 224 (1) of the Army Act, 1955, but that does not include also what is known as "deemed active service". To make it quite plain, I have included "active service" and "deemed active service" in my Schedule. I have taken advice that it is properly drafted.

Mr. Deputy-Speaker

The new Schedule does not refer to this Amendment.

Mr. Rees-Davies

I appreciate that, Mr. Deputy-Speaker. I am referring to the Schedule merely to show that it defines the words "on active service" which affect the Amendment I am now moving.

Mr. Deputy-Speaker

I do not think that the Schedule will be selected.

Mr. Rees-Davies

I rather appreciated that it might be.

Mr. Deputy-Speaker

It would not make sense. If the hon. Member's next Amendment, which deals with the new Schedule, is not to be called—it is not selected—the Schedule will fall.

5.30 p.m.

Mr. Rees-Davies

When I gathered that the next Amendment would not be called, I had a word to see whether the Schedule, which can be linked to either of the Amendments, might be linked to this Amendment.

Mr. S. Silverman

On a point of order—

Mr. Deputy-Speaker

Let me deal with the first point of order, and then I will take the next.

Mr. Rees-Davies

I will pass from this point. I was saying that the definition of murder committed on active service is a definition which is applicable equally to this or the other Amendment, whichever is selected. This Amendment having been selected, I can apply the Schedule to it equally well.

Mr. Deputy-Speaker

But the hon. Gentleman cannot link the Amendment with the Schedule, because the Schedule is not related to this Amendment.

Mr. Rees-Davies

In that case, it would be necessary, in my view, to insert the definitive Schedule at another and appropriate stage, and the definition would clearly be that which is contained in this Schedule. The House need not now deal with the point, which is not important to the point of principle.

I would conclude by urging, whatever else we may argue about in the long stages of this Bill, do not let us make fools of ourselves not only to the country—if they understand this point—but to the rest of the world. Do not let us have a different law oversea for men on active service from that which exists in those countries. Whatever view hon. Members take, one way or another, I ask all hon. Members, other than those in favour of abolition in every case, to support the Amendment and, if it is not accepted, to press it to a Division.

Mr. Paget

On a point of order.

Mr. Deputy-Speaker

Before I deal with a point of order, I think we should have a seconder to the Amendment.

Mr. Paget

If my point of order were correct, Mr. Deputy-Speaker, that would be unnecessary. In my submission, this Amendment is out of order. The Bill provides: During the continuation in force of this Act, no person shall be sentenced by a court to death for murder". Neither the Army Act nor the Air Force Act—nor, indeed, the Naval Discipline Act—contains the word "murder" at all. The offences which are made subject to the death penalty there do not include murder.

The only way in which a court-martial can try a charge of murder is under the Section which occurs in each of those Acts making an offence against the civil law triable by court-martial. If, as a result of this Bill, the offence of murder, being an offence against the civil law, does not carry the death penalty, then whether the Amendment be passed or not, it still does not carry the death penalty. The effect of the Amendment, whether it be passed or not, is therefore exactly none.

Mr. Deputy-Speaker

I think the hon. and learned Member was arguing more the merits of the Amendment than whether it was in order. In any case, as he knows, I am the Deputy-Speaker, and Mr. Speaker has decided that this Amendment should be called. I think we must stick to that, if I have a seconder for the Amendment.

Sir T. Moore

I beg to second the Amendment.

I feel that the Amendment has been so convincingly and clearly explained by my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies) that there is little or nothing which anyone except a lawyer can say. All who have been on active service would admit that the justification for the Amendment stands out a mile and cannot even be argued, but legal factors arise which the hon. and learned Member for Northampton (Mr. Paget) has already brought to notice and with which the legal profession can more aptly deal than can a layman. I therefore content myself with formally seconding the Amendment.

Mr. S. Silverman

The hon. Member for the Isle of Thanet (Mr. Rees-Davies) was inclined to be a little impatient with me because he thought that he had not my full attention. No one can match the hon. Member for grace, courtesy and politeness, but we will do our best, and I can assure him that I did follow his argument and that my conversations with my hon. Friends were not intended to disturb him, and flagrantly they did not disturb him. If there was a tendency to treat the hon. Member with less than due seriousness, I hope he will not think it offensive on my part if I say that he himself has contributed a little to that. He treated us in Committee to a most impassioned and emotional appeal about a matter which was sub judice—

Mr. Rees-Davies

It was not.

Mr. Silverman

We thought it was.

Mr. Rees-Davies

Then the hon. Member was wrong.

Mr. Silverman

Mr. Speaker, too, thought it was. I dare say we were all out of step except the hon. Member for the Isle of Thanet.

Mr. Rees-Davies

Will the hon. Gentleman give way?

Mr. Silverman

No, I will not. We remain out of step in good company, and the hon. Member must make the best of it. It turned out later that his facts were completely and entirely wrong and that there had been no such murder at all.

Mr. Rees-Davies

The hon. Member is quite wrong. Will he give way?

Mr. Silverman

No, I will not give way.

Mr. Rees-Davies

The hon. Member is entirely misrepresenting me.

Mr. Silverman

As I have said, there was no such murder—

Mr. Rees-Davies

That is quite untrue. There was.

Mr. Silverman

There was no such murder as that which the hon. Member sought to excite us about; it was an accidental matter for which a boy of 15—

Mr. Rees-Davies

On a point of order.

Mr. Paget

We all know that it is not a point of order.

Mr. Rees-Davies

Surely it is not in order, on an Amendment dealing with the armed forces, for the hon. Member for Nelson and Colne (Mr. S. Silverman) to raise the question whether, in Committee, I was or was not raising a matter which was sub judice in relation to a murder which was a civil murder of a child. I ask for your protection in this matter, Mr. Deputy-Speaker, from the hon. Member's gross misrepresentation, when, with his usual lack of courtesy, he is not even prepared to give way.

Mr. Deputy-Speaker

I do not think that point of order arises on anything which has happened during this debate.

Mr. Silverman

If further pursuance of this matter embarrasses the hon. Member for the Isle of Thanet, I am prepared to leave it where it is. I was only giving him an opportunity of making the explanation and apology to the House which anybody but him would have thought called for.

Mr. Rees-Davies

Will the hon. Gentleman give way?

Mr. Silverman

No.

Mr. Rees-Davies

Then where is the opportunity?

Mr. Deputy-Speaker

Order. I think we shall do better with one speaker at a time.

Mr. Silverman

The hon. Member for the Isle of Thanet had his opportunity when he made his speech.

I will come to the hon. Gentleman's Amendment, and I should like, first, to deal with his first point—the point which, as he rightly says, he raised in Committee, too. It is the point whether the Bill, unamended, would apply to a court-martial. I accept absolutely his account of what took place in Committee. He thought that the Bill as drafted would not apply to a court-martial. I thought that the Bill as drafted would apply to a court-martial. The Attorney-General told us that the matter was doubtful and that there was much to be said on both sides.

I understand that the hon. Member for the Isle of Thanet remains of the opinion which he held in Committee. I assure him that I remain of the opinion which I held in Committee. But may I point out to him that if his view of the law is right and mine is wrong, then he does not need this Amendment. His Amendment would be completely unnecessary on the view of the law which he says is the correct view of the law. Therefore, he would, no doubt, not think it necessary, in spite of what he said at the end of his speech, to ask the House to divide, because if he did he would be asking the House to pass an Amendment which he confesses is unnecessary.

The hon. Gentleman's second point was that everybody except the nine or ten people, of whom he quite correctly reminded the House I was one, who are against the death penalty in any circumstances under the Army Act or in any respect, should be in favour of the Amendment and only those nine or ten hon. Members should be against it. That, I think, depends on a complete misapprehension, or misconception, as to what the Bill is about and what the Amendment is about, and what the Amendment was on the occasion to which he refers when a minority of nine or ten of us voted against the death penalty.

What was involved on that occasion was the death penalty for offences under these Acts. I think that my hon. and learned Friend the Member for Northampton (Mr. Paget) is perfectly right when he says that there is nothing in any of the Acts which are mentioned in this Amendment which has anything to do with murder at all. If he is right, the passage of this Amendment would add nothing whatever to the law. There is no such inconsistency as the hon. Gentleman thinks—and I hope that I may have his attention now.

What we are concerned with is murder only. Although I myself would like to see the death penalty abolished in these Acts for offences other than murder, the only offences to which these Acts relate are not an issue on this occasion at all. Whether this Amendment is passed or whether it is rejected, the death penalty under these Acts will remain exactly as it was before and the hon. Gentleman need not trouble himself about many of the questions with which his speech was concerned. No offence other than murder is touched by this Bill, whether under these or any other Acts or at common law. We are dealing with murder and with murder alone.

What the hon. Gentleman is saying is something which I perfectly well understand but which, in all sincerity, I do say would not be accepted by the overwhelming mass of ordinary opinion in this country, whether it wants to retain the death penalty or whether it wants to abolish it. Although it sounds a most monstrous thing to say, the hon. Gentleman is obviously saying that we are to abolish the death penalty for every kind of civilian murder in this country—the worst of them and the least of them—all those that he himself got so synthetically excited about in Committee. In all those cases he is saying to the House that the death penalty should be abolished, but that we should inflict on young soldiers in Cyprus a penalty which we are not to inflict on the hardened, premeditated, gainful murderer in this country.

Does he really think that that is a proposition which will commend itself? We take the young soldier at the age of 18. He may have had three or four months training. He may be a band boy. We send him to Cyprus in circumstances of this kind and, because perhaps in a moment of great strain, possibly of great provocation, he does something that he regrets a moment later but which results in somebody's death and it is murder, because he does that in those circumstances, in Cyprus, he is to be subject to a graver penalty than would be inflicted in this country on murderers of a very much worse and more objectionable kind.

One can understand the hon. Gentleman's argument about treason, about treason-felony, about desertion in the face of the enemy. I understand that argument very well but, as he himself agrees, it is totally irrelevant to this discussion. What we are really being asked to do is to make this distinction between civilians living normal lives at home and soldiers—perhaps young soldiers—living lives of great difficulty—at any rate, abnormal lives—subjected to exceptional strains in other parts of the world, and instead of drawing that distinction in favour of the man living the abnormal life under strain the hon. Gentleman seeks to draw the distinction in favour of the hardened criminal living a normal life at home.

I cannot follow that argument. I do not know why he thinks it a suitable one to advance here. I say no more about it, because I am quite confident that if the hon. Gentleman does not withdraw his Amendment—as I hope he may yet do—the House will reject it and reject it with great emphasis.

5.45 p.m.

The Attorney-General

I am sorry not to have heard the very beginning of this discussion, but I heard the whole of the speech of the hon. Member for Nelson and Colne (Mr. S. Silverman) in regard to it. He referred to the view he had expressed in Committee as to the extent and application of this Bill and to the view expressed by my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies), and, indeed, to my own view. He said just now that his view had not altered. My hon. Friend said that his view had not altered. I should like to add to this chorus by saying that my view has not altered either.

After the decision in the Farnsworth case in 1918, there is, I think, no doubt at all that the word "courts" in the Bill is wide enough to cover a court-martial. There is no doubt about that. The doubt arises in the context as to the extent of the application of the Bill, if it becomes a Statute, outside this country. It, I think, has been well stated in the last edition of Maxwell on Statutes—and I will quote from that edition—that … in the absence of an intention clearly expressed or to be inferred either from its language, or from the object, subject-matter, or history of the enactment, the presumption is that Parliament does not design its statutes to operate on its subjects beyond the territorial limits of the United Kingdom. They are, therefore, to be read, usually, as if words to that effect had been inserted in them. If that passage is correct, then, in the absence of any indication in the text of the Bill, its application is limited to courts and courts-martial sitting in Great Britain. It is deliberately excluded from courts and courts-martial sitting in Northern Ireland. But it may be argued—and this is why I say there is a doubt—that, as a person can be tried only by court-martial in this country for a murder committed outside this country, or, under the Naval Discipline Act, for a murder committed within the jurisdiction of the Admiralty, the intention of this Act in relation to abolition was to apply it to courts-martial wherever they might be held.

It is for that reason that I adhere to the view that, in its present form, the Bill does leave this matter in a state of doubt, and, having listened to the hon. Gentleman, I must admit that I am not at all clear as to which way he wanted that doubt resolved. I gathered that he was inclined to accept the argument advanced by the hon. and learned Member for Northampton (Mr. Paget) that really the Bill did not apply to courts-martial at all—

Mr. Paget

indicated dissent.

The Attorney-General

I hope I have not misunderstood it; I gathered that the hon. and learned Gentleman was saying that, under the Army Act, there was not an offence of murder. I hope that was the effect of it.

I do not share the hon. and learned Gentleman's view about that. If he would look at Section 41 of the Army Act as at present in force, he will see there is a specific reference to a person being liable to suffer death if convicted of murder. I should have thought that the terms of this Bill would affect that. The matter is, therefore, in some doubt at present.

Mr. S. Silverman

What the right hon. and learned Gentleman has said has me a little confused. The last quotation he introduced is one from the Army Act, which he says provides that the penalty for murder shall be death. One takes it that the right hon. and learned Gentleman's view is that that would be binding on a court-martial anywhere in the world.

The Attorney-General

I was not putting it in relation to anywhere in the world. As the hon. Gentleman may know, if one looks at the Section one finds that a person cannot be tried for murder, and certain other offences, committed in the United Kingdom unless such person at the time he committed the offence was on active service, or such place is more than one hundred miles as measured in a straight line from any city or town in which the offender can be tried for such offence by a competent civil court".

Mr. Silverman

I apologise for intervening, but it may shorten matters. My doubt originated from the fact that the Bill is drawn in this way: During the continuance in force of this Act, no person shall be sentenced by a court to death for murder … The Attorney-General says that that will cover a court-martial in this country but may not cover one somewhere else. The Clause then goes on: and every enactment"— including the Army Act— 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. Why does that not dispose of the point?

The Attorney-General

I do not think it does dispose of the point, but it leaves it in doubt having regard to the fact that there is an express exclusion of Northern Ireland and there is no indication that this Bill is apparently seeking—which one would not normally expect to do in the Bill—to amend the Army Act, the Naval Discipline Act and the Air Force Act. One would expect any amendments of those Acts properly to be made in those Acts.

I think a powerful argument can be advanced both ways. All I am saying is that the matter is still in doubt. That is the position as I see it. I cannot say which way it would be resolved after a lengthy argument, but I felt it was desirable to make the position clear as it is at present, in view of the argument that the hon. Gentleman the Member for Nelson and Colne advanced that my hon. Friend's Amendment was really pointless because it had nothing at all to bite on.

The hon. Member for Nelson and Colne developed an argument about National Service men being subject to a different liability in an overseas territory from that operating in this country, if this Amendment were accepted. I would only add this correction or addition to what he has said, that it ought to be borne in mind that in any event that would, of course, be the case in a Colony or territory where the death sentence was retained because, ordinarily, the civil courts would have the power of trial for the offence of murder within those territories. I say "ordinarily," but I thought the argument as put by the hon. Gentleman, with great respect to him, was put too high, bearing in mind the fact that the soldier and civilian within territories overseas would be subject to the law of those territories overseas.

Mr. Paget

I want to understand this, and I should like to ask one question for the sake of information. The jurisdiction of a court-martial to try for murder is there because murder is an offence against the civil law. Section 41, to which the right hon. and learned Gentleman referred, merely limited that jurisdiction in the case of murder, but not of other civil offences, to cases occurring more than one hundred miles away or cases on active service. It is a limitation of jurisdiction.

The Attorney-General

I agree with the hon. and learned Gentleman, but the limitation on jurisdiction is not confined only to the offence of murder. The list includes treason, manslaughter, treason-felony or rape, in addition to murder. There is a specific reference in Section 41 which gives a court-martial power to try for civil offences, and subsection (2) of that Section in terms says: If he is convicted of murder, be liable to suffer death". Therefore, I would myself have said that, on one view, at least, this Bill does bite on that provision and would operate in a somewhat unusual form to effect an amendment of it. But as to its extraterritorial effect, that, I think, is still in doubt.

Mr. George Wigg (Dudley)

The Attorney-General has quoted Section 41 of the Army Act which at present exists. That Act comes to an end very shortly, and we shall have a new Army Act. Has he faced the situation which would arise when the new Army Act comes into operation in a short time?

The Attorney-General

Yes. I think there still is doubt.

Mr. Paget

I am sure we all want to understand this; may I just put this question to the right hon. and learned Gentleman? The position of a court-martial trying a case of murder is that it is not trying an offence created by the Army Act but it is trying an offence created by the civil law. Therefore, when we look at this Amendment, we see that murder is not an offence for which the penalty of death is prescribed by the Army Act; it is an offence for which the penalty of death is prescribed by the civil law. The jurisdiction to try arises from the provision which gives courts-martial the right to try a man for committing an offence against the civil law. Therefore, if the offence against the civil law is one which does not carry the death penalty, then, whether it be a court-martial or a civil court, the court is trying an offence which does not carry the death penalty.

Section 41 is not a Section which confers jurisdiction; it is a Section which limits jurisdiction. Those words may occur as to the penalty being death, but they occur in the course of a limitation, not in the course of a creation of jurisdiction.

The Attorney-General

I am afraid I cannot agree with the hon. and learned Gentleman. Section 41 is the Section which confers jurisdiction upon courts-martial to try for civil offences. The jurisdiction so conferred is subject to certain limitations, and there I entirely agree. The offence of murder is a common law offence. The jurisdiction of courts-martial to try for murder is conferred by the Statute, and it is made an offence for the purposes of Army Act, Section 41 in terms saying that on conviction of murder a person shall be liable to suffer death.

For those reasons, I cannot agree with the hon. and learned Gentleman's argument that what Section 41 does is to impose a limit on the jurisdiction which would otherwise exist. I must say that, in my view, the Bill as it now stands may affect those provisions.

6.0 p.m.

Mr. Wigg

I find myself in some difficulty, which arises because the right hon. and learned Gentleman referred to Section 41 of the Army Act of 1955, whereas I want to look at Section 70 of that Act. I agree with what hon. Members opposite are trying to do, but I do not like the way they are trying to do it, although they told me privately that their object is the same as mine. As I see it, the Army Act provides a code of discipline, and I do not want a code of discipline of the Armed Forces to be tampered with by means of a side wind. We laboured for two and a half years to stop that process, and now at the first temptation it seems that the Government are to allow to start again the very thing we tried to stop, so that in 40 or 50 years' time the House of Commons will find itself in as difficult a position as we found ourselves in two or three years ago.

I say with great respect to the Attorney-General that, having listened to him, I do not know whether I am coming or going. I know what I want to do and I know what the hon. Member for the Isle of Thanet (Mr. Rees-Davies) wants to do. I do not know whether my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) understands my position. I should be very much helped if the Attorney-General gave the House an assurance that if we rejected the Amendment the Government would undertake to amend Section 70 of the Army Act, 1955, if necessary so as to do what we want. If I am not clear I am very sorry, but I must confess that I find myself to be in a muddle.

The Attorney-General

I ask the leave of the House to speak again. Section 70, subsection (3) is a similar provision to the one to which I have referred in Section 41. If I understood the argument of the hon. Member for Dudley (Mr. Wigg) aright, he does not want this Bill to apply to a court-martial at all. He says that any alteration to the Army Act, the present Act or a new one, should be made in the Army Act.

A very strong argument can be advanced for that. I am not trying to express a view on the Amendment. All I am seeking to point out is that as the Bill stands it can be argued, and argued convincingly, that it applies to courts-martial which can be held in this country—and a court-martial can be held in this country for a murder committed outside this country. There is a doubt about the application of the Bill to courts-martial outside this country Of course it is the hon. Member's Bill. The Amendment moved by my hon. Friend the Member for Isle of Thanet—I will not say anything about the language in which it is expressed—is intended to secure and put beyond doubt that at least for persons on active service a court-martial should be able to continue to pass sentence of death in appropriate cases.

Sir Patrick Spens (Kensington, South)

I concur entirely with what my right hon. and learned Friend has said, that as the Bill stands there is the gravest doubt about what the effect would be on courts-martial. I think there can be no question that there is the possibility of a court-martial having to try a case of murder elsewhere than in this country and, quite clearly, the Bill would operate on any sentence that that court-martial could give.

I think it is clear both in the present Army Act and the present Naval Discipline Act that the court-martial has jurisdiction to try murders overseas both in our Colonies, where our troops are stationed and in foreign countries, because murder is a civil offence and the disciplinary Acts make a civil offence also a Service offence. In that way, the court-martial gets jurisdiction to try murder. There is the gravest doubt whether a court-martial operating overseas today would be affected by this Bill or not. We would get the very anomalous position that a soldier tried by a civil court here at home would not suffer the death penalty and a soldier tried by a court-martial overseas for a similar offence would have to have the sentence of death pronounced on him. Of course, what happened after that would be another matter.

The more serious point from the point of view of courts-martial is that raised by my hon. Friend the Member for Isle of Thanet (Mr. Rees-Davies), who moved the Amendment. We now have our forces constantly serving with Commonwealth forces and constantly serving with forces of foreign countries. There could very well be a murder committed jointly by a soldier of our forces and a soldier from a Commonwealth country. Both would be tried by court-martial.

At present, so far as I know, soldiers from Commonwealth countries are all liable to the death penalty for murder—[An HON. MEMBER: "No."] There may be exceptions, but we would get the anomaly that if the Bill applied to courts-martial generally our soldier would get off and the Commonwealth soldier would hang. We would get the same situation if our soldier were tried by a court-martial for a crime committed with a civilian in a country where the death penalty is applied. Then the civilian would hang and our soldier would get off. The whole situation created by the Bill raises the gravest difficulties under the disciplinary Acts for the Armed Forces.

It requires the most serious consideration as to what is the proper thing to be done in reference to courts-martial. My personal view, which I urge most strongly, is that if this Bill becomes law and abolishes the death penalty in this country, the Government would be bound to bring in a fully thought out and carefully drafted Bill to deal with the whole of these Acts affecting the forces. What is to be done in the meantime? Our forces are on service and we must save the situation at least in regard to those forces which are on active service in various parts of the world at present.

Therefore, although I think this Amendment is utterly inadequate as a final clearing up of these very grave matters, I personally would support it and I hope that everyone who cares for the discipline of the forces will do the same.

Mr. Kenneth Younger (Grimsby)

The interventions of all the learned right hon. and hon. Members have not, I think, clarified for most of us what the legal position is. I was not certain about it and I am less certain now that I have heard the right hon. and learned Member for Kensington, South (Sir P. Spens), whether this Amendment would clarify the matter. I think that there would still be some legal doubts which would have to be cleared up in some other way.

One thing we can be certain about is that even if this is a clarification the Amendment would be a clarification in the sense of providing a different penalty for the civilian crime of murder according to whether it was committed by a civilian in this country, or a soldier in this country—who would be subject to court-martial, but, I understand, tried in this country by the civil court—and, on the other hand, a soldier serving abroad and tried by a court-martial abroad.

Sir P. Spens

The right hon. Member will realise that that only applies to soldiers on active service. It would then be a Service offence which had been committed.

Mr. Younger

Many hon. Members feel that if there is to be any clarification it should be in the sense of assimilating the fate of the civilian to the fate of the soldier and not of differentiating between them. I noticed on re-reading the debate on the Army Act and the Air Force Act, to which reference has been made—the debate at the end of 1955—that one of the arguments constantly put forward for resisting Amendments to those Service Acts was that at that time there was the death penalty in our civilian law. Therefore, it would be quite wrong, by a side wind, to change the main law of our country.

Now we are having the thing put back to front and it is said that it would be wrong, by a side wind, to change Service law by a change in civilian law. I think that these arguments have not been put forward on their merits or with clear-headedness, but because those who put them forward wish to see the death penalty retained in as many cases as they can possibly arrange.

I myself feel that there is a very simple issue here and it is this. For those of us who would like to see the Service man put into the same position in this respect as the civilian, no matter where he may be serving, we can put out of our minds altogether all offences on active service which partake of the nature of treason, that is to say, offences which affect the conduct of operations or assist the enemy. Those are not, I think, in question here. We are not discussing that. We are considering only offences which are the same sort of offence as the civilian crime of murder—

Mr. Paget

Only murder itself.

Mr. Younger

Yes—and whatever else this Amendment may do, it certainly does not assimilate those types. It differentiates them, and whatever the rights and wrongs of the learned legal argument may be, that is the point we have to bear in mind, and I hope that the House will reject the Amendment.

Mr. Walter Elliot (Glasgow, Kelvingrove)

It seems to me that this shows the difficulty in which the country will be put by trying to deal with this matter by a Private Member's Bill. We now find that we are amending the Army Act. [HON. MEMBERS: "No."] We are making a change whose effect nobody can explain. The supporters of the Amendment bring forward one view, the opposers of the Amendment bring forward another view, and a Law Officer of the Crown, given the responsibility of advising the House, says he cannot give the House any advice.

The Attorney-General

With great respect to my right hon. Friend, I had hoped I had made the advice I gave clear. If not, I will try to put it again, since the right hon. Gentleman the Member for Grimsby (Mr. Younger) did not seem to understand it either.

The advice I gave was that the Bill as it now stands leaves the question entirely in doubt. The hon. Gentleman the Member for Nelson and Colne (Mr. S. Silverman) says that it does not, but I thought that when I was putting the present argument in detail I had his assent to it. The Bill as it stands leaves in doubt whether or not the Bill applies to courts-martial overseas. That is in doubt. The Amendment—and I shall not comment on its wording—at least elimimates that doubt in one way in relation to courts-martial on active service.

Mr. Elliot

If I may say so, I do not think that the learned Attorney-General has put the House in a very much clearer position than it was before. This is an enormously important matter. He says that the Bill as it stands leaves the matter in doubt. He does not recommend the House either to pass or to reject the Amendment. That is not a position, it seems to me, in which the Government can possibly stand.

When it is suggested that as a result of this a further Bill clearing up the position under the Army Act would need to be—[Interruption]. We on this side have great difficulty in putting a case to the hon. Member for Nelson and Colne (Mr. S. Silverman). I am trying sincerely to put a case of great difficulty, and I find the hon. Member engaged in a private conversation with one of his hon. Friends. I am in doubt whether he is able to accept the argument I am putting forward. It is of great importance.

Mr. S. Silverman

I am following.

Mr. Elliot

It was suggested that a further Statute would have to be brought forward to clear up the position because of his desire to abolish the death penalty for all these offences—

Mr. Silverman

I do not know whether the right hon. Gentleman was able to follow my argument. No doubt it was my fault if he was not. I tried to make it clear. If I failed, let me make it clear now that this Bill refers only to murder and to nothing else whatever. Whatever views I may have, whatever preferences I may have, about the death penalty for other offences under other Acts here or in other places, are completely irrelevant, and all that the House is concerned with in this Bill and in this Amendment is the offence of murder and the offence of murder alone.

Mr. Elliot

Yes, I had grasped that, but I think that the point the hon. Gentleman was bringing forward was that in its train this Bill would bring consequences which would involve inevitably a further revision of the law.

6.15 p.m.

Mr. Kenneth Robinson (St. Pancras, North)

No. The right hon. and learned Gentleman the Member for Kensington, South (Sir P. Spens) said that.

Mr. Elliot

Yes, but I thought that was said from the other side of the House, too.

Mr. Silverman

The right hon. and learned Gentleman the Member for Kensington, South (Sir P. Spens) said it.

Mr. Elliot

It has been said on both sides. However, let us assume that it has been said on only one side of the House, it still certainly has been said. If I have attributed to the hon. Member any view which he did not advance, I beg his pardon. There is enough difficulty about this without our having any confusion of that sort. I take it that he did not advance this view, but it seems to me that the Bill would involve further amendment of the law. Nor do I think that it would stop there.

On a previous occasion I tried to indicate the repercussions this Measure would have on legal systems for which the House has a considerable responsibility in territories overseas. I hope to develop that later, but it shows how impossible it is to neglect the position of this country as the centre of a vast and extended web of responsibility running throughout the whole world. I do not think it is an appropriate thing that we should deal with the matter here by a Private Member's Bill. I certainly think it is utterly inappropriate to deal with it, with its repercussions upon that web of responsibility throughout the rest of the world, by a Private Member's Bill, but into that position this House is being led by this legislation now before us.

Mr. Angus Maude (Ealing, South)

I do not think I can let what my right hon. Friend the Member for Kelvingrove (Mr. Elliot) has just said go without comment. His speech should be a warning to me about what happens to laymen when they get into an argument between lawyers, but as I have understood this matter it really is not so very difficult. If the hon. Member for Nelson and Colne (Mr. S. Silverman) was correct in what he said at the beginning, there is no question whatever that this Bill will apply to courts-martial, and no difficulty arises. If my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies) is right, it does not apply to courts-martial. My right hon. and learned Friend the Attorney-General says it is in doubt.

My right hon. and learned Friend the Member for Kensington, South (Sir P. Spens) also says that there is great doubt, but he then says that the anomaly we shall get into if we leave things as they are is that a soldier may be sentenced to life imprisonment on active service for the crime of murder whereas a civilian acting with him may be hanged, and he regards that as an anomaly. I really cannot see that we are making this any better by ensuring that he will be hanged, too, when we are trying to ensure that

nobody in this country shall be hanged for murder.

As to the argument of my right hon. and learned Friend that we ought to withdraw the Bill or to defeat it simply because the time of Parliament may be taken up in amending the Army and Air Force Acts, I have never heard such a preposterous suggestion in my life. If a majority of this House is determined to abolish the death penalty for murder in this country we really cannot be deterred from that by the thought that we may have to indulge in a little more time on legislation to amend other Acts.

I hope that the House will stick firmly to the point, which is that if we are to abolish the death penalty for murder in this country, abolish it for all our citizens, we really should not be deterred by considerations of further legislation. Nor should we seek to make distinctions in the crime of murder as committed by the same sort of people in different circumstances. I for one could not accept that for a moment. I hope that the House will reject the Amendment.

Question put, That those words be there inserted in the Bill:—

The House divided: Ayes 140, Noes 168.

Division No. 247.]	AYES	[6.20 p.m.
Alport, C. J. M.	Elliot, Rt. Hon. W. E.	McAdden, S. J.
Arbuthnot, John	Fell, A.	Macdonald, Sir Peter
Ashton, H.	Fisher, Nigel	McKibbin, A. J.
Baldwin, A. E.	Galbraith, Hon. T. G. D.	Mackie, J. H. (Galloway)
Barber, Anthony	Glover, D.	McLaughlin, Mrs. P.
Barter, John	Godber, J. B.	Maclay, Rt. Hon. John
Beamish, Maj. Tufton	Gomme-Duncan, Col. Sir Alan	McLean, Nell (Inverness)
Bennett, Dr. Reginald	Gough, C. F. H.	Macmillan, Rt. Hn. Harold (Bromley)
Bishop, F. P.	Grant, W. (Woodside)	Macpherson, Niell (Dumfries)
Black, C. W.	Gresham Cooke, R.	Maitland, Hon. Patrick (Lanark)
Braithwaite, Sir Albert (Harrow, W.)	Grimston, Sir Robert (Westbury)	Manningham-Buller, Rt. Hn. Sir R.
Bromley-Davenport, Lt.-Col, W. H.	Grosvenor, Lt.-Col. R. G.	Mawby, R. L.
Brooman-White, R. C.	Hall, John (Wycombe)	Maydon, Lt.-Comdr. S. L. C.
Browne, J. Nixon (Craigton)	Harris, Frederic (Croydon, N. W.)	Milligan, Rt. Hon. W. R.
Buchan-Hepburn, Rt. Hon. P. G. T.	Harrison, Col. J. H. (Eye)	Molson, Rt. Hon. Hugh
Builus, Wing Commander E. E.	Harvey, Air Cdre A. V. (Macclesfd)	Monckton, Rt. Hon. Sir Walter
Butler, Rt. Hn. R. A. (Saffron Walden)	Heald, Rt. Hon. Sir Lionel	Moore, Sir Thomas
Campbell, Sir David	Heath, Rt. Hon. E. R. G.	Morrison, John (Salisbury)
Channon, H.	Henderson, John (Cathcart)	Nabarro, G. D. N.
Chichester-Clark, R.	Hope, Lord John	Nairn, D. L. S.
Churchill, Rt. Hon. Sir Winston	Horsbrugh, Rt. Hon. Dame Florence	Neave, Airey
Corfield, Capt. F. V.	Howard, Hon. Greville (St. Ives)	Nicholson, Godfrey (Farnham)
Craddock, Beresford (Spelthorne)	Hughes-Young, M. H. C.	Oakshott, H. D.
Crouch, R. F.	Hutchison, Sir Ian Clark (E'b'gh, W.)	Osborne, C.
Crowder, Sir John (Finchley)	Irvine, Bryant Godman (Rye)	Page, R. G.
Cunningham, Knox	Jenkins, Robert (Dulwich)	Pannell, N. A. (Kirkdale)
Davidson, Viscountess	Jennings, J. C. (Burton)	Pickthorn, K. W. M.
Deedes, W. F.	Johnson, Dr. Donald (Carlisle)	Price, Henry (Lewisham, W.)
Donaldson, Cmdr, C. E. McA.	Kimball, M.	Price, Philips (Gloucestershire, W.)
Doughty, C. J. A.	Legh, Hon. Peter (Petersfield)	Profumo, J. D.
Drayson, G. B.	Lindsay, Martin (Solihull)	Raikes, Sir Victor
Dugdale, Rt. Hn. Sir T. (Richmond)	Lloyd, Maj. Sir Guy (Renfrew, E.)	Rawlinson, Peter
Duncan, Capt. J. A. L.	Lloyd-George, Maj. Rt. Hon. G.	Redmayne, M.
Eccles, Rt. Hon. Sir David	Longden, Gilbert	Rees-Davies, W. R.
Eden, Rt. Hn. Sir A. (Warwick & L'm'tn)	Lucas, Sir Jocelyn (Portsmouth, S.)	Renton, D. L. M.
Eden, J. B. (Bournemouth, West)	Lucas-Tooth, Sir Hugh	Ridsdale, J. E.
Robertson, Sir David	Sumner, W. D. M. (Orpington)	Ward, Dame Irene (Tynemouth)
Robinson, Sir Roland (Blackpool, S.)	Taylor, Sir Charles (Eastbourne)	Waterhouse, Capt. Rt. Hon. C.
Rodgers, John (Sevenoaks)	Taylor, William (Bradford, N.)	Watkinson, Rt. Hon. Harold
Sandys, Rt. Hon. D.	Thompson, Lt.-Cdr. R. (Croydon, S.)	Whitelaw W. S. I. (Penrith & Border)
Schofield, Lt.-Col. W.	Tilney, John (Wavertree)	Wigg, George
Sharples, R. C.	Touche, Sir Gordon	Williams, R. Dudley (Exeter)
Simon, J. E. S. (Middlesbrough, W.)	Turner, H. F. L.	Wills, G. (Bridgwater)
Smithers, Peter (Winchester)	Turner-Samuels, M.	Wilson, Geoffrey (Truro)
Stevens, Geoffrey	Vane, W. M. F.	Woollam, John Victor
Steward, Sir William (Woolwich, W.)	Vosper, D. F.
Stuart, Rt. Hon. James (Moray)	Wakefield, Edward (Derbyshire, W.)	TELLERS FOR THE AYES:
Studholme, Sir Henry	Ward, Hon. George (Worcester)	Mr. Dance and Sir F. Graham
NOES
Albu, A. H.	Hannan, W.	Owen, W. J.
Allaun, Frank (Salford, E.)	Harris, Reader (Heston)	Padley, W. E.
Allen, Arthur (Bosworth)	Hastings, S.	Paget, R. T.
Allen, Scholefield (Crewe)	Hayman, F. H.	Palmer, A. M. F.
Amery, Julian (Preston, N.)	Henderson, Rt. Hn. A. (Rwly Regis)	Pannell, Charles (Leeds, W.)
Astor, Hon. J. J.	Herbison, Miss M.	Pargiter, G. A.
Awbery, S. S.	Hinehingbrooke, Viscount	Parker, J.
Benn, Hn. Wedgwood (Bristol, S. E.)	Holman, P.	Paton, John
Bennett, F. M. (Torquay)	Holmes, Horace	Peart, T. F.
Benson, G.	Holt, A. F.	Pitman, I. J.
Bevan, Rt. Hon. A. (Ebbw Vale)	Hornby, R. P.	Popplewell, E.
Blackburn, F.	Howell, Charles (Perry Barr)	Proctor, W. T.
Blenkinsop, A.	Hubbard, T. F.	Pryde, D. J.
Boothby, Sir Robert	Hughes, Cledwyn (Anglesey)	Ramsden, J. E.
Bowden, H. W. (Leicester, S. W.)	Hughes, Emrys (S. Ayrshire)	Randall, H. E.
Bowen, E. R. (Cardigan)	Hughes, Hector (Aberdeen, N.)	Rankin, John
Bowles, F. G.	Hunter, A. E.	Redhead, E. C.
Brockway, A. F.	Hynd, H. (Accrington)	Reid, William
Brown, Rt. Hon. George (Belper)	Irvine, A. J. (Edge Hill)	Robens, Rt. Hon. A.
Butler, Herbert (Hackney, C.)	Irving, S. (Dartford)	Roberts, Goronwy (Caernarvon)
Butler, Mrs. Joyce (Wood Green)	Isaacs, Rt. Hon. G. A.	Royle, C.
Castle, Mrs. B. A.	Jay, Rt. Hon. D. P. T.	Shinwell, Rt. Hon. E.
Chapman, W. D.	Jeger, Mrs. Lena (Holbn & St. Pncs, S.)	Shurmer, P. L. E.
Chetwynd, G. R.	Johnson, Howard (Kemptown)	Silverman, Julian (Aston)
Clunie, J.	Johnson, James (Rugby)	Silverman, Sydney (Nelson)
Collick, P. H. (Birkenhead)	Keegan, D.	Simmons, C. J. (Brierley Hill)
Collins, V. J. (Shoreditch & Finsbury)	Kenyon, C.	Spearman, Sir Alexander
Craddock, George (Bradford, S.)	Kershaw, J. A.	Steele, T.
Dalton, Rt. Hon. H.	Key, Rt. Hon. C. W.	Strachey, Rt. Hon. J.
Davies, Rt. Hon. Clement (Montgomery)	King, Dr. H. M.	Strauss, Rt. Hon. George (Vauxhall)
Davies, Ernest (Enfield, E.)	Lawson, G. M.	Stross, Dr. Barnett (Stoke-On-Trent, C.)
Davies, Harold (Leek)	Lee, Miss Jennie (Cannock)	Swingler, S. T.
Davies, Stephen (Merthyr)	Mabon, Dr. J. Dickson	Sylvester, G. O.
D'Avigdor-Goldsmid, Sir Henry	MacColl, J. E.	Taylor, John (West Lothian)
Deer, G.	McGhee, H. G.	Thomas, George (Cardiff)
Delergy, H. J.	McGovern, J.	Thomson, George (Dundee, E.)
Dodds, N. N.	McInnes, J.	Ungoed-Thomas, Sir Lynn
Dugdale, Rt. Hn. John (W. Brmwch)	McKay, John (Wallsend)	Vickers, Miss J. H.
Ede, Rt. Hon. J. C.	McLeavy, Frank	Wade, D. W.
Edwards, Robert (Bilston)	MacPherson, Malcolm (Stirling)	Warbey, W. N.
Evans, Albert (Islington, S. W.)	Maddan, Martin	Weitzman, D.
Evans, Edward (Lowestoft)	mallalieu, J. P. W. (Hudderafd, E.)	Wells, Percy (Faversham)
Fernyhough, E.	Mason, Roy	Wheeldon, W. E.
Forman, J. C.	Mathew, R.	White, Mrs. Eirene (E. Flint)
Fort, R.	Maude, Angus	White, Henry (Derbyshire, N. E.)
Fraser, Thomas (Hamilton)	Mayhew, C. P.	Wilkins, W. A.
Gaitskell, Rt. Hon. H. T. N.	Messer, Sir F.	Williams, Rt. Hon. T. (Don Valley)
Garner-Evans, E. H.	Mikardo, Ian	Williams, W. R. (Openshaw)
Gibson, C. W.	Mitchison, G. R.	Williams, W. T. (Barons Court)
Green, A.	Morrison, Rt. Hn. Herbert (Lewis'm, S.)	Willis, Eustace (Edinburgh, E.)
Greenwood, Anthony	Moyle, A.	Wilson, Rt. Hon. Harold (Huyton)
Griffiths, Rt. Hon. James (Llanelly)	Mulley, F. W.	Yates, V. (Ladywood)
Griffiths, William (Exchange)	Nicolson, N. (B'n'm'th, E. & Chr'ch)	Younger, Rt. Hon. K.
Grimond, J.	Oliver, G. H.	Ziiiiacus, K.
Hale, Leslie	Oram, A. E.
Hall, Rt. Hn. Glenvil (Colne Valley)	Orbach, M.	TELLERS FOR THE NOES:
Hamilton, W. W.	Oswald, T.	Mr. K. Robinson and Mr. Kirk.

Sir Hugh Lucas-Tooth

I beg to move, in page 1, line 12—

Mr. Speaker

Is the hon. Member not going to move his first Amendment, in page 1, line 10, leave out from "this" to end of line 12 and to insert: subsection shall not apply in the case of a person convicted of murder if, in consequence

of a sentence of imprisonment for life, or of a sentence of death commuted to imprisonment (other than imprisonment for a specified term of years), he was, at the time of the commission of the act which caused the death, undergoing or liable to undergo imprisonment in Great Britain, and was not lawfully at large at that time; and for the purposes of this proviso 'imprisonment' includes penal servitude, detention and any similar punishment"?

Sir H. Lucas-Tooth

I am not moving that Amendment. I wish to move the second Amendment in my name, Sir.

Mr. S. Silverman

On a point of order. I am taken considerably by surprise by what the hon. Baronet—I think that is the hon. Member's right title—has just said, because it had been agreed between us, as I understood, that he was to move the first Amendment in his name, in page 1, line 10, which you have mentioned, Mr. Speaker. We were at considerable pains to discuss its effect and its consequences. If the hon. Baronet now does not move the Amendment, which it would be within his right, then in view of the understanding that we had and the fact that I am taken by surprise, I would ask you, Mr. Speaker, for leave to move a manuscript Amendment to leave out lines 10, 11 and 12.

Mr. Speaker

I do not know anything about an arrangement, but the hon. Member for Nelson and Colne (Mr. S. Silverman) is at liberty to move the Amendment in page 1, line 10, himself if he so wishes.

6.30 p.m.

Sir H. Lucas-Tooth

On a point of order, Sir. The hon. Member for Nelson and Colne (Mr. Silverman) has suggested that there was some understanding between him and myself. May I say, in fairness to myself, that I told him what I was doing? It was because of the fact that the Prime Minister had given an undertaking that the Parliamentary draftsman would be available to assist with the drafting of this stage of the Bill. It was necessary for improvements to be made to the drafting of an Amendment which the Committee had inserted and which was, frankly, a home-made Amendment. I asked the hon. Member for Nelson and Colne what was his intention, and I asked him specifically if he would care to put down the Amendment himself. He told me not only that he would not do so, but that he would oppose it if I put it down.

Mr. Speaker

I do not know anything about that. I am concerned only with what happens in the House.

Mr. Silverman

I do not think that you, Sir, are concerned in any dispute which may take place now or hereafter, or which took place before, between the hon. Baronet and myself. You are concerned only with what happens now. I am in your hands, Sir, and I should be grateful for your advice and assistance.

I want to delete the proviso which would have had to be deleted in any case if the hon. Baronet had moved his Amendment. I told the hon. Baronet that it was unnecessary for me to put down an Amendment to that effect because his Amendment raised the question, and for me to put down an Amendment would have been redundant. What I want to do is to move to delete the proviso. I would prefer to do that by a manuscript Amendment rather than accept your suggestion that I myself should move the Amendment which the hon. Baronet does not wish to move. If, however, I have only the second choice open to me, then, of course, I shall accept it.

Mr. Speaker

As a rule, I have an objection to manuscript Amendments at this late stage in a Bill, on the general ground that the House has not been given notice of them, but this Amendment has been on the Notice Paper, and it is in order for anyone to move it.

Mr. Silverman

Very well then, Sir. I am grateful for your permission.

I beg to move, in page 1, line 10, to leave out from "this" to the end of line 12 and to insert: subsection shall not apply in the case of a person convicted of murder if, in consequence of a sentence of imprisonment for life, or of a sentence of death commuted to imprisonment (other than imprisonment for a specified term of years), he was, at the time of the commission of the act which caused the death, undergoing or liable to undergo imprisonment in Great Britain, and was not lawfully at large at that time; and for the purposes of this proviso 'imprisonment' includes penal servitude, detention and any similar punishment. I have moved this Amendment not for the purpose which the hon. Baronet had in mind, because all I want to do is to leave out the proviso and put nothing in its place, but because it enables me to leave out the proviso and leaves it to the House to decide whether anything shall be put in.

I have moved it for these reasons. In Committee, the hon. Baronet succeeded in carrying, by a majority of four, an Amendment in the terms of the provso to this Clause— Provided that this Act shall not apply in any case in which the murder was committed by a person already serving a sentence of imprisonment for life. I do not propose to weary the House with all the reasons which were advanced in the Committee stage against that. I described it then as a mere piece of quite monstrous nonsense. The murder contemplated by this proviso has never been committed either in this country or in any other country, and I said that I thought it simply made the House of Commons ridiculous.

One can imagine an intelligent and sympathetic foreign observer, in either an abolitionist or retentionist country, looking, as many of them are looking, with the utmost interest and sympathy to what the House of Commons has been doing in this matter over some weeks, and imagine him saying, "What curious people they are in the House of Commons. They decide repeatedly and by decisive votes"—I wish that the hon. Member for the Isle of Thanet (Mr. Rees-Davies) would do me the honour of paying attention. He complained when people dared to speak when he was addressing the House.

They will say abroad, "What curious people compose the British House of Commons. Repeatedly, and by substantial majorities, they express themselves in favour of abolishing the death penalty for murder. They are invited over many, many hours to consider a series of exceptions and Amendments. They are invited to make an exception for the cold, calculated, premeditated poisoner. They are invited to make an exception for the sex maniac. They are invited to make an exception for the felon who kills a policeman or civilian in the course of commiting another felony. They are invited to make an exception for child murder. They are invited to make exceptions—

Sir H. Lucas-Tooth

On a point of order, Sir. All that this Amendment does is to substitute certain words for the words which are in the Bill. If this Amendment were made it would not affect in any way the matters which the hon. Member for Nelson and Colne (Mr. S. Silverman) is now discussing. I submit that all that is in order on this Amendment is to discuss the effect it would have on the wording of the Bill, and that it is not in order to go into the general merits of the proviso, which I had expected the hon. Gentleman to put down an Amend- ment to delete, and which he has refrained from doing.

Mr. Speaker

I did not notice that the hon. Member for Nelson and Colne (Mr. S. Silverman) was out of order.

Mr. Silverman

If I may continue with my argument, Sir, the foreign observer would say that the House of Commons had been invited to make all those exceptions on plausible and often attractive grounds. Then he would say, "What curious people they are, rejecting all those. They rejected every suggestion of an exception, every suggestion of an Amendment in all those cases where murders, and sometimes the most atrocious murders, are committed and, having rejected all those exceptions, they then solemnly make an exception in the case of the only murder that has never been committed in their country or anywhere else within living memory." That really gives rise to a ridiculous position and I am sure that the House will be grateful for the opportunity to put it right.

As for the intervention of the hon. Baronet, in this Amendment two questions are involved and it is not necessary for the House to come to the same conclusion on each of them. The House may decide yes in one case and no in the other. I would advise the House to say "Yes" in the one case and "No" in the other.

The two questions are these. The first Question which Mr. Speaker will put to the House will be, "That the words proposed to be left out stand part of the Bill." I should invite the House to vote "No" at that stage. If the House votes "Yes," nothing else can be inserted and the Bill will remain as it left the Committee. If the House votes "No," then the proviso is out and Mr. Speaker would, presumably, then put the next Question, "That the proposed words be there inserted in the Bill." At that stage the House would be within its rights, and I myself would so invite it, to vote "No." In that event, the proviso would have been taken out of the Bill, which I would strongly advise for the reasons I have given to the House.

Mr. Paget

I beg to second the Amendment.

Mr. Simon

We ought to take cognisance of what the hon. Member for Nelson and Colne (Mr. S. Silverman) is asking us to do and of the advice that he has given us. He said that what had happened in Committee was such as to lead foreign nations to say, "What curious people they are in the British House of Commons", but what he is asking us to do is to pass a Bill which will contain the words in subsection (1) and go on to say "Provided that this…"

Mr. S. Silverman

I hope the hon. and learned Gentleman will not consider it necessary to take up the time of the House by further pursuing that point. I had seen the consequences which the hon. and learned Gentleman is about to explain to the House. There are ways, I understand, of putting that right if the House should decide to delete the words which I have proposed that it should delete.

Mr. Simon

I will continue to point out what the hon. Gentleman is asking the House to do. He is asking it to pass a Clause which will result in leaving the words "Provided that this", and, unless further Amendments are tabled, the Clause will go to another place in that form. If in another place something is inserted in place of the gap that this House will leave and this House should disagree with it, it means that under the Parliament Act, as I understand it, we shall be faced with either losing the Bill or passing a Bill which will go down to perpetuity with the words "Provided that this". In that case, foreigners will not say, "What curious people they are in the British House of Commons". They will applaud the hon. Gentleman and the whole Bill, in concept and in draftsmanship, as a triumph of parliamentarianism.

I suggest that we should think very long before carrying that out, particularly because the House of Commons has already, in Committee, discussed the principle at stake, voted on it, and carried it into effect. What my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) has sought to do is merely to correct the drafting. I suggest that, rather than bring about the result which the hon. Member for Nelson and Colne wants, we should carry the Amendment in its entirety.

Mr. G. A. Pargiter (Southall)

On a point of order, Mr. Speaker. The hon. and learned Member for Middlesbrough, West (Mr. Simon) said that the House has already agreed to something in principle and was now proposing to alter it. Do I take it that he will not be voting against the Third Reading of the Bill?

Mr. Speaker

I do not think that arises. We have some distance to go before we come to the Third Reading.

6.45 p.m.

Sir H. Lucas-Tooth

As the hon. Member for Nelson and Colne (Mr. S. Silverman) is leaving the Chamber, he will not hear, perhaps because it would embarrass him, what I have to say.

I shall advise my hon. Friends to accept the Amendment. When I tabled the Amendment, I did so with the hon. Gentleman's full knowledge and full agreement, because I did not want him to be under any misapprehension at all as to what the position might be. I asked him, as I said previously, whether he himself would undertake responsibility for the Amendment because it was his Bill and the Amendment was designed to improve the Bill. Indeed, no hon. Member in the House has said this afternoon anything other than that that is the effect of it. It is a very small effect, and I do not think that the House would wish me to go into the details.

I was expecting the hon. Member either himself to move to exclude the proviso or to put his name to the Amendment. I was not expecting the result which has occurred. I am bound to say that it appears to me that the hon. Member was taking advantage of the machinery of the House to try to deceive a number of hon. Members, when there are no Whips—he knows that I have Whips—into going into the wrong Lobby. [HON. MEMBERS: "Oh."] I must say that, and I am sorry that the hon. Member is not in his place to hear it.

The position is this. I do not wish the Amendment to be made at this stage, but it may well be that if the hon. Member succeeds in his plan—after all, there are not very many hon. Members present in the Chamber, so there may be a number who may be deceived—[HON. MEMBERS: "How?"] By this dodge. [HON. MEMBERS: "Chicanery."] The position would be that only three words would be left. I apprehend, Mr. Speaker, that in those circumstances you would not call me to move the next Amendment, which I certainly desire should be made to the Bill. In those circumstances, I think it would be better that we should go ahead and carry this Amendment, and that will give me an opportunity to explain the reasons for the second Amendment.

Mr. Turner-Samuels

There is something very uncandid and unsavoury about the proceedings on the Amendment that we are discussing. As I understood what was said by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman)—I am sorry that he is not here—it was that he wanted to indulge the House in what, in my considered opinion, is an unsavoury piece of tactics to use. [HON. MEMBERS: "Oh."] I am sorry if my hon. Friends do not like what I say, but it is true on the hon. Member's own statement as to his intentions.

My hon. Friend, first of all, chided the hon. Baronet the Member for Hendon, South (Sir H. Lucas-Tooth) because he failed to move the Amendment standing in his name, which he had a perfect right to do if he did not wish to move it, for it was a matter for himself to decide. My hon. Friend was rather concerned about that alteration in the proceedings, because, apparently, he had figured out that he might be able, if the Amendment were moved, to get rid of the proviso to Clause 1, which undoubtedly makes the Bill ludicrous. So he rose and objected to what he regarded as a default on the part of the hon. Baronet.

Then my hon. Friend proceeded to exercise what I suppose he had a right to do, an option to adopt the hon. Baronet's Amendment. My hon. Friend made it abundantly clear to the House—Mr. Speaker I should like your guidance on this in due course, if I may have it—that his purpose in adopting and moving the Amendment was not that he wanted the Amendment, but that he wanted the back door result of getting rid of the proviso. [An HON. MEMBER: "What is wrong with that?"] I will tell the hon. Member what is wrong with that; it is not honest. I will tell him why it is not honest. Those who voted for the proviso, previously, knew that it was then on the Notice Paper and that there would be a vote on it. They came here to exercise their right to vote one way or the other as Members of Parliament, upon a very grave matter.

Now my hon. Friend the Member for Nelson and Colne wants to get rid of that proviso in circumstances in which certain hon. Members do not know of that fact. If there were a vote resulting in the disappearance of that proviso, it would leave those hon. Members in the position of not having had notice and, therefore, not being in the House even to vote. That is not, in my view, a proper procedure. It has the effect of putting down a simple, negative Amendment on Report, so that a proviso which was passed in the Committee shall be got rid of.

I would like your guidance on this matter, Mr. Speaker. Suppose for argument's sake—[Interruption.] My hon. Friends do not like it but they must just listen to it for a moment—that an hon. Member had put an Amendment on the Notice Paper that the proviso to Clause 1 be deleted from the Bill. Would that have been right? It would be a direct negative to a provision inserted in Committee Suppose that it were right; at least the Amendment would be on the Notice Paper and notice would have been given to hon. Members who voted for the proviso in Committee to be here now to oppose its deletion. That is exactly what they are now being deprived of. [Interruption.] It is no use my hon. Friends grumbling in the backwoods like that.

I ask the House to face this as a matter of honour. [HON. MEMBERS: "Oh."] Oh, yes. If, by a backdoor method, without other hon. Members being notified—[HON. MEMBERS: "No."] Yes. It is not on the Notice Paper. [An HON. MEMBER: "It is."] It is not—we can get rid of a proviso which was put into the Bill in Committee, it is not, in my opinion, an honest, candid operation. I ask the House, out of its own self-respect, to vote for the Amendment. What the effect of the Amendment will be I cannot say and I do not think that anybody else can say. But what can be said is that it makes a Bill that is already ridiculous still more ridiculous.

Sir Robert Boothby (Aberdeenshire, East)

Without entering into the merits of the Clause, I deprecate the unctuous tone of this debate. The hon. Member for Nelson and Colne (Mr. S. Silverman) was entirely unjustified in making what amounted to an attack on the honour of my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth). Equally, the hon. and learned Member for Gloucester (Mr. Turner-Samuels) was unjustified in attacking the honour of the hon. Member for Nelson and Colne. There is no question of honour in this business. We are discussing a Bill about which people feel very strongly on both sides of the House, and hon. Members on both sides are entitled to use Parliamentary tactics to defeat or to get through any Clause that they feel strongly about.

My memory goes back a very long time, I am afraid; and I remember these sort of tactics being employed again and again in the old days. Nobody then held up his hands in holy horror and said that arrangements had been made behind the scenes about which nobody in the Chamber knew anything; or that it was dishonest not to move an Amendment if someone did not wish to do so merely because it was on the Notice Paper. I do not think anybody has done anything dishonest here. I sometimes wish that that master of parliamentary tactics, the present Lord Stansgate, the ex-Mr. Wedgwood Benn of this House, was here to teach the hon. and learned Member for Gloucester, and some others, a thing or two. He would show the hon. and learned Gentleman how to handle these matters, and no nonsense about it.

Mr. Turner-Samuels

I did not say that what the hon. Member for Hendon, South (Sir H. Lucas-Tooth) was doing was dishonest.

Sir R. Boothby

The hon. and learned Gentleman talked a lot about dishonesty. So far as we are concerned, there has not been any.

Mr. Ede (South Shields)

I join forces with the hon. Member for Aberdeenshire, East (Sir R. Boothby). Certainly, when Lord Stansgate was Mr. Wedgwood Benn many things more exciting than this were done and were enjoyed by both sides, by victims as well as by those who benefited from the manoeuvre.

This is quite a simple issue. Mr. Speaker has proposed the Question, "That the words proposed to be left out stand part of the Bill". I do not want the words to remain in the Bill. Therefore, I shall vote "No". I am perfectly entitled to vote "No". As I explained to the House the other night, I was brought up to say "No"; almost a preparation for being an understudy to Mr. Molotov. Then Mr. Speaker will put the Question, "That those words be there inserted in the Bill". I do not want them to be inserted and, therefore, I shall vote "No" again.

And what will happen about the three words which the hon. and learned Member for Middlesbrough, West (Mr. Simon), in the simplicity of his soul, mentioned, not understanding what will happen to them? They will remain there for the time being. I have no doubt that the House will find a way of preventing itself from doing something that might appear to be rather ridiculous. On these two issues I find no difficulty, in voting "No".

Mr. Elliot

Intolerance has gone to great lengths in this debate. My hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth), formerly Under-Secretary of State for the Home Department, and my hon. Friend the Member for Aberdeenshire, East (Sir R. Boothby) seem to be perfectly correct in this matter. This is the ordinary cut-and-thrust of Parliamentary debate. We are perfectly willing to stand up to it wherever it takes place.

The hon. Member for Nelson and Colne (Mr. S. Silverman) is in favour of forwarding the Bill on all occasions and taking advantage of all opportunities of doing so. He has taken a Parliamentary opportunity of doing so now. Very well; this goes forward to a Division. I shall vote against him on this occasion and I shall endeavour to retain the proviso. We shall make no complaint whatever if the vote goes against us and we are defeated in the Division Lobby, and if people not in the Chamber are misled when they come into the Division Lobby. That is the rub of the game.

I have opposed the Bill in all its stages. I think that the hon. Member for Nelson and Colne is completely wrong, but I take no exception to the tactics he has adopted on this occasion. He will vote to delete the proviso and we shall vote to retain it, and the verdict of the House will stand.

Question put, That the words proposed to be left out stand part of the Bill:—

The House divided: Ayes 139, Noes 162.

Division No. 248.]	AYES	[7.0 p.m.
Alport, C. J. M.	Harris, Frederic (Croydon, N. W.)	Oakshott, H. D.
Arbuthnot, John	Harrison, A. B. C. (Maldon)	Page, R. G.
Baldwin, A. E.	Harrison, Col. J. H. (Eye)	Pannell, N. A. (Kirkdale)
Barber, Anthony	Harvey, Air Cdre. A. V. (Macclesfd)	Partridge, E.
Barter, John	Heald, Rt. Hon. Sir Lionel	Pickthorn, K. W. M.
Beamish, Maj. Tufton	Heath, Rt. Hon. E. R. G.	Pitt, Miss E. M.
Bishop, F. P.	Henderson, John (Cathcart)	Price, Henry (Lewisham, W.)
Black, C. W.	Hobson, C. R.	Price, Philips (Gloucestershire, W.)
Braithwaite, Sir Albert (Harrow, W.)	Hope, Lord John	Raikes, Sir Victor
Browne, J. Nixon (Craigton)	Horsbrugh, Rt. Hon. Dame Florence	Rawlinson, Peter
Buchan-Hepburn, Rt. Hon. P. G. T.	Howard, Hon. Greville (St. Ives)	Redmayne, M.
Bullus, Wing Commander E. E.	Hudson, Sir Austin (Lewisham, N.)	Rees-Davies, W. R.
Butler, Rt. Hn. R. A. (Saffron Walden)	Hughes-Young, M. H. C.	Renton, D. L. M.
Campbell, Sir David	Hutchison, Sir Ian Clark (E'b'gh, W.)	Ridsdale, J. E.
Channon, H.	Irvine, Bryant Godman (Rye)	Robertson, Sir David
Chichester-Clarke, R.	Jenkins, Robert (Dulwich)	Robinson, Sir Roland (Blackpool, S.)
Cole, Norman	Jennings, J. C. (Burton)	Schofield, Lt.-Col. W.
Conant, Maj. Sir Roger	Johnson, Dr. Donald (Carlisle)	Sharpies, R. C.
Cooper-Key, E. M.	Johnson, Eric (Blackley)	Simon, J. E. S. (Middlesbrough, W).
Corfield, Capt. F. V.	Kershaw, J. A.	Smithers, Peter (Winchester)
Craddock, Beresford (Spelthorne)	Kimball, M.	Stevens, Geoffrey
Crouch, R. F.	King, Dr. H. M.	Steward, Sir William (Woolwich, W.)
Cunningham, Knox	Legh, Hon. Peter (Petersfieid)	Stuart, Rt. Hon. James (Moray)
Dance, J. C. G.	Lindsay, Martin (Solihull)	Studholme, Sir Henry
Davidson, Viscountess	Lloyd, Maj. Sir Guy (Renfrew, E.)	Sumner, W. D. M. (Orpington)
Deedes, W. F.	Lloyd-George, Maj. Rt. Hon. G.	Taylor, Sir Charles (Eastbourne)
Donaldson, Cmdr. C. E. McA.	Longden, Gilbert	Taylor, William (Bradford, N.)
Doughty, C. J. A.	McAdden, S. J.	Thompson, Lt.-Cdr. R. (Croydon, S.)
Drayson, G. B.	Macdonald, Sir Peter	Tomney, F.
Dugdale, Rt. Hn. Sir T. (Richmond)	McKibbin, A. J.	Touche, Sir Gordon
Duncan, Capt. J. A. L.	Mackie, J. H. (Galloway)	Turner, H. F. L.
Eden, J. B. (Bournemouth, West)	McLaughlin, Mrs. P.	Turner-Samuels, M.
Elliot, Rt. Hon. W. E.	Maclay, Rt. Hon. John	Wakefield, Edward (Derbyshire, W.)
Fell, A.	McLean, Neil (Inverness)	Ward, Dame Irene (Tynemouth)
Fisher, Nigel	Macpherson, Niall (Dumfries)	Waterhouse, Capt. Rt. Hon. C.
Galbraith, Hon. T. G. D.	Maitland, Hon. Patrick (Lanark)	Watkinson, Rt. Hon. Harold
Glover, D.	Manningham-Buller, Rt. Hn. Sir R.	Wells, Percy (Faversham)
Godber, J. B.	Markham, Major Sir Frank	Whitelaw, W. S. I. (Penrith & Border)
Gomme-Duncan, Col. Sir Alan	Mawby, R. L.	Williams, R. Dudley (Exeter)
Gough, C. F. H.	Maydon, Lt.-Comdr. S. L. C.	Wills, G. (Bridgwater)
Gower, H. R.	Milligan, Rt. Hon. W. R.	Wilson, Geoffrey (Truro)
Graham, Sir Fergus	Molson, Rt. Hon. Hugh	Wood, Hon. R.
Grant, W. (Woodside)	Monokton, Rt. Hon. Sir Walter	Woollam, John Victor
Green, A.	Moore, Sir Thomas
Gresham Cooke, R.	Morrison, John (Salisbury)	TELLERS FOR THE AYES:
Grimston, Sir Robert (Westbury)	Nabarro, G. D. N.	Sir H. Lucas-Tooth and
Grosvenor, Lt.-Col. R. G.	Nairn, D. L. S.	Mr. J. Rodgers.
Hall, John (Wycombe)	Heave, Airey
NOES
Albu, A. H.	Craddock, George (Bradford, S.)	Hannan, W.
Allaun, Frank (Salford, E.)	Dalton, Rt. Hon. H.	Hastings, S.
Allen, Arthur (Bosworth)	Davies, Ernest (Enfield, E.)	Hayman, F. H.
Allen, Scholefield (Crewe)	Davies, Harold (Leek)	Henderson, Rt. Hn. A. (Rwly Regis)
Astor, Hon. J. J.	Davies, Stephen (Merthyr)	Herbison, Miss M.
Awbery, S. S.	D'Avigdor-Goldsmid, Sir Henry	Hewitson, Capt. M.
Baxter, Sir Beverley	Deer, G.	Holman, P.
Bann, Hn. Wedgwood (Bristol, S.E.)	de Freitas, Geoffrey	Holmes, Horace
Benson, G.	Dodds, N, N.	Holt, A. F.
Beswick, F.	Dugdale, Rt. Hn. John (W. Brmwch)	Hornby, R. P.
Bevan, Rt. Hon. A. (Ebbw Vale)	Ede, Rt. Hon. J. C.	Howell, Charles (Perry Barr)
Blackburn, F.	Edwards, Robert (Bilston)	Hubbard, T. F.
Blenkinsop, A.	Evans, Albert (Islington, S. W.)	Hughes, Cledwyn (Anglesey)
Boothby, Sir Robert	Evans, Edward (Lowestoft)	Hughes, Emrys (S. Ayrshire)
Bowden, H. W. (Leicester, S. W.)	Fernyhough, E.	Hughes, Hector (Aberdeen, N.)
Bowen, E. R. (Cardigan)	Forman, J. C.	Hunter, A. E.
Bowles, F. G.	Fraser, Thomas (Hamilton)	Hynd, H. (Accrington)
Brockway, A. F.	Gaitskell, Rt. Hon. H. T. N.	Irvine, A. J. (Edge Hill)
Brown, Rt. Hon. George (Belper)	Garner-Evans, E. H.	Irving, S. (Dartford)
Butler, Herbert (Hackney, C.)	Gibson, C. W.	Isaacs, Rt. Hon. G. A.
Butler, Mrs. Joyce (Wood Green)	Greenwood, Anthony	Jay, Rt. Hon. D. P. T.
Castle, Mrs. B. A.	Griffiths, William (Exchange)	Jeger, George (Goole)
Chapman, W. D.	Grimond, J.	Jeger, Mrs. Lena (Holbn & St. Pncs, S.)
Chetwynd, G. R.	Hale, Leslie	Johnson, Howard (Kemptown)
Clunie, J.	Hall, Rt. Hn. Glenvil (Colne Valley)	Johnson, James (Rugby)
Collick, P. H. (Birkenhead)	Hamilton, W. W.	Keegan, D.
Collins, V. J. (Shoreditch & Finsbury)
Kenyon, C.	Oram, A. E.	Strachey, Rt. Hon. J.
Key, Rt. Hon. C. W.	Orbach, M.	Strauss, Rt. Hon. George (Vauxhall)
Lawson, G. M.	Oswald, T.	Stross, Dr. Barnett (Stoke-on-Trent, C.)
Lee, Miss Jennie (Cannock)	Owen, W. J.	Swingler, S. T.
Llewellyn, D, T.	Padley, W. E.	Sylvester, G. O.
Mabon, Dr. J. Dickson	Paget, R. T.	Taylor, John (West Lothlan)
MacColl, J. E.	Palmer, A. M. F.	Thomas, George (Cardiff)
McGhee, H. G.	Pannell, Charles (Leeds, W.)	Thomson, George (Dundee, E.)
McGovern, J.	Pargiter, G. A.	Ungoed-Thomas, Sir Lynn
McInnes, J.	Parker, J.	Vickers, Miss J. H.
McKay, John (Wallsend)	Paton, John	Wade, D. W.
McLeavy, Frank	Peart, T. F.	Warbey, W. N.
MacPherson, Malcolm (Stirling)	Pitman, I. J.	Weitzman, D.
Madden, Martin	Popplewell, E.	Wheeldon, W. E.
Mallalieu, J. P. W. (Huddersfd, E.)	Proctor, W. T.	White, Mrs. Eirene (E. Flint)
Mason, Roy	Pryde, D. J.	White, Henry (Derbyshire, N. E.)
Mathew, R.	Randall, H. E.	Wigg, George
Maude, Angus	Rankin, John	Wilkins, W. A.
Mayhew, C. P.	Redhead, E. C.	Williams, Rt. Hon. T. (Don Valley)
Messer, Sir F.	Reid, William	Williams, W. R. (Openshaw)
Mikardo, Ian	Robens, Rt. Hon. A.	Williams, W. T. (Barons Court)
Mitchison, G. R.	Roberts, Goronwy (Caernarvon)	Wilson, Rt. Hon. Harold (Huyton)
Morrison, Rt. Hn. Herbert (Lewls'm. S.)	Royle, C.	Yates, V. (Ladywood)
Moyle, A.	Shurmer, P. L. E.	Younger, Rt. Hon. K.
Mulley, F. W.	Silverman, Julius (Aston)	Zilliacus, K.
Nicolson, N. (B'n'm'th, E. & Chr'ch)	Silverman, Sydney (Nelson)
Noel-Baker, Francis (Swindon)	Simmons, C. J. (Brierley Hill)	TELLERS FOR THE NOES:
Noel-Baker, Rt. Hon. P. (Derby, S.)	Spearman, Sir Alexander	Mr. K. Robinson and Mr. Kirk.
Oliver, G. H.	Steele, T.

Question put, That the proposed words be there inserted in the Bill:—

The House divided: Ayes 133, Noes 158.

Division No. 249.]	AYES	[7.10 p.m.
Alport, C. J. M.	Hall, John (Wycombe)	Neave, Airey
Arbuthnot, John	Harris, Frederic (Croydon, H. W.)	Oakshott, H. D.
Baldwin, A. E.	Harrison, A. B. C. (Maldon)	Page, R. G.
Barber, Anthony	Harrison, Col. J. H. (Eye)	Pannell, N. A. (Kirkdale)
Barter, John	Harvey, Air Cdre. A. V. (Macclesfd)	Partridge, E.
Beamish, Maj. Tufton	Heald, Rt. Hon. Sir Lionel	Pickthorn, K. W. M.
Bennett, F. M. (Torquay)	Heath, Rt. Hon. E. R. G.	Pitt, Miss E. M.
Bishop, F. P.	Henderson, John (Cathcart)	Price, Henry (Lewisham, W.)
Black, C. W.	Hobson, G. R.	Price, Philips (Gloucestershire, W.)
Braithwaite, Sir Albert (Harrow, W.)	Hope, Lord John	Raikes, Sir Victor
Browne, J. Nixon (Craigton)	Horsbrugh, Rt. Hon. Dame Florence	Rawlinson, Peter
Buchan-Hepburn, Rt. Hon. P. G. T.	Hudson, Sir Austin (Lewisham, N.)	Redmayne, M.
Bullus, Wing Commander E. E.	Hughes-Young, M. H. C.	Rees-Davies, W. R.
Butler, Rt. Hn. R. A. (Saffron Walden)	Hutchison, Sir Ian Clark (E'b'gh, W.)	Renton, D. L. M.
Campbell, Sir David	Irvine, Bryant Godman (Rye)	Ridsdale, J. E.
Channon, H.	Jenkins, Robert (Dulwich)	Robertson, Sir David
Chichester-Clark, R.	Jennings, J. C. (Burton)	Robinson, Sir Roland (Blackpool, S.)
Cole, Norman	Johnson, Dr. Donald (Carlisle)	Schofield, Lt.-Col. W.
Conant, Maj. Sir Roger	Johnson, Eric (Blackley)	Sharples, R. C.
Corfield, Capt. F. V.	Kershaw, J. A.	Simon, J. E. S. (Middlesbrough, W.)
Craddock, Beresford (Spelthorne)	Kimball, M.	Smithers, Peter (Winchester)
Crouch, R. F.	King, Dr. H. M.	Stevens, Geoffrey
Cunningham, Knox	Legh, Hon. Peter (Petersfield)	Steward, Sir William (Woolwich, W.)
Dance, J. C. G.	Lennox-Boyd, Rt. Hon. A. T.	Stuart, Rt. Hon. James (Moray)
Davidson, Viscountess	Lindsay, Martin (Solihull)	Studholme, Sir Henry
Deedes, W. F.	Lloyd, Maj. Sir Guy (Renfrew, E.)	Sumner, W. D. M. (Orpington)
Donaldson, Cmdr, C. E. McA.	Lloyd-George, Maj. Rt. Hon. G.	Taylor, Sir Charles (Eastbourne)
Doughty, C. J. A.	McAdden, S. J.	Taylor, William (Bradford, N.)
Drayson, G. B.	Macdonald, Sir Peter	Thompson, Lt.-Cdr. R. (Croydon, S.)
Dugdale, Rt. Hn. Sir T. (Richmond)	McKibbin, A. J.	Touche, Sir Gordon
Duncan, Capt. J. A. L.	Mackie, J. H. (Galloway)	Turner, H. F. L.
Eden, J. B. (Bournemouth, West)	McLaughlin, Mrs. P.	Turner-Samuels, M.
Elliot, Rt. Hon. W. E.	Maclay, Rt. Hon. John	Wakefield, Edward (Derbyshire, W.)
Fell, A.	McLean, Neil (Inverness)	Ward, Dame Irene (Tynemouth)
Fisher, Nigel	Macpherson, Niall (Dumfries)	Waterhouse, Capt. Rt. Hon. C.
Galbraith, Hon. T. G. D.	Maitland, Hon. Patrick (Lanark)	Wells, Percy (Faversham)
Glover, D.	Manningham-Buller, Rt. Hn. Sir R.	Whitelaw, W. S. I. (Penrith & Border)
Godber, J. B.	Markham, Major Sir Frank	Williams, R. Dudley (Exeter)
Gomme-Duncan, Col. Sir Alan	Mawby, R. L.	Wills, G. (Bridgwater)
Gower, H. R.	Maydon, Lt.-Comdr. S. L. C.	Wilson, Geoffrey (Truro)
Graham, Sir Fergus	Milligan, Rt. Hon. W. R.	Wood, Hon. R.
Grant, W. (Woodside)	Molson, Rt. Hon. Hugh	Woollam, John Victor
Green, A.	Moore, Sir Thomas
Gresham Cooke, R.	Morrison, John (Salisbury)	TELLERS FOR THE AYES:
Grimston, Sir Robert (Westbury)	Nabarro, G. D. N.	Sir H. Lucas-Tooth and
Grosvenor, Lt.-Col. R. G.	Nairn, D. L. S.	Mr. J. Rodgers.
NOES
Albu, A. H.	Hayman, F. H.	Owen, W. J.
Allaun, Frank (Salford, E.)	Henderson, Rt. Hn. A. (Rwly Regis)	Padley, W. E.
Allen, Arthur (Bosworth)	Herbison, Miss M.	Paget, R. T.
Allen, Scholefield (Crewe)	Hewitson, Capt. M.	Palmer, A. M. F.
Astor, Hon. J. J.	Holman, P.	Pannell, Charles (Leeds, W.)
Awbery, S. S.	Holmes, Horace	Pargiter, G. A.
Benn, Hn. Wedgwood (Bristol, S. E.)	Holt, A. F.	Parker, J.
Benson, G.	Hornby, R. P.	Paton, John
Beswick, F.	Howell, Charles (Perry Barr)	Peart, T. F.
Bevan, Rt. Hon. A. (Ebbw Vale)	Hubbard, T. F.	Pitman, I. J.
Blackburn, F.	Hughes, Cledwyn (Anglesey)	Popplewell, E.
Blenkinsop, A.	Hughes, Emrys (S. Ayrshire)	Proctor, W. T.
Boothby, Sir Robert	Hughes, Hector (Aberdeen, N.)	Pryde, D. J.
Bowden, H. W. (Leicester, S. W.)	Hunter, A. E.	Randall, H. E.
Bowen, E. R. (Cardigan)	Hynd, H. (Accrington)	Rankin, John
Bowles, F. G.	Irvine, A. J. (Edge Hill)	Redhead, E. C.
Brockway, A. F.	Irving, S. (Dartford)	Reid, William
Brown, Rt. Hon. George (Belper)	Isaacs, Rt. Hon. G. A.	Robens, Rt. Hon. A.
Butler, Herbert (Hackney, C.)	Jay, Rt. Hon. D. P. T.	Roberts, Goronwy (Caernarvon)
Butler, Mrs. Joyce (Wood Green)	Jeger, George (Goole)	Royle, C.
Castle, Mrs. B. A.	Jeger, Mrs. Lena (Holbn & St. Pncs, S.)	Shurmer, P. L. E.
Chapman, W. D.	Johnson, Howard (Kemptown)	Silverman, Julius (Aston)
Chetwynd, G. R.	Johnson, James (Rugby)	Silverman, Sydney (Nelson)
Clunie, J.	Keegan, D.	Simmons, C. J. (Brierley Hill)
Collick, P. H. (Birkenhead)	Kenyon, C.	Spearman, Sir Alexander
Collins, V. J. (Shoreditch & Finsbury)	Key, Rt. Hon. C. W.	Steele, T.
Craddock, George (Bradford, S.)	Lawson, G. M.	Strachey, Rt. Hon. J.
Dalton, Rt. Hon. H.	Lee, Miss Jennie (Cannock)	Stross, Dr. Barnett (Stoke-on-Trent, C.)
Davies, Ernest (Enfield, E.)	Mabon, Dr. J. Dickson	Swingler, S. T.
Davies, Harold (Leek)	MacColl, J. E.	Sylvester, G. O.
Davies, Stephen (Merthyr)	McGhee, H. G.	Taylor, John (West Lothian)
D'Avigdor-Goldsmid, Sir Henry	McGovern, J.	Thomas, George (Cardiff)
Deer, G.	McInnes, J.	Thomson, George (Dundee, E.)
de Freitas, Geoffrey	McKay, John (Wallsend)	Ungoed-Thomas, Sir Lynn
Dodds, N. N.	McLeavy, Frank	Vickers, Miss J. H.
Dugdale, Rt. Hn. John (W. Brmwch)	MacPherson, Malcolm (Stirling)	Wade, D. W.
Ede, Rt. Hon. J. C.	Maddan, Martin	Warbey, W. N.
Edwards, Robert (Bilston)	Mallalieu, J. P. W. (Huddersfd, E.)	Weitzman, D.
Evans, Albert (Islington, S. W.)	Mason, Roy	Wheeldon, W. E.
Fernyhough, E.	Mathew, R.	White, Mrs. Eirene (E. Flint)
Forman, J. C.	Maude, Angus	White, Henry (Derbyshire, N. E.)
Fraser, Thomas (Hamilton)	Messer, Sir F.	Wigg, George
Gaitskell, Rt. Hon. H. T. N.	Mikardo, Ian	Wilkins, W. A.
Garner-Evans, E. H.	Mitchison, G. R.	Williams, Rt. Hon. T. (Don Valley)
Gibson, C. W.	Morrison, Rt. Hn. Herbert (Lewis'm, S.)	Williams, W. R. (Openshaw)
Greenwood, Anthony	Moyle, A.	Williams, W. T. (Barons Court)
Griffiths, William (Exchange)	Mulley, F. W.	Wilson, Rt. Hon. Harold (Huyton)
Grimond, J.	Nicolson, N. (B'n'm'th, E. & Chr'ch)	Yates, V. (Ladywood)
Hale, Leslie	Noel-Baker, Francis (Swindon)	Younger, Rt. Hon. K.
Hall, Rt. Hn. Glenvil (Colne Valley)	Noel-Baker, Rt. Hon. P. (Derby, S.)	Zilliacus, K.
Hamilton, W. W.	Oliver, G. H.
Hannan, W.	Oram, A. E.	TELLERS FOR THE NOES:
Harris, Reader (Heston)	Orbach, M.	Mr. K. Robinson and Mr. Kirk
Hastings, S.	Oswald, T.

Mr. John Maclay (Renfrew West)

I beg to move, in page 1, line 14, after "1933", to insert: or of section fifty-seven of the Children and Young Persons (Scotland) Act, 1937". If it is agreeable to you, Mr. Speaker, and to the House, I suggest that we also discuss the three other Amendments standing in my name, in lines 15, 16 and 19. If we can discuss the four Amendments together it will save a lot of time, because they are purely drafting Amendments attempting to tidy up the drafting of the Bill.

Mr. Speaker

Very well.

Mr. Maclay

Whatever may be one's view upon the merits of the Bill as a whole—and mine are quite definite—it

would be a pity if the House were to produce legislation which was somewhat obscure when it could be tidied up by certain fairly simple drafting Amendments. The effect of my proposal is simply to transfer what is contained in subsection (3) to subsection (2), making that subsection read: Nothing in this Act shall affect the provisions of Section fifty-three of the Children and Young Persons Act, 1933, or of Section fifty-seven of the Children and Young Persons (Scotland) Act, 1937. … I am advised, according to the best advice that I have been able to obtain, that this is a much clearer way of expressing something which is rather obscure in the Bill as it stands.

Mr. S. Silverman

I do not desire to detain the House on this matter. The promoters are perfectly content to accept the advice of the Scottish Office as to whether what is common ground is better enacted in the Bill as it stands or in the way now proposed by the right hon. Member for Renfrew, West (Mr. Maclay).

In justice, I ought to say that the way in which it now appears in the Bill was the responsibility of those Who moved it during the Committee stage, when I was just as accommodating as I am now and accepted the Amendment, only to be met by the hon. and learned Member for Middlesbrough, West (Mr. Simon) with a charge which, I think, I should take this opportunity to refute, because it was not a charge against me but against people who are not here to defend themselves. The hon. and learned Gentleman thought that the Bill was badly drafted. In that he is entitled to his view, and I shall not seek to debate it with him. But any ill-drafting there may have been is entirely my responsibility and not that of the National Campaign for the Abolition of the Death Penalty, as the hon. and learned Gentleman said.

Mr. Simon

I never mentioned any such party at all. The hon. Gentleman is quite mistaken. In fact, I referred to him in person and said that the present Bill was so badly drafted that it was an affront to the House. I never mentioned the National Campaign.

Mr. Silverman

The hon. and learned Gentleman, while he is preferring charges against people of affronting the House, ought to refresh his memory—

Mr. Simon

I have.

Mr. Silverman

If he has, he ought to teach himself to read, because he quite clearly said that this was a Bill that had been on the stocks for many years and in the hands of some committee or other—it may have been some other Committee, I do not know. But it was not, and the responsibility was entirely my own.

The Lord Advocate (Mr. W. R. Milligan)

The Amendment moved by my right hon. Friend the Member for Renfrew, West (Mr. Maclay) is an improvement, in that it tidies up the Bill and puts into one subsection what was before in two subsections. I hope that the House will agree to accept this Amendment and the next two Amendments when they are moved.

My right hon. Friend referred to a later Amendment in page 19, to leave out subsection (3). When we come to that, perhaps you, Mr. Speaker, may permit a Motion to be moved, but meantime the matter does not arise.

Mr. Elliot

I am opposed to the proposal of my right hon. Friend the Member for Renfrew, West (Mr. Maclay). I reject the advice given by my right hon. and learned Friend the Lord Advocate, and I propose to divide the House upon this matter. This whole Bill interferes with the law of murder in Scotland in a way which is totally unwarranted and unjustified and on Second Reading was defeated by a majority of hon. Members representing Scottish constituencies.

Accordingly, I say without hesitation that bad as is the Bill for England, it is a worse Bill for Scotland. We have been instructed by my right hon. and learned Friend the Attorney-General that the Bill is fundamentally obscure in one of the most important aspects which could possibly arise. As we have received advice of that kind, I do not propose to give support to any attempt to alter the Bill.

I do not object to the tactics of the hon. Member for Nelson and Colne (Mr. S. Silverman). He was fully entitled to adopt them. What he said about my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon) not being able to read I shall leave for my hon. and learned Friend to rebut at the due time. I do not think that this Amendment is a good idea and I shall divide the House.

7.15 p.m.

Mr. Maclay

rose—

Mr. Speaker

The right hon. Member for Renfrew, West (Mr. Maclay) has already addressed the House. Does he wish to ask leave to speak again?

Mr. Maclay

With the leave of the House, may I reply to something which has been said about this Amendment? First, may I comment on what was said by the hon. Member for Nelson and Colne (Mr. S. Silverman)? It was not the Scottish Office speaking, but I should like to make that clear. Regarding what has been said by my right hon. Friend the Member for Kelvingrove (Mr. Elliot), I wish there to be no doubt about what is happening. I have no dispute with him, as he knows, about the principles of the Bill—

Mr. Speaker

Order. I do not know where this discussion is getting. As I read the Amendment, it has something to do with Section 57 of the Children and Young Persons (Scotland) Act, 1937. We seem to be talking about subjects which I cannot connect in my mind with that particular Statute.

Mr. Maclay

I was about to say again, Sir, what is the effect of my Amendment, because it is just possible that my right hon. Friend the Member for Kelvingrove has misunderstood it. The Amendment alters nothing in the Bill. It simply alters the drafting. I wish to make certain that my right hon. Friend completely understands, and that he is under no illusion that I am in any way proposing an alteration in the law of Scotland by this Amendment.

Mr. Emrys Hughes (South Ayrshire)

There is but one short observation that I wish to make. It is that the right hon. Member for Kelvingrove (Mr. Elliot), in deciding to divide the House, in order to express the point of view of Scotland, has himself created a precedent. It is the first time the Lord High Commissioner for the General Assembly of the Church of Scotland has had a different opinion from that of the Church Assembly.

Mr. Elliot

rose—

Hon. Members

Order.

Mr. Speaker

I hope the House will not be led away into these side issues. If the right hon. Gentleman wishes to make a personal rejoinder to what has been said, he is at liberty to do so, but it is my duty to draw the attention of the House back to the subject of the Children and Young Persons (Scotland) Act, 1937.

Mr. Elliot

On a point of order, Mr. Speaker. I understand that there is a group of Amendments here which we are discussing together. I will reserve my remarks for one of the later Amendments.

Mr. Speaker

The Question is, "That those words be there inserted in the Bill." Those of that opinion say "Aye"; to the contrary "No."

Hon Members

Aye.

Mr. Elliot

No.

Mr. Speaker

I think the "Ayes" have it.

Mr. Elliot

No.

Mr. Speaker

I think the "Ayes" have it—did the right hon. Gentleman say "No"?

Mr. Elliot

I said "No", Mr. Speaker.

Mr. Speaker

Clear the Lobbies.

The Question is, "That those words be there inserted in the Bill". As many as are of that opinion say "Aye"; to the contrary "No". The "Ayes" have it.

Amendment agreed to.

Further Amendments made: In line 15, leave out "prohibits" and insert "prohibit".

In line 16 leave out "requires" and insert "require".—[Mr. Maclay.]

Mr. Elliot

rose—

Mr. Speaker

I have collected the voices. Perhaps I was too quick. The next Amendment, in line 19, to insert a new subsection (3) is out of order as being beyond the scope of the Bill.

7.30 p.m.

Mr. Nairn

I beg to move, as a manuscript Amendment—

Mr. Speaker

I cannot accept any manuscript Amendments at this stage of the Bill.

Amendment proposed: In line 19, leave out subsection (3).—[Mr. Maclay.]

Mr. Elliot

Perhaps this may be an appropriate moment to reply to the short interjection made in ignorance of the facts by the hon. Member for South Ayrshire (Mr. Emrys Hughes). He said that this was the only occasion on which the Lord High Commissioner had differed from the General Assembly of the Church of Scotland. These things have happened before, but this was not an occasion on which the Lord High Commissioner's views differed—

Mr. Charles A. Howell (Birmingham, Perry Barr)

On a point of order. May I ask, Mr. Speaker, to which Clause the right hon. Member is speaking?

Mr. Speaker

An Amendment has been moved to leave out subsection (3) of Clause 1. I was waiting to see how the right hon. Member for Kelvingrove (Mr. Elliot) connected what he had to say with that Clause.

Mr. Elliot

Now that that point of order has been successfully cleared up, I will continue with the point which I was making.

It begins with the application of this Clause to Scotland. It was suggested, as support for the course being taken, that it had the support of the General Assembly of the Church of Scotland. If the hon. Member for South Ayrshire had paid attention to the proceedings of that august court he would have seen that the General Assembly was dealing only with this point: whether, if the House of Commons accepted this Amendment, there should or should not be a radical revision of our whole system of prisons and prison reform. There is, therefore, no difference whatever between the views which I am advancing and the views held by the high and august court of which I had the honour to be Commissioner on the previous occasion.

Mr. Emrys Hughes

rose—

Mr. Speaker

If the hon. Member wishes to speak about the General Assembly of the Church of Scotland, I cannot see how that can possibly be included in the Children and Young Persons Act, 1933.

Mr. W. R. Williams (Manchester, Openshaw)

Would you be good enough to tell us, Mr. Speaker, how much more difficult it would be for my hon. Friend the Member for South Ayrshire (Mr. Emrys Hughes) to do that than it was for the right hon. Member for Kelvingrove (Mr. Elliot) to do it?

Mr. Speaker

I waited to hear what the right hon. Member for Kelvingrove was going to say. I thought he was about to introduce something about the Children and Young Persons Act, but when he moved to the subject of the General Assembly of the Church of Scotland I realised that that did not quite fit into the Bill. I thought the hon. Member for South Ayrshire was rising to say something on the same lines, and that is why I checked him.

Amendment agreed to.