§ Motion made, and Question proposed, That the Clause stand part of the Bill.
§ 3.35 p.m.
§ Mr. Charles Royle (Salford, West)
The Attorney-General and the Home Secretary will have noticed that there are not any Amendments on the Notice Paper to Clause 10.
In all parts of the Committee, we are, I think, in complete agreement with the terms of the Clause. There are, however, certain things which are implied, or not implied, which give me some concern. While the Clause makes it quite clear that when the judge actually condemns a prisoner to death he is to use only the wordsshall suffer death in the manner authorised by lawthe Clause does disregard one or two questions which have hitherto concerned a great number of people. Further, there are matters here involved which gave concern to the Royal Commission on Capital Punishment.
I wish to refer, first, to the use of the black cap. The Commission made several references to this matter, and, in paragraph 697, said:As we have said, the wearing of the black cap is governed by custom. The Judges are under no obligation to assume it, and in England they have sometimes refrained from doing so when they felt that its use would be out of place. On the other hand, all the Judges were in favour of retaining this custom. The Lord Justice General told us that, at any rate in Scotland, this was not only for sentimental reasons, but because the assumption of the black cap symbolised the fact that the judge was not expressing a private judgment, but was merely an instrument of the State and some Judges who had conscientious objections to the death sentence desired 'to safeguard themselves by assuming the full cloak of judicial officialdom in pronouncing the sentence'The Commission then went on to say:We consider that this matter may well be left to the discretion of individual Judges, and we therefore make no recommendation about 676 it, or about the use in England of the words 'And may the Lord have mercy on your soul' and of the chaplain's invocation, which are also governed only by tradition and custom.Although we are, in this Bill, laying down nothing whatever about the use of the black cap and nothing whatever about the use of the words I have just quoted, I would, with great respect and without any impertinence, suggest to Her Majesty's judges—and I hoped that I might have some support from the Treasury Bench—that they should take the initiative and no longer use the black cap.
I believe it to be desirable that a custom which has provided drama in the courts of law when the sentence of death is pronounced should be abolished. On this side of the Committee we are disappointed that, so far, our arguments and Amendments have been resisted. We have not sought to make it illegal for the black cap to be used. We have not sought to ensure, by Amendment of the Bill, that a judge should refrain from its use. Indeed, I cannot see how that provision could be included in the Bill. But it would be a good thing if an impression were given by this Committee to Her Majesty's judges that the House of Commons would regard it as desirable if, in future, the black cap were not used when pronouncing the death penalty.
I hope that my few words will receive support from right hon. and hon. Gentlemen opposite.
§ Dr. Barnett Stross (Stoke-on-Trent, Central)
I wonder whether we could be helped to understand how this custom originated. I have heard of different forms of its origin and I have sometimes wondered whether it was merely because the name of God is invoked that the head is covered, as it was 2,000 years ago on entry into the early church, before St. Paul made up his mind that it was unnecessary for man to cover the head but that woman should do so on entering church. It would be interesting to know whether that is the reason.
The words proposed in this Clause are welcome to all of us. They are more dignified and are an improvement on what has gone before.
§ Mr. Frederick Willey (Sunderland, North)
I do not want to pursue this interesting discussion much further, except 677 to say that we would like to hear from the Government whether they have taken an opportunity of consulting Her Majesty's judges or whether they will do so before the Third Reading of the Bill and let us know if the judges still take the view which they took formerly, that this procedure should be followed.
I want to raise two other points. First, I wonder whether the Government have considered whether it would not be better to include the words which were included in the 1948 Act, so that the form of the sentence would be:… suffer death unless Her Majesty should otherwise order in the manner authorised by law.I suggest that because it is important to recognise the exercise of the Royal Prerogative. I have always taken the view that this should be recognised as part of the penal administration. Obviously, there will be a place for the Royal Prerogative even when this Bill becomes law. It is clear from the discussions we have had on Part II of the Bill that there will be cases in which it will be proper that a reprieve should be granted. That being so, I should have thought it would be better to recognise, in the court in which sentence is passed, as it has been in our discussions on this Bill, that the exercise of the Royal Prerogative is part of the administration of the penal law.
My second question to the Government is whether they have considered the question of burial, because this was a matter that was examined by the Royal Commission. I am not sure, but my recollection is that this is a matter which involves legislation. I think it was the view of the Commission that, except where there were religious scruples against such a form of burial, it would be better to recognise cremation. I have an open mind about this and I merely ask the Government whether they have considered it. If they have decided that there are reasons against accepting the advice of the Royal Commission, we should hear them.
§ 3.45 p.m.
§ The Joint Under-Secretary of State for the Home Department (Mr. J. E. S. Simon)
I am grateful for the way in which hon. Gentlemen opposite have approached this Clause and for the suggestions that have been made. I am 678 sorry that I am unable to answer the question put by the hon. Member for Stoke-on-Trent, Central (Dr. Stross). I had no warning of it, and there was nothing on the Notice Paper which would have caused me to find out.
I imagine—this is purely speculative—that the use of the black cap arose because it is part of the full dress of Her Majesty's judges. Certainly, the custom of assuming it when the capital sentence is pronounced is a very ancient one. Hon. Members will know that, formerly, certainly long before the time this custom originated, the capital sentence was pronounced for a very wide range of offences—I believe, in fact, all felonies at one time. I am sorry that I cannot answer the question specifically, but undoubtedly it is a traditional ceremony in our administration of criminal justice.
Before dealing with the point raised by the hon. Member for Salford, West (Mr. Royle) I turn to the questions put by the hon. Member for Sunderland, North (Mr. Willey). So far as I know, Her Majesty's judges have not been consulted about this matter, nor do I think it would he appropriate for the Government to approach them upon it. The approach of the Government is really that of the Royal Commission, that the matter is best left to the discretion of Her Majesty's judges. I am sure that the remarks made today will come to their attention and will be given proper weight.
The hon. Member for Sunderland, North also asked me about the question of burial and whether that took place on legislation. I have not got the Statute before me, but I am reasonably certain that it is legislative. Indeed, my right hon. and learned Friend the Attorney-General assures me that this is so. It is laid down, I believe, in the Capital Punishment Amendment Act, which stipulates that there should be burial within the precincts of the prison.
Now I come to the point made by the hon. Member for Salford, West. The form of the sentence laid down in the Bill is that suggested by the Royal Commission, as I have said. Therefore, I think it has commended itself to the Committee. The reason the further words that were in the 1948 Act—"unless Her Majesty should otherwise order"—were omitted here was because since that date the Royal Commission has sat and considered the matter.
679 My right hon. Friend considers that it would not be appropriate to issue directions on this matter to the judges. As the hon. Gentleman pointed out, their feeling was that this traditional ceremony should remain, but I think it can be safely left to their discretion, particularly as I do not doubt that what has been said on this occasion will be drawn to their notice and that they will give proper weight to it.
§ Question put and agreed to.
§ Clause ordered to stand part of the Bill.