§ Mr. E. G. Willis (Edinburgh, East)
I beg to move, in page 6, line 16, after "Part I", to insert:and sections five and six of Part II.
The next Amendment, in page 6, line 24, at the end to add:(4) Section seven of this Act shall extend to Scotland with the omission of the words "in any case not falling within section five or six of this Act.has not been selected for a separate division, but may be discussed with this Amendment.
§ Mr. Willis
I congratulate the Scottish Office upon having produced such a galaxy of Ministers for this debate. I congratulate the Secretary of State upon being present. Frequently in the past we did not see the Secretary of State when Scottish questions were discussed, and when we saw him we often could not hear him. Perhaps this is an omen that some of our Amendments will be considered rather more sympathetically than they might have been.
The effect of our Amendments would be to delete the part of the Bill which endeavours to categorise murders and to make the murders so categorised in Clauses 5 and 6 subject to capital punishment. The Amendments would also have the effect of abolishing capital punishment in Scotland.
With regard to the first aim of the Amendments, we base ourselves firmly upon the recommendations of the Royal Commission. Having listened to these debates fairly fully, although I have not previously taken part in them, I have been interested to notice how the Government have on occasion come forward claiming the support of the Royal Commission for what they want to do. However, the provisions affected by our Amendment are precisely things which the Royal Commission did not recommend. The Royal Commission had this to say about the categorising of murders:It is impracticable to frame a statutory definition of murder which would effectively limit the scope of capital punishment and would not have overriding disadvantages in other respects.We cannot see why Scotland should have to incur overriding disadvantages merely 730 because England wants to act rather stupidly.
During our many debates on capital punishment, we have frequently heard how much better Scottish law is than English law in respect of murder. When the Bill becomes law, that may not be quite so true; in fact, there is one respect in which it will probably be worse. We may be able to say something about that later. However, I cannot see why there should be a desire to introduce into Scottish law a method of doing something which is wholeheartedly condemned by the Royal Commission. There is no reason why we should be dragged at the heels of England in this matter. I should have thought that the Scottish law officers, in spite of the fact that they had recently been rebuffed by Scottish judges on another Crown matter, would have been proud of their heritage and anxious to preserve it rather than that we should be dragged into the muddle which the English are getting themselves into by rejecting what the Royal Commission recommended.
These Amendments have the effect of abolishing capital punishment in Scotland. We debated this subject at great length when the Bill sponsored by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) was before the House. I should like to say a few words on some of the arguments then adduced in favour of retaining the death penalty in Scotland.
The first argument was that Scottish law was so superior to English law that there was no need to alter it. I have already pointed out that when the Bill becomes an Act that will not be so true and that in one respect we may be worse off. However, the argument about the superiority of Scottish law is entirely irrelevant to the question of whether or not capital punishment should be abolished in Scotland.
The second argument—used wrongly, because it was out of context—was that the Royal Commission had said that the scope of the law of murder in Scotland was satisfactory and that no amendment was needed. This argument was brought forward by hon. Members opposite as a reason why we should not abolish capital punishment in Scotland. The facts are, however, well known. The Royal Commission was not allowed to recommend 731 that capital punishment should be abolished; it was asked to make recommendations to amend the law of murder.
The Royal Commission said that the law of murder in Scotland should not be amended and that its terms of reference did not permit it to recommend the abolition of capital punishment. However, that was a set of circumstances which do not bind us as Members of Parliament. We are able to discuss the subject free from the limits imposed on the Royal Commission. That second argument was not very valid.
Then we had the usual argument about capital punishment being a deterrent. The discussions on the Bill have clearly demonstrated that that argument is nonsense. All the provisions of the Bill make nonsense of that argument in respect of crimes which, as my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood) pointed out, horrify people far more than crimes which will be capital murder. My hon. Friend read a whole list taken from the Royal Commission's Report. The Government themselves take the view that capital punishment is no longer a deterrent in those cases.
The arguments we now get are on slightly different grounds. They are that capital punishment is necessary to preserve public order and to support the authorities of the Crown in the performance of their duty. It is difficult to support that argument for any time. The argument runs that, if capital punishment is seen as a deterrent, it is important that it should be used in respect of one set of persons in the community while it should not be used in respect of another set. One cannot examine the case without realising that, with this Bill, the Government have made nonsense of the argument that capital punishment is a deterrent.
Another argument, which probably carries a little more weight, is that after the war there was a period in Scotland when the officers of the Crown were rather glad that capital punishment existed as it prevented a certain amount of violence, which was spreading in Glasgow and the rest of Scotland. To take a period after the war is, in itself, not a very good 732 criterion. It is not a good foundation for examination or debate, because after one has been teaching people to kill, maim and wound in every conceivable manner for six years and has then thrown hundreds of thousands into civil life, one naturally expects a certain degree of violence.
The period immediately following a war is not a good example. In any case, the argument does not prove the necessity for maintaining capital punishment, because we do not know what would have happened had it not existed. It is easy for the Law Officers, or the Secretary of State for Scotland, to say that the number of murders began to decline and that capital punishment therefore seemed to act as a deterrent. There is no evidence about what would have happened had it not existed. It is as competent to assume the opposite as to assume what the Government assume, and it is equally justifiable.
I reject the arguments adduced when the matter was last debated for retaining capital punishment in Scotland. In none of them can I see anything of sufficient importance to warrant the continuance of capital punishment in Scotland. I am not a Scotsman, as I am sometimes reminded. I am not ashamed of that. I am as proud of being English as Scotsmen are of being Scots. I have spent the best part of my life in Scotland, and I think it is true that Scotland is legally on a rather higher level than England. There is a greater degree of civilisation in Scotland. I believe that the records over the past twenty or thirty years prove that.
I cannot see why we should not abolish capital punishment in Scotland. There is an immense amount of support for that. and certainly in Scotland there is not the opposition to abolition as is found in England. We have not had the cases in Scotland to create that opposition to abolition. Certainly, people I know are rather ashamed that we should retain this form of punishment. It is in accord with neither Christian traditions nor ethical principles, and a very large number would like to see it abolished. Let us make the experiment in Scotland. Let us lead once again in Scotland. Let us set the example so that when next the English are debating how to reform their criminal law of murder, they will once more say, "Look at what is happening in Scotland," and 733 quote Scotland as they have so often done in the past few months.
When this matter was last before the House, it was decided on a free vote by 213 to 157 votes to abolish capital punishment in Scotland. That is not a marginal majority, but almost a two-thirds majority in favour of abolishing capital punishment in Scotland. The Amendments give the Government the opportunity to keep faith with the House of Commons at least in one respect, that of Scotland. Let the will of the House of Commons about capital punishment be put into effect.
I appeal to the right hon. Gentleman to take this final opportunity to do what the House of Commons very specifically, by a substantial majority—not a marginal majority, or by a handful of votes—wanted to do, a decision which created no great opposition in Scotland. Let us take that step forward. Let Scotland go forward to that better, higher state of civilisation—never mind what they do in England—and let us turn our backs on the follies of the Englishmen.
§ Mr. G. M. Thomson (Dundee, East)
I support the argument advanced by my hon. Friend the Member for Edinburgh, East (Mr. Willis) in favour of the Amendment. In one quite important respect he understated his own case. He was attempting to meet the argument advanced from the Government Front Bench that Scotland needed the death penalty in the years immediately after the war, and he submitted very forcibly that it was impossible to tell what would have happened if we had not had the death penalty during those post-war years.
It is possible to get some sort of idea at what might have happened by considering the Scottish experience immediately previously. It is true that in the post-war years, after the violence of the war, there was a tendency to greater violence in civil life, but we would also agree, looking back over the last 50 years of Scottish history, that if we wanted to choose a period which, on the surface, looked as if it would promote lawlessness, we should have taken the drab years of unemployment and depression in Scotland, in the 1930's.
In fact, during those years there was not a single execution in Scotland. From 1929 to 1938—black and dangerous years 734 for Scotland—there were 128 murders. During the previous period, from 1919 to 1928, there were 142 murders. So we get the very interesting fact that, during a period of virtual abolition in Scotland—when everybody knew that if a murder were committed there would not be an execution—we had the lowest number of murders, while, during a period when we had the minimum number of reprieves in Scotland, we had the highest number of murders. It is worth giving considerable weight to that evidence.
The main purpose of the Bill is to retain the death penalty for a group of murders committed by professional criminals, and especially in conjunction with the crime of robbery. If we look at the Scottish figures we discover a rather interesting fact, namely, that during the period from 1919 to 1928, when there was a minimum number of reprieves, five murders with robbery were committed, whereas during the period from 1929 to 1938, when all murderers were reprieved, and the professional criminal knew that, to put it at its very lowest, there was a very considerable chance of his not being executed if he committed murder in the course of a robbery, there were only two murders of that kind.
This evidence seems to show that the existence of the death penalty is not a deterrent in relation to murders committed in conjunction with robbery. On the Scottish figures—and it is only the Scottish figures of which the Minister must take cognisance—there is no case for retaining the death penalty for this group of murders.
This is an historic year for Scotland. It is the 250th anniversary of the Treaty of Union between England and Scotland. One of the essential parts of that Treaty, which we show off so proudly to our constituents as we take them through the House of Lords, is the preservation of a separate Scottish legal system. It is no part of the argument of a Secretary of State for Scotland—no matter what party he belongs to—to plead for legal uniformity in a matter like this. We in Scotland should be proud of the fact that we have a separate Scottish legal system and our own separate Scottish legal traditions.
I do not say this because I believe that separatism by itself is of particular virtue but, as my hon. Friend pointed out, all 735 the evidence brought before the Royal Commission tends to show that in very important respects the Scottish legal practice in regard to the law of murder is more advanced and more humane than that of England.
We have come to the end of a fairly long period of debate on the Bill, and the Scottish situation has come at the end of it. I ask the Secretary of State to look back over the proceedings on the Bill and to see it in perspective from a Scottish point of view. The Bill is very inadequate even for England, but at least it is a Bill which, in certain notable respects, reforms the law of murder in England and brings it more into line with that of Scotland. Surely it is the duty of the Minister to take action to keep Scotland ahead of England. Why should not we give a lead? There is no reason for being self-righteous or smug.
Scotland is a small country; England is a large one. It is therefore very much easier to experiment in social and criminological matters in Scotland, and I should have thought that when the Government were reforming the law of murder in England it would have been a very sensible step to abolish capital punishment altogether in Scotland, at least for an experimental period. I am sure that my hon. Friend is right in saying that such a provision would enjoy widespread support in Scottish public opinion.
I know that the Secretary of State is aware of the nature of public opinion in Scotland in favour of abolition. This public opinion has nothing to do with political considerations; it has spread outside the views of political parties. Those in favour of abolition include many Conservatives—active Conservative Party people in Scotland—and many citizens who have no particular political allegiance. The right hon. Gentleman will remember the letters which have appeared in the Scottish Press from leading public citizens in Scotland, such as the leader of the Conservative Party in the Glasgow Corporation; the leader of the Progressive Party, and leaders of the Labour Party. There have also been letters from members of the Scottish Church. A very considerable public opinion in Scotland is in favour of the abolition of capital punishment.
736 The Minister has just taken office, and he has been advised by the Scottish Press that he should earn a name for himself by announcing a decision upon the Forth road bridge. That is an easy thing for a Secretary of State for Scotland to do; everybody is agreed about that. Here is an opportunity for the Minister, in his first weeks of office, to earn a reputation for himself in connection with an issue about which most humane and socially advanced people feel very strongly. If he wishes to convince Scotland that she has in office somebody who is prepared to take a forward-looking view of these matters—somebody who is prepared to see that Scotland gives a lead to the rest of the United Kingdom and maintains the lead she has already today—he has the chance to do this, and I hope that he will announce that he is going to accept the Amendment.
§ Mr. John Mackie (Galloway)
I do not believe it is right that the argument advanced by the hon. Member for Edinburgh. East (Mr. Willis) and the hon. Member for Dundee, East (Mr. G. M. Thomson) should go without a word being said in opposition from an hon. Member on this side of the Committee. I hope that the new Secretary of State for Scotland—whom I wish to congratulate very heartily, in common with the two hon. Members who have spoken—will stoutly resist the proposal which has been made.
I shall not go nearly as wide in my argument as did the two hon. Members. It would be a very great mistake to try to bring in the question of Scottish nationalism in this matter—and that is the question which lay at the back of the arguments of both hon. Members. Further, they both proceeded on the assumption that public opinion in Scotland—or a very large section of it—wished to see a trial period of abolition of capital punishment in Scotland. They have quoted certain letters which appeared in the Scotsman newspaper.
With all respect to the ladies and gentlemen who write to the newspapers, they are by no means representative of the whole of the community. Very often, it is the strong and silent voice of the country which does not express itself vocally—and that applies to England and Wales as well—which is really representative of the nation as a whole. I do not believe that the majority of public opinion in 737 Scotland wishes at all to see even an experiment with the abolition of capital punishment in the Northern Kingdom.
I suppose that both hon. Members who preceded me would say, "Well, the House of Commons ought to decide," and the hon. Member for Nelson and Colne (Mr. S. Silverman), whose Bill last Session undoubtedly led to the Government producing this one, would say, "The House of Commons ought to be in advance of public opinion and guide it." I certainly agree that that should be our view and our objective in very many matters concerning legislation, but here we are dealing with a matter which concerns the whole community, and we ought to take into account the view of the majority of the community when we are dealing with a matter which affects the lives and deaths of people in all ranks of society.
I have ventured to say that a considerable majority of public opinion in Scotland does not want to see this experiment made. I hope we shall not hear any hon. Member who follows me in the debate making any further suggestion about Scotland not being dragged at the heels of England, because that is a very wild suggestion indeed. I am very well aware as the hon. Member for Dundee. East has reminded us, that this year marks the anniversary of the Act of Union. I would remind the Committee that, by one of the most important provisions of that Act, the Scottish law system was preserved intact. We are not doing anything today to do away with that. We are merely suggesting in resisting this Amendment that the people of Scotland do not wish to see this experiment made.
The hon. Member for Dundee, East also spoke about letters written about people prominent in ecclesiastical circles in Scotland. I have talked to quite a few Ministers of the Church of Scotland and also to elders in my own division, and I think they are fairly representative of the views held in rural Scotland as a whole, and none of them wish to see this experiment made. The hon. Member for Edinburgh, East, hearing a muttered interjection of mine, said that we could only quote the Free Church of Scotland, but that is a small body in the north, which was unanimous in not wishing to see this experiment made. Although I do not agree with all the tenets of church government in a Church to which I do not 738 belong, I suggest that on this point they were certainly expressing the wishes of the majority of people in Scotland as a whole.
I hope that, when the time comes, the Secretary of State will resist this Amendment. If he does, he will be acting in support of the wishes of the majority, I feel sure, of the people of Scotland, and certainly of the balanced and informed opinion in that country.
§ Mr. William Ross (Kilmarnock)
The hon. Member for Galloway (Mr. Mackie) seemed to believe that we were actuated by motives of Scottish nationalism in putting forward this Amendment.
§ Mr. Ross
There would be nothing wrong, if we were, because the very Act of Union which has been so much quoted this afternoon did leave us with national control of our own legal system. Surely, if looking after something which is peculiar to Scotland is Scottish nationalism, then there is nothing to apologise for and nothing at which to sneer. That is the first of the things that I am going to say to the hon. Member for Galloway. The second is this. He said that he did not think that the evidence which we were putting forward was at all representative of the people of Scotland.
§ Mr. Ross
Well, representative of the people. As far as I know, there is only one assembly that meets annually which is at all representative of the people of Scotland, and in fact I think that it is more or less the home of democracy in Scotland. It is the General Assembly of the Church of Scotland. I think the hon. Member for Galloway himself would say that that body is representative of the people of Scotland.
§ Mr. Ross
It is not only representative of the ministers, but also of the elders in the Church, and it is interesting to see what they said in May of last year. They were asked to pass a resolution relating to the abolition of capital punishment, and, when this resolution was going 739 through, an attempt was made to put an addendum to it in the following terms—but believe it to be the duty of the State to put to death some murderers.—in other words, what this Bill does. The Very Rev. Charles L. Warr, a former Moderator, in asking the Assembly to reject it, said this:I cannot see personally how there can be any room for compromise like this between the abolitionists and the retentionists. The death penalty is right or it is wrong; for the Christian, in my view, it is a complete repudiation of the redemptive power of the Gospel, a denial of the sanctity of human personality and a denial of the human soul in the sight of its Maker.Out of that Assembly of over 3,000 representative people from all parts of Scotland, including, I am perfectly sure, the constituency of the hon. Member for Galloway—
§ Mr. Ross
—that addendum received only a dozen votes. If ever we have had a representative opinion expressed in Scotland, it was expressed thoroughly there.
When one considers the things that have been said from the other side of the House on previous occasions, one is really surprised that the hon. Member for Galloway is the only Scottish Conservative back bench Member now in his place. The hon. Member for Ayr (Sir T. Moore), the noble Lady the Member for Aberdeen, South (Lady Tweedsmuir) and all the rest of them should have been here today telling the Government what they are doing, because what the Government are doing here is saying that the punishment for murder in Scotland in future—the punishment of hanging—will be limited to certain types of murder. This certainly in no way meets the objections which they raised on the last occasion we discussed this matter, when these hon. Members put forward an Amendment which proposed to leave Scotland out of the operation of the abolition Bill.
The hon. Member for Galloway has said we must not say that Scotland must not be dragged at the heels of England, but that was exactly the argument used by his hon. and right hon. Friends on the last occasion, and I did not see him rise in his place to protest and say how silly that argument was.
§ Mr. Mackie
I did say that I was not very enamoured of the Bill, but that it was better than complete abolition. I regretted very much that a compromise had to be introduced.
§ Mr. Ross
There is far more information in the hon. Gentleman's interjections than in his speech. If he thinks so, and if he was quite impassioned about it. as a matter of life and death to every single person in Scotland, why has he not put down an Amendment to retain the Scottish practice and the legal enactments relating to it just as they are? But he is prepared to see the Government tamper with it to such an extent that probably four out of five, who otherwise might possibly have been hanged, will no longer be hanged. I cannot understand his attitude in that respect, and I very much regret it.
He said that we do not want a trial abolition period in Scotland, but the fact is that we have had it. For seventeen years no murderer was hanged in Scotland, and during those years there was no increase in the crime of murder in the way in which fears had been expressed that there would be. In fact there was an actual reduction in the figures. So we have had a period of trial and proved that, by withdrawing this deterrent, there is no increase in murder. The Scottish Office is not properly asserting itself in the interests of Scottish law and practice.
The right hon. Gentleman has already had our congratulations. He has not yet earned them, and I hope that he will do so. I should like to say a word for the "mon that is awa'". I think he has been unfairly treated by many people in Scotland. He carried the high office longer than anyone else in living memory. He exerted a considerable influence where it was required. That may have been through accident of friendship and the rest of it, but let us recognise that the influence was there. If the present Minister has not already that influence, I hope that he will assert himself and have the full power and support of hon. Members from Scotland. But he must look at this from the point of view of whether we want to make improvements under existing conditions. He must assert himself and not be held by a desire that though they want to make a 741 certain advance in England, there is no need to go any further in Scotland.
The fact is proved by what has been done in other parts of this Bill. The law and practice in relation to murder in Scotland has been considered to be in advance of England and Wales, and I do not think there is any doubt about it. That being so, I think it arises, out of the very nature of Scottish law, Scottish jurists and Scottish people, that when we have regarded the punishment of murder, we have experienced the other attitude altogether. Where we have not actually legislated for it, we have been able in practice to do something which is more civilised and much more lenient. Wherever a Scottish juryman can find a way round this awful penalty, he has found it, and we have not required legislation to do so. If in Scotland, with our experience of law—we have few lawyers from Scotland on the back benches in this House; that is probably because every Scotsman is himself a lawyer—there had been ways of going beyond this, they would have been found.
To my mind, the Secretary of State is accepting for Scotland this definition of degrees of murder, which is a solution provided by the Government to a problem which defied the Royal Commission. We should make no mistake about that. The Commission looked for it. In paragraph 534 on page 189 of its Report, it states:We began our inquiry with the determination to make every effort to see whether we could succeed where so many have failed, and discover some effective method of classifying murders so as to confine the death penalty to the more heinous. Where degrees of murder have been introduced, they have undoubtedly resulted in limiting the application of capital punishment"—the kind of thing that Scotsmen would have done, if they could have done so—and for this reason they have commended themselves to public opinion, but in our view their advantages are far outweighed by the theoretical and practical objections which we have described. We conclude with regret that the object of our quest is chimerical and that it must be abandoned.And the Government, in a few short weeks, are able to find a solution, under pressure of a decision of Parliament, and in order to placate some other supporters of the old Scottish latter-day Lord Braxfield. For the benefit of my English colleagues, I would explain that Lord Braxfield was a well-known Scottish 742 judge who regarded everyone who came before him as "none the waur for hanging." There are still some latter-day Braxfields on the benches opposite.
The position is that the Scottish Office participated in this, or was told about it, after a decision had been made to solve a problem that in two years the Royal Commission, ardently anxious to solve, had failed to solve. I am surprised that, even during the short period in office, the Secretary of State for Scotland is prepared to accept this compromise, this classifying of certain kinds of murder—if the right hon. Gentleman would like to make his maiden speech now, I will sit down.
§ The Secretary of State for Scotland (Mr. John Maclay)
My "maiden speech," if that was it, was that I did not know that I had yet spoken.
§ Mr. Ross
The hon. and gallant Gentleman is not going to tempt me. I should love to give him an answer to that.
This retention of the death penalty for certain murders, so far as I can find out, is defended by the English defenders of this Bill for the only reason that there are murders which particularly affect public order. I have not been able to follow that out through these classifications, which include murder done in the furtherance or course of theft; murder by shooting or causing explosion; murder while resisting arrest; the murder of a police officer and the murder of a prison officer. I do not think that will satisfy the cold logic of the Scottish people. In fact, I doubt whether it will satisfy the people of Britain as a whole. The fact is that the most calculated type of murderer may well escape.
On the last occasion we debated this matter the noble Lady the Member for Aberdeen, South referred to Lord Justice Cooper who said:We have practically now reached the position in Scotland where only intentional killing is murder.743 If there is anything more intentional than poisoning, and if this is the interpretation of the reasons for the move towards leniency in Scottish law, I am afraid that the Secretary of State for Scotland, in giving way to this kind of thing, is flouting that ideal. What it demonstrates is the impossibility that justice should proceed along this way, and that there is really no other way out in respect of this than complete abolition.
I appeal to the Secretary of State to take that step. We have already been told that we are a comparatively law-abiding country; that our record in respect of murder is much better than that in this lawless South. The figures have been quoted before. They are for Scotland 2.5 per 100,000, whereas in England the figure was, if it is not now, double that.
Our record on sentences of death carried out is about one person hanged in every 2½ years over 30 years. If we are now to limit capital murders by this Bill, obviously the number of those who will be hanged in Scotland, if at all, will be infinitesimal. For that very small number, whose value is absolutely nil and cannot be justified by anything found by the Royal Commission, we are to flout the opinion of the leaders of the Scottish Church and the Assembly of the Church of Scotland with respect to deep feelings about the redemptive power of the Gospel. The determination to retain this power for these very few with all the grim trappings of the gallows is something which cannot be justified by any Secretary of State for Scotland.
I said earlier that the right hon. Gentleman has our congratulations; I sincerely hope he will now earn them by showing some independence of these backward administrators and legislators of England and Wales, that he will demonstrate that we are determined to keep our law in Scotland and the practice of our law very much ahead of that in England.
§ Mr. George Lawson (Motherwell)
I do not wish to attempt to repeat the arguments of my hon. Friends, but one point I feel has not been made adequately. That point only I wish to make now.
I do not think the Secretary of State for Scotland in his first speech in that office would wish to speak for a Bill 744 which would actually worsen the position of Scotland compared with the present position. This Bill very materially improves the law in England. It makes the law with reference to hanging much more humane in England and Wales, but it certainly does not do so in Scotland. Scotland has been excluded from the first part of the Bill because that part is thought not to be necessary in Scotland. It is thought that the practice in Scotland is such as to make the provisions laid down for England and Wales unnecessary in Scotland as the practice there very much embraces the suggested practice. In Part Scotland is brought in, and in that there is the highlighting of certain types of murder in such a manner that, I submit, it will be expected in future, when murders are committed by these means in Scotland, that no longer will mercy be shown but the murderers will be treated exactly as in England and Wales.
In Scotland, there is scope for differentiation in cases of poisoning and shooting, or when a person caught in the act of theft strikes the person arresting him in an effort to escape and kill that person. As the position exists, there is scope for judgment, discrimination and decision whether or not such murders should be treated as capital murder, but, as the Bill is drafted, that scope would be taken away. It is not a question of definition, of saying, "You can have your scope as in the past in all murders except these", but in future, any murder of this character will be regarded as capital murder. That was not the case in Scotland up to now, but it will be in future.
I submit to the Secretary of State that it is not a question of bringing English or Welsh law to a position comparable with or as advanced as Scottish law, but it is a worsening of the Scottish practice we have today. Although we might argue whether Scotland should be put ahead of England and certain provisions made for Scotland and not for England, I submit that to worsen the position in Scotland is something at which we should take very serious offence. We are not talking Scottish nationalism, but we take pride in Scottish humanitarianism and the attitude we have adopted towards problems of this kind.
The Government are saying that that is no longer to be permitted in Scotland, 745 that we are not to be allowed to be more humanitarian, more kindly, more generous, tolerant and understanding than in England and Wales, but that we shall conform to the same standard. We are being made to toe the line. We are having taken from us a choice which at present we have. If the Secretary of State tells us he supports that, this is a black day for Scotland.
Something was said about the former Secretary of State. We all liked the former Secretary of State; one thing we admired in him was his courage. When dealing with the Food and Drugs Bill, he adopted a Measure which was not in conformity with the English Measure and which was certainly not liked by the Government of that time. He said, "This is sound", and applied it to Scotland. Let us see if the present Secretary of State is prepared to do that, and to see that Scotland is not worsened in its existing position.
§ The Secretary of State for Scotland (Mr. John Maclay)
First, I wish to thank hon. Members who have made kind remarks about my assumption of my present office. Of my predecessor. I only say with all sincerity that if, after having served for some time, I feel that I have done half as well as he did for Scotland, I shall be profoundly grateful.
I have listened to the arguments very carefully indeed. We have heard statistics quoted and the words "public opinion" used several times in support of different points of view. The short answer to those arguments is that statistics in this, as in so many other cases, can be used to prove almost anything. In considering the figures which were given most reasonably by two hon. Members opposite, one must remember that during the period when there were no hangings in Scotland, the death penalty was in reserve. No one can prove anything one way or the other as to what would have happened if it had not been in reserve. All we know is what the figures were with the death penalty in reserve. One can draw conclusions as hon. Members opposite do, one way, and we on this side can draw conclusions another.
In a few minutes I will come in more detail to some of the major issues which have been raised, but I wanted to make clear that we cannot prove convincingly what the death penalty in reserve has 746 meant during those years. But we can look to the Royal Commission for certain remarks in relation to offences against law and order and we can quote the Royal Commission rather differently from the manner in which it has been quoted by hon. Members opposite.
§ Mr. G. M. Thomson
I agree that if the death penalty had been in reserve for two, three or four years there would be great force in the right hon. Gentleman's argument, but in fact no hangings took place in Scotland over a period of 17 years. For half of that period criminals in Scotland must have gone about their criminal ways with very considerable assurance that they would not suffer hanging if they committed murder.
§ Mr. Maclay
That is not necessarily a very conclusive argument, because at a later stage hanging took place, and all through the 17 years it was realised by potential criminals, by people who might have carried arms and probably did not carry arms when setting about their normal illegal activities, that they might be hanged if they committed murder. There are some professional wrongdoers who, unfortunately, have a certain pride in their profession. One of the things which I have learned is that many of the members of that class are very determined not to carry arms because of the ultimate possibility of their using the arms when they are on a job. One can argue this point indefinitely, because different people will always draw different conclusions from the figures. What we are discussing at the moment is whether we can have one supreme penalty in England and Wales and a different penalty in Scotland.
I am certainly not one of those who think that everything ought to be done in Scotland exactly the same as in England, but there are cases when it would be folly to have startlingly different procedures, and this is one of them. If the Committee will permit me, I will try to pull together some of the arguments on this question of the application of the Bill to Scotland, even at the risk of being a little repetitious of previous debates, particularly debates last year. I want to lead up to the key point of the Royal Commission argument which has been used, and I would rather do it in the full setting of an argument than deal piecemeal with the various points raised by hon. Members opposite.
747 Under the Bill, only the penalty for murder will be altered in Scotland. In Scotland, as in England and Wales, the death penalty will be restricted to murders committed in certain circumstances, which are defined in Clauses 5 and 6. The hon. Member for Kilmarnock (Mr. Ross) read them out. Had he not done so, I should have done so; but I do not want to repeat them now. They are worth looking at. The circumstances which are set out in Clauses 5 and 6 are the circumstances for which the ultimate penalty is retained, and the Amendment which we are discussing would abolish the death penalty even in those cases.
I agree that the differences in the legal systems of the two countries, and particularly differences in the law of murder, which are being reduced by the Bill, are largely irrelevant to the issue which we are now debating. On the fundamental question of penalty, the Government maintain—and I agree entirely with my colleagues in this matter—that there ought to be no difference between the House's decision for Scotland and its decision for England and Wales.
§ Mr. Willis
Surely for years there has been a very big difference in the law relating to suicide. A partner in a suicide pact in Scotland was not liable to be convicted of attempted murder, but I understand that he could have been so convicted in England. That is a very big difference in the penalty for a similar offence.
§ Mr. Maclay
Certainly, but I do not think that affects the main point which I made, that where there is a clear verdict of capital murder the penalties should be identical in the two countries. I am convinced of that.
748 If I may continue one of the arguments in favour of it, I feel that I cannot do better than quote what my predecessor said on this point last May during the debates on the Bill introduced by the hon. Member for Nelson and Collie (Mr. S. Silverman). He said—in the opposite context, but it still stands—that it could not be regarded as satisfactoryto enact a law which would result in a different penalty being imposed in Scotland for a crime for which the existing penalty and the degree of moral guilt are identical in both countries."—[OFFICIAL REPORT, 16th May, 1956; Vol. 552, c. 2166.]That is a very strong argument.
We think it would be illogical and inexpedient to abolish capital punishment in Scotland while retaining it in England and Wales for murder in the several circumstances set out in Clauses 5 and 6. As my right hon. Friend the Home Secretary explained in the earlier debates, the ground for retaining the death penalty in those circumstances is that it will prevent crimes which particularly endanger law and order and which are specially likely to be prevented by retaining the ultimate sanction of the death penalty.
At this stage of the Bill, when we are discussing Scotland, it seems worth while recalling that the Royal Commission, in its examination of the deterrent effect of capital punishment, made no distinction between Scotland and England. I quote from paragraph 61 of the Royal Commission's Report—a long quotation—in which, surveying the evidence on the point, the Royal Commission said:Of more importance was the evidence of the representatives of the police and prison service. From them we received virtually unanimous evidence, in both England and Scotland, to the effect that they were convinced of the uniquely deterrent value of capital punishment in its effect on professional criminals. On these the fear of the death penalty may not only have the direct effect of deterring them from using lethal violence to accomplish their purpose, or to avoid detection by silencing the victim of their crime, or to resist arrest. It may also have the indirect effect of deterring them from carrying a weapon lest the temptation to use it in a tight corner should prove irresistible … we cannot treat lightly the considered and unanimous views of these experienced witnesses, who have had many years of contact with criminals. Some of our most distinguished judicial witnesses—notably the Lord Chief Justice, Mr. Justice Humphreys and the Lord Justice General—felt no doubt that they were right.749 We, too, feel bound to give great weight to this testimony, which includes that of the late Lord Cooper, who spoke with particular authority. We are fortunate, as has been pointed out already, in having a low murder rate in Scotland. For the first 50 years of this century the average figure was 2.52 murders per million of our population recorded each year. This does not prove, however, that the death penalty is no longer necessary. We do not know, as I have pointed out earlier, how many potential murderers are at present deterred by the death penalty. The low murder rate could be argued equally strongly to indicate the sanction of capital punishment as a deterrent in Scotland.
Believeing, as we do, in the death penalty in the restricted circumstances mentioned in Clauses 5 and 6 as a necessary safeguard, we could not contemplate making an experiment by abolishing it in Scotland. With our responsibility for maintaining law and order, we could not properly abandon in Scotland sanctions which are to remain available South of the Border.
For these reasons, and although reluctant not to have earned the enthusiastic praise of hon. Members opposite straight away, I must ask the House to reject the Amendment.
§ 7.30 p.m.
§ Mr. Anthony Greenwood
I am very disappointed in the right hon. Gentleman and in what he said. Indeed, I am running some risk of rising in order to tender my congratulations to him on achieving his office and at the same time to express my disappointment at his first exercise of his powers.
Last Session I ventured to intervene in a discussion on Wales and escaped with my life, and I therefore felt emboldened to run a certain risk tonight and to congratulate the right hon. Gentleman. I wish I could now do that as enthusiastically as I had intended when the discussion on this Amendment began. I am, however, very disappointed in what he has said. I am sorry that there are not more Scottish Members on the other side of the Committee to join with me in expressing disappointment.
I realise that most of the coherent Conservative Scottish Members are, of course, Joint Under-Secretaries of State in the right hon. Gentleman's Department. 750 Nevertheless, I would have thought that at least some of the others would have attended on such an occasion as this. I think that a number of them would have had a great deal of sympathy with the cases deployed by my hon. Friends the Members for Edinburgh, East (Mr. Willis) and for Dundee. East (Mr. G. M. Thomson). It seemed to me that they stated their case with a relentless logic that the Secretary of State himself did not destroy. The fact is, as my hon. Friend the Member for Edinburgh, East reminded us, when the House discussed this matter on an earlier occasion it decided, by a vote of 213 to 157, to abolish capital punishment for Scotland. That seems to support my hon. Friend's contention that there is a great deal of feeling on this subject north of the Border.
In spite of all the efforts of the Secretary of State to convince us of the serious state of crime in Scotland and of the uncivilised character of the population whose welfare he is safeguarding in this House, I have always had the impression that in this matter Scotland has always been a great deal more civilised than we have been in England, and what my hon. Friend the Member for Dundee, East had to say about the long period when there was no hanging in Scotland, and the remarks of my hon. Friend the Member for Motherwell (Mr. Lawson) certainly sustained me in that point of view which I had held until I heard the Secretary of State speak.
With great respect to the hon. Member for Galloway (Mr. Mackie) and to the right hon. Gentleman, I do not think that the point of this Amendment is whether we preserve hanging or abolish it. I thought that my hon. Friend the Member for Motherwell really reached the heart of the matter when he said that the whole point here is whether we are to preserve something which has been good in Scotland and whether we are to preserve the separate legal system that Scotland has had for so long. Surely that must be a point that appeals to everybody with a sense of tradition and with a real wish to conserve what is good in the system that history has handed down to us.
I can well understand the attitude of my hon. Friends from Scotland, who are really taking the view that if changes are to be made they should be changes for the better and not for the worse. It is 751 a little ironical that, just at the moment when we, south of the Border, are incorporating in our law one of the bettor provisions of the Scottish law, we should be going out of our way to foist upon the Scots this quite ridiculous hotchpotch which the Government have brought here for our consideration. If the system in Scotland were being improved, I am sure that my hon. Friends would be prepared to give their support, but they are not prepared to saddle their constituents with this absurd Anglo-Saxon concoction which has come out of the Home Office.
I think that all of us are getting a little disheartened and depressed at the way in which this Bill is going. We have stressed over and over again many of the considerations which my hon. Friend the Member for Edinburgh, East laid before us earlier this evening. Over and over again we use the arguments; over and over again we get either the same reply or no reply at all. Although I have been happy to learn from tonight's discussion that my hon. Friends from Scotland have been watching our vain struggles with some sympathy, nevertheless I am beginning to wonder whether we are making any headway at all.
My hon. Friends are perfectly entitled to divide the House on this issue. They have put their case with great force and great clarity. The case that they have advanced is an overwhelming one, but they get no effective reply from the Secretary of State, just as we south of the Border, get no effective reply from the Home Secretary. I have very grave doubts whether any of our discussions are having any effect at all.
It may be that my hon. Friends will feel that they could be using their own time and the time of the Committee more effectively by passing on to some of the other matters which are before us for consideration tonight, but if they feel strongly that they cannot impose upon their constituents the same silly system which we are adopting in this country and feel it necessary to divide the House on this issue, I should certainly be with them, although I am very doubtful whether anything we can do at this stage could alter the Government's mind.
§ Mr. G. M. Thomson
I am grateful for the assistance which we in Scotland have had from our hon. Friend the Member 752 for Rossendale (Mr. Anthony Greenwood), and for the sympathetic consideration which he has given to our very strong feelings. I should like to say to him that we feel that this is a matter of such importance and principle in Scotland that we should, in fact, like to divide the Committee unless, in our subsequent discussions with the Secretary of State, we hear something rather more promising from him.
In his first appearance in his new office, the Secretary of State for Scotland has given us a very disappointing answer on an issue that does not, primarily, divide the two sides of the Committee, but is a Scottish issue in its most distinctive form. I had hoped that he would have wished to say that he had come into office only a short time ago but realised this was a distinctive Scottish issue and would like to give further consideration to it, perhaps on Report, before finally committing himself.
I understood that he really based his case on what his predecessor said before him about preserving uniformity on this matter between Scotland and England. He said that in relation to the penalty for the crime of murder he did not want differences between the two countries. If I may say so, that does not really bear examination at all, because of course for many years there have been real, important and practical differences between the penalty for murder in Scotland and that in England.
I would direct the right hon. Gentleman's attention to paragraph 382 of the Royal Commission's Report, where is discussed the issue of diminished responsibility in the Scottish practice, which is substantially different from the English practice. In the middle of that paragraph we find this statement:An examination we have made of the records of seven selected cases shows that in none was the accused certifiably insane, and that in three the psychiatric element of the defence was weak. While such comparisons are inevitably untrustworthy, our impression was that, if these seven men had been tried in England, they would probably all have been convicted of murder and sentenced to death.…When the Royal Commission, with all the natural caution of such a body saysthat, if these seven men had been tried in England, they would probably all have been convicted of murder and sentenced to death753 we have a very clear illustration, from extensive investigations, that in fact the penalty for murder in Scotland has been different from that in England. Our law is operated more humanely. This plea for uniformity which has been put before us is not only the wrong kind of plea for a Scottish Secretary of State to make on a matter in which Scottish traditions are so involved, but is one not sustainable in the light of evidence over a very long period.
I would beg the right hon. Gentleman most earnestly to reconsider this matter and to see whether he could not give us a more optimistic statement on his outlook. Will he not, perhaps, say that he will give this matter further consideration before a final decision is taken in relation to murder in Scotland?
§ Mr. Willis
Like my hon. Friend the Member for Dundee, East (Mr. G. M. Thomson), I am very disappointed with the reply of the Secretary of State for Scotland. In fact, the right hon. Gentleman did not make much of a reply to the arguments advanced from this side of the Committee. Apart from making a few perfunctory observations, all that the right hon. Gentleman did was to read a brief which had obviously been read by the Home Secretary when replying to the English Members on Clauses 5 and 6. It may have been a different brief, but it was practically the same argument.
The right hon. Gentleman's reasons for doing that was explained when he said, "We could not really allow the position in Scotland with regard to the death penalty to be different from that in England". But, of course, they have never been the same. This is the first attempt to make the position in Scotland and that in England the same. My hon. Friend the Member for Motherwell (Mr. Lawson) made a very pertinent and strong case. People who in Scotland escape the death penalty would in England, as has been pointed out, have been sentenced to death. That is true in a number of cases. The Scottish verdict of "not proven" is quite different from anything that exists in England, and has allowed Scottish juries to exercise a humane discretion where they have had any doubt at all about a person's guilt. That is very important in Scotland, and it will still be in existence after this Bill is passed.
754 The law relating to suicide is, or was, totally different in Scotland from the law in England. No matter how we look at this question, the very basis of the right hon. Gentleman's arguments do not bear examination for a moment. I am surprised that the Lord Advocate should sit next to him and allow him to get away with this sort of thing. Indeed, we ought to have had a reply from the Lord Advocate. We do not hear him very often; we certainly should have heard him on this very important legal matter.
There have been one or two references to statistics, but I did not use any statistics when I made my case because I know that statistics can be used for almost any purpose. When the right hon. Gentleman said he did not know what would have happened if there had been no death penalty, and argued that the very low rate of murder in Scotland occurred whilst the death penalty was capable of being used though in fact it was not used, I take it that he regarded the existence of the death penalty as having some deterrent value.
But, as I have already pointed out, it ignores the fact that the Government have made nonsense of the deterrent argument. Apparently they believe that it exists only in respect of a certain section of the community. That was the right hon. Gentleman's final conclusion, that we should retain the death penalty to protect officers of the law in carrying out their duties and to discourage people from carrying arms. I have listened to those arguments, and whatever their relevance might be in England, I am unable to understand their relevance in Scotland.
As I have said before, we have not had in Scotland the cases which have occurred in England and which have high-lighted all these matters. I think that anybody looking back over the years since the war will agree that there have been in England a number of cases which have high-lighted certain types of crime and have aroused a certain amount public sympathy. But where is the Scottish evidence? Where are the cases in Scotland that have high-lighted these forms of murder? I do not know where they are, and the right hon. Gentleman certainly referred to none of them when he tried to answer our case.
755 7.45 p.m.
The right hon. Gentleman ought to have given us some evidence. He should not have based his case on a general survey of the evidence made by the Royal Commission which, in the main, was evidence based upon English witnesses. I agree that certain Scotsmen gave evidence, but the basis of the arguments is to be found in England and not in Scotland. We ought to have had a better answer than we have had from the right hon. Gentleman. Certainly if we do not get a better answer than we have had, we ought to divide the Committee on this very important issue.
§ Mr. Ross
I am disappointed with the Secretary of State. If this is going to be his customary attitude, I can only say that the silence of his predecessor is preferred to his utterances. He tells us that we cannot have startlingly different penalties. Why not? What we want are the right penalties. In any case, if, as the right hon. Gentleman says, we cannot have startlingly different penalties without there being something wrong, there must have been something wrong for a long time, and he, when he was a back bencher, failed in his duty in allowing such a state of affairs to exist in relation to murder and to suicide.
It is not good enough to laugh off this business of the "not proven" verdict. The very fact that an English jury has to say "yes" or "no"—black or white—whereas in Scotland it is "yes" or "no" or "maybe", more or less proves the point that has been made time and again that the whole attitude in Scotland in relation to this matter has been one of leniency.
I am surprised that the Secretary of State for Scotland should say that we cannot have different penalties. We have had them, and our tradition in Scotland is one that we believe to be right. We should be proceeding along those lines instead of waiting for England to catch up with us.
The right hon. Gentleman also said that the seventeen years suspension of the death penalty in Scotland did not make any difference to our argument because the death penalty was there in reserve, and that in any case, it had to be brought into being eventually. There might be some justification for saying that if he could tell me that the people for whom it 756 had to be brought back are covered by this Bill. If my recollection is right, they are not so covered. That in itself destroys any value that the right hon. Gentleman's speech may have had.
While the right hon. Gentleman was reading the brief I thought that it had been prepared by someone in the Colonial Office rather than in the Scottish Office. I hope the right hon. Gentleman will do very much better in the future. He made no reference to the attitude of the Church of Scotland. He made no effort to answer that point at all, and I thought that at the least it merited some comment.
§ Mr. Ross
That is one of the reasons why I thought that the brief was the product of the Colonial Office rather than the Scottish Office.
I am indeed sorry that we should have this sort of thing from the right hon. Gentleman. I sincerely hope that we shall hear from the Lord Advocate in this subject. There have been many occasions when he has been deprived of the opportunity of speaking by his English colleagues. We were anxious to hear him, and we have heard too little from him. I sincerely hope that he will give us an answer.
There has been absolutely no justification at all for what the Government are proposing to do. It is not good enough for the right hon. Gentleman to say that these things have special relation to law and order. May I remind him that the law relating to capital punishment in Scotland is related not only to murder; death is the penalty for treason and for the wilful shooting, stabbing, poisoning or strangling of any of Her Majesty's subjects or the throwing of sulphuric acid or other corrosive substance with intent to murder or to cause grievous bodily harm. We find that made clear in paragraph 18 of the Report of the Royal Commission.
Why is it that law and order should be specially protected by this Measure in relation to murder by shooting? We are forgetting all about stabbing, poisoning, strangling, and all the other ways.
§ Mr. Ross
I was about to point out that if in the past there had been any difficulties with gangs in the industrial part of Scotland, the instruments were 757 not usually guns, but razors, the end of a bottle, or something like that. Certainly, these things have been very much exaggerated and, in my view, quite unfairly so. But if we are to have this law in Scotland, then it is up to the Secretary of State to justify it, not merely to say that it is a good thing but to prove to the people of Scotland that it is right, not merely to say that we are to have this because it is the same as the law in England and we cannot have two penalties.
We have always had a different system, and we pride ourselves, surely, on our independence of judgment, on our tradition in respect of law and our progress in respect of law. I sincerely hope that the Lord Advocate will address himself to this matter; otherwise we must carry on with this debate for some time.
§ Mr. Paget
I hope that the Secretary of State will, after hearing all these arguments, feel that this is a matter upon which it is worth while for him to keep his mind open until he knows something about it. The one thing which was plain when he came to speak was that he knew nothing whatever about the subject. One can readily understand it; he has come recently to office, and it is impossible to get hold of everything at once.
As to the Scottish aspects, that is quite understandable, but it was about the English aspects that he so plainly knew nothing whatever or he would not have read us a brief which was at least two years out of date. The right hon. Gentleman's brief was what the English started on two years ago. Piece by piece, it has been torpedoed. His English colleagues would not have dared to trot out all that stuff. It all went years ago, yet we have it all trotted out in our debate today. The right hon. Gentleman read to us all the stuff which we had rejected years ago.
This subject is too important for such treatment as that. It is surely time that the right hon. Gentleman, in his new office, said that he appreciates that this is a subject to which it is worth applying his mind and that, when he does so, he will apply it openly and see if there is something to be said.
§ Mr. Emrys Hughes (South Ayrshire)
My hon. and learned Friend the Member for Northampton (Mr. Paget) has just 758 asked the Secretary of State for Scotland to apply his mind again to the question as to how far this matter affects Scotland. We should like to help him to apply his mind to the matter. I suggest that one of the ways in which he could learn to apply his mind to it and survey the whole situation from the Scottish point of view is this. Even at this stage, he should arrange with his colleagues for the matter to be referred to the Scottish Grand Committee. I have never been able to understand why a matter of this kind, where the law is so very different from the law of England, should not be discussed by Scottish Members.
§ The Temporary Chairman (Sir Norman Hulbert)
I am afraid the hon. Gentleman cannot discuss the Scottish Grand Committee on this Amendment.
§ Mr. Hughes
I did think that this procedure would have been helpful to the Secretary of State in the process of applying his mind to the problem.
§ The Temporary Chairman
It may or may not be helpful to the Secretary of state, but it is out of order.
§ Mr. Ross
On a point of order, Sir Norman. Might I remind you that when this matter was last before us and we had an Amendment from the other side of the Committee proposing to do much the same as this one does, the noble Lady the Member for Aberdeen, South (Lady Tweedsmuir) made this very point and discussed the question of a separate Scottish Bill to deal with it. and she was in order.
§ The Temporary Chairman
I was not in the Chair when the noble Lady made the suggestion. It was certainly not on this Amendment.
§ Mr. Hughes
If that is your Ruling, Sir Norman, I will pass on.
I suggest that the Secretary of State should consider some of the traditions which have hitherto prevailed in Scotland. There was a very famous Scottish Lord Advocate, Mr. Craigie Aitchison. I am quite sure that if the Lord Advocate and the Solicitor-General for Scotland were to look back at the opinions given by Mr. Craigie Aitchison, afterward Lord Aitchison, especially in relation to the law of murder and homicide in Scotland, they would find that those observations 759 and opinions expressed by Mr. Craigie Aitchison would help them to adopt a more progressive outlook than has hitherto been shown in the discussion of this Bill.
I remember that at one time I used to meet Lord Aitchison very frequently when he was the Member for Kilmarnock. I am sure that the arguments advanced by my hon. and learned Friend the Member for Northampton must have been based on an understanding and interpretation of the Scottish law of murder and homicide so frequently argued in the Scottish courts by Lord Aitchison.
In discussing this matter we must remember that one cannot lump together Scottish law and English law. A man who is on trial for murder in Scotland gets a far better chance of a reasonably humane verdict than a man on a similar charge in the English dock.
§ Mr. M. Philips Price (Gloucestershire, West) indicated dissent.
§ Mr. Hughes
My hon. Friend the Member for Gloucestershire, West (Mr. Philips Price) seems to doubt that. May I point out that it would be quite impossible in Scotland to have the spectacle of a man charged with murder being tried first in the magistrates' court. That is indeed a very important matter. If a man is charged with murder in Scotland, there is no possibility of there being any sort of dress rehearsal in the sheriff court before he goes to the High Court.
I do not wish to be too critical of the English procedure, but it is a fact that this dress rehearsal of charge and trial, with all the sensational publicity that such proceedings receive in the daily and Sunday Press in these days, does prejudice in advance the trial proper. Of course it prejudices the jury.
In Scotland it would be impossible, as the Lord Advocate will agree, if there had been a sensational charge of murder, for the papers to be full of it before the trial in the High Court or even before the jury was empanelled. So I suggest to the Lord Advocate that he should put to his right hon. Friend the Secretary of State for Scotland the need for keeping this Part of the Bill, so it affects Scotland, out of the Bill. Let us have a new Bill. If it is important to have separate 760 Measures for Scotland dealing with rates and rent, why should it not be equally possible to have a separate Bill for Scotland dealing with life and death?
I suggest that the time has come when the Secretary of State and the Lord Advocate should take the enlightened point of view on this Amendment that I am sure legal and public opinion in Scotland demand.
§ Mr. Ross
We understand and appreciate the difficulties of the Secretary of State for Scotland. The right hon. Gentleman is very new to his job, as he made fairly obvious tonight. We should have the advantage here of a man who has been studying this matter for years and has always been denied the chance to speak on it. I do not think I should be out of order in asking that the Lord Advocate, who is the spokesman for Scotland in such matters and who has been studying the matter for so long, should address the Committee.
§ Mr. Willis
I must support the plea made by my hon. Friend the Member for Kilmarnock (Mr. Ross) concerning the Lord Advocate. We are in a ridiculous position tonight, in that we are discussing the law of murder, something affecting men's lives. We are passing a Bill which will radically change the whole of the Scottish law relating to murder. That is what we are doing, and the chief Law Officer of the Crown for Scotland has not a cheep to say about it. What does the right hon. Gentleman think that people will say in Scotland tomorrow? What does he think his colleagues will say in Parliament House tomorrow? What does he think the public will say tomorrow when this Committee of the House of Commons can make the most drastic change in the law of murder for Scotland and the Lord Advocate sits silent on the Government Bench?
In spite of the fact that the Bill has been bitterly attacked from this side of the Chamber, we are entitled to expect that the chief Law Officer for Scotland should tell us why these changes should be made, what they mean in terms of Scottish conditions, what change they can bring about in Scottish practice, whether they affect Scottish practice. We do not know. We have never been told. Are these provisions supported by the Bench in Scotland? Are they supported by the Faculty of Advocates? Who supports 761 them? We are entitled to have a word from the right hon. and learned Gentleman on this important matter.
§ The Lord Advocate (Mr. W. R. Milligan)
I did not intend to intervene on this Amendment, but I will crave the indulgence of the Committee for a moment. The hon. Member for Edinburgh, East (Mr. Willis) stated that the Committee is at present discussing the law of murder. He is in error in that matter. We are discussing the penalty for murder in this Amendment.
§ Mr. Willis
We are discussing whether Clauses 5 and 6 of this Bill shall apply to Scotland, and those Clauses affect the law of murder in Scotland.
§ The Lord Advocate
The hon. Gentleman again uses the words "the law of murder". As I understand this Bill, the law of murder is dealt with in Part I of the Bill, and that does not apply to Scotland. Part II, to which the Amendment before the Committee relates, deals with liability to the death penalty. In so far as I could have assisted the Committee on the law of murder, I should have been only too delighted to intervene, but the only relevance to this Amendment is liability to the death penalty.
§ Mr. G. M. Thomson
I cannot allow the Lord Advocate to get away with this. In the first place, he should have spoken to us at a much earlier stage in our discussions. I shudder to think what my hon. and learned Friend the Member for Northampton (Mr. Paget) would have done if he had found it necessary to carry on the English part of these debates without hearing a word from the Attorney-General.
The Lord Advocate is the legal expert for Scotland on the benches opposite, and the least respect he could have paid to this highly important matter would have been to intervene at a much earlier stage. When we finally got him to his feet we hoped that the right hon. and learned Gentleman would treat us with a little more respect than legalistic hair-splitting, because the Amendment is to a proposal by the Government to change the law of Scotland in relation to the crime of murder. Whether this is something to do with the penalty or with the law of murder is legal hair-splitting. What we want from the Lord Advocate, and we are entitled to have it, is some case put for 762 the proposal that the Government are making.
We have had from the Secretary of State for Scotland—perhaps all we could get from him in his present circumstances—only his simple, official brief saying that we ought to remain uniform with England. It was a brief that did not stand up to the slightest examination, and it was not an answer which dealt with any of the points raised by this side of the Committee, nor was it a statement that put the case for the change which the Government are proposing to make.
We are entitled to have from the chief Law Officer for Scotland on such a vital matter as this, in the biggest change in the criminal law of Scotland that we have had for many years, at least some estimate of the change this will mean in Scotland. What does the Lord Advocate think it will mean in terms of the reduction of the number of executions if the Government have their way? How many people are involved? As far as I can see from the figures, the number of people in Scotland within the categories for whom murder is retained in the Bill amounted over fifty years to about thirteen.
The Secretary of State himself said that these statistics have to be used with great caution and that the Scottish statistics in the Report of the Royal Commission, given on page 306, are not as detailed as those for England. Therefore it is not possible to tell from them whether there have been convictions in Scotland for the murder of police officers or for the murder of prison officers. I want to know from the Lord Advocate, and he ought to tell us, whether the absence of this information from the Scottish total is merely due to inadequate information or whether there have been over the last fifty years in Scotland convictions for such murders. It is important to know that, if we are to change the law of Scotland in this respect.
May I also submit that if the number of convictions for murder over fifty years is thirteen, and presumably only a small number of those suffered the death penalty, what will happen in practice in Scotland if the Bill goes through is that the death penalty will be abolished over a much wider area than in England. This, of course, is something which will be met with satisfaction by those of us in the Committee who dislike the death penalty 763 on principle. If this is so—and we must have the figures—surely it strengthens our case. Surely, if we are going quite a long way to abolishing the death penalty in Scotland in the Government Bill, and given the Scottish conditions, it strengthens the case for the Secretary of State for Scotland taking his courage in his hands and saying, "We will abolish the death penalty altogether in Scotland."
It is impossible for this Committee and the Scottish Members of the House of Commons to take a decision on this crucial issue—one that stirs men's consciences much more than most issues in recent years—without having much more adequate information from the Lord Advocate on the Scottish aspects of this matter. I think that we should insist in this Committee that we get a much more adequate answer from the Lord Advocate.
§ Dr. J. Dickson Mabon (Greenock)
In the exchange of argument, it seems to me that there is a very substantial adverse balance of trade hanging against the Government at the moment. There is one argument which causes a certain amount of grave doubt in the minds of many Scottish Members which has not been answered by anyone on the Government Front Bench, and on which I think we are entitled to an answer.
My hon. Friend the Member for Motherwell (Mr. Lawson) asked if it were not the case that not only were we simply remaining unimproved in the Bill in relation to Scotland, but that we were actually suffering adversely from the change in the Bill. Is that true? Is this a sound argument that Scotland is actually, by pinpointing capital offences in the manner in which it does specifically in Clause 5, being adversely affected by this Bill? I think that we are entitled not only to have an answer on this matter, but a clear explanation of it.
We are accustomed to getting clear explanations, however infrequently, from time to time on various issues. I plead with the Lord Advocate that on this matter—and even by courtesy we have not heard a word—we are entitled to know our position and whether Scotland is getting a raw deal by the Bill, even if we are not actually getting an improvement.
§ The Lord Advocate
Perhaps I can help the Committee on two points. The hon. Member for Greenock (Dr. Dickson Mabon) asked whether the position in Scotland vis-à-vis murder was being adversely affected by the Bill. The Committee will note that Clause 5, which is perhaps the most important Clause of the Bill, merely states that certain crimes, if they are murder, will be treated as capital murder. It will be necessary, of course, in each case to satisfy a jury that it is murder at all. It will be perfectly open for a jury in Scotland, in certain circumstances, to bring in a verdict of culpable homicide. It does not say that these crimes, which perhaps in certain circumstances would not be murder before, should be murder now. All that the Bill says is that if murder is committed in these circumstances, then the capital penalty will attach.
The hon. Member for Dundee, East (Mr. G. M. Thomson) asked whether or not there had been any case of what might in Scotland in future, be capital murder under Clause 5 (1, e). That is the prison warder section. As at present advised. I think that the answer is that in the last 50 years, there has been none.
§ 8.15 p.m.
§ Mr. Emrys Hughes
I listened to the Lord Advocate more in sorrow than in anger, because I remember the long arguments we had in getting him into the House of Commons. I think with sorrow of the very large number of questions which I used to put to the right hon. Member for Woodford (Sir W. Churchill) when he was Prime Minister, asking when the Solicitor-General for Scotland would he able to come into this House in order that we could hear him. Now that he has arrived, and now that he has attained the post of Lord Advocate, I begin to wonder whether my energies were really wisely directed. He has only said just enough to whet our appetites for more. I am sure that the English Members, especially the English legal Members of this Committee, were very interested in what he said about culpable homicide. But why is it that Scottish juries return this verdict of culpable homicide? It is because they object to the penalty for murder.
That throws a very great light on the argument for and against this particular Amendment. That is why Craigie Aitchison, the famous criminal advocate 765 in Scotland, was so successful. Craigie Aitchison was nearly always successful in getting the charge of murder reduced to one of culpable homicide. Scottish juries seize upon culpable homicide as a way to avoid what they consider the barbarity of the death penalty. Now the Lord Advocate has given us a little information about the number of officers who have been murdered in Scottish prisons. In the last fifty years, there has been none. Can he now tell us not only about the prison officers but about the other people?
Why was the law of capital punishment in Scotland practically put into storage for a period of eighteen years? That is because there is something in the law of Scotland that is rather distinct. We have had a good deal of argument on the Scottish section of the Bill in which various hon. and learned Members have gone into great detail about specific cases which they have used for the sake of argument. I wonder if the Lord Advocate would explain, for the benefit of English Members of this Committee, all the various legal matters connected with the famous case of Oscar Slater. [Laughter.] The Secretary of State for Scotland may laugh about it, but it was no laughing matter for Oscar Slater, because he was wrongfully convicted of murder. It was reduced, and he was reprieved and stayed in Scottish prisons for many years. Then along came an enlightened advocate called Craigie Aitchison, who showed the injustice that might result. It was only by accident that Oscar Slater was not hanged.
I should very much like the Lord Advocate to give his opinion on these matters. We know that the last Secretary of State for Scotland was an enlightened Secretary of State so far as the granting of reprieves was concerned. I refer to the case of the man Gordon, who was convicted of murder in very sordid circumstances in Glasgow. I do not think that if that case had occurred in England that Gordon would have been reprieved. I say this for the former Secretary of State for Scotland that, in this particular case, he acted very humanely and in a very enlightened way. I should like this enlightenment which has been shown by various Secretaries of State for Scotland and various Lord Advocates to find its reflection in the Committee tonight by the Lord Advocate and the 766 Secretary of State accepting our Amendment.
§ Mr. Lawson
I think that the only point which the Lord Advocate attempted to answer was the one which I raised. I must confess that I could not find an answer to that point in what he said. In fact. this Bill worsens the position so far as Scotland is concerned. We find Scotland worse off even when the Bill is passed than it is at the present time.
Part I of the Bill gives nothing to Scotland; presumably Scotland does not need anything in respect of its law of murder. Scotland is however, limited by Part II of the Bill, whereas at present she is not so limited. I submit that the very limitation that we find imposed in Part II of the Bill alters the law of murder for Scotland. At present there is in Scotland a very great deal of scope which does not exist in England.
Part I greatly widens the scope for England, but Scotland has no such need. Nevertheless. Part II of the Bill says, in effect, to Scotland "Here you must toe the English line." It means that the discretion given to judges and juries in Scotland and the possibilities of leniency in Scotland are to be removed. Scottish juries and judges are, in effect, being told "Since the practice in England is this, we shall expect you to conform with that". It is in those respects that the Scottish law is altered and the position is worsened, it being less humane than hitherto. Unless the Lord Advocate can demonstrate otherwise, it appears that the Bill, although it may benefit England, does not benefit Scotland and, in fact, leaves Scotland worse off than before.
§ Question put, That those words be there inserted:—
§ Mr. G. M. Thomson
On a point of order, Sir Norman. When putting the Question, you said "I think the Ayes have it." My hon. Friends and I said "Aye", and we have no recollection of hearing "No" from the other side of the Committee.
§ Mr. Thomson
But you declared that the "Ayes" had it, Sir Norman, and my 767 hon. Friends and I have no recollection of having heard any hon. Member opposite dissent from that.
§ Mr. Lawson
Further to that point of order, Sir Norman. I understood you to say you thought the "Ayes" had it, and we heard no opposition to that. My hon. Friends and I represent the "Ayes." If you said you thought the "Ayes" had it, presumably nobody said anything to the contrary. In that case, presumably, the "Ayes" had it, and the Amendment should have been carried without a Division.
§ Mr. Lawson
As my hon. Friends and I said "Aye" and no one said "No", does not that mean that the Ayes had it?
§ The Committee proceeded to a Division:—
§ Mr. Lawson
(seated and covered): You have not answered my question, Sir Norman. You said that the "Ayes" had it, and surely that should be the position.
§ The Committee divided: Ayes 126, Noes 164.769
|Division No. 47.]||AYES||[8.23 p.m.|
|Ainsley, J. W.||Hobson, C. R.||Popplewell, E.|
|Allaun, Frank (Salford, E.)||Holman, P.||Price, Philips (Gloucestershire, W.)|
|Allen, Scholefield (Crewe)||Holt, A. F.||Probert, A. R.|
|Awbery, S. S.||Houghton, Douglas||Proctor, W. T.|
|Bacon, Miss Alice||Howell, Charles (Perry Barr)||Randall, H. E.|
|Blackburn, F.||Hughes, Emrys (S. Ayrshire)||Redhead, E. C.|
|Blyton, W. R.||Hunter, A. E.||Reeves, J.|
|Boardman, H.||Irvine, A. J. (Edge Hill)||Roberts, Albert (Normanton)|
|Bottomley, Rt. Hon. A. G.||Jeger, Mrs. Lena (Holbn & St. Pncs. S.)||Rogers, George (Kensington, N.)|
|Bowles, F. G.||Johnson, James (Rugby)||Ross, William|
|Brockway, A. F.||Jones, David (The Hartlepools)||Royle, C.|
|Brown, Thomas (Ince)||Jones, Elwyn (W. Ham, S)||Short, E. W.|
|Burton, Miss F. E.||Jones, J. Idwal (Wrexham)||Shurmer, P. L. E.|
|Callaghan, L. J.||Kenyon, C.||Silverman, Julius (Aston)|
|Champion, A. J.||Key, Rt. Hon. C. W.||Silverman, Sydney (Nelson)|
|Chapman, W. D.||King, Dr. H. M.||Simmons, C. J. (Brierley Hill)|
|Coldrick, W.||Lawson, G. M.||Slater, Mrs. H. (Stoke, N.)|
|Collick, P. H. (Birkenhead)||Lever, Leslie (Ardwick)||Smith, Ellis (Stoke, S.)|
|Collins, V.J. (Shoreditch & Finsbury)||Lindgren, G. S.||Soskice, Rt. Hon. Sir Frank|
|Corbet, Mrs. Freda||Lipton, Marcus||Sparks, J. A.|
|Cove, W. G.||Mabon, Dr. J. Dickson||Stewart, Michael (Fulham)|
|Craddock, George (Bradford, S.)||McInnes, J.||Stross, Dr. Barnett (Stoke-on-Trent, C.)|
|Cronin, J. D.||McKay, John (Wallsend)||Swingler, S. T.|
|Crossman, R. H. S.||MacPherson, Malcolm (Stirling)||Sylvester, G. O.|
|Dalton, Rt. Hon. H.||Mahon, Simon||Taylor, Bernard (Mansfield)|
|Deer, G.||Mason, Roy||Thomson, George (Dundee, E.)|
|Delargy, H. J.||Mitchison, G. R.||Ungoed-Thomas, Sir Lynn|
|Dugdale, Rt. Hn. John (w. Brmwch)||Monslow, W.||Viant, S. P.|
|Dye, S.||Morris, Percy (Swansea, W.)||Ward, D. W.|
|Ede, Rt. Hon. J. C.||Mort, D. L.||Warbey, W. N.|
|Edwards, Robert (Bilston)||Moyle, A.||West, D. G.|
|Evans, Albert (Islington, S.W.)||Neal, Harold (Bolsover)||White, Henry (Derbyshire, N. E.)|
|Gaitskell, Rt. Hon. H. T. N.||Noel-Baker, Rt. Hon. P. (Derby, S.)||Willey, Frederick|
|Gibson, C. W.||Oliver, G. H.||Williams, Ronald (Wigan)|
|Gordon Walker, Rt. Hon. P. C.||Oram, A. E.||Williams, W.T. (Barons Court)|
|Greenwood, Anthony||Owen, W. J.||Willis, Eustace (Edinburgh, E.)|
|Griffiths, Rt. Hon. James (Llanelly)||Padley, W. E.||Woof, R. E.|
|Grimond, J.||Paget, R. T.||Yates, V. (Ladywood)|
|Hale, Leslie||Paling, Rt. Hon. W. (Dearne Valley)||Younger, Rt. Hon. K.|
|Hall, Rt. Hn. Glenvil (Colne Valley)||Palmer, A. M. F.|
|Harrison, J. (Nottingham, N.)||Pannell, Charles (Leeds, W.)||TELLERS FOR THE AYES:|
|Hastings, S.||Pearson, A.||Mr. J. T. Price and Mr. Holmes.|
|Hayman, F. H.||Peart, T. F.|
|Agnew, Sir Peter||Bell, Philip (Bolton, E.)||Brooman-White, R. C.|
|Altken, W. T.||Bell, Ronald (Bucks, S.)||Bryan, P.|
|Alport, C. J. M.||Bevins, J. R. (Toxteth)||Burden, F. F. A.|
|Amery, Julian (Preston, N.)||Bishop, F. P.||Channon, Sir Henry|
|Armstrong, C. W.||Black, C. W.||Chichester-Clark, R.|
|Ashton, H.||Body, R. F.||Cooper-Key, E. M.|
|Atkins, H. E.||Boyd-Carpenter, Rt. Hon. J. A.||Cordeaux, Lt.-Col. J. K.|
|Barber, Anthony||Boyle, Sir Edward||Corfield, Capt. F. V.|
|Barter, John||Bromley-Davenport, Lt.-Col. W. H.||Craddock, Beresford (Spelthorne)|
|Crowder, Sir John (Finchley)||Johnson, Eric (Blackley)||Rawlinson, Peter|
|Crowder, Petre (Ruislip—Northwood)||Joynson-Hicks, Hon. Sir Lancelot||Redmayne, M.|
|Cunningham, Knox||Kerr, H. W.||Remnant, Hon. P.|
|Currie, G. B. H.||Kimball, M.||Renton, D. L. M.|
|Dance, J. C. G.||Leather, E. H. C.||Ridsdale, J. E.|
|Davies, Rt.Hon. Clement (Montgomery)||Leavey, J. A.||Rippon, A. G. F.|
|D'Avigdor-Goldsmid, Sir Henry||Leburn, W. G.||Robinson, Sir Roland (Blackpool, S.)|
|Duthie, W. S.||Legge-Bourke, Maj. E. A. H.||Roper, Sir Harold|
|Eden, J. B. (Bournemouth, West)||Legh, Hon. Peter (Petersfield)||Schofield, Lt.-Col. W.|
|Emmet, Hon. Mrs. Evelyn||Lindsay, Hon. James (Devon, N.)||Shepherd, William|
|Errington, Sir Eric||Linstead, Sir H. N.||Simon, J. E. S. (Middlesbrough, W|
|Farey-Jones, F. W.||Longden, Gilbert||Smithers, Peter (Winchester)|
|Fell, A.||Lucas, Sir Jocelyn (Portsmouth, S.)||Soames, Capt. C.|
|Fisher, Nigel||Lucas-Tooth, Sir Hugh||Spearman, Sir Alexander|
|Fletcher-Cooke, C.||Macdonald, Sir Peter||Steward, Harold (Stockport, S.)|
|Fraser, Sir Ian (M'cmbe & Lonsdale)||Mackie, J. H. (Galloway)||Stewart, Henderson (Fife, E.)|
|George, J. C. (Pollok)||Macmillan, Maurice (Halifax)||Stoddart-Scott, Col. M.|
|Gibson-Watt, D.||Maddan, Martin||Storey, S.|
|Godber, J. B.||Manningham-Buller, Rt. Hn. Sir R.||Studholme, Sir Henry|
|Gower, H. R.||Markham, Major Sir Frank||Summers, Sir Spencer|
|Graham, Sir Fergus||Marlowe, A. A. H.||Taylor, William (Bradford, N.)|
|Grant, W. (Woodside)||Marples, Rt. Hon. A. E.||Temple, J. M.|
|Gresham Cooke, R.||Mathew, R.||Thomas, Leslie (Canterbury)|
|Grimston, Hon. John (St. Albans)||Mawby, R. L.||Thomas, P. J. M. (Conway)|
|Grosvenor, Lt.-Col. R. G.||Maydon, Lt.-Comdr. S. L. C.||Thompson, Kenneth (Walton)|
|Gurden, Harold||Milligan, Rt. Hon. W. R.|
|Hall, John (Wycombe)||Molson, Rt. Hon. Hugh||Tiley, A. (Bradford, W.)|
|Harris, Frederic (Croydon, N.W.)||Morrison, John (Salisbury)||Turton, Rt. Hon. R. H.|
|Harvey, Air Cdre. A. V. (Macclesfd)||Nabarro, G. D. N.||Tweedsmuir, Lady|
|Heald, Rt. Hon. Sir Lionel||Nairn, D. L. S.||Vane, W. M. F.|
|Heath, Rt. Hon. E. R. G.||Neave, Airey||Vaughan-Morgan, J. K.|
|Hesketh, R. F.||Nicolson, N. (B'n'm'th, E. & Chr'ch)||Vickers, Miss J. H.|
|Hicks-Beach, Maj. W. W.||Oakshott, H. D.||Vosper, Rt. Hon. D. F.|
|Hill, Rt. Hon. Charles (Luton)||Ormsby-Gore, Rt. Hon. W. D.||Wakefield, Edward (Derbyshire, W.)|
|Hinchingbrooke, Viscount||Orr, Capt. L. P. S.||Ward, Rt. Hon. G. R. (Worcester)|
|Hope, Lord John||Orr-Ewing, Charles Ian (Hendon, N.)||Ward, Dame Irene (Tynemouth)|
|Hornby, R. P.||Page, R. G.||Waterhouse, Capt. Rt. Hon. C.|
|Hornsby-Smith, Miss M. P.||Pannell, N. A. (Kirkdale)||Whitelaw, W.S.I.(Penrith & Border)|
|Howard, Hon. Greville (St. Ives)||Pickthorn, K. W. M.||Williams, Paul (Sunderland, S.)|
|Howard, John (Test)||Pike, Miss Mervyn||Williams, R. Dudley (Exeter)|
|Hughes Hallett, Vice-Admiral J.||Pitman, I. J.||Wills, G. (Bridgwater)|
|Hurd, A. R.||Pitt, Miss E. M.||Wilson, Geoffrey (Truro)|
|Hylton-Foster, Rt. Hon. Sir Harry||Pott, H. P.|
|Iremonger, T. L.||Powell, J. Enoch||TELLERS FOR THE NOES:|
|Irvine, Bryant Godman (Rye)||Price, David (Eastleigh)||Colonel J. H. Harrison and|
|Jenkins, Robert (Dulwich)||Raikes, Sir Victor||Mr. Hughes-Young.|
|Jennings, J. C. (Burton)||Ramsden, J. E.|
§ Motion made, and Question proposed, That the Clause stand part of the Bill.
§ 8.30 p.m.
§ Mr. Willis
I had put down an Amendment, which was not selected, which dealt with the law of provocation as it applied to Scotland. The effect of the Amendment would have been to make Clause 3 applicable to Scotland. We ought to have some explanation from the Lord Advocate, because I am confident that a point of law is involved. I am not a lawyer, but it seems to me that the Royal Commission said that this change, which is to be made in the law for England and Wales, should also have been made for Scotland. The Royal Commission said that the law of provocation in Scotland was substantially the same as that in England, although expressed in somewhat different language.
The Commission went on to say:In Scotland, as in England, provocation may take various forms, but its scope is, at least in theory, somewhat narrower.770 If it was desirable to change the law in England and Wales, it was desirable to change the law in Scotland as well. That was the opinion of the Commission, which said in paragraph 153 of its Report:We consider it important that the principles we have enunciated should apply equally on both sides of the Border and we therefore recommend that any legislation which may be introduced in England should apply also to Scotland, in order that the position in Scotland may he rendered entirely free from doubt.Why have the Scottish Law Officers decided to do nothing about that? I asked about this matter at the beginning of 1955, when I was informed by the Secretary of State for Scotland that this matter was under consideration. It appears that in Scotland there is still considerable dubiety about the extent of the law of provocation and its interpretation.
In the Royal Commission's Report we are told that among those recommending the change in the law made by Clause 3 was the Faculty of Advocates. I have 771 consulted members of the Faculty of Advocates in the last few weeks and all of those whom I consulted thought that the Clause should apply to Scotland. When members of the Faculty gave evidence before the Royal Commission, they apparently thought that the position in Scotland should be made perfectly clear.
In the course of these debates we have heard much about how far we are in advance of England and Wales. In many respects that position will be the same even after the Bill becomes an Act.
§ Mr. Willis
That may be so.
Unfortunately we are copying the follies of England in accepting Part II of the Bill. Why, then, should we not accept Clause 3, which seems to be beneficial for England? The position in Scotland in this respect appears to be the same as that in England; therefore, the improvements made in the law ought to be extended to Scotland. We should have some explanation of this from the right hon. Gentleman.
§ Mr. Ross
I also hope that we shall have an explanation why the Clause should not be enacted for Scotland, and why the limitations on capital punishment should be so drawn. With all the oratory that has been in the air. I was reminded of Burns trying to horrify the people with what Tarn O'Shanter saw on the holy table. Not one of the things he saw could concern a capital murder. He sawFive tomahawks, wi' blude red crusted;Five scymitars, wi' murder crusted;A garter, which a babe had strangled;A knife, a father's throat had mangled.
§ Mr. Emrys Hughes rose—
§ Mr. Hughes
My hon. Friend is referring to lines which Robert Burns wrote but did not publish. He refused to publish them out of respect for hon. Members opposite.
§ Mr. Ross
I was confining my remarks to those which are relevant to the Bill. I sincerely hope that the Secretary of 772 State or the Lord Advocate will give us an adequate explanation for the Clause as it stands and why the Government have decided as they have done about these crimes. I remember that the hon. Member for Aberdeen, South (Lady Tweedsmuir) thought that capital punishment should be limited to murders committed by normal people.
§ Lady Tweedsmuir (Aberdeen, South)
I do not often remember my speeches in detail, but in that case I think I was trying to define a "reasonable man". That is what we are discussing. I remember saying that I wondered how many of us were reasonable, even in the House, sometimes.
§ Mr. Ross
I remember that last part very well. I looked up her speech about half an hour ago. The hon. Lady gave her definition and then expressed doubts whether a reasonable man could properly be defined by anyone. I am sure that she cannot possibly be satisfied that this proposal is adequate, logical or even just.
Another Scottish Member thought that capital punishment should be retained for particularly brutal crimes. Surely that case is not met by the list we have here. It is essential that the Lord Advocate should satisfy the people of Scotland of the logic of what he is doing, and should show that there is justice as between one malefactor and another. I find it very difficult to justify what he proposes to do. It seems that someone has made a decision quite outwith the Scottish Office. It has taken more pains about what it was going to say than what it was going to do.
§ Mr. G. M. Thomson
I hope that the Secretary of State, or more particularly the Lord Advocate, will take the opportunity of the discussion on this Clause to make the Government's case for applying this Measure to Scotland. It is true that the Clause itself deals simply with the extension to Scotland of something that is included earlier in the Bill, but, of course, this is the opportunity for Scottish hon. Members to discuss the very important change in the Scottish law.
When the earlier section of the Bill was being discussed in this Committee, it would not have been very proper for Scottish hon. Members to intervene in those discussions and take time from their English colleagues, for whom these 773 matters were perhaps of even greater importance than they were for Scotland, since the changes that do take place under this Bill have a greater application to England than they have to Scotland. Even if it had been proper for us to speak at that stage, it would have been rather futile, because at that stage the Government's case was being made for England and Wales by the learned Attorney-General. This is really the Scottish part of this Committee stage of this very important Bill.
I think we are entitled to have, and Scotland is entitled to have, from the Government some case made why these particular changes should be made in the law relating to murder and in the penalty for murder as it relates to Scotland. I suggested earlier, and I do so again now, that we really ought to have from the Government some indication of what this Bill is going to mean in terms of Scottish criminal statistics.
Could the learned Lord Advocate tell us, for instance, taking the figure for the number of executions for murder in Scotland over the last 50 years as that given by the Royal Commission, by how much that figure of executions would have been reduced if these present proposals had in fact been operated? Could he give us some idea of the actual scope of this Bill once it has been given legislative effect? Could he tell us—of course this can only be an estimate—from his great legal experience how many executions there are likely to be in Scotland in future in the light of these provisions, and how many extra reprieves, on the basis of the present figures? Can he give us some idea of what this will mean in Scotland in terms of a reduction in the number of executions that take place?
My own feeling is that the number of executions which have taken place in Scotland over the last 50 years is in fact very small. The number of convictions for murder in Scotland over the last 50 years is, I think, only 59, which is a remarkably small figure, considering that we have seen great changes in the public outlook on criminal matters, and out of those 59, substantially less than half the men concerned have been executed—only 23. The scope for a reduction in Scotland therefore is quite limited. I myself and my hon. Friends here are glad to see it further limited in this Bill, as far as the 774 Bill itself goes, but we object in principle to the capital penalty and our case is this.
Since the number of executions that are likely to take place in Scotland in future will be so very limited, surely, in view of the very strong feelings held by so many people in Scotland, there is a case for Scotland going a little distance further. We cannot tell exactly what the distance is. We cannot tell exactly the extent of the step forward which we have been pressing on the Government, and before we part with this Clause I think that we are entitled to have a case made by the Lord Advocate on behalf of the Government and to know exactly where we stand.
§ 8.45 p.m.
§ Mr. Emrys Hughes
I am glad to see the Prime Minister has arrived in the Chamber to take an interest in our deliberations. We are discussing how far this Bill affects Scotland and, with his Scottish ancestry, I am sure that the Prime Minister has made a special visit to hear, with an impartial mind, the case for and against this Clause, and why we think that Scotland should receive different treatment from England.
The law of Scotland, as has been the case for hundreds of years, is very different from the law of England. Indeed, in Scotland they do not pronounce the word "law" in the same way. The Lord Advocate, who speaks English better than the average barrister in England, does not use the Scottish pronunciation, and this is a case where there has been an inverse pronunciation. It is the English barristers who use the Scottish pronunciation; but that is only an aside to show that legal matters in Scotland are carried out in a different way although the crimes are essentially the same. But the way of looking at things in Scotland and the law regarding Scottish jurisprudence is extremely complicated for the average hon. Member who comes from south of the Border to understand.
Now that the Prime Minister is present, I hope that the Secretary of State for Scotland is conveying to him what has been repeatedly said in this Committee; that this is essentially a Scottish matter and should be discussed by the Scottish Standing Committee, by hon. Members who understand exactly and in 775 the utmost detail how the law stands. Once again Scottish Members have a grievance. We have frequently found, when discussing Scottish legislation, that Scottish Members who understand and are interested in these matters state their case moderately and reasonably, and are then voted down by English Members who do not understand what it is about.
§ Mr. S. Silverman
My hon. Friend must not overstate his case. This is no special injustice to Scotland. I can assure him that when we are debating the application of this Bill to England it is equally true that reasonable arguments advanced by English Members are often voted down, not merely by English Members but by Scottish Members too.
§ Mr. Hughes
When my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) was speaking, I noticed that he drove the Prime Minister out of the Chamber. That was unfortunate, because I thought I was beginning to make some impression upon the right hon. Gentleman. I hope that the Secretary of State for Scotland and the Prime Minister are now behind the Speaker's Chair discussing the possibility of getting this Clause off the Floor of the House and referring it to the Scottish Grand Committee, which is the right place for a discussion of what is essentially Scottish legislation. I am sure, Sir Gordon, that you would be relieved if the Secretary of State for Scotland came back and said that as a result of his discussion with the Prime Minister they had reached what would be a very wise decision.
When you were not in the Chair, Sir Gordon, we pointed out that there are considerable differences in Scotland and that for eighteen years, to my knowledge, no executions took place in Scotland. I remember that after this long time came the case of the hanging of a woman. The Lord Advocate will remember that when the arrangements for the hanging of this woman came to be considered, the person looking after the arrangements in Glasgow wrote a special letter to his superior asking that the various contrivances used for the hanging of Mrs. Thompson should 776 be taken specially to Scotland because they did not have these things there. They did not even have a competent hangman in Scotland.
I suggest that it is unfair for Scotland to be lumped with England in this respect. The outlook in Scotland upon murder and other serious crime is more akin to the outlook in the Scandinavian countries than to that in this Anglo-Saxon portion of Britain. I can quite understand that the Lord Advocate does not want the Bill discussed by the Scottish Grand Committee because there we should subject it to a meticulous, reasonable examination—
§ Mr. Hughes
—in the light of the conditions in Scotland, where executions did not take place for eighteen years and where we had a very great lead given in legal reform by the former Lord Advocate, Lord Aitchison.
I stress this because the outlook is different. The average Scottish advocate, if I may be allowed to say so, is more enlightened than his counterpart in England. I am quite sure that the Lord Advocate will agree with me on that.
§ Mr. Hughes
I suggest that we are not here arguing some small, finicky legal point. We are asking that this part of the Bill should be referred to the Scottish Grand Committee. After all, the complicated parts of other Bills that come before the House and which have a Scottish application automatically come before the Scottish Grand Committee. We discuss our rents, our rates and our drugs. I am sure that if we need to have a special drug Act for Scotland and special Measures for dealing with Scottish agriculture, local government and education there is a reasonable case why this part of the Bill, which specifically affects Scotland, should be referred to the Scottish Grand Committee.
I am quite sure that if the position were reversed and if Scottish Members were trying to impose their will upon England, there would be an immediate revolt by the English Members. Therefore, I ask the Lord Advocate to take an enlightened view. Let him go down in history as the great Conservative penal 777 reformer as far as Scotland is concerned. Do not let the Labour Party have the monopoly in legal reformers in the person of Lord Aitchison.
I should very much like the Lord Advocate to deal in detail with subsection (3) of this Clause, which says:Subsection (1) of this section does not affect courts-martial.The only time I have been remotely in danger of capital punishment was when before a court-martial. I have never complained of the civil courts and have never been in danger from the civil courts, but I am very suspicious when I see the words "courts-martial". When I see that:Subsection (1) of this section does not affect courts-martial.I want to know why. I hope the Lord Advocate will deal with that and show that there is no need for alarm.
I am glad to see reinforcements arriving in the person of the Solicitor-General for Scotland. We are always very pleased to see him and regard very highly the advice he gives us. I may be able to convert him to this idea and he will be able to assist the Lord Advocate in making legal history on the question of murder in Scotland. The Solicitor-General for Scotland took a very prominent part in the last piece of contentious legislation which was before the Scottish Grand Committee. He will remember the arguments we had about the appointment of valuation committees. The question of life and death is far more important than who is to appoint an assessor for valuation in Scotland. We were allowed to discuss that and have been allowed to discuss the whole ramifications of education and local government in the Scottish Committee, but on murder, which has a long legal history in Scotland, the House of Commons says we are to be content with a very short interlude in the discussion of that crime in this Committee.
We do not say that English hon. Members should be excluded from the Scottish Grand Committee, where they could put the English point of view. I am sure there is not a Scottish hon. Member who would object if this Clause were referred to the Scottish Grand Committee. We would be very glad to have my hon. Friend the Member for Oldham, West 778 (Mr. Hale) and my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) to help us to speed our deliberations on that Committee and to give us the benefit of their advice. Now that the Solicitor-General has come in, I ask him to have a word with the Lord Advocate and to impress on him that we are not only putting the point of view of Scottish hon. Members but also of the Faculty of Advocates. I am sure the overwhelming majority of hon. and learned Members who are members of the Faculty of Advocates see the logic of our case.
I hope that the Lord Advocate is not going to approach this question with the sort of closed mind which has been in evidence throughout the deliberations of this Committee, but will agree that this Amendment which has been put reasonably and moderately by hon. Members representing Scottish constituencies. It has the overwhelming majority of public opinion in Scotland behind it and the overwhelming majority of Scottish legal opinion behind it. We are stating the case reasonably.
§ The Lord Advocate
The hon. Member for South Ayrshire (Mr. Emrys Hughes) ended with a request for the Committee to accept an Amendment, but I understood that we were discussing whether this Clause should stand part of the Bill. Nevertheless, I will attempt to meet the question which he asked about subsection (3). The hon. Member asked me to explain why Clause 13 (3) is necessary. That subsection says:Subsection (1) of this section does not affect courts-martial.The reason for subsection (3) is to be quite sure that subsection (1), which says that certain parts of the Measure shall not extend to Scotland, shall not be effective in the case of courts-martial.
§ 9.0 p.m.
§ The Lord Advocate
The reason is that the law of courts-martial is the criminal law of England. It is in order to make it clear that a court-martial in Scotland shall proceed in accordance with the present law of courts-martial and shall not be affected by Clause 13 (1), 779 which might have been taken to have raised doubts on whether it extended to Scotland or not, that this provision is made.
§ The Lord Advocate
Yes. It never has applied. The law of Scotland does not apply to courts-martial in Scotland. The Committee will remember that this is a matter which we discussed on the Army Bill, now the Army Act, about two years ago.
§ Mr. S. Silverman
I know nothing whatever about the law of Scotland, I must confess at once, and certainly I have no precise recollection of any discussions which the House may have had about the Army Act, but I am a little alarmed to hear the right hon. and learned Gentleman say that if a court-martial takes place in Scotland it is not governed by the law of Scotland. Why should it not be? Surely this is a situation about which a great many English hon. Members will hear with great surprise. While I am on my feet, perhaps it may be worth while to ask, in regard to subsection (1), why Part I and Part III of the Bill should not extend to Scotland.
§ The Lord Advocate
The law of courts-martial has never been the law of Scotland. It has always been the law of England. That has been discussed on many occasions.
§ The Lord Advocate
I do not think this is an appropriate moment to discuss whether or not it is desirable that the court-martial law should be the law of England or the law of Scotland. The fact remains that it has been the law of England, and that is why we have subsection (3) in this Clause.
§ The Lord Advocate
I fully appreciate that when the Army Act was being discussed many hon, Members opposite 780 raised certain points in connection with court-martial law, but I do not think we had a sweeping debate on whether the law of England in all respects should be removed from court-martial law.
§ Mr. Willis rose—
§ The Lord Advocate
I cannot give way again.
The hon. Member for Dundee, East (Mr. G. M. Thomson) asked whether we could help the Committee with any statistics from Scotland for the particular offences mentioned in Clause 5 (1). I cannot be certain that these figures are correct, because it depends on the years which one takes, but my information is that the total number of sentences of death for all murders in Scotland from 1900 to 1955 was 77. The number of murders of the type referred to in Clause 5 (1, a) to 5 (1, e) inclusive for those years would probably be 17. It is difficult to be categorical about that because, as the Committee knows, certain considerations are involved, but the figure is approximately 17. Of those 17, eight were executed, eight were reprieved and one of the convictions was quashed. Those are approximate figures for the years 1900–55. I cannot give the Committee the exact number, but those are the approximate numbers.
§ The Lord Advocate
That is eight executions for that particular series. Taken over the whole field, there were 31 executions.
§ The Lord Advocate
From 1900 to 1955—in Scotland. Of course, we are now talking about Scotland alone.
§ Mr. G. M. Thomson
I am grateful to the right hon. and learned Gentleman for giving way, and I am also grateful to him for having given us these figures, which were what we sought and which are helpful to us. If I may say so, they appear to strengthen my point. If the changes made by this Bill mean, in fact, that only eight executions would have taken place over the last 55 years, surely it is a very modest step forward in Scotland to abolish the death penalty completely—such a modest step that even 781 the Government, with their doubts about it, might experiment in Scotland with the abolition of the death penalty.
§ The Lord Advocate
I do not want to traverse again the arguments traversed for several days in Committee, but the mere fact that during the years 1900 to 1955 only eight executions took place in respect of these particular offences does not, in my submission, in any way necessarily mean that if there was not the deterrent effect of capital punishment in the background the number might not have been much larger. I know that it is arguable, but I cannot accept that.
§ Mr. Silverman
Would the Lord Advocate say what his argument would have been about the virtue of the death penalty and the necessity to retain it if, over 55 years, instead of finding it necessary to execute eight people it had been found necessary to execute eighty? Would he have regarded that as an argument for the abolition of the death penalty?
§ The Lord Advocate
One has to look at the figures in the light of the circumstances existing at the date to which those figures apply.
The hon. Member for Kilmarnock (Mr. Ross) asked for an adequate explanation of Clause 5. As I said in connection with an Amendment which the Committee was discussing a few minutes ago, Clause 5 merely states the punishment for certain murders; that is, provided that it is established that the crime is murder. This Bill does not make any of these particular offences murder; it only says that, if the offence is murder the penalty will be capital. That is all that it does. It does not alter the law of murder.
The hon. Member asked, in effect I think, how these cases would be divided up, and whether they were important from the Scottish point of view. I gave the figure of 17 a moment ago to the hon. Member for Dundee, East. Let me try to break down that figure. Again, this can only be approximate, because it is difficult to be certain whether the various 782 factors necessary for the particular paragraph would have been established. The figures are: —paragraph (a), 12; (b), 2; (a) and (b), 1—that is the same offence; (b) and (c), 1; (b) and (d), 1. The Committee will see, of course, that most come under Clause 5 (1, a).
The hon. Member for Edinburgh, East (Mr. Willis) asked about provocation. Naturally, in view of what the Royal Commission said, and in view of the questions which we were asked about it, we considered this question very carefully indeed. However, the Committee will note that paragraph 132 of the Report says:Lord Cooper, however, expressed the view that, although the Holmes decision"—that was the decision that caused difficulty in England—would be treated with respect in a Scottish court, it would not necessarily be followed, and he was inclined to think that in a Scottish court that case would have gone to the jury with a direction that the verdict should be one of culpable homicide.In other words, the courts in Scotland, following previous Scottish practice and Scottish decisions, would have said, "Our hands are not tied so much as they are in England." There is another aspect—
§ Mr. Willis
Before the right hon. and learned Gentleman leaves that point, may I put this observation to him? Surely the part of the sentenceit would not necessarily be followedis open to two interpretations. I should have thought that it is just as likely to lead to ambiguity as to certainty. It is precisely because of the ambiguous nature of the law of provocation that we want it clarified.
§ The Lord Advocate
The law of Scotland so far as criminal matters are concerned is practically entirely the common law. We have seen very often, in admiring and in criticising English law, how English law is very much tied up by Statute. The law of Scotland is flexible. One of the things that we are afraid of is this. If we introduce into the law of Scotland a statutory defence of provocation with the use of words it might be said that a judge, in circumstances in which he felt there was an opportunity for a verdict of culpable homicide rather than a verdict of murder, but there did not exist either provocation by words or 783 provocation by actions, would be bound to withdraw the possibility of culpable homicide from the jury.
§ Mr. Silverman
I apologise for interrupting the right hon. and learned Gentleman. No doubt, my question is based on what I confess to be my complete ignorance of the law of Scotland, but I am bound to say that I have been a little disturbed by what the Lord Advocate has just said, and he may be able to clear up the doubts that his words have inspired in me.
The right hon. and learned Gentleman said—and naturally one accepts it from him without question—that the law on this subject in Scotland is the common law and he does not want it altered by statutory amendments to the English law being applied to Scotland because it might militate against the operation of the law as it is in Scotland based on the common law. But this decision in the House of Lords about the effect of the use of words with regard to reducing, in our language in England, a charge of murder to a charge of manslaughter, is itself a decision in the common law. It is not based, as I understand it, on any Statute applicable in England or in Scotland.
If that is so, I find it a little difficult to follow why Lord Cooper should have told the Royal Commission that that decision, being a decision of the House of Lords, would not necessarily have been followed in Scotland. If there had been some statutory difference, I could have followed the argument, but if the Lord Advocate says, as he has said, that the law in Scotland is the common law, and since the decision in the House of Lords is plainly declaratory of the common law, I cannot understand why Lord Cooper should say that that decision would not be followed in Scotland.
In any case, since Lord Cooper only said that it would not necessarily be followed, he left the door open to the interpretation that it might be followed; and since we are no longer to apply it in England by reason of the Bill that the Government have brought to the House of Commons, would the right hon. and learned Gentleman explain why we should not make assurance really sure by making certain that the doctrine, which he says in any case may have been 784 applicable in Scotland but which is not applicable in England only because of the House of Lords decision, which we are now altering by Statute, should not apply, and why he does not want that additional protection to apply in Scotland likewise?
§ 9.15 p.m.
§ The Lord Advocate
As I say, the common law of Scotland is extremely flexible. There is nothing that I have been able to find which would indicate that a judge in Scotland would be precluded from leaving provocation by words to a jury.
It has been suggested by the hon. Gentleman the Member for Nelson and Colne (Mr. S. Silverman) that, because of the English case of Holmes, some doubt might be created in Scotland. I must reject that suggestion. No criminal case in Scotland can go to the House of Lords, and no House of Lords case in the criminal sphere is binding on the Scottish courts, though any such case would certainly be treated with great respect. Even in the case of Holmes, that decision itself is not absolute; as I remember them, the words arein the most exceptional circumstancesor an expression to that effect.
I invite the Committee to allow the law of Scotland to preserve itself as common law as we have had it all these years, avoiding, unless we were absolutely driven to it, setting it out in statutes and thereby tying the judges' hands and limiting their discretion. It would, I think, be more humane to leave it as it is, leaving it to the judge in circumstances where, for example, provocation was caused by seeing something. It is quite conceivable that a person might lose all reason by seeing something. It is quite possible, I am satisfied, that, if that were the situation in Scotland, the judge would leave the question of culpable homicide to the jury.
I now invite the Committee to accept this Clause.
§ Mr. S. Silverman
I am bound to say, speaking as a mere Sassenach, that the Lord Advocate's argument leaves me completely unsatisfied. I hope I may have the right hon. and learned Gentleman's attention; I am hoping to address to him an argument which I at any rate, think is a sound one, explaining why I do 785 not consider what he has said is in the least satisfactory.
I take it that there is a certain amount of common ground between us. I take it that he agrees that the English decision in Holmes that the question whether provocation by words alone might, in a suitable case, be sufficient to reduce the charge of murder to a charge of manslaughter was not a fit question to be left to the jury is a decision which ought not in our deliberations to stand. One concedes at once that in many cases provocation by words alone might indeed be insufficient to reduce the charge. It is equally certain that in other cases provocation by words alone might well be sufficient to reduce the charge.
The effect of the decision in Holmes, to which the Lord Advocate referred, was that in England—never mind for the moment whether it applies to Scotland or not—it was wrong for a judge to leave to the jury any question of reduction of a charge of murder to manslaughter on the ground of provocation where the provocation alleged was a provocation only by words. This is nothing to do with sight, nothing to do with any other surrounding circumstances.
There is a definite decision of the House of Lords that where the provocation alleged is provocation by words alone, it is not right to leave to the jury whether in that case the provocation was sufficient to reduce a charge of murder to a charge of manslaughter with the result that a charge of murder must be sustained. It is exactly that which the Government are inviting this Committee to change so far as England is concerned. We all agree with that.
Now there is this Clause in the Bill which provides that this change in the law shall not apply to Scotland and my Scottish hon. Friends are asking the Lord Advocate why? In reply the Lord Advocate has said only this, that since it is doubtful whether that decision in the House of Lords will be followed in Scotland, it is not certain that this Amendment of the law is necessary in Scotland.
Suppose we concede to the Lord Advocate the validity of that argument. Supposing he has established, as he may well have established, that perhaps this alteration in the English law will not be necessary in Scotland. Why is that a 786 reason for not making absolutely certain? The right hon. and learned Gentleman has admitted that Lord Cooper's evidence to the Royal Commission was equivocal. Lord Cooper did not say that this decision would not be followed in Scotland; he only said that it might not necessarily be followed in Scotland.
Supposing it was followed. Supposing there was a case in Scotland, this Bill having gone through unamended, where Scottish courts decided that they could not leave the question of culpable homicide to a Scottish jury because this Clause had been specifically excepted from applying to Scotland. Would the Lord Advocate be satisfied with that? Of course he would not. The whole tenor of his argument is that this Amendment in the law of England is a right and proper thing to do.
If the Lord Advocate was able to say that the position in Scotland was quite certainly different, so as to make a corresponding amendment of the law of Scotland unnecessary, one could follow his argument, but he did not say that. The Lord Advocate wants to leave the doubt. Why leave a doubt? If this is what he wants to do, do it. What is he afraid of? Why should it not apply? I really cannot follow the right hon. and learned Gentleman's argument.
Before I sit down I want to say a word upon another matter; to say how astonished I was at the complacency about courts-martial. I am not a Scot and therefore, obviously, not a Scottish Nationalist, but I cannot understand how any Scottish Member of this House, certainly a Law Officer representing Scotland here in this Committee, can be satisfied with a position in which there could be on Scottish soil a court-martial where the question in issue was whether a man was guilty of murder or not, whether a man should suffer the death penalty or not, where although the inquiry was taking place in Scotland, and although ex hypothesi one must assume that the offence was committed in Scotland, the rights of the accused should not be governed by the law of Scotland.
It is not true in Germany. When a British soldier was tried for a murder committed in Germany, and tried by a British court-martial, he was indeed 787 sentenced to death by the British court-martial. But the sentence was commuted. Why was the sentence commuted? Because in Germany—a country which we have not been accustomed to regard during the past twenty years as being a more civilised country than our own—there is no death penalty, and because by agreement between the German Federal Government and our own we are not entitled with regard to our own British citizens, tried by our own British courts-martial, to inflict any penalty greater than would be inflicted by a German court in the like circumstances.
The Lord Advocate astonishes me. He wants Germany to have more rights in this matter than Scotland. It is impossible to understand why. He refers to discussions in the Army. It may well be that Parliament has considered the matter before. It may well be that Parliament came to the wrong decision before. Is that any reason why it should come to the wrong decision now or persist in the wrong decision? There is the controversial problem of non-proven. There is a great deal of opinion on whether that is a great advantage to the accused or not. But in Scotland, people are very proud of that opportunity.
According to what the Lord Advocate says, although we might have the advantage of such a verdict in a civil court, in a criminal case tried under the civil law of Scotland, although the crime was committed in Scotland and the trial took place in Scotland, provided it is a court-martial, the English law shall apply. It is astonishing that any Scottish advocate could be content with a position of that kind, absolutely astonishing and completely unexplained.
There is in Scotland a jury of fifteen against our jury of twelve, and the system of majority verdicts as well as the system of the not proven verdict. If representatives of Scotland here are content to say, "We abandon all that; we are no longer satisfied that the Scottish differences ought to be maintained; we are prepared to assimilate our law to the law of England," I could understand that, although I doubt whether any Scottish Member would be prepared to vote for such a proposition. What I cannot understand is that the Lord Advocate should be content with a position in 788 which the differences are maintained in Scotland provided the court is a civil court, and although in every other respect the offences are the same, the law shall be assimilated to England if the court which tries the offence is a military court instead of a civil one. The situation discussed by the Lord Advocate is anomalous and unmaintainable, and I suppose that the only defence for it is that in all these respects it is exactly of a piece with anything else in this Bill.
§ Question put and agreed to.
§ Clause ordered to stand part of the Bill.