HC Deb 07 February 1961 vol 634 cc214-22
Mr. S. Silverman

May I raise with you, Mr. Speaker, a matter of order of which I gave you notice in my letter of yesterday afternoon? I will endeavour to be as short as possible and not transgress the rules of order in putting my point Ho you in what you will appreciate are difficult and delicate circumstances.

I handed in to the Table yesterday afternoon a Question which I think I am bound to describe; otherwise, the point will not be understood. I wished to ask whether the Home Secretary would order an inquiry into the case of George Riley to see whether there had been any miscarriage of justice. You will appreciate, Sir, that there is nothing in the Question which refers to the charge, to the result of the trial or to the sentence, though I am bound to concede that it is common knowledge that Riley was charged with and convicted of capital murder.

The Question was, in the first place, accepted in the Table Office. Later, I was asked to speak to the Clerk of the Table, who ruled that it was out of order and so clearly out of order that he did not think it necessary to reconsider it. He refused to accept the Question.

The point which I am putting to you for your consideration is, I think, a new one without direct authority. In my submission, if the ruling given is right, it amounts to such an extension of the existing practice as to amount to a real deprivation and inhibition upon Members of Parliament in doing their public duties.

As I understand it, the objection was based on the paragraph in Erskine May relating to inadmissible Questions. The last sentence of the first paragraph on page 358 of the Sixteenth Edition of Erskine May reads: A capital sentence cannot be raised in a question while the sentence is pending. It was my submission, and it remains my submission, that my Question did not offend against that rule. It did not raise a capital sentence or any sentence. The Question would have been in exactly the same terms if the man had been fined 2s. 6d. or placed on probation for twelve months. The sentence was not involved and the Prerogative of mercy was involved. All that was involved was the question of setting up an inquiry to see whether there had been a miscarriage of justice such as the Home Secretary has in the past on several occasions ordered and which the Court of Criminal Appeal has laid down as the proper method to pursue in relevant circumstances.

The sentence in Erskine May quotes only one authority, that is to say, House of Commons Debates (1946–47), columns 2179–82. That is the only authority quoted. I have that authority here, Sir, and I submit that it establishes beyond reasonable controversy that the rule relates strictly and solely to Questions relating to the exercise of the Prerogative of mercy. It was, as a matter of fact, a Ruling given by Mr. Speaker Clifton Brown in response to a Question by me following certain events which had taken place in the House in which my hon. Friend the Member for Oldham, West (Mr. Hale) and I were closely concerned. It amounted to a restate ment of the position in the House with regard to Questions directed to the Home Secretary, or, indeed, to anybody else, involving the exercise of the Prerogative of mercy.

The passage, nearly three columns of it, is headed in HANSARD, "Prerogative of Mercy". Without quoting from it or reading from it at all, I submit that it is perfectly clear that in what Mr. Speaker Clifton Brown had to say he was confining himself solely and absolutely to the limited question of what one can do about the Prerogative of mercy before sentence has been executed.

That question did not arise here. The Home Secretary, of course, cannot be interfered with. Questions cannot be put to him, and nothing of that kind can be done in this case at this moment. The man has to hang, if the Home Secretary says so. Let him do so. We can ask Questions afterwards; and, no doubt, he can refuse to tell us why. That question, however, is not raised here. It is a quite different question. It had nothing to do with the Prerogative of mercy. I submit with some confidence, but with great respect, that the Ruling was wrong and the Question ought to have been accepted.

Mr. Speaker

I am greatly obliged to the hon. Member for giving me notice of this, because it is an important point and I have had time to look at the Rulings of my predecessors.

I am sorry to disappoint his expressed expectation, but I am driven reluctantly to the conclusion that I am governed by precedent in the matter and I should rule the hon. Member's Question out of order. I do not want to take up the time of the House about it.

I understand fully the distinction that the hon. Gentleman is making between an inquiry into what happened at the trial, or the like, and the exercise of the Prerogative of mercy. The difficulty is that on the Rulings the two points are so closely interrelated—I hope to illustrate in a moment why I think that the point is covered by previous Rulings-no doubt for the very obvious reason that the mind of the Home Secretary of the day, in tendering such advice as he would have to give, would necessarily be affected by the propriety or impropriety of the conviction or other proceedings at the trial.

Looking back at the Ruling given by my predecessor on 10th March, 1947, in a case in which the hon. Member for Nelson and Colne (Mr. S. Silverman) was personally involved, and taking some words out of it to show the extent of the protection, as it were, which is laid by our practice around the head and conscience of the Home Secretary from Parliamentary pressure pending the execution of sentence, there came these words: Moreover, it is obvious, as was laid down by Mr. Secretary Matthews in 1887 and 1889, in the Lipski and Maybrick cases, and has been consistently upheld by the Chair, that"— then there is a quotation in my predecessor's Ruling in these terms: 'it is … injurious to the administration of justice that the circumstances of a criminal case, on which the exercise of the Prerogative of mercy depends, should be made the subject of discussion or of Questions in this House.' That is the end of the contained quotation. My predecessor's Ruling then goes on: The House would, in such case, be claiming to be a court of appeal from the sentences pronounced by the courts, if it allowed itself to discuss and decide on the circumstances of these cases."—[OFFICIAL REPORT, 10th March, 1947; Vol. 434, c. 959.] In view of that Ruling and contemplating the only purpose of the inquiry for which the hon. Member's Question asks, I am forced to the conclusion, however reluctantly, that I am bound to rule his Question out of order on the Rulings of my predecessors. It may be that the House one day would want to alter its practice, but that I could not do myself.

Mr. Silverman

I am very grateful for the careful answer which you have given, Mr. Speaker, but may I submit that all the precedents to which you have referred relate expressly to the exercise of the Prerogative of mercy. You, Sir, have said that this Question was inextricably related to the exercise of the Prerogative of mercy, but, with great respect, I submit that that is not so. There can be an inquiry to see if there has been a miscarriage of justice whether or not the sentence is carried out. Unfortunately, in some cases there has to be and there has been an inquiry after a sentence has been carried out to see whether the sentence ought ever to have been carried out. This is inevitable and cannot be helped. The two questions are quite distinct.

If the Ruling which you have given, Sir, is correct, it means that every Member of this House in every future case will be prevented from putting down any Question to any Home Secretary even if he is armed with the most overwhelming new evidence which was not available at the trial and not before the Court of Criminal Appeal and which establishes beyond any reasonable doubt the wrong-ness of the conviction. I am not saying that that is this case—I do not know—but what I am saying is that, if we cannot ask for an inquiry before execution because the question of reprieve might be involved, it means that alone among the citizens of this country Members of the House of Commons are prohibited from bringing to the notice of the Home Secretary and of the House of Commons matters with which we are all concerned and for which we are all individually responsible. I suggest with very great respect that an extension of the rule to that extent would be contrary to the practice of the House and to our duties as Members, and a great mischief against public policy and the administration of justice. Our business is not to prevent ourselves from ensuring that injustice is not done. Our business is to take such powers as we reasonably can to make certain that justice which is done in our name is real justice.

Mr. Speaker

It is because of the very considerations which the hon. Member was mentioning that I think that this is an important point and I have accordingly considered it with the greatest possible care. It would be in no sense unwelcome to me if the House chose to take the opportunity some time to consider whether my interpretation of the existing practice is right and whether this Ruling is right. However, I am afraid that I have considered the matter very carefully, and I do not think that further representations would cause me to change my mind about it.

Mr. Hale

May I call your attention, Mr. Speaker, to three things which have occurred since the Ruling of Mr. Speaker Clifton Brown which are relevant to the case of my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman).

First, such an inquiry was appointed in the case of Rowland in 1949. The appointment was made by the Home Office as a Home Office appointment and not in the name of the Crown, except in the sense that every Minister acts in the name of the Crown. The Home Secretary acted departmemtally and not even quasi judicially. He acts administratively in the appointment of someone who will thenceforward act quasi judicially, but the appointment of a committee is a Departmental and administrative matter.

Secondly, that appointment was made by the Home Secretary virtually at the express invitation of the Court of Criminal Appeal who, in rejecting Rowland's appeal and his desire to call further evidence, called express attention in as clear words as their Lordships could use in view of the well-established rule that their Lordships would not give instructions to the House or to the Minister to the fact that there were matters for which there was another form of inquiry which remained available. They used words almost precisely to that effect.

Hon. Members will recall that a second such inquiry was made. I only refer to it by saying that again the Home Office ordered the inquiry after Questions in the House.

Mr. Silverman

After a debate.

Mr. Hale

I admit that, having come here at short notice, I have to rely on my memory, but my clear recollection is that in Christie's case Questions were asked. A debate certainly followed—that is another matter—but Questions were asked and the Home Office certainly ordered an inquiry at which Christie gave evidence while he lay under sentence of death and at a time when he had been warned that that sentence would be carried out.

Thirdly, since then we have passed the Homicide Act. We therefore have two classes of sentence. Surely it will not be argued that we can ask a Question about a man convicted of murder and ask for an inquiry but cannot ask for an inquiry in a case of capital murder. If that is argued, then we have two classes of offender in a murder case, in one of which a Question can be asked but not in the other.

Fourthly, may I humbly submit with great respect that Erskine May is neither a Solon nor a Hammurabi, and that, when the House accorded to one of its servants its gracious permission to write a most useful commentary on its rules and procedure, it did not entrust him with the task of formulating a new constitution. This is a matter of asking a Question of one of the Ministers of the Crown about the performance of a duty for which he is clearly responsible to the House. Had he not been responsible to the House the debate on the Report in the Evans case could never have been held.

Mr. Speaker

Personally, I should welcome it in every possible way if the House sought in proper time to challenge this my Ruling so that we might know the precise definition of the practice of the House about Questions pending the execution of a capital sentence. All these considerations do not, however, cause me to change my view about what the rule of the House is. Believing it to be such as that on which I have acted, I am bound to rule as I have done. Of course, no considerations of this kind arise later. They arise simply in the period pending execution of the sentence.

Mr. E. Fletcher

This is, obviously, an important matter. In view of your Ruling, Mr. Speaker, I wonder whether you would enlighten the House further by telling us to what extent your Ruling goes. Yesterday, not knowing anything about the Question which my hon. Friend had put down, I handed in to the Table a Question in the following terms: To ask the Home Secretary if he is aware of the increasing concern felt by the public about convictions in criminal cases, particularly murder trials, where convictions result from confessions made by an accused while in police custody without any adequate corroborative evidence of guilt, and whether he will review the existing procedure obtaining in such cases. I naturally expected that that Question, which had no reference, direct or indirect, to the Prerogative of mercy, would appear on today's Order Paper. I was surprised to find that it did not appear. I understand that the reason why it did not appear was in some way connected with my hon. Friend's Question. I fail to understand in what way, but it seems to me that I should make this public. In view of the Ruling which you have given, Mr. Speaker, I should be glad if you would now inform me whether my Question will appear on Thursday's Order Paper.

Mr. Speaker

I do not know. I have already told the hon. Member in private circumstances, which can now become public, that I hold that Question to be in order and I know no reason why it should not in the ordinary course proceed in that way.

Mr. M. Foot

You have made it clear, Mr. Speaker, in your reply to my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), that if the House saw its way to alter the arrangements as you understand them now to exist, you would be very much in favour of that happening, or, at least, you would find that agreeable. This is an urgent matter. Could not the Leader of the House, who is not present, be informed by one of his hon. Friends of what you have said in this matter and of how you think—[Interruption.] Mr. Speaker can deny this if I am wrong. He has given a clear indication that if it were possible for the procedure to be altered, at least he might think that there would be good reason for doing so. Therefore, as the matter is so urgent, could not a message be sent to the Leader of the House that he should make a statement either today or tomorrow so that this Question should be allowed to be put before the action is taken which might take place tomorrow?

From what I can see from your Ruling, Mr. Speaker, it leads to the most extraordinary situation that whereas it is perfectly in order for an hon. Member to put down a Question asking for an inquiry into a possible miscarriage of justice in which there is no question of capital murder, apparently it is ruled out of order if there is a question of capital murder. Surely, that is a ludicrous state of affairs. It would be a scandalous state of affairs if the procedure went on tomorrow. Therefore, is it not the duty of the Leader of the House to take note of what has been said by Mr. Speaker and to try to take immediate action, so that my hon. Friend's Question can be put and answered in the House of Commons?

Mr. Speaker

I should say two things and then, perhaps, we can proceed. I did not mean to express any personal view, favourable or unfavourable, to a change. I simply wished to make clear that if someone wished at the proper time and place to challenge my Ruling, that could contain no element of regret on my part. I do not mind having my Ruling challenged. That was all I meant about that.

In reply to the point raised by the hon. Member for Ebbw Vale (Mr. M. Foot), it has long been so in our practice that the cases involving a capital sentence are in this regard wholly exceptional.

Mr. Silverman

I know that you will not take it as any disrespect to yourself or to your Ruling, Mr. Speaker, if I say that on this extremely difficult and new point, I am not at the moment content to accept it. I recognise that there is only one way in which it can be challenged, and I propose to take that way.

Mr. Speaker

I hope I have made it plain that I regard that as a most proper way of dealing with the matter.