HC Deb 08 December 1966 vol 737 cc1581-6
Mr. Sydney Silverman

On a point of Order, Mr. Speaker.

A day or two ago, I sought to put on the Order Paper a Question to the Secretary of State for Defence for answer next Wednesday, to ask whether he was aware that Brian Charles Gabriel, a Guardsman serving in the Welsh Guards Regiment in the State of Aden, had been sentenced to death by a civil court in that State, and whether he had any statement to make.

The Question was disallowed, and I wish to put to you, Sir, two short points of order with regard to that disallowance.

I apologise to the House for delaying the resumption of a debate which I know it is anxious to resume, but, as a man's life is involved, I hope that right hon. and hon. Members will bear with me for a minute or two.

I was aware, of course, of the rather barbarous rule which prevents Members of the House of Commons from asking Questions about a capital sentence until after it has been executed and it is already too late to do anything about it, and I hope not to infringe that rule, barbarous though I consider it to be.

The two points I wish to put to you, Mr. Speaker, which seem to me to make a difference in this case are these. First, my Question does not call the sentence into question at all and does not even remotely or indirectly involve any question of the exercise of the Royal Prerogative. It merely asks for information. It is clear that there are a great many matters which the House and the country may want to know about this case which do not in any way involve the question whether the sentence is ultimately carried out or not.

My second point is, perhaps, more substantive. The status of the State of Aden is a matter of considerable difficulty. It was at one time a Crown Colony, but it is by no means clear that the State of Aden is today a Crown Colouny, because in 1963 it acceded to the Federation of South Arabia. It would appear, therefore, that a civil court in Aden is a foreign court, and that our rules on the question of capital sentences or on what is or is not sub judice have never been applied, so far as I know or have been able to discover, to the decisions of or proceedings in a foreign court.

As it seems at least doubtful whether Aden is not foreign territory, and whether its civil courts are not the courts of a Foreign State, is this not a question which ought to be considered before these proceedings are allowed to go on without the House of Commons being entitled to know anything about them, anything about their background, or anything about the circumstances in which this death sentence on a British soldier serving in our Forces under the direction of the Secretary of State can be disclosed to the House of Commons?

Mr. Speaker

I am grateful to the hon. Gentleman for putting his point of order succinctly. The question whether the matter of someone under sentence of death and subject to the Prerogative of Mercy can be raised in the House has, because of the tireless efforts of the hon. Member for Nelson and Colne (Mr. Sydney Silverman), been frequently under review by the House of Commons during the past 30 years. On the human issues raised, the hon. Gentleman must know that Mr. Speaker is as deeply moved as he is, but that is not the matter on which I must rule.

Mr. Speaker, like every hon. Member, is governed by the Rulings of his predecessors and the rules of the House. The hon. Gentleman has asked me why I disallowed a Question about a death sentence passed on a British subject for murder in the British Colony. I have looked at this Question most closely. I have given it great care, in the light of Rulings by my predecessors and a special Resolution of the House.

The rule as it has been applied by my immediate predecessors was explained by Mr. Speaker Clifton Brown in a considered Ruling on 1st May, 1947, when he said: … a capital sentence cannot be raised in Question or debate while the sentence is pending".—[OFFICIAL REPORT, 1st May, 1947; Vol. 436, c. 2181.] The hon. Gentleman will himself recall that, in 1961, he wished to ask whether an inquiry could be ordered into whether a miscarriage of justice had occurred in the trial of George Riley, who was at that time under sentence of death.

The Question was not allowed by Mr. Speaker Hylton-Foster, and, as a result, the hon. Gentleman asked the House by a Motion to dissent from that Ruling. The Motion was defeated and instead thereof a Resolution was carried in the following terms: That this House upholds the well-established rule under which in any case involving a capital sentence the circumstances on which the exercise of the prerogative of mercy depends should not be made the subject of question or discussion in this House while the sentence is pending."—[OFFICIAL REPORT, 16th February, 1961; Vol. 634, c. 1841.] No Question has been allowed on the Order Paper in recent years on this subject while sentence of death was pending. Thus, in December, 1954, Questions were not allowed about the medical examina- tion of Mrs. Christophi while under sentence. Again, in 1964, in a case involving a person under sentence of death, Questions about medical reports and psychiatric treatment of that person while he had been undergoing an earlier sentence were not allowed.

In this case, therefore, as in others, I am bound by the rules of the House and, in particular, by the Resolution of the House in 1961, which must stand unless and until the House thinks fit to make an alteration.

Mr. Sydney Silverman

I acknowledge that Ruling, Mr. Speaker, from which I would respectfully dissent. I know that there is only one way in which the Ruling can be challenged, and, with great respect to you, Sir, I propose to make that challenge in due course.

But, Sir, all those previous Rulings have been given in cases in which either the validity of the sentence or the exercise of the Prerogative of Mercy has been called in question. My present Question does not call the sentence into question at all and does not raise any question about the Prerogative. It asks simply for information, and I submit to you, very respectfully, that none of the Rulings to which you have referred has any bearing at all on a Question which limits itself to asking for information and nothing else.

Before I sit down, Sir, may I point out that I have raised a very serious challenge to the whole jurisdiction of the court because, if Aden is, in fact, a foreign State, none of those Rulings can possibly have any application to it. We are entitled to know from the Secretary of State for Defence how he came to allow a foreign court to pass a death sentence on a British subject under his control.

Mr. Speaker

Order. The hon. Gentleman is now beginning to comment on a sentence, which it is not possible to discuss under the Ruling which I have given. The hon. Gentleman has said that he dissents from Mr. Speaker's Ruling. He knows his remedy, and that is all I can suggest to him.

Mr. C. Pannell

Further to that point of order, Mr. Speaker. With respect, you have not dealt with the narrow point, which is whether this is a British-controlled Colony, or whether the court was a foreign court. With great respect, would you apply your mind to the case of someone, for example, in the army of occupation in Germany, or some other place comparable to Aden? What would the position be? It seems to me that, in the meticulous consideration you have given to this matter, you did not comment on the narrow point of whether this case occurred in a foreign land.

Mr. Sydney Silverman

Further to that point of order, Mr. Speaker, and before you rule upon it, may I put this further point to you? It is, I think, beyond controversy that all the Rulings have been Rulings in respect of sentences passed by British courts or, perhaps, by a court in a Crown Colony. I submit to you that Aden is no longer a Crown Colony and has not been for about three years. Thus, when the sentence was passed, the State of Aden was a foreign territory and the court which passed the sentence was a foreign court. Surely, this takes it altogether outside the ambit of the rules on which you have relied today.

Mr. Michael Foot

Further to that point of order, Mr. Speaker. Since many of us who have heard your view of the matter and your Ruling do not feel that it covers the second point, would it be possible for you to reconsider the matter and make a fresh statement tomorrow, covering that point as well?

Mr. Gurden

Further to that point of order, Mr. Speaker. I do not wish to challenge the Ruling which you have given on my proposed Question in exactly the same way. The man concerned is a constituent of mine. Although I accept your Ruling, I tried to overcome this by inviting the Secretary of State for Defence to make a statement in the House so that we could question him on the matter. So far, he has not done so.

Mr. Speaker

I will, first, deal with the narrow point raised by the right hon. Member for Leeds, West (Mr. C. Pannell) and the hon. Members for Nelson and Colne (Mr. Sydney Silverman) and Ebbw Vale (Mr. Michael Foot). I am advised that the High Commissioner in Aden has the Prerogative of Mercy and that ultimately in this case the exercise of the Prerogative may be advised by the Foreign Secretary. It is for these reasons that the matter comes under the terms of the Ruling I have given.

Mr. Sydney Silverman

Further to that point of order, Mr. Speaker—and I promise not to intervene again. I have made inquiries of the Foreign Office within the last few minutes and it has declined to rule that Aden is a Crown Colony. It says that the legal position is very complicated and was certainly not prepared to say to me, five or 10 minutes ago, that the State of Aden was not foreign territory.

Mr. Speaker

My Ruling must stand. The hon. Gentleman has his remedy. I know that this is a very difficult matter. As I have said, I have very deep sympathy with the human issues involved.