ABOLITION OF THE DEATH PENALTY

HC Deb 17 June 1991 vol 193 cc54-86

Question proposed, That the clause stand part of the Bill.

Mr. Archie Hamilton

I oppose the clause and urge the Committee to vote against it. I accept at once that this is a most serious matter and I do not reject the clause lightly or without thorough consideration. I am advised that its drafting is defective and that the clause would not achieve what it seeks to achieve, although that is not my main reason for objecting to it.

5.30 pm

The right hon. and learned Member for Warley, West (Mr. Archer) was right in December during debate on amendments to the Criminal Justice Bill in relation to the death penalty in civil law when he said that the arguments are different as far as service offences are concerned. Essentially, we are now dealing with offences committed in time of war. The fundamental issue here is whether there should be available to service courts the ultimate sanction for action that could imperil the lives of other service men and women who are doing their duty in defending the interests of the state, undermine the ability of the armed forces and ultimately threaten the existence of the state itself.

The clause seeks to remove that penalty from those five offences under the service discipline Acts which carry a maximum, although not mandatory, sentence of death. Those offences are: serious misconduct in action; communicating with the enemy, or furnishing supplies, or aiding the enemy having been captured; obstructing operations or giving false air signals; mutiny or incitement to mutiny; and failure to suppress a mutiny.

With the exception of mutiny and incitement to mutiny, the death sentence may be passed only when the offences are committed with intent to assist the enemy. In the case of mutiny and incitement to mutiny, the death penalty is available only where the object or one of the objects of the mutiny is the refusal or avoidance of any duty or service against the enemy or impeding the performance of any such duty or service.

We should be quite clear that we are concerned here with actions that could ultimately threaten the very existence of the state. In that respect they can be seen as akin to treason for which the death penalty is still mandatory. Until such time as Parliament agrees any change to that law, it would be premature, to say the least, to consider removing the death penalty for the service offences to which I have referred.

Sir Michael McNair-Wilson (Newbury)

By what means would the death penalty be carried out?

Mr. Hamilton

It would happen only in war and I think that we are saying that it would be a field offence and likely to be carried out by firing squad.

It remains our policy that the death penalty would not be carried out in peacetime. The sentence can be imposed only by a court martial, and there are considerable safeguards governing its use.

Some people have implied that retaining the death penalty in some way casts a slur on the professionalism and dedication of service men and women. The opposite is true. We must admit the possibility of treachery, however remote and for whatever motive, by those whose deliberate actions would make the death of other service men at enemy hands more likely. I am not persuaded that circumstances outweigh our responsibility to protect, as far as possible, young men who are prepared to make the ultimate sacrifice defending others from tyranny, as some have done all too recently in the Gulf.

Mr. Terence L. Higgins (Worthing)

Will my right hon. Friend spell out the safeguards that he mentioned?

Mr. Hamilton

Is my right hon. Friend asking about safeguards in peacetime?

Mr. Higgins

My right hon. Friend spoke about some safeguards, but I am not sure about what they are and in what context they apply.

Mr. Hamilton

I think that we are saying that if a court martial in peacetime passed a death sentence it would not be upheld by the Secretary of State. It is only in wartime that there is any chance of a death sentence being passed. It is not mandatory and its passing in wartime would, therefore, be up to the court. That is the only time when such a sentence would be likely to be upheld.

Mr. Denzil Davies (Llanelli)

The right hon. Gentleman speaks about peacetime. Is he speaking about offences committed in wartime that are tried in peacetime, or does he mean offences that are committed in peacetime? When he speaks about wartime, is he relying on a very narrow definition of war?

Mr. Hamilton

The definition of war is when our forces are in conflict with the enemy. It is conceivable that if a capital offence had occurred in the Gulf conflict it would be being tried now. The time at which an offence is committed would determine whether it had been committed in wartime.

Mr. Merlyn Rees (Morley and Leeds, South)

Does the Minister agree that no such penalty could be imposed in relation to Northern Ireland?

Mr. Hamilton

We are quite clear that what is happening in Northern Ireland will not be included in any definition of wartime. We do not regard the activities of the Army in Northern Ireland as wartime activities.

Mr. Denzil Davies

Surely the legislation does not say that. Northern Ireland is covered by the legislation, in which armed conflict is defined as taking place in wartime.

Mr. Hamilton

I give the right hon. Gentleman the undertaking that if the death penalty were passed for an offence committed in Northern Ireland the Secretary of State would use his discretion and would not allow the sentence to be carried out.

Mr. Higgins

I am sorry for persisting but I should like further clarification. My right hon. Friend says that the Secretary of State would overrule a death sentence passed in peacetime. If that will always be the case, why not legislate to the effect that such a sentence will not be imposed in peacetime?

Mr. Hamilton

At such a time we would not expect a court martial to impose that sentence. I suppose that it is open to the court martial to pass such a sentence, although strong advice would be given to it not to do so. In peacetime such a sentence would be overruled by the Secretary of State.

Mr. Simon Burns (Chelmsford)

Am I right in saying that there was no declaration of war before the Falklands conflict although we were clearly at war with Argentina? Under this legislation, what would have happened at that time if any offences had occurred?

Mr. Hamilton

I do not think that a declaration of war is necessary to trigger the legislation. It is a matter of being in armed conflict and therefore the Gulf war, over which we did not declare war either, and the Falklands conflict, would apply.

Mr. Julian Brazier (Canterbury)

Perhaps I can assist the Committee. The key issue is that many hon. Members, including some Opposition Members, accept that it is necessary for the sanction to remain in time of war. The legislation must be left vague because it is impossible to produce a clear definition of what is meant by being at war. Most of the major conflicts in which we have been involved since the second world war were not declared to be war. That is why the matter must be left to ministerial discretion.

Mr. Hamilton

My hon. Friend is exactly right to say that there is a great problem about defining war. We are clear about peace and peacetime activity, and in this case that includes Northern Ireland.

Mr. Menzies Campbell (Fife, North-East)

The Minister is extremely generous in giving way on this important matter. The legislation is not vague; it is quite specific. However, the extent of the discretion that the Secretary of State would seek to exercise is vague. Am I right in deriving from what the Minister said that the Secretary of State's discretion would extend to determining whether what had occurred had happened in conditions which could legitimately be described as conflict, and thereafter would extend to determining whether the death penalty should be carried out? The discretion would be two-legged. First, it would be necessary to determine whether it was appropriate to exercise the discretion against the death penalty and, secondly, it would be necessary to determine whether in the particular case the death penalty should be carried out.

Mr. Hamilton

The hon. Gentleman is right. There is also the discretion of the court martial. As it is not mandatory on it to pass the death sentence, the court martial could decide that the offence did not merit the death sentence even though it took place at a time of war.

Dr. Godman

Will the Minister confirm that no member of the services serving in the Gulf conflict, given that he or she was a member of the United Nations force, could have been sentenced to death if found guilty of one of the charges?

Mr. Hamilton

We were not acting as a United Nations force, although we were acting under a United Nations resolution—the two are slightly different. Therefore, if somebody had committed one of the offences in the Gulf war, he could have been court martialled and the court martial could have passed the death sentence.

I am aware that some states, such as France, Germany, Denmark and Portugal, have abolished the death penalty for services offences. That is for them to decide. Others of our NATO allies, including the United States, Canada, Belgium and Italy, retain the death penalty. Therefore, there is no question of our being out of step with our allies on this matter. The retention of the death penalty has been given the most careful consideration within the services, and they are firmly of the view, which we support, that the death penalty should be available as a deterrent in a situation that involves armed operations, when acts of treachery could have serious implications for the outcome of an operation or war. Therefore, I must ask the Committee to oppose the clause.

Mr. Menzies Campbell

This is a difficult and anxious topic. Like some others, I start with a moral objection to capital punishment. I have always believed that it was wrong to take the life of another and that it was as wrong for the state to do that as it was for an individual. However, I acknowledge that one has to examine whether the particular circumstances which obtain in the services would justify a departure from what, for me, is a matter of principle.

I listened to the Minister with interest. I believe that I do him no disservice if I conclude from what he said that, in his judgment, the continued existence of the death penalty is for its deterrent effect. I did not understand him to argue for retribution or any similar, outmoded justifications for punishment. Therefore, one has to ask oneself whether, in the context of a conflict, the existence of the death penalty would be a deterrent to someone who was contemplating embarking on an activity that might result in a court martial and a sentence of death. I am not satisfied— this is as much a matter of belief as anything because I doubt whether either side of the argument could obtain evidence in such clear and unequivocal terms as to satisfy the other—with the notion of deterrence.

I do not seek to detract from the importance and significance of the offences to which the death penalty still applies but I am by no means convinced, by what the Minister has said or by my experience in civilian law, that the death penalty has ever been, or is ever likely to act as, a deterrent. For that reason, I will vote for the clause. Uwe are engaged, as the report sets out as a matter of principle, in endeavouring to equate civilian with military law, then in this area we could, without any fear, cause the penalty both in civilian life and service life to be exactly and precisely the same. I cannot conceive that any prejudice to good order, discipline or anything else of that kind might be created were this clause not to stand part of the Bill.

Sir Anthony Grant (Cambridgeshire, South-West)

There is, as I hope that the hon. and learned Gentleman will recognise, a difference between offences such as those that we are debating and civil offences. It is possible that, without this sanction, members of the services could take the law into their own hands. There are examples of that having happened in previous conflicts. I hope that the hon. and learned Gentleman and the House will bear in mind that, in the heat of battle—something that some hon. Members have experienced—troops or others might exercise capital punishment without trial.

5.45 pm

Mr. Campbell

That is a possibility, but we put weapons in the hands of troops on the basis that they are properly trained and led and that they will be responsible for their actions. I find it difficult to accept the idea that the absence of the death penalty might provoke troops to take the law into their own hands in repect of a comrade whom they felt had fallen below the high standards to which they were aspiring or which they had achieved.

We got some flavour of the difficulties that the law causes in application when the Minister dealt with the differences between peacetime and what he began by describing as wartime but went on—quite rightly because wartime implies a formal declaration of war—to describe as conflict. We know that nothing in the Bill distinguishes between one situation and the other. We know only that the penalty is available. As the Minister and I know, because of my intervention in his speech, the court martial has a discretion as to whether to impose the penalty. If it does, the Secretary of State then has a discretion to determine whether the background against which the offence was committed constitutes peace or conflict. He then has a further discretion as to whether, in the circumstances of the case, the sentence should be confirmed and the execution take place.

All that imposes far too much discretion, first on the court martial and secondly on the Secretary of State. I believe that not because I do not think that Secretaries of State will not do their best to exercise that discretion in the most fair and judicial way possible but because I think that some cases will be very hard to decide, and that will make the exercise of the discretion extremely difficult. Like all discretions of this kind, as part of the Secretary of State's administrative responsibilities, it would be subject to no challenge.

The Bill, far from being useful in the way described in the report of the Select Committee, can lead to confusion. There is about it a lack of certainty that is inimical to the proper notion of a judicial system.

An issue such as this is necessarily one upon which people should exercise their own consciences. There will be a free vote for Liberal Democrats. I gather from the Minister's nodding head that the same is to apply to Government Back Benchers. I welcome that because it would be unfortunate if an issue such as this were to be determined not on the free and independent judgment of hon. Members, but on the notion that the contents of the Bill had to be either preserved or not.

It is difficult to achieve consistency in these matters, but it is an objective that the criminal law, whether based in civilian or in service life, should endeavour to achieve. It would be less than consistent if the House were not to accept that the clause should remain part of the Bill.

Dr. Reid

The Minister began his speech at 5.29 pm and, with five minutes of giving way, finished it ll minutes later. The debate tonight will probably take an hour or one and a half hours. Last Monday, we discussed the vexed problem of whether we should execute dogs. The House sat until 3 am, and we had speech after speech from Ministers and from Back-Bench Members. Tonight, we are discussing whether we should execute British service men and women. That is a sad reflection not only on the Government, but on the House.

Sir Anthony Grant

Anglo-Saxon attitudes.

Dr. Reid

It may, as the hon. Gentleman says, be a reflection of the Anglo-Saxon race. As a Celt, I do not want to comment on that.

The hon. Member for Newbury (Sir M. McNair-Wilson) asked earlier how sentences were carried out. How sentences are carried out makes little difference. There is no glorious, moral and majestic way in which to execute anyone—far less anyone who has been prepared to offer his life for his country. However, as a matter of interest, the last execution arising out of the second world war, which was carried out on 4 January 1946 some months after even VJ day, was, according to the death certificate which I have, by the breaking of the vertebrae, which I take to mean hanging. There was not even the dignity of a field execution.

The question has raised some interest outside the House. On reflection, that is both understandable and curious. It is understandable because we are dealing with a matter of life and death; it is curious because the Government have argued all along that the death penalty has not been handed down for any of the five capital military offences contained in the services Acts since the second world war. In other words, for almost half a century, we have not used the death penalty for a purely military offence.

Furthermore, as the Minister told us at some length, it has been and remains the express policy of the Ministry of Defence that the five offences should not carry the death penalty during peacetime. The Government have never explained adequately to me—or to other hon. Members, I presume—why the distinction is made and how it is supposed to operate. I welcome the distinction because I welcome the fact that the Government say that they will not use the death penalty in peacetime. I welcome that on humanitarian grounds, but I am slightly suspicious that the distinction is based on humanitarian grounds by the Government because on other issues they have not been renowned for being the most humanitarian of Governments.

I am confused by the Government's logic because they have never adequately explained the distinction between war and peace in the use of the death penalty, or the definition. The distinction cannot be a matter of deterrence, which was mentioned by the hon. and learned Member for Fife, North-East (Mr. Campbell), as there is no logical reason why the death penalty should be a more effective deterrent in wartime than in peacetime. Indeed, the opposite is true, as has been illustrated by history and as was mentioned by the hon. and learned Gentleman.

The distinction cannot be a matter of justice, as wartime military courts cannot be assumed to be any less fallible than peacetime military courts. Indeed, given the conditions of war, the opposite is almost bound to be the case and it is almost inevitable that innocent individuals would stand more chance of being among those executed in war than among those executed in peacetime.

The distinction cannot be on the ground of equity. Those who argue that different standards must apply during wartime, as has been argued this evening, are, by virtue of their own argument, arguing that the sentence of execution should be related to the political circumstances in which the offence takes place and not to the offence itself.

Above all, the distinction cannot be on the ground of clarity. It has been amply illustrated in questions to and answers from the Minister, even at this early stage in the debate, that the precise difference between wartime and peacetime is completely unclear and it is completely unclear how the difference is to be defined and, just as importantly, by whom.

The Minister floundered to an extent. Without being light-hearted and without implying malevolence, I must say that he has given us a promise that is not worth the paper on which it is not written. Nothing has been defined on paper. His offer to us tonight is a bit like a cross between an offer from Don Corleone and an offer from Sir Keith Joseph. He is making us an offer that is difficult to refuse, but no one can understand it. That is not the basis on which to make life and death decisions.

The Minister's arguments in his short contribution should not be allowed to obscure the importance of the issue. There is no overpowering logic or rationale behind which supporters of the Minister's position can hide. There is no self-evident case to put. The supporters of the Minister's position are duty bound out of obligation to the House, to themselves and to the armed services to explain and argue their case rather than just to walk into the Lobby on the assumption that the status quo is a self-evident argument. They must make up their own minds on the issue as a matter of individual conscience.

I am glad that the Minister nodded in response to an earlier question. I have been told that there will be a free vote tonight. If so, it will be a free vote on a three-line Whip. I am not sure of the distinction. I understand that there is a three-line Whip on hon. Members to turn up, but that they will then be free to vote as they see fit—unless, presumably, they are members of the Government, as the Government—[HON. MEMBERS: "No."] I take it that it will be a free vote. It will be up to the individual. That is certainly the case for the Opposition and I am glad to be reassured that it is the case for Conservative Members.

The simple fact on which every mind should be concentrated this evening is that there are still five offences, as outlined by the Minister, that carry the death penalty.

Mr. David Winnick (Walsall, North)

The question of a free vote is of great importance. Labour Members know that they have a free vote and the Liberal Democrat spokesperson has said that his colleagues have a free vote. Has the Minister confirmed that Conservative Members will have a free vote? We have heard rumours, but we cannot know what Whip they are on. I understand that they are on a two-line Whip on the clause. Will the Minister confirm that Conservative Members have a completely free vote?

Dr. Reid

I think that my hon. Friend is wrong and that Conservative Members are on a three-line Whip. However, I think that the Minister has assured me that the Government have found a formula for having a three-line Whip and a free vote. I will accept his reassurance on the matter and he may wish to explain the position.

Mr. Archie Hamilton

I am more than happy to clarify the position for the benefit of Opposition Members. The hon. Gentleman asked about our whipping arrangements this evening. The Chief Whip has demanded of us that we should attend the House, but when it comes to the vote on the death penalty there will be a free vote affecting all Conservative Members.

6 pm

Dr. Reid

I am grateful to the Minister for that assurance. I think that I understand the distinction between voting for the Bill as a whole and voting for the clause.

As I was saying, the simple fact on which every one of those free-voting minds should concentrate is that there are still five offences that carry the death penalty under military law. These have been outlined, and comprise serious misconduct in action, obstructing operations, mutiny or incitement to mutiny, failure to suppress a mutiny and assisting the enemy. As the Minister said, all of those, with the exception of mutiny or incitement to mutiny, require the intention to assist the enemy.

After considering the issue, the Committee voted by a majority to abolish the death penalty, which is why the clause is incorporated in the Bill before us tonight. I agree with that decision. In discussing the issue, I do not want to enter into a full debate about the relative merits of capital punishment as a means of deterring crime or misdemeanour. That debate has been held twice during this Parliament alone, most recently on 17 December last, and on both occasions the House has made its view known by a convincing margin. I may say in passing that, during the debate on the merits or otherwise of the death penalty in civilian life, the argument has commonly been employed by those supporting the death penalty that one reason why Parliament should accept it is that there is overwhelming public support for it in civilian life. Despite that, Parliament has rejected the death penalty, and I would merely observe that that is one argument that cannot be employed tonight, because I do not believe that there is any such public demand for the death sentence as it applies to British service men and women.

It is as well to make it absolutely plain that there is no suggestion from anyone that the five offences outlined already should go unpunished—obviously not. They are serious offences and will continue to be treated as such, qualifying, even if the clause remains in the Bill, for sentences of long periods of imprisonment—possibly life imprisonment.

Dr. Godman

Will my hon. Friend confirm that there is a minimum age as regards the death penalty? I ask that because a number of Scots service men taking part in the Gulf conflict were aged under 18 years. I seek confirmation of the fact that, when the Committee debated the clause, there was some discussion of the minimum age.

Dr. Reid

The Committee spent some time considering the general question of the age at which young service men and women should be allowed to go into active service overseas. Recommendations are made in the report—although clearly they do not form part of our proceedings this evening. Nevertheless, problems could arise. There have been a number of relevant cases—particularly one famous case in civilian life. I cannot remember the names of the two young gentlemen involved, but one of them was certainly below the minimum age for execution—[HON. MEMBERS: "Craig and Bentley."] Yes, indeed. Unfortunately, the young gentleman was executed and, as hon. Members will know, there was considerable doubt surrounding the verdicts. The sort of problem to which my hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman) referred could, therefore, arise.

The point that I was making was that, even if the death penalty were abolished, as the clause now incorporated in the Bill suggests it should be, misdemeanours, crimes and breaches of discipline would still merit very serious punishment indeed. The most pressing issue that we must consider, however, is not whether they merit punishment if proven, because that is clear. Nor are we talking about the principle of capital punishment, as the House has already reached a view about that on a number of occasions. The question is whether it is necessary and justifiable to continue to apply different standards for our service men and women on one hand and for civilians on the other. It is my view—and it was the expressed view of the Committee—that that is not justifiable.

Following the Committee's decision, the Minister said that the Government were mildly embarrassed. The right hon. Gentleman looks puzzled. Perhaps I should have said that he was quoted in the press as saying that the Government were mildly embarrassed. That does not surprise me. Having lost the vote in Committee, the Government have attempted to save face by claiming that it has all been a terrible mistake which can easily be corrected at the appropriate moment. I do not believe, however, that that should be the main source of the Government's embarrassment. The fact of the matter is plain: the Government have come here to tell the House that they must reimpose the death penalty in respect of these purely military offences in order to keep discipline in the armed forces at precisely the moment when we are welcoming our service men and women back as heroes from the Gulf.

Moreover, the Government must explain to the House —as the Minister failed to explain in his opening remarks —why we require the death penalty to ensure good order and discipline when seven of our NATO allies, including the French, who fought beside us in the Gulf, decided years ago that the death penalty should be abolished in military law. Why is the death penalty required for the British armed forces when it is not required in France, Denmark, Norway, Germany, Portugal, the Netherlands and Luxembourg?

Mr. John P. Smith (Vale of Glamorgan)

Does my hon. Friend agree that there is a distinction to be drawn between the NATO countries to which he referred and Britain, to the extent that Britain is the only one that has a professional and volunteer force, whose members should not be expected to behave in an exemplary manner, as they did in the Gulf, with the threat of capital punishment over them?

Dr. Reid

My hon. Friend makes a good point, to which I shall come in a moment. Most of the countries—indeed, all the countries—that I mentioned have a conscript army. One would think that those countries would have more justification for keeping the deterrent of the death penalty than countries with a volunteer army, such as the British Army. But they do not do so. We must ask why that is. What is different about us? Why do we require the death penalty to maintain good order and discipline in the British armed forces when that is not necessary in France, Norway, Denmark, Germany, Portugal, the Netherlands and Luxembourg? Lest anyone on the Conservative Benches should attempt to give us a neolithic racist analysis by saying that it is in the Anglo-Saxon character, I should point out that Australia and New Zealand, whose people presumably come mainly from the same stock as ours, have also recently revoked the death penalty—although that may of course be the result of the infusion of Celtic blood and good sense, particularly in New Zealand.

On a matter of life and death such as this, the Government have a duty to explain exactly why we differ. Are they saying that we need the death penalty because of the lack of leadership among our commanding officers? If they are, they will have a hard time defending their assertion following the officers' performance in the Gulf. Certainly, that is not my view, or that of my hon. Friends, nor is it the view of many Conservative Members. Are the Government justifying the distinction—the necessity to retain the death penalty here in contrast to seven of our allies—on the grounds that our service men and women are any less loyal, courageous or committed than those of our allies? Or are the Government really trying to tell the British people that following the courage and determination shown by our young men and women not only in the Gulf but on many previous occasions on which they have defended their country?

The Government have a duty to be absolutely clear and specific in their argument and I do not think that the Minister was clear and specific in his opening remarks. It is no use telling us, as we have been told—not this evening, but in the past—that there is a law commission which might report or might not report, sooner rather than later, at some time in the indefinite future. Notwithstanding that fact, there is absolutely no argument against ensuring that, by the time the commission reports, the House has expressed its view on the matter. I cannot see why it is worse to have as the status quo at the time of the report no death penalty than it is to have as the status quo at the time of the report retention of the death penalty.

What are the Government trying to tell us by seeking to reintroduce the death penalty in military law? That is what they will be doing if they vote against clause stand part. Are they telling us that it is necessary to maintain discipline in the Army, Navy and Royal Air Force? Are they saying that, in the Gulf, our service men and women needed the threat of death hanging over their heads to prevent them from assisting the enemy or taking part in mutinous activity, but that the French did not? If that is what the Government are saying, it is a disgraceful slur on the reputation, integrity, courage and conviction of our forces. I do not believe for a minute that the Government and particularly the Minister of State, who is an ex-guardsman, consciously believe that, but that is the only logical and objective conclusion that can be drawn from the requirement that the death penalty should be reintroduced in our discipline Acts.

Since the end of world war two, British service men and women have been called upon to risk their lives in more than 10 conflicts. In not one of those conflicts has it been necessary to use the death penalty. It was not necessary to use it in Malaysia, Aden, Korea, Kenya, Cyprus, Suez, Oman, Thailand, the Falklands or in the Gulf. It has not been necessary to use it throughout the long and sorry history of the hostilities in Northern Ireland. In all those conflicts, the disciplinary record of the British armed forces has been quite outstanding despite their being in numerous situations where they were under enormous pressure or subjected to extreme provocation.

The Government will say that the reason for the absence of that lack of discipline is the presence of the death penalty. They claim that it is a deterrent. That is a marvellous circular argument. If the death penalty were used every week, the Government would say that that showed us how necessary the death penalty was to instil discipline and good order. If the death penalty is not used, they say that that shows that the death penalty is an effective deterrent. That is a completely circular argument.

Many Conservative and Opposition Members prefer to believe that our services have such an outstanding disciplinary record because of the professionalism, courage and, above all, devotion to duty displayed by our service men and women over the decades. Even if the Government remain unconvinced of that self-evident truth, they must conceive that our forces, through their outstanding service to this country, have earned the benefit of the doubt.

Some hon. Members have argued that the death penalty should be retained to ensure that it is available in the most extreme cases, for example, where a maverick soldier collaborates with an enemy and in so doing severely harms Britain's interests or causes the death of many colleagues. However, to act in that case would not require the use of provisions under the services Acts. Ample provision for such a case is already contained in civilian law, as I read it, where the capital offence of treason includes within its definition being "adherent, to the Crown's enemies", a definition which satisfactorily covers an act of gross disloyalty envisaged by some hon. Members tonight.

Surely our service men and women deserve equal treatment under the law with civilians. I would go further: I believe that our service men and women already put their lives at risk by volunteering for the armed services and by joining up to defend their country. They risk their lives in war. Service men and women have shown a sense of patriotism which intrinsically deserves respect and which demands at least equality before the law in respect of subjects as important as the death penalty.

Mr. Archie Hamilton

The hon. Gentleman said that service men should enjoy equal treatment with civilians. I remind him that there is a mandatory death sentence for treason for civilians. In those circumstances, and because we are not discussing a mandatory death sentence, there would be less than equal treatment in quite a different direction from that which the hon. Gentleman suggests.

Dr. Reid

I accept the discretionary element. The Minister is saying that the risk may be wider in the armed forces, but it is not quite as deep for the most extreme cases. Several hon. Members and I have already explained that the element of discretion involved by the lack of definition is very worrying. That applies not only at the level of the courts martial, but to the incredible discretion that apparently lies with the Secretary of State with regard to the definition of the difference between war and peace and, in the last instance, in respect of whether a death sentence passed by a court martial should be commuted.

Our service men and women should have the benefits of the extension of the protection that has already been afforded under civilian law by the House in its opposition to the death penalty. In the most extreme cases, there is already adequate provision under civilian law to cope with cases for which the death penalty may well be adequate. However, soldiers, sailors, air men and women would be treated on an equal footing with their civilian counterparts.

Mr. Norman Miscampbell (Blackpool, North)

In all fairness, we all voted against the death penalty for treason. It is not a proper argument to claim that it is available in this case. I will vote beside those who wish to abolish it in the Army. However, I believe that the hon. Member for Motherwell, North (Dr. Reid) accompanied me through the Lobby when we voted against the death penalty for treason.

6.15 pm

Dr. Reid

I am talking about the will of Parliament, not the will of individual Members. The will of Parliament has been expressed on those issues and it is that the law should still include a capital offence for treason. According to my interpretation of the subject, the civilian definition is wide enough to include the most extreme examples given by hon. Members to justify a much wider application of the death sentence for the armed forces.

As the hon. and learned Member for Blackpool, North (Mr. Miscampbell) hinted, I believe that the threat of execution is an anachronism. It is a cruel and barbarous throwback. It has its roots in the era of forced conscription and in the philosophy of the press gang. I do not believe that it has a place in a volunteer army or volunteer forces that operate within and on behalf of a civilian society in which capital punishment has been abolished for the civilians.

I want to draw the attention of the House to a tragic and horrifying anomaly which illustrates the inequality and injustice facing our service men and women and which the reintroduction of the death penalty in military law would reproduce. Let us consider a British soldier in Northern Ireland who is reaching the end of a long term of duty. He has been subjected to physical and psychological pressures the like of which we cannot imagine. Indeed, we could consider a soldier in any hostility or war that could be defined as war at the Minister's discretion.

Let us imagine a not unlikely scenario in which details of that soldier's patrol are betrayed by a British civilian and the patrol is ambushed by terrorists and a number of his colleagues and civilians are murdered by the terrorists. During that attack, after his long and gruelling period in the armed services, that soldier commits an act which could be defined as misconduct in action. Perhaps he panics and abandons his post. Perhaps he uses words that are likely to cause despondency or unnecessary alarm.

Under military law at the moment, that solider could be executed. However, the agent who betrayed him and the terrorists who wrought murder and mayhem on his colleagues and the civilian population could not face the same fate. They would be afforded the protection of a civilised code of penalties freely passed and backed by this Parliament. That is a protection which the Government seek to remove from our service men and women by removing clause 17 from the Bill.

Where in God's name is the justice behind that? Is not it time that we ended such a tragic anomaly? Is not it time that we paid a compliment to our services' professionalism and dedication by ending that relic of conscription and the press gang? Is not it time that we extended to our forces, who bear the burden of protecting our freedom, values and rules of civilised life the benefit and protection of those same freedoms, values and standards of civilised life? I and many hon. Members believe that that is the very least that we owe our service men and women.

Mr. John Wilkinson (Ruislip-Northwood)

I support my now doubly honourable and gallant Friend the Minister of State for the Armed Forces in his determination to ensure that the clause is removed from the Bill. I pay tribute to my right hon. Friend's elevation to the Privy Council and to the very helpful way in which he always conducted himself throughout the long and detailed proceedings of the Special Standing Committee.

I greatly appreciated the sincerity of the hon. Member for Motherwell, North (Dr. Reid) both in Committee and this evening. However, my right hon. Friend is right. I regret that Her Majesty's Government have not imposed a three-line Whip on the issue, because it is of paramount importance for the armed forces, of crucial significance to the community as a whole and important constitutionally.

The great merit of the Special Standing Committee procedure is that members of the Committee have two bites of the cherry. They can summon witnesses and examine the merits or otherwise of the principles of the proposed legislation and the issues that it raises. They then have the chance of operating as a Standing Committee, and considering the legislation line by line and clause by clause.

Let us consider the first process first. The outcome of that deliberation and of the cross-examination of the expert witnesses from the Ministry of Defence was that, on balance, it was useful to retain the option of the death penalty for five service offences and of course—we were bound to do this—that it should remain obligatory for the offence of treason. I urge hon. Members to read paragraph 21 of our recommendations. The paragraph was very carefully drafted. I urge hon. Members also to read paragraphs 411 to 421 of the evidence session which took place on 13 February. If they do so, they will see a clear exposition of the arguments.

To summarise those arguments, the service offences are potentially of such a heinous nature that, if committed in certain circumstances, they could cause the deaths of thousands and thousands of people. They could also cause the failure of operations, the failure of campaigns and, in certain instances, they could even cause the failure of Her Majesty's forces to win a war, with all the constitutional implications that that would have for the defence and freedom of this country.

The sanctions are discretionary, except in the case of treason, and they are ultimate sanctions that would be involved only in exceptional cases. That this is so is made clear by the very fact that they have not been invoked since the second world war. Some people such as the hon. Member for Motherwell, North have argued that it is difficult to distinguish between declared war and peace or hostilities and conflict. Since the second world war, declared conflicts have been very rare, but states of hostility have been all too frequent for our armed forces. However, in peacetime, too, there can be certain circumstances in which the ultimate sanction of the death penalty could be appropriate.

I refer, for example, to mutiny or failure to suppress mutiny. We should bear in mind that not only does power come from the barrel of a gun but that our armed forces have at their disposal fearsome weapons of mass destruction, even including nuclear weapons. If members of Her Majesty's forces are not to be dissuaded or deterred from mutiny to the most effective extent possible, at least theoretically there is a greater chance that the weapons that they have at their disposal could be misused by mutineers. We know what the ultimate constitutional consequences of this could be. The very fact that we still retain a civil law of treason which has the same force in service law shows that we regard that threat as serious. The first step towards an act of treachery and treason could be an act of mutiny in peacetime.

It is not only difficult to make an effective distinction between peace and war, which was borne out in our Committee hearings, but it is legislatively clearer and less ambiguous for the law to be uniform as between peace and war, and there are very good rational reasons for so doing.

The next part of my argument reflects the arithmetical accident of the second part of our Committee proceedings to which I alluded. We had decided, in our deliberative phase on the Chairman's report, that we should draft it, as we did, retaining the death penalty as a useful ultimate sanction for members of the armed forces for the offences to which we have alluded. However, in the so-called Standing Committee procedure, by an accident—as Chairman, I was a spectator in the process—one member was in hospital, another was in China, and another was temporarily absent. The Parliamentary Private Secretary was looking for the temporarily absent colleague. As a consequence, the clause was inserted in the legislation. That had certainly not been the intention of the Committee when it deliberated the issue in a previous discussion of the Special Standing Committee report—it was an arithmetical aberration. Let us be generous—however it was perhaps fortunate. As a consequence, we have this important debate tonight.

I argue most strongly that it would be wholly inappropriate for the Committee to do anything other than reject clause 17. I wish only that Her Majesty's Government had imposed a three-line Whip to that effect.

Mr. Denzil Davies

Before I criticise the Minister of State, I congratulate him on his appointment to the Privy Council. Now that he has arrived at that august and, by its name, highly secret body, I am sorry that he is not standing up to his civil servants on the issue and recognising that it is an anachronism to retain the death penalty for such offences. I am sorry to say that the Minister of State tonight and in Committee found himself in a dreadful tangle about peace and war and about when the legislation is to be applied.

As the hon. and learned Member for Fife, North-East (Mr. Campbell) suggested, under the 1955 armed forces legislation, the key trigger point is the enemy. An enemy is defined as somebody who is engaged in armed operations against any of Her Majesty's forces. I should have thought that, under that definition, there is little doubt that the IRA is an enemy. It is engaged in armed operations against Her Majesty's forces. I hope that the Minister of State will clear up that point. If a British service man commits an act within the sections of the armed forces Acts in Northern Ireland, would he be sent to a court martial? Would that court martial be able to pass the discretionary sentence of the death penalty? On the other hand, is the Minister saying, "No, all this happens in peacetime and because of that we will not charge the unfortunate service man"? If so, he will find himself in a tangle about what is or is not peacetime. There is certainly not peace in Northern Ireland. If service men fall foul of the legislation, I do not want to see them being sent to a court martial and then sentenced to death.

The Minister should also make clear where that statement originated. I have spent a couple of hours in the Library thumbing my way through the "Manual of Military Law". I last looked at it years ago when I was at a warrant officer cadet school. It has changed a bit since then; it has got longer and more voluminous. I might not have been very diligent, but I could not find that statement of policy in the manual. The first I heard of it was in Committee, but perhaps other hon. Members have read it or seen it. When the Inland Revenue issues various exemptions or discretionary exemptions from legislation, it publishes them so that everybody can look them up. Where is this policy or law in the "Manual of Military Law"? I hope that the Minister will tell us because these are important matters. Some of us believe that the rule of law should apply and that we should not have to rely simply on policy statements, even from a worthy and honourable Minister. I make no criticism of the right hon. Gentleman, but we should not have to rely on such so-called "policy statements".

6.30 pm

I turn now to the issue of whether we should maintain, repeal or change the clause. As the hon. and learned Member for Fife, North-East said, this is an argument about the death penalty. The House has debated the matter time and time again and many arguments have been made against the death penalty. I turn first to the argument about morality. In moral terms, I believe that it does not make any difference whether the offence is civil or military because it is immoral for the state to take a life even in the circumstances that have been described. Although I recognise that others will disagree, I believe that the House accepted the argument about morality when it decided to repeal the death penalty for civil offences.

We must also consider the theories about punishment. When I was a student in the 1950s—the House does not contain many students from the fifties these days—I remember reading an article by a gentleman called Mabbott, who was a philosophy don at St. John's college, Oxford. No doubt he got them from somewhere else, but he summarised the three theories of punishment as reform, deterrence and retribution. Those theories may fit most forms of punishment, but not capital punishment. That certainly applies to the theory about reform.

I do not know whether military law that can invoke the death penalty is a deterrent. The death penalty would probably not be a deterrent in civil law for most of the crimes and murders that are committed in Britain in the latter part of the twentieth century, and I do not believe that it is a deterrent in military law. If the unfortunate Argentinian conscripts who did not acquit themselves as they should have at the end of the Falklands war were going home to face such legislation, it did not deter them from failing to do what they should have done. Let us also consider the poor Iraqi farmers who were conscripted into Saddam Hussein's army and who gave themselves up in droves. If such legislation had been in operation for them, they would no doubt have broken every clause of it—and Saddam's legislation is no doubt even worse and more draconian. Those conscripts were not deterred by the thought that they would face the ultimate penalty at home. If such things happen, the army collapses, but a few sentences in a manual on military law or in legislation will not be a deterrent.

The third theory of punishment is retribution, which is a good old-fashioned word that means revenge. I do not say that society does not have a right to exact some form of collective revenge, as part of punishment, for heinous crimes, of which rape is a classic case. However, even revenge must have its bounds in a civilised society, and the death penalty goes too far. There is a danger that revenge itself will go too far in the heated mood of war when the realm is threatened and when the security of the state is being attacked.

When the House debated capital punishment in respect of civilian crimes, one of the powerful arguments used against it was that a jury can make mistakes. I would imagine that a court martial could also make mistakes. The courts martial that are called rapidly during a war are certainly likely to make mistakes. However, we should consider not only the possibility of mistakes, but the pressure that falls on the courts. Unfortunately, British courts have recently been under the pressure of terrorism. I do not criticise anybody for making a mistake, but we must recognise the military pressure that will exist when the realm is under attack and national security is being endangered. A time of war is not the best time to decide matters that could lead irrevocably not only to conviction but to the death of a service man or woman.

There have been many references to the law of treason. Returning again to my student days of the 1950s and 1960s, I remember reading the case of Roger Casement. F. E. Smith always used to say that Casement was hanged because of the absence or presence—I cannot remember which—of a comma in the Treason Act 1351. The argument in the Casement case centred on whether there should or should not be a comma in the legislation which, being so old, did not contain commas. Casement was hanged.

I also remember reading the case of Joyce v. Director of Public Prosecutions. I am sorry to say that I am referring to Lord Haw Haw. Even to a student, Lord Jowitt's judgment seemed to owe more to revenge and retribution than to the canons and principles of jurisprudence. In the emotive circumstances of a war or its aftermath, deciding such matters is extremely difficult, especially when they involve a person's life.

It appears that the draftsmen of the 1955 Acts, or the persons who instructed the draftsmen, may have recognised that dilemma to a certain extent because, as the Minister pointed out, the sanction is not mandatory; it is discretionary. We are talking about complicated offences—not about the simple offence of doing or not doing something. The legislation contains many words, with many subordinate clauses and commas. Intent has to be proved. Perhaps those who drafted the legislation, which goes back a long way, thought that the death penalty should not be mandatory because of the many different nuances. But that does not solve the problem; it simply creates a further dilemma. It is not necessarily an advantage to say that the penalty is discretionary because the court must exercise that discretion to determine a man's life or death. How does the court or the court martial decide that? A splendid plea in mitigation might result in a life sentence while a poor plea in mitigation could lead to the death penalty.

Mr. Archie Hamilton

Cannot the right hon. Gentleman accept that there would be degrees of severity in any charges coming before a court martial, which would then make a judgment on the sentence depending on the severity of the crime committed?

Mr. Davies

Yes, I accept that, but once we start talking about different degrees of severity, we get into great difficulties with the death penalty. I can also remember reading the Homicide Act 1957, which abolished the death penalty except for murder in the course or furtherance of a theft. The courts encountered all sorts of difficulties with that. The case of Craig and Bentley was mentioned earlier from a sedentary position, but we must also remember the case of poor old Gipsy Smith. A policeman jumped on the bumper of his car when he had been stealing scaffolding clips. In both cases, the Home Secretary had to decide whether to extend the prerogative of mercy. Courts martial will be in a similar position and will almost have to assume the Home Secretary's role when deciding whether a person is guilty. It is all very well for the Minister to talk about degrees of severity but if someone is found guilty of an offence under a particular section of a piece of legislation, sentence has to be pronounced. How does the court decide? The court martial is in an invidious position. I would not like to sit on such a court martial.

Mr. Brazier

I have been listening carefully to the right hon. Gentleman's case. Surely the last sentence that he uttered goes to the heart of the matter: he would not like to serve on a court martial. With respect, as he is not a member of the armed forces, he never would serve on a court martial. The point about this category of offence is that we are dealing with matters which are not for legal judgment but which occur in the special circumstances of a war and on which military judgments are necessary, albeit with the ultimate appeal to the Secretary of State.

Mr. Davies

The hon. Gentleman is wrong. He does not do service to the members of the court martial. They exercise a legal judgment. It is a legal court—if that is not a statement of the obvious. The military judgment is about the facts and whether the defendent comes within the legislation or not. The legal judgment is not only whether that person should be convicted but whether he should be sentenced to the death penalty. It is not fair to impose on a court martial the power which countless Home Secretaries said that they did not like to exercise when there was a royal prerogative in respect of the death penalty in civilian law.

The more that one examines the matter, the more of a dilemma it appears. I understand that the Ministry of Defence has said that in times of peace it would not invoke the death penalty. The Ministry of Defence does not want to see British service men sentenced to death. The Ministry of Defence is not a villain in this matter, but it is locked into the dilemma of the legislation. The more that one examines it and the more amendments one seeks to make, whether on policy grounds or otherwise, the more difficult the dilemma becomes.

It is not good for the Minister to say that the Secretary of State would not do this or that, or that the court would be told in no uncertain terms what was expected. Who are Ministers to tell the court what to do, even if they are Ministers at the Ministry of Defence and the court is a court martial? That is not the basis of the rule of law in this country. That is not a principle that we will die for and defend and for which our service men will fight. It is not a satisfactory case to make to the House.

Without any disrespect to the Minister, there is no way out of the dilemma. The only solution is to maintain the clause and accept the logic that the death penalty must go. I do not believe that that will affect service discipline or affect the excellence of our armed forces one bit one way or the other. The Ministry of Defence should accept that at last, and accept the clause.

Sir John Stokes (Halesowen and Stourbridge)

We are debating a most serious matter, one which gives us all a great deal to think about. Perhaps I could first make a practical point. In a fairly long experience with members of Her Majesty's forces in all three services, with officers, non-commissioned officers and men, I have never once heard the subject of the death penalty raised. That is during a period which stretches back 50 years. Therefore, the excitement and intensity of the opposition to the death penalty expressed in the House will come new to most people in Her Majesty's forces.

We heard from the hon. Member for Motherwell, North (Dr. Reid) a most able and carefully argued speech. He was clearly a most useful member of the Committee, the report of which I read with the greatest interest. However, the tone of the hon. Gentleman's speech seemed flawed in one sense. He suggested that to make these dire penalties available in the desperate circumstances to which he referred was in some way a slur on the vast mass of our forces. That is wrong. No member of Her Majesty's forces would mind in the least if the law remained as it was or feel in any way that it cast a slur on them.

As someone who loves his country most deeply, as we all do here, I believe that we are discussing the most terrible potential happenings. They are quite unlike the ordinary type of crime that we come across in civilian life. We are discussing not, as some Opposition Members suggest, some theoretical debating point, but surely the essential defence of the nation in battle, often in dire circumstances. The offences with which we are dealing are serious and, as some people correctly say, treasonable. The very life and existence of the nation might be at stake. To avoid those terrible crimes being committed, the supreme penalty of the death sentence must be available to the military courts.

Mrs. Maria Fyfe (Glasgow, Maryhill)

Will the hon. Gentleman give way?

Sir John Stokes

I wish to progress a little further. I have only just started. I am trying to make a short speech because I am aware that many hon. Members wish to speak. If the hon. Lady will forgive me, I shall not give way.

The death penalty for the armed forces was discussed by the Defence Select Committee. The view of the Ministry of Defence and of the services was made clear. They did not wish to change the present position on the death penalty. Surely this House, some Members of which have not served in the armed services, must pay some regard to that important point. We cannot and should not let down our fighting troops by any sign of weakness or any theoretical, liberal, pacifist or other argument. We are here to defend the nation and support our troops. We should maintain the penalties as they are and leave the position wholly unchanged.

6.45 pm

Mr. Rees

When I listened to the speech of my right hon. Friend the Member for Llanelli (Mr. Davies), I reached the pitch where I decided not to speak. He expressed cogently and with the benefit of a legal background many of the points that I had wanted to make. However, the hon. Member for Halesowen and Stourbridge (Sir J. Stokes) provoked me, in the best parliamentary sense of the term, when he mentioned pacifism.

I oppose the Government's view, but not because I am a pacifist. I spent five years at war, as my father did before me in the first world war. He was a founder member of the Labour party in a small way. Pacifism does not arise in this matter but I shall not rehearse the arguments. My right hon. Friend the Member for Llanelli and the hon. and learned Member for Fife, North-East (Mr. Campbell) dealt with the point that there is little difference between the argument about capital punishment in the armed services and the argument about capital punishment generally. I simply wish to mention that, when we debate whether to bring back capital punishment, terrorism is always raised. I have more reason than most to detest terrorism, but I do not approve of capital punishment even for terrorists. I hold that view for very good reasons, quite apart from the moral argument. I understand that if a "terrorist" is involved in a shoot-out with the Army, people get killed. Those who live by the sword die by the sword. But whether the state should become involved in capital punishment is a different argument.

I wish to have one point made clear by the Minister before I rehearse several other points. The Minister will not be surprised to know that I am interested in Northern Ireland. With the acceptance of the Irish Government, the British Government never talk about a state of war. All Governments have done the same. The IRA obtains only 2 per cent. of the vote in Northern Ireland. It is not a national freedom army. There is not a state of war in Northern Ireland. I am concerned for the soldiers in Northern Ireland. They are there at our behest. We are passing legislation which, at least according to the definition of peace and war, does not apply to them. In response to the points made by my right hon. Friend the Member for Llanelli, I hope that the Minister will clear that point up.

I am affected by not the general argument, but two other arguments. In 1942 I was stationed with the RAF at Uxbridge, which was a good place to be. Although we thought that nothing ever happened there, my young eyes were opened because in one unit—I do not recall its number—a fair number of young men suffered from LMF, which stood for lack of moral fibre. My right hon. Friend the Member for Chesterfield (Mr. Benn) also served in the RAF. He will recall that term. A fair number—I do not know the exact number—of young men refused to fly. They were afraid. Some people—although not those who flew—called them cowards.

Sixty-odd thousand very brave young men died in Bomber Command and some—I gather mainly from Bomber Command—refused to fly. I never felt that those who refused to fly deserved capital punishment even in time of war. Those involved knew that. The only people who may think that they deserved to die are those who have never heard a shot fired in anger. That is the difference between the two points of view.

Many of the equally brave American 8th Air Force, which flew over Germany in daytime and suffered enormous casualties, peeled off and landed in Norway and Switzerland. I do not know what the Americans did about that. I am sorry that it happened, but nothing will ever bring me round to believing that those pilots should have been shot or sentenced to death. Some who take that view —I do not include the hon. Member for Halesowen and Stourbridge—have never heard a shot fired in anger.

It is easy to say, "Execute them". My father told me what happened during the first world war. People who were afraid of going over the top were executed. We should not consider doing that type of thing because I do not believe that it is part of maintaining the discipline of the Army, the Royal Air Force or the Royal Navy.

Brave young men, and these days young women, will always fight for their country and they do not need the death penalty to maintain their courage. That is a mistake and the Government are dealing with the problem in the wrong way. The death penalty is not needed in Germany or France and I, among other hon. Members, have great respect for German soldiers. They fought with great bravery during the second world war. If they do not need the death penalty, why should our soldiers, airmen and sailors need it?

It is the trouble of older men to talk of being a student, but, unlike my right hon. Friend the Member for Llanelli, I was a student not in the 1950s but in the 1930s. I was then at Salerno in an RAF commando unit and I saw the bravery of the Army at the time. It was not generalled very well, but that is another matter. A small bridgehead was formed and a number of soldiers mutinied. The case is famous and it is still being referred to by my hon. Friends. I do not know the details of the case, but it was a small area and I learnt of what was going on and, whatever else, those who mutinied did not deserve to die and they did not. I believe that my former right hon. and learned Friend, the one-time Lord Chancellor and Attorney-General, and the Member for what was West Ham, South, Lord Elwyn-Jones, served on the court martial and the question arose as to whether the mutineers should be executed. Given the questions that are asked in the House from time to time, it is just as well that they were not and they certainly did not deserve to be.

The Government are going about the matter in the wrong way. I understand the views of many people, especially in the Army. I have no concept of what it is like to be in the front line, but I respect the bravery of our armed forces and I have never had any doubt about that. However, I also know that sometimes people are afraid and that the only people who are afraid are those on the front line. People who say that they are not afraid are not telling the truth. In that respect, I hope that the Government will not try to overturn the clause.

Mr. Michael Shersby (Uxbridge)

First, I apologise to my right hon. Friend the Minister of State for not being here at the beginning of the debate as I was unavoidably detained. I also offer him my warmest congratulations. I am pleased to follow the right hon. Member for Morley and Leeds, South (Mr. Rees) who spent an interesting part of his service career in my constituency.

On 17 December 1990, the House decided for the 17th time to reject the reintroduction of capital punishment for murder. In that debate, I argued that the death penalty should be reintroduced for the murder of police officers because the police and I believe it is a unique deterrent, which would protect them as they go about their difficult and dangerous job. The House listened to the debate and decided not to reintroduce the death penalty for murder.

Tonight the House is considering the different, but closely related, question whether the death penalty should be retained for very serious offences committed in wartime. That was detailed in the evidence which the Select Committee considered. It seems to me that we have a curious state of affairs. The Government overwhelmingly voted for the abolition of capital punishment for murder on a traditional free vote, and they were not prepared to retain that sanction for the murder of a police officer.

That vote has been very much in my mind in the past few hours. I am reminded of the action of my right hon. Friend the Home Secretary in releasing one of the persons convicted of the murder of three Metropolitan police officers in 1966, the first year after capital punishment was abolished. The three persons concerned have spent over 25 years in prison. One is about to be released and he did not fire the weapon.

We are in danger of having double standards. If Parliament decides that we should not have capital punishment to protect the thin blue line who protect every man and woman in this country against armed criminals and terrorists, I shall find it difficult to support the retention of capital punishment for offences committed by young soldiers, sailors or airmen, who, as the right hon. Member for Morley and Leeds, South pointed out, may have been terrified during what he—or these days she—may have had to face in the heat of battle.

The House must make up its mind and decide where it stands. If we are not to have capital punishment for the murder of a civilian or a police officer, we should abolish it altogether. For the first time, I shall vote against the retention of capital punishment, because I believe that we should be consistent.

On 17 December 1990, my right hon. Friend the Home Secretary urged the House not to abolish capital punishment for the crime of treason. When I was preparing for that debate, I looked up the reason why capital punishment existed for that crime. I discovered that it was introduced as an act of mercy and as an alternative to being burnt at the stake or being hung, drawn and quartered. We are still waiting for the results of consultations with the Law Commission on whether that penalty for treason should be removed from the statute book once and for all.

If we are to abolish capital punishment for the murder of a policeman, let us get rid of it for the offences referred to in the report and for treason as well. Then, we and every police officer in the country will know where we stand.

Mr. Peter Archer (Warley, West)

The House will appreciate the hon. Gentleman's courageous speech. Is he aware that, although we were told in December that the Law Commission was reconsidering the crime of treason, my information is that it is doing no such thing and that it has still not considered it?

Mr. Shersby

I am interested in what the right hon. and learned Gentleman has to say. Recently, my pen has hovered over a question paper several times with the thought that I would ask my right hon. Friend the Home Secretary what progress was being made. I desisted because, with such an illustrious body as the Law Commission, such matters are not decided overnight. However, like the right hon. and learned Gentleman, I am interested in when the Law Commission will deliberate and decide. Frankly, I think that it should do that, so that if Parliament should ever again consider the question of capital punishment, it will be able to do so with a clean slate. We would then have no capital punishment for the murder of a civilian, a police officer, a member of the armed services or for treason.

7 pm

Mr. Wilkinson

I am grateful to my hon. Friend for giving way, especially as I was unable to do so at the conclusion of my speech. He adduces the argument that we are considering the example of a poor frightened soldier who, in the heat of battle, is unwise enough to commit one of the service offences. He has argued that, therefore, we should not retain the possibility of a discretionary death sentence being invoked against him. But what about someone who takes careful, calculated, premeditated action, perhaps by inciting others to mutiny and planning it for some time or who assists the enemy in a way that could be catastrophic to his friends and colleagues, perhaps by allowing terrorists to place a bomb in a crucial installation in Northern Ireland? We should not be carried away by the emotive example of the poor soldier in battle, with whom we sympathise greatly, because we should look at the wider issues, which are crucial.

Mr. Shersby

I believe that I can reply to my hon. Friend briefly. In 1966 three armed men set about, deliberately, an act of armed robbery. They were stopped by three brave Metropolitan police officers, Detective Sergeant Christopher Head, Constable Geoffrey Fox and Detective Constable David Wombwell. Those three Metropolitan officers were shot dead by the three armed men. One of those men is still in prison, one died 10 years ago and the other is about to be released. If the death penalty is not to be available to prevent more police officers from being shot dead in cold blood—hon. Members will be aware of one or two other cases in the past three years—I do not believe that we can apply different standards in war. A war is going on in the streets of the country and our policemen and policewomen act to prevent that and to protect us.

My hon. Friend the Member for Ruislip-Northwood (Mr. Wilkinson) represents a neighbouring constituency to mine and, although I deeply respect his remarks, I do not believe that we can apply double standards. We must either reintroduce the death penalty for the murder of a police officer or get rid of it for certain military offences.

Mrs. Fyfe

I welcome the sentiments that the hon. Gentleman has expressed. An offence may be committed by someone who is frightened and unable to face the heat of battle, but what about someone who by a deliberate and cold-blooded act chooses to put this colleagues and perhaps his country in danger? No one is seeking to argue that that person should get away with it, but he should not necessarily suffer the death penalty as a result of a court martial. He could be put on trial and given a heavy prison sentence. Where is the need for the death sentence? No one who opposes the clause has explained why a person in such circumstances should meet his end by being hanged or at the hands of a firing squad.

Mr. Shersby

The hon. Lady has made her point well and I do not believe that I can add to it.

I have made my case and I have nothing more to say except that I believe that we should have consistent standards on what is the ultimate deterrent and penalty. The House made a decision in December and I suspect that it will make a similar one tonight.

Mr. Peter Viggers (Gosport)

On several occasions during his speech the hon. Member for Motherwell, North (Dr. Reid) referred to the reintroduction of the death penalty or, as he said, putting the death penalty back into the law. I am sure that, on reflection, the hon. Gentleman would agree that the clause relates to whether we should remove a penalty that now exists which can be used against individuals who are guilty of serious service offences. Such offences are committed not in peacetime but at a time of war or armed conflict and amount to hazarding the lives of comrades or putting the security of the country at risk. We are considering whether to change the law, but I believe that the law should stay unchanged.

My hon. Friend the Member for Ruislip-Northwood (Mr. Wilkinson), who was Chairman of the Select Committee on the Armed Forces Bill, outlined the circumstances in which the Select Committee came to its conclusion. He said that the Committee was minded that the law should remain as it was.

I was the Chairman of the Select Committee on the Armed Forces Bill that was considered five years ago. We considered the retention of the death penalty and took evidence from the Ministry of Defence. Five years ago the Committee decided that the penalty should remain part of the law. It would be unwise of the House today to fail to take cognisance of the evidence put before the Select Committee this year and five years ago from the Ministry of Defence which, having considered the matter with all the seriousness it deserves, recommended that the death penalty for certain offences should remain,

The hon. Member for Motherwell, North made a good, skilful speech, as my hon. Friend the Member for Halesowen and Stourbridge (Sir J. Stokes) has already said. The hon. Gentleman almost had the Committee believing that any hon. Member who wanted the law to remain was almost guilty of criticising our armed forces.

Gosport has more armed forces personnel than any other constituency. The good people of Gosport considered the selection and election of a Member of Parliament and they were broad-minded enough to elect someone who had served in the Royal Air Force and the Territorial Army. I believe that members of the armed forces, of whom I represent so many and with whom I am proud to maintain contact, want the death penalty to be retained for extreme cases where an individual or a group has hazarded the lives of comrades, put them at peril, and hazarded the security of the country. I believe that the law should remain as it is, and that the death penalty should remain for a limited range of cases.

Mr. Brazier

All hon. Members who have spoken today have shown enormous concern for the welfare of the armed forces. I hope that the House will accept that I, too, have shown concern for the armed forces in the short time I have been here. Unlike the right hon. Member for Morley and Leeds, South (Mr. Rees) and my hon. Friend the Member for Halesowen and Stourbridge (Sir J. Stokes), I have never seen action in war, although both my father and grandfather were wounded in action.

The speech of the hon. Member for Motherwell, North (Dr. Reed) was interesting and sincere. This debate is not about impugning the honour of our armed forces—far from it. It is about keeping faith with our armed forces, the vast majority of whom have gone to war and would go again in the future with the best possible spirit.

I should like to recount an incident that did not reach the pages of history, except in an account of one lance-corporal. In the battle up the spine of the Appennines, a small village was held by a much depleted company of a unit which was part of a regiment with which I was associated some years ago in the Territorial Army. The unit was cut off for about 24 hours by a German force. During that time one of the unit's members who had deserted on two previous occasions and who had been recaptured was held down below in a cellar.

It is some years since I read the lance-corporal's account of the incident, but, if I remember rightly, as the Germans closed in on the unit the man in the cellar called out, "You stupid idiots. In a few hours' time you will all be dead and I'll be eating sauerkraut".

The position was not captured by the Germans as the unit was reinforced after a counter attack by other British soldiers. If that man had gone beyond abuse and had used a firearm to kill his commander or other crucial personnel to assist the enemy, would it be right that the Army should not have the sanction, even in principle, of the death penalty? I firmly believe that it should have that sanction.

We have had a long debate on this matter and I do not want to detain the House, but I must deal with the red herring which has been raised about treason. Several hon. Members voted in favour of abolishing that civil offence. It is being examined in the wider context of constitutional arrangements anyway. I firmly believe that, whatever the considerations on that, it is right that the armed forces should have the right to enforce the death penalty, subject always to the discretion of the Secretary of State.

I sympathise strongly with what has been said on the subject of discretion. Plainly, it is not possible to determine in the common sense concept of war when armed forces are legally at war. We have hardly ever declared war. In only a small number of the incidents in which our armed forces have been in action this century has there been a formal declaration of war. That is why it must be left to the discretion of the Government whether or not the powers are enforced.

We are not discussing a sanction which has been used in the past 40 years. Nor are we discussing whether we trust our armed forces: of course, we do. It is clear from all the speeches that the House is united in its admiration for our armed forces. We are discussing whether in exceptional circumstances the ultimate sanction should be available in cases such as the one that I described. I urge the Committee to reject clause 17.

Mr. Higgins

I join with hon. Members on both sides who have congratulated my right hon. Friend the Minister on his election to the Privy Council and I wish him well in his office.

I assure Labour Front-Bench Members that we on this side of the Committee are on a free vote. That being so, it seemed appropriate to come to listen to the arguments. I had no intention whatever of making a speech, but I have been provoked to do so not least by my right hon. Friend. Several points need to be clarified.

It is fortunate that we are having this debate following the Select Committee report which went into the matter in considerable detail. I read some of the arguments with interest. Some people take a moral line on the argument about capital punishment, but the crux is whether the deterrent effect is sufficient to outweigh the risk of mistakes. That argument remains the central point in this debate. Therefore, let us first consider whether mistakes are likely to be made.

Some witnesses expressed the view that there was less likely to be a mistake in a case involving capital punishment in military operations than in civilian ones. I find that surprising. In the heat of battle, the witnesses themselves are involved in highly emotional circumstances, so it is far more likely that they will be genuinely mistaken than the witness of a murder who is in a sense a bystander. Therefore, mistakes are more likely to be made at a court martial than in a civilian case.

The Chairman of the Select Committee asked: Is there a precise definition for what constitutes misconduct in action? Several examples were given. Then the witness added: There is one other thing, to be complete, if I may Mr. Chairman, and it is, if he fails to use the utmost exertions to carry the lawful orders of his superior officers into execution. My goodness, the appraisal by someone else in action of whether someone was using his "utmost exertions" must be open to doubt. At the very least, mistakes are as likely to be made in this area as in civilian cases. We already know of a large number of civilian cases in which, if we had not abolished capital punishment some years ago, innocent people would have been hanged. The issue is, to say the least, finely balanced.

The next question is whether the penalty constitutes a deterrent. It is a greater deterrent if the penalty is certain. The less certain the penalty, the less likely it is to deter. What provoked me to intervene was my right hon. Friend's speech. As I understand it, he said that the penalty would not be applied in peacetime, but that we could not be certain whether we were in time of peace or war. We were further told that, moreover, in peacetime the Secretary of State would be obliged to overrule any decision by a court martial to impose the death penalty. I hope that my right hon. Friend will correct me if I am wrong. In other words, neither we nor anybody who might be deterred by the death penalty knows whether the Secretary of State would be so obliged because we would not know whether we were in time of war.

Again, if I understand correctly, the situation was uncertain during the Falklands war. We do not know whether the death penalty might have been imposed at that time, whether or not it was time of war or whether or not the Secretary of State would have been obliged to overrule any decision of a court martial.

My right hon. Friend was unsure what form such a death penalty might take—whether by firing squad or hanging. He thought that it would be by firing squad, although the last execution was by hanging. It is absolutely clear that, however the House votes tonight—I do not know how it will vote—the present uncertainties must be cleared up. We cannot leave the matter as it is tonight. The House should be a great deal clearer about the law than my right hon. Friend suggested in his opening remarks.

Mr. Tony Benn (Chesterfield)

I have been moved to speak by the debate, but I shall be brief.

While listening to the arguments about the uncertain definition of times of peace or war, my mind went back to 1956 when I served in the House during the Suez war. I asked Sir Anthony Eden whether we were at war. We were not. We never declared war against Egypt. The following day I had a letter from an RAF pilot in Cyprus. He believed that he would be sent into action against Egypt but that it would be an act of aggression, and he asked what he should do. He knew that I had served in the air force. I replied, as I am bound to do, that he must make his decision on the ground of conscience. As I understand it, it is possible that that man would have been liable for the penalty although he had a conscientious objection to bombing a country with which we were not at war. Such are the real matters which the Minister must address.

Many cases involve, not cowardice or a lack of moral fibre, which was the phrase tossed about during the war, but a conscientious objection. William Douglas-Home, the brother of a former Prime Minister, was court martialled for refusing to bomb Caen during the war because he had a moral objection to bombing civilian targets. Those matters cannot conceivably be left to the discretion of the Secretary of State, whether or not it is peacetime and whether or not the death penalty is used.

Mr. Tony Banks (Newham, North-West)

I had a conversation with a Conservative Member who also served as an officer at the time of Suez. He told me that, because he felt that what was going on was morally unacceptable, as far as he could guarantee it he wanted to make damned sure that none of his troops was caught up in it. That might also fall within the definition that we are discussing. It is a further example from the same period which affected an hon. Member.

Mr. Benn

Many examples could be given, but it is clear that it is not a straightforward question of defiance of orders in time of war. It is a very complicated matter. The Minister is asking the House to overturn a decision of the Committee and make it possible in moments of great uncertainty, when motives may be very different, to court-martial and execute a member of the armed forces. I do not believe that to be right.

Dr. Reid

I am mindful of the time, so I shall sum up as briefly as possible the case that I put earlier and respond to some of the points that have been made.

First, may I offer my belated congratulations to the Minister on joining the Privy Council. It was not because of pique that I did not do so earlier—we all get there some time. I am sure that he deserves it. Whether the Privy Council deserves him is an open question, and I would allow a free vote on that, as we are to have tonight on the death penalty.

I have suggested that the death penalty, as applicable in the armed services, is an anachronism. We are told that it is not used in peacetime on principle. It has not been used for almost 50 years during hostilities in which British forces have been involved. The terms "peacetime" and "war" are ill defined at the very least; that has been illustrated by the Minister tonight.

The discretion that the court martial and the Minister are allowed to make a decision under the terms of those definitions is equally ill defined. The death penalty is not applicable even to terrorists, or to those whose acts against our service men and women may result in the loss of their lives. It is not needed by many of our allies, including members of NATO. Even in countries other than our allies where the death penalty is retained—for example, Iraq —it does not achieve a deterrent effect.

It was argued earlier that the death penalty should be retained in principle. That is the most incredible argument. A person is not executed in principle; he is executed in practice. The theory of deterrence, whether in this example or in others, depends on the belief that the deterrent is not there only in principle. A deterrent is a deterrent only if its use in practice is credible. To argue for its retention in principle is a departure from not only the armed services discipline Acts, but the general rule of deterrence.

We are in danger of operating double standards, because we are arguing for the retention of the death penalty, which the House has consistently rejected for acts of terrorism or for the murder of policemen. I shall give just one piece of advice to the civilians in the Chamber tonight who are prepared to vote on this matter—that applies to 90 per cent. of hon. Members: do unto others as you would have done unto yourself. The House has consistently made clear, and enshrined in law, the belief that the death penalty should not apply to civilians. It would be a double standard if civilian hon. Members voted for the death penalty to apply to non-civilians in the armed forces.

I ascribe no malevolent intentions—no wish to attack or cast slurs on the armed forces—to hon. Members who vote tonight to retain the death penalty. However, whatever subjective motivations hon. Members may have, the only logical conclusion to be drawn from a vote for the retention of the death penalty for members of the British armed forces when it is not required by many of our allies is that our troops can be expected to exercise discipline and good order only when the threat of death hangs over their heads. Whether or not it is meant as a slur, I believe that it is a criticism of our armed forces—perhaps subconscious, but nevertherless undeserved.

I believe that the death penalty is an anachronism and a barbaric instrument. Rather than countenancing the burial of one more of our service men, we would do better to bury the death penalty for the armed forces.

Mr. Archie Hamilton

May I begin by saying how grateful I am to hon. Members for their kind references to my entry in the honours list on Saturday. Acquaintances and members of my family have asked me what it means. I understand that it involves an advisory role to Her Majesty the Queen. With no disrespect to Her Majesty, I have likened it to a long-service and good-conduct medal given to members of the armed forces. I have occasionally presented such medals, and I have asked the person what he has done to deserve it. I invariably receive the same reply—years of undetected crimes. I am grateful to you, Miss Boothroyd, for allowing me to digress. That is clearly not the subject that we are discussing this evening.

Safeguards were referred to earlier. My right hon. Friend the Member for Worthing (Mr. Higgins) raised the question of mistakes. Any sentence has to go through a number of stages. First, a court martial cannot accept a plea of guilty to an offence that carries the death penalty. Secondly, the court must reach a unanimous decision. Thirdly, if the death sentence is passed—it is an optional, not a mandatory, sentence—it is subject to confirmation by a senior officer, which in this case means a major-general or above. After that, the sentence is subject to review by the defence council. The death penalty cannot be carried out until that procedure has been complied with. I accept the point made by my right hon. Friend the Member for Worthing. Mistakes can still be made, but much is done to provide as many safeguards as possible.

The hon. and learned Member for Fife, North-East (Mr. Campbell) questioned whether the death penalty was an effective deterrent, as did other hon. Members. The death sentence is like an insurance policy. Hon. Members who argue for the retention of the clause must ask themselves whether we can afford to run the risk of removing that deterrent. If the effect of such offences were small, we probably could. However, the offences involved could have a major effect on the operation concerned, such as the outcome of a war and, thus, the safety of the state. We cannot be sure of the degree of deterrence or how any individual mind might be affected. The Government believe that it is right to maintain the possibility of the death penalty as the ultimate sanction for service offences.

The right hon. Member for Morley and Leeds, South (Mr. Rees) raised the question of the IRA and the position in Northern Ireland. It can be argued that the IRA falls within the definition of "the enemy" under the defence discipline Acts. It is true that service men in Northern Ireland could, theoretically, be prosecuted for the offences that attract the death penalty. I am absolutely clear that, in the exceptionally unlikely event of the death sentence being passed in the hypothetical case in Northern Ireland to which the right hon. Gentleman referred, it would certainly be commuted by the Secretary of State for Defence.

The right hon. Gentleman also raised the question of the person who simply could not face up to the idea of fighting. Taking no action would not fall into the group of five service offences; however, an action likely to imperil the success of an operation would. Again, the death sentence is only one option that is open to the court martial. Those who "chickened out", or refused to "go over the top", would not be committing one of the five offences.

My hon. Friend the Member for Uxbridge (Mr. Shersby) mentioned double standards. As I understood it, his argument was that, if we were not prepared to agree to the death penalty for the killing of policemen, we should abolish it altogether. That strikes me as a strange argument. If he holds that view, surely my hon. Friend should hold out for the day when the House may change its mind about the death penalty for the killing of policemen. Abolishing the death penalty altogether would, as far as I can see, remove any chance of its being reintroduced for the killing of policemen. It is not beyond possibility that, at some time in the future, after a spate of police killings, the House might change its mind. If at that stage no death penalty existed for any offence, it would be very difficult for it to be reintroduced at all.

7.30 pm

The hon. Member for Motherwell, North (Dr. Reid) asked why a distinction should be made between war and peace. The offences concerned may attract the death penalty only when there is an intention to assist the enemy. By their very nature, such offences are likely to be committed only in wartime. I agree with my hon. Friend the Member for Canterbury (Mr. Brazier) that it would be extremely difficult to draft legislation that applied only in wartime. It is very difficult to define wartime—the comments of my right hon. Friend the Member for Worthing are also relevant here. It is hard to be precise about when a state of war exists.

The Government have concluded that it is necessary to retain a degree of flexibility, because it is impossible to provide for every situation that might arise, relying on the safeguards provided by the use of this extreme penally. My right hon. Friend the Member for Worthing was also worried about the definition of a state of hostilities. Surely we know when a state of hostilities exists, even if war has not been declared: that is reasonably straightforward. The right hon. Member for Chesterfield (Mr. Benn) raised the question of the declaration of war. It has happened rarely in the recent past. There was no declaration of war over the Falklands or the Gulf, but the existence of a state of hostilities is pretty clear and understandable to most people.

Mr. Tony Banks

On a point of order, Miss Boothroyd. I think that you know what it is. It is very difficult to hear what the Minister is saying because of the number of people who are standing beyond the Bar talking.

The Second Deputy Chairman of Ways and Means (Miss Betty Boothroyd)

I was so enthralled by what the Minister was saying that I did not notice, but, if that is the case, hon. Members standing below the Bar who do not intend to sit down should continue their conversations quietly, so that the rest of us can listen to this important winding-up speech.

Mr. Hamilton

You flatter me, Miss Boothroyd.

As has been said by the hon. Member for Motherwell, North, this is no time to re-run the arguments about capital punishment. It is worth reminding ourselves, however, that in December the House voted to retain the mandatory death sentence for the crime of treason, and the crimes that we are now considering are very closely related to treason. There will be a free vote tonight, and there is no question of the payroll vote or anyone else being whipped to support the clause.

I hope that, when hon. Members on both sides of the Committee exercise their consciences, they will ask themselves whether it is sensible, if we are to change our whole attitude to capital punishment for treason-related offences, to start with the Armed Forces Bill. If it is right to remove the death sentence for treason—and that is debatable—it must surely be right to remove it initially for civilian offences, and then to review the position of the armed forces.

The hon. Member for Motherwell, North referred to our heroes returning from the Gulf—and they were heroes indeed. It goes without saying that none of those men has been charged with any of these offences, but they were doubtless reassured to know that, if any of their colleagues had transgressed—given the enormity of the result that might have followed, namely, the death of a large number of them through enemy action—the penalty was in place and provided them with protection. As my hon. Friend the Member for Canterbury said, this is a question of keeping faith with our service men. I am sure that they do not want any change in the law.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 124, Noes 228.

Division No. 175]	[7.35 pm
AYES
Abbott, Ms Diane	Bennett, A. F. (D'nt'n & R'dish)
Alton, David	Bermingham, Gerald
Amos, Alan	Blunkett, David
Anderson, Donald	Boateng, Paul
Archer, Rt Hon Peter	Body, Sir Richard
Armstrong, Hilary	Brown, Nicholas (Newcastle E)
Ashby, David	Buck, Sir Antony
Banks, Tony (Newham NW)	Caborn, Richard
Barnes, Mrs Rosie (Greenwich)	Campbell, Menzies (Fife NE)
Barron, Kevin	Campbell-Savours, D. N.
Beckett, Margaret	Cartwright, John
Benn, Rt Hon Tony	Clarke, Tom (Monklands W)

Clwyd, Mrs Ann	Leadbitter, Ted
Cohen, Harry	Lestor, Joan (Eccles)
Cook, Robin (Livingston)	Lloyd, Sir Ian (Havant)
Corbett, Robin	Lloyd, Tony (Stretford)
Corbyn, Jeremy	McAllion, John
Cryer, Bob	McKay, Allen (Barnsley West)
Cummings, John	McKelvey, William
Darling, Alistair	McLeish, Henry
Davies, Rt Hon Denzil (Llanelli)	Maclennan, Robert
Davis, Terry (B'ham Hodge H'I)	McNamara, Kevin
Dewar, Donald	McWilliam, John
Dixon, Don	Madden, Max
Dunnachie, Jimmy	Meale, Alan
Dunwoody, Hon Mrs Gwyneth	Miscampbell, Norman
Eadie, Alexander	Moonie, Dr Lewis
Eastham, Ken	Morgan, Rhodri
Ewing, Harry (Falkirk E)	Morris, Rt Hon A. (W'shawe)
Faulds, Andrew	Morris, Rt Hon J. (Aberavon)
Fearn, Ronald	Mullin, Chris
Fishburn, John Dudley	Pendry, Tom
Flynn, Paul	Pike, Peter L.
Foster, Derek	Quin, Ms Joyce
Foulkes, George	Radice, Giles
Fraser, John	Raffan, Keith
Garrett, John (Norwich South)	Randall, Stuart
George, Bruce	Redmond, Martin
Godman, Dr Norman A.	Rees, Rt Hon Merlyn
Golding, Mrs Llin	Reid, Dr John
Gordon, Mildred	Richardson, Jo
Griffiths, Win (Bridgend)	Robertson, George
Ground, Patrick	Ross, Ernie (Dundee W)
Hain, Peter	Rowe, Andrew
Hardy, Peter	Sedgemore, Brian
Hayhoe, Rt Hon Sir Barney	Sheldon, Rt Hon Robert
Haynes, Frank	Shersby, Michael
Higgins, Rt Hon Terence L.	Short, Clare
Home Robertson, John	Skinner, Dennis
Hood, Jimmy	Smith, J. P. (Vale of Glam)
Hordern, Sir Peter	Soley, Clive
Howells, Geraint	Stern, Michael
Howells, Dr. Kim (Pontypridd)	Strang, Gavin
Hughes, John (Coventry NE)	Vaz, Keith
Hughes, Robert (Aberdeen N)	Wallace, James
Hughes, Roy (Newport E)	Ward, John
Jones, Barry (Alyn & Deeside)	Wheeler, Sir John
Jones, Gwilym (Cardiff N)	Wigley, Dafydd
Jones, Martyn (Clwyd S W)	Williams, Rt Hon Alan
Kennedy, Charles	Winnick, David
Kinnock, Rt Hon Neil
Kirkwood, Archy	Tellers for the Ayes:
Lambie, David	Mrs. Marie Fyfe and
Lawrence, Ivan	Mr. Harry Barnes.
NOES
Aitken, Jonathan	Brandon-Bravo, Martin
Alexander, Richard	Brazier, Julian
Alison, Rt Hon Michael	Brown, Michael (Brigg & Cl't's)
Allason, Rupert	Browne, John (Winchester)
Amess, David	Bruce, Ian (Dorset South)
Arbuthnot, James	Burns, Simon
Arnold, Jacques (Gravesham)	Butcher, John
Arnold, Sir Thomas	Butler, Chris
Atkinson, David	Carlisle, John, (Luton N)
Baker, Rt Hon K. (Mole Valley)	Carlisle, Kenneth (Lincoln)
Baker, Nicholas (Dorset N)	Carrington, Matthew
Baldry, Tony	Carttiss, Michael
Beaumont-Dark, Anthony	Chalker, Rt Hon Mrs Lynda
Bellingham, Henry	Channon, Rt Hon Paul
Bendall, Vivian	Chapman, Sydney
Bennett, Nicholas (Pembroke)	Chope, Christopher
Bevan, David Gilroy	Clark, Rt Hon Alan (Plymouth)
Blackburn, Dr John G.	Clark, Rt Hon Sir William
Blaker, Rt Hon Sir Peter	Clarke, Rt Hon K. (Rushcliffe)
Bonsor, Sir Nicholas	Colvin, Michael
Boscawen, Hon Robert	Coombs, Simon (Swindon)
Bottomley, Peter	Cope, Rt Hon John
Bowden, A. (Brighton K'pto'n)	Cormack, Patrick
Bowden, Gerald (Dulwich)	Cran, James
Boyson, Rt Hon Dr Sir Rhodes	Davies, Q. (Stamf'd & Spald'g)
Braine, Rt Hon Sir Bernard	Day, Stephen

Devlin, Tim	Martin, David (Portsmouth S)
Dicks, Terry	Mates, Michael
Douglas-Hamilton, Lord James	Maude, Hon Francis
Dunn, Bob	Mayhew, Rt Hon Sir Patrick
Durant, Sir Anthony	Mills, Iain
Evans, David (Welwyn Hatf'd)	Mitchell, Andrew (Gedling)
Evennett, David	Mitchell, Sir David
Fallon, Michael	Montgomery, Sir Fergus
Fenner, Dame Peggy	Morris, M (N'hampton S)
Finsberg, Sir Geoffrey	Moss, Malcolm
Fookes, Dame Janet	Moynihan, Hon Colin
Forsyth, Michael (Stirling)	Mudd, David
Fowler, Rt Hon Sir Norman	Neale, Sir Gerrard
Fox, Sir Marcus	Needham, Richard
French, Douglas	Nelson, Anthony
Gale, Roger	Neubert, Sir Michael
Gardiner, Sir George	Newton, Rt Hon Tony
Gill, Christopher	Nicholls, Patrick
Glyn, Dr Sir Alan	Nicholson, David (Taunton)
Goodlad, Alastair	Nicholson, Emma (Devon West)
Goodson-Wickes, Dr Charles	Norris, Steve
Gorman, Mrs Teresa	Onslow, Rt Hon Cranley
Gorst, John	Page, Richard
Grant, Sir Anthony (CambsSW)	Paice, James
Greenway, Harry (Ealing N)	Patnick, Irvine
Greenway, John (Ryedale)	Patten, Rt Hon Chris (Bath)
Gregory, Conal	Patten, Rt Hon John
Griffiths, Peter (Portsmouth N)	Pawsey, James
Hague, William	Peacock, Mrs Elizabeth
Hamilton, Hon Archie (Epsom)	Porter, David (Waveney)
Hamilton, Neil (Tatton)	Powell, William (Corby)
Hannam, John	Price, Sir David
Hargreaves, A. (B'ham H'll Gr')	Redwood, John
Hargreaves, Ken (Hyndburn)	Rhodes James, Robert
Harris, David	Rifkind, Rt Hon Malcolm
Hawkins, Christopher	Roberts, Sir Wyn (Conwy)
Hayward, Robert	Roe, Mrs Marion
Heathcoat-Amory, David	Rost, Peter
Hicks, Mrs Maureen (Wolv' NE)	Rumbold, Rt Hon Mrs Angela
Hill, James	Ryder, Rt Hon Richard
Hind, Kenneth	Sackville, Hon Tom
Howard, Rt Hon Michael	Sainsbury, Hon Tim
Howarth, Alan (Strat'd-on-A)	Sayeed, Jonathan
Howell, Ralph (North Norfolk)	Scott, Rt Hon Nicholas
Hughes, Robert G. (Harrow W)	Shaw, David (Dover)
Hunt, Rt Hon David	Shaw, Sir Giles (Pudsey)
Hunt, Sir John (Ravensbourne)	Shaw, Sir Michael (Scarb')
Hunter, Andrew	Shelton, Sir William
Irvine, Michael	Shephard, Mrs G. (Norfolk SW)
Jack, Michael	Shepherd, Colin (Hereford)
Janman, Tim	Sims, Roger
Jessel, Toby	Skeet, Sir Trevor
Jones, Robert B (Herts W)	Smith, Sir Dudley (Warwick)
Jopling, Rt Hon Michael	Smith, Tim (Beaconsfield)
Kellett-Bowman, Dame Elaine	Soames, Hon Nicholas
Kilfedder, James	Speed, Keith
King, Roger (B'ham N'thfield)	Speller, Tony
King, Rt Hon Tom (Bridgwater)	Spicer, Michael (S Worcs)
Kirkhope, Timothy	Squire, Robin
Knapman, Roger	Stanbrook, Ivor
Knight, Greg (Derby North)	Stanley, Rt Hon Sir John
Knight, Dame Jill (Edgbaston)	Steen, Anthony
Knowles, Michael	Stevens, Lewis
Lang, Rt Hon Ian	Stewart, Allan (Eastwood)
Lee, John (Pendle)	Stewart, Andy (Sherwood)
Lennox-Boyd, Hon Mark	Stewart, Rt Hon Ian (Herts N)
Lilley, Rt Hon Peter	Stokes, Sir John
Lord, Michael	Sumberg, David
Luce, Rt Hon Sir Richard	Taylor, Teddy (S'end E)
McCrindle, Sir Robert	Tebbit, Rt Hon Norman
MacGregor, Rt Hon John	Temple-Morris, Peter
MacKay, Andrew (E Berkshire)	Thompson, D. (Calder Valley)
Maclean, David	Thompson, Patrick (Norwich N)
McLoughlin, Patrick	Thorne, Neil
McNair-Wilson, Sir Michael	Thurnham, Peter
McNair-Wilson, Sir Patrick	Townend, John (Bridlington)
Malins, Humfrey	Tracey, Richard
Mans, Keith	Tredinnick, David
Marland, Paul	Trippier, David
Marshall, John (Hendon S)	Trotter, Neville

Twinn, Dr Ian	Widdecombe, Ann
Vaughan, Sir Gerard	Wilkinson, John
Viggers, Peter	Wolfson, Mark
Wakeham, Rt Hon John	Wood, Timothy
Waldegrave, Rt Hon William	Woodcock, Dr. Mike
Walker, Bill (T'side North)	Yeo, Tim
Wardle, Charles (Bexhill)
Watts, John	Tellers for the Noes:
Wells, Bowen	Mr. John M. Taylor and
Whitney, Ray	Mr. David Davis.

Question accordingly negatived.

Clauses 18 to 27 ordered to stand part of the Bill.