INTERPRETATION, ETC (Hansard, 21 October 1998)

HC Deb 21 October 1998 vol 317 cc1352-6 1352

§ Amendments made: No. 18, in page 12, line 6, at end insert — '"amend" includes repeal and apply (with or without modifications);'.

§ No. 19, in page 12, line 17, at end insert — ' "Northern Ireland Minister" includes the First Minister and the deputy First Minister in Northern Ireland;'.

§ No. 20, in page 12, line 24, leave out lines 24 to 27 and insert— '(f) Order in Council —

(i) made in exercise of Her Majesty's Royal Prerogative;
(ii) made under section 38(1)(a) of the Northern Ireland Constitution Act 1973 or the corresponding provision of the Northern Ireland Act 1998; or
(iii) amending an Act of a kind mentioned in paragraph (a), (b) or (c);'.

§ No. 21, in page 12, line 28, leave out from 'made' to `under' in line 30.

§ No. 22, in page 12, line 30, after 'legislation' insert '(otherwise than by the National Assembly for Wales, a member of the Scottish Executive, a Northern Ireland Minister or a Northern Ireland department)'. —[Mr. Mike O'Brien.]

§ Mr. Mike O'Brien
I beg to move amendment No. 23, in page 12, line 34, at end insert— ' "the Sixth Protocol" means the Protocol to the Convention agreed at Strasbourg on 28th April 1983;'.

Mr. Deputy Speaker
With this, it will be convenient to discuss Government amendments Nos. 31, 32, 34 and 35.

§ Mr. O'Brien
The amendments all concern the death penalty and arise as a result of decisions in Committee and an announcement made earlier in the year. In Committee, amendments tabled by my hon. Friend the Member for Hull, North (Mr. McNamara) were accepted on a free vote. They inserted references to articles 1 and 2 of the sixth protocol into clause 1 of the Bill and inserted some of their text into schedule 1. The sixth protocol provides for the abolition of the death penalty.
However, my hon. Friend's amendments did not define the sixth protocol for the purposes of the Bill, and we are now doing so in amendment No. 23 to clause 21. My hon. Friend also left out a sentence from article 1 of the protocol—inadvertently, I am sure—which is inserted at the correct place in the sentence in schedule 1.
The other three amendments arise from a decision announced by the Minister for the Armed Forces in a statement to the House on 24 July, in columns 1372 to 1386 of Hansard. He announced that the Government intended to abolish the death penalty for military offences in all circumstances, whether in peace or wartime.
Accordingly, amendment No. 31 inserts a new subsection into clause 21, which provides that any liability to the death penalty under the Armed Forces Acts is to be treated as a liability to life imprisonment or some lesser penalty instead. That general statement will be supplemented by detailed amendments to the Armed Forces Acts when the next legislation to consolidate them is introduced. The services were fully involved in the review and consultation took place at all levels, up to and including the chiefs of staff, who believe that the time is right to abolish the death penalty.
Amendment No. 32 provides that the new subsection inserted by amendment No. 31 comes into force when the Bill receives Royal Assent. That is consistent with our intention to honour the decision of the House by proceeding without delay to sign and ratify the sixth protocol.
Amendment No. 34 provides that the new subsection inserted by amendment No. 31 has effect in any place in which the Armed Forces Acts have effect, which is necessary because, unlike the Human Rights Bill, those Acts are not limited in their territorial extent to the United Kingdom. That is consistent with our intention to extend 1354 the ratification of the sixth protocol to the Channel Islands and the Isle of Man, subject to their agreement. Jersey and the Isle of Man have already agreed and Guernsey will next week debate a recommendation from the Advisory and Finance Committee to do so.
The practical effects of the amendments are such that Parliament will not be able to reintroduce the death penalty, other than for acts committed in time of war or imminent threat of war, unless the United Kingdom denounces the European convention on human rights.
The inclusion of article 2 of the sixth protocol in the Bill shows that we recognise that, in ratifying the protocol, we must ratify the whole protocol rather than any part of it. Leaving article 2 in the Bill does not signify any intention to reintroduce the death penalty for acts in time of war. Parliament could do that whether or not article 2 were in the Bill, but that would be inconsistent with the Government's position as set out in the statement that my right hon. Friend the former Minister for the Armed Forces made in July. The amendments give effect to that new policy.

§ Mr. David Wilshire (Spelthorne)
The death penalty is always a matter for a free vote in the House—as, indeed, it was in Committee—but as there is unlikely to be a vote tonight, I want to ensure that my views appear on the record.
I have always believed that capital punishment is not a party political issue—it transcends the partisan quarrels that we have in this place. I have opposed judicial murder all my life, however hideous the crime and however great the desire for punishment, even in times of war. In my 11 years in the House, I have supported every attempt to abolish the death penalty in the armed forces. I want simply to say that I support this attempt tonight.

§ Mr. John Maples (Stratford-on-Avon)
I shall not oppose the amendments, but I shall ask the Minister some questions. Like my hon. Friend the Member for Spelthorne (Mr. Wilshire), I have always voted against the reimposition of the death penalty; I cannot envisage any circumstances in which I would not do so except in the narrow area of military discipline in time of war.
We are talking about very serious offences in wartime, such as assisting the enemy in battlefield conditions; we are not talking about peacetime, when the disciplinary aspects of the matter are not relevant. However, I want to know why we are dealing with the death penalty in the Bill. I know that the matter was discussed in Committee, but it is extraneous—it is not necessary for the incorporation of the convention or for the accession to protocol 6.
I am aware of the statement made by the former Minister for the Armed Forces, but, like my hon. Friends, I thought that the matter would be dealt with in the new military discipline Bill, which we expect to be brought before the House in the parliamentary Session after next. That would have given us the opportunity for an extensive debate about this radical and fundamental step. I do not think that there is any prospect of the death penalty being enforced in peacetime between now and then, so I believe that it would have been better to wait.
The Minister said that the matter had been discussed at all levels up to and including chiefs of staff. I forget his exact words, but I think that he said that they thought that 1355 the time had come to implement the measure. I would appreciate his assurance that they are confident that the ultimate penalty will not be needed in wartime conditions and that they are happy for it to be abolished. If they are happy, I have no further argument except to say that circumstances could change. Are we—the Minister may have answered this—committed for all time to the measure, short of resiling from the treaty under the general provisions of public international law?
I am slightly concerned about the interpretation of article 2 of protocol 6 and whether it applies only to laws that are notified at the time of accession to the protocol. Is the Minister confident that a state that did not have the death penalty in wartime at the time of accession could subsequently give notification that it had enacted it, so registering such a derogation? Article 2 seems to imply that, when a state accedes to the protocol, it can retain the death penalty for wartime military offences. Is the Minister saying, as I think he is, that that applies equally to a subsequent derogation?
8.15 pm
Can we withdraw from protocol 6 under article 5 without resiling from the whole convention? If I understand what the Minister is saying about article 2, that question is redundant, but if my interpretation is not right, I believe that we could withdraw from the protocol under paragraph 3 of article 5, which states: Any declaration made under the two preceding paragraphs may … be withdrawn by a notification addressed to the Secretary General. My concern is that that applies only to those territories that are nominated under paragraph 1 of article 5, not to a withdrawal from the protocol. If so, is it the case that to withdraw from the protocol one would have to withdraw from the whole convention, which, of course, any state has the right to do under public international law?
I should be grateful if the Minister were to give his interpretation, on the advice that he has been given, of article 2 of protocol 6. If the House were, under wartime conditions, to reintroduce the death penalty in military discipline legislation, could such a derogation from the convention be registered with the Secretary General?

§ Mr. Mike O'Brien
The hon. Member for Spelthorne (Mr. Wilshire) set out his views on the death penalty, which many of us share. The hon. Member for Stratford-on-Avon (Mr. Maples) asked trenchantly why we were introducing the measure now, in this Bill. He obviously was not present when we discussed the death penalty; the House, not the Government, decided that protocol 6 should be introduced into the Bill. When my hon. Friend the Member for Hull, North (Mr. McNamara) tabled an amendment on the death penalty, I suggested that the Bill was not the right vehicle for the matter. However, the House in its wisdom took an alternative view, so the Government had to table these amendments.
As I understand it, the Ministry of Defence was consulting on the use of the death penalty in military circumstances; my ministerial colleagues moved to examine the matter as quickly as possible in view of the wish of the House. That is how we arrived at where we are today—the House took the view that the matter was best dealt with in the Bill rather than in military legislation, and it is right and proper that the Government should listen to the views of the House.
1356 The hon. Gentleman asked whether the chiefs of staff were satisfied with the way in which we were proceeding. My information is that they are.
The hon. Gentleman also asked about article 2 of protocol 6. The question of derogation does not really arise here, because article 2 does no more than permit a state to have the death penalty in wartime. It is not so much that we are derogating; we would merely inform the powers that be, or make the necessary statement, that we intended to reintroduce it. Obviously, the House would have to make a decision then on its reintroduction into our law. Therefore, in time of war, should we wish to make that decision—I think that we would all hope that it would not be necessary—we would not be handicapped in a way which we would find unsatisfactory.
Given those reassurances, I hope that the House will agree to the amendments.

§ Amendment agreed to.

§ Amendments made: No. 24, in page 12, line 41, leave out 'or' and insert— '(ii) made'.

§ No. 25, in page 12, line 42, at end insert 'or the corresponding provision of the Northern Ireland Act 1998; or

(iii) amending an Act of a kind mentioned in the definition of primary legislation;'.

§ No. 26, in page 12, line 45, leave out 'Northern Ireland Assembly' and insert 'Assembly established under section 1 of the Northern Ireland Assembly Act 1973;

(da) Act of the Northern Ireland Assembly;'.

§ No. 27, in page 13, line 7, leave out 'or (d)' and insert (d) or (da)'.

§ No. 28, in page 13, line 8, at end insert— '() order, rules, regulations, scheme, warrant, byelaw or other instrument made by a member of the Scottish Executive, a Northern Ireland Minister or a Northern Ireland department in exercise of prerogative or other executive functions of Her Majesty which are exercisable by such a person on behalf of Her Majesty;'.

§ No. 29, in page 13, line 8, at end insert— ' "transferred matters" has the same meaning as in the Northern Ireland Act 1998;'.

§ No. 30, in page 13, line 21, leave out subsection (5).

§ No. 31, in page 13, line 23, at end insert— '(6) Any liability under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957 to suffer death for an offence is replaced by a liability to imprisonment for life or any less punishment authorised by those Acts; and those Acts shall accordingly have effect with the necessary modifications.'.—[Mr. Clelland.]