§ 2.42 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The EARL OF DROGHEDA in the Chair.]
§ Clause 1:
§ Suspension of death penalty for murder.
§ 1.—(1) During the continuance in force of this section, no person shall be sentenced by a court to death for murder; and every enactment requiring a court to pronounce or record a sentence of death in any case of murder shall be construed as requiring the court to sentence the offender to imprisonment for life.
§ (2) Nothing in this section shall affect the provisions of Section fifty-three of the Children and Young Persons Act, 1933 (which prohibits the passing of sentence of death against a person under the age of eighteen years, and requires the court, in lieu thereof, to sentence him to be detained during His Majesty's Pleasure).
§ (3) This section shall continue in force for a period of five years beginning with the passing of this Act, and shall then expire, but without prejudice to the validity of anything previously done thereunder:
§ Provided that if at any time before the expiration of the period aforesaid an Address is presented to His Majesty by each House of Parliament praying that this section be continued in force without limitation of time or for any extended period specified in the Address, His Majesty may by Order in Council make provision for that purpose; and where any such Order in Council continues this section for any such extended period, the provisions of this subsection (including this proviso) shall have effect as if that extended period were substituted for the period of five years mentioned in this section.
§ (4) In the application of this section to Scotland the reference to sentencing to imprisonment for life shall be construed as a reference to sentencing to penal servitude for life, and for the reference to the Children and Young Persons Act, 1933, and Section fifty-three thereof, there shall be substituted a reference to the Children and Young Persons (Scotland) Act, 1937, and Section fifty-seven thereof.
§ LORD MORRISON
moved to leave out subsection (4) and to insert as a new subsection—(4) In the application of this section to Scotland—
- (a) any reference to murder shall be construed as including a reference to any offence mentioned in Section two or Section three of the Criminal Law (Scotland) Act, 1829
20 (which sections make punishable by death certain crimes of violence against His Majesty's subjects);
- (b) the reference to imprisonment for life shall be construed as a reference to penal servitude for life;
- (c) for the reference to Section fifty-three of the Children and Young Persons Act, 1933, there shall be substituted a reference to Section fifty-seven of the Children and Young Persons (Scotland) Act, 1937."
§ The noble Lord said: This is a Government Amendment. Paragraph (a) of the new subsection is necessary because Sections 2 and 3 of the Criminal Law (Scotland) Act, 1829, enable the death penalty to be imposed in Scotland for certain serious offences against any of His Majesty's subjects. These offences include attempts to murder, disable, or disfigure, by shooting, stabbing, poisoning, strangling, drowning, or throwing a corrosive substance. As members of the Committee are no doubt aware, the Scottish Courts have not used this power for many years and I think it was overlooked when the Bill was drafted—or perhaps I would be more correct in saying that it was not considered necessary because, as your Lordships know, the Bill, as originally introduced in another place, did not contain the suspension of the capital sentence for murder; that being introduced into the Bill at a much later stage.
§ May I add that this Amendment does not in any way prejudice the discussion by the Committee of whether the suspension of the capital sentence shall stand? All that it does is to tidy up the Bill, in its present form, by removing the anomaly of the death sentence for murder being suspended in the first part of the clause and later, in the same clause, being retained for attempted murder so far as Scotland is concerned. Paragraphs (b) and (c) merely revise the drafting. I beg to move.
§ Amendment moved—
§ Page 2, line 19, leave out subsection (4) and insert the said new subsection.—(Lord Morrison.)
§ LORD LLEWELLIN
So far as I am concerned I have no objection to this Amendment. It is quite clear that, as the noble Lord has said, it is not going to prejudice our discussion on whether the clause shall remain in the Bill or be deleted. If Clause I does remain in the Bill it had better remain in as good a 21 form as possible. Therefore, I see no objection to the Amendment.
§ On Question, Amendment agreed to.
§ 2.50 p.m.
§ LORD LLEWELLIN moved to delete Clause 1. The noble Lord said: I rise to move the Amendment which stands in my name. Quite a lot has happened since the House of Commons about a month and a half ago discussed the question whether or not capital punishment should remain the penalty for murder. An Amendment to suspend the death penalty was carried by what I consider to be the fairly slender majority of 23 votes, with no fewer than 173 Members of that House taking no part in the Division. Since then, there has been the debate in this House on the Second Reading of the Bill, when we had—as I think noble Lords, whatever view they take of this matter, will agree—a great weight of experience which, with three exceptions, was stronger than anything presented in another place. The exceptions I make are Sir John Anderson, who was for so long at the Home Office, either as Permanent Secretary or Home Secretary; Sir David Maxwell Fyfe, who had all the experience of the Nuremberg Trials, before the noble Lord, Lord Oaksey; and the Home Secretary himself, who was speaking, of course, with all the weight of his great Department behind him. Secondly, there has since then been time to test the feeling in the country, and that has been done in a number of ways. The third thing that has happened since then is that the Home Secretary has announced that where, in the meantime, anyone has been convicted of murder, the sentence of death will not be carried out. Fourthly, there has seldom been a period (I do not say this is conclusive) where one has seen reports of so many murders in so short a time. Since the man Thomas was reprieved after he had murdered a policeman, there have been two other attacks on the police, one in which the policeman was killed and the other in which the officer is now suffering from a ghastly stomach wound.
§ It is in these circumstances that it falls to our lot to discuss the matter to-day. This is no Party issue. It is an issue on which every one of us must make up his mind to the best of his own judgment 22 and ability. I am glad to think that no Party Whips will be put on from either side, any more than was done in another place. I understand that to be the position in this House. This is an issue for which there was no mandate at the last election. Had there been a mandate, it is clear that the Government would have put this clause in the Bill in the first place. I am not saying that Parliament cannot act without a mandate of the people; it has often acted without such a mandate. But I am saying that it seems to me that our colleagues in another place have not the additional fortification of a mandate to claim that their judgment on this matter is better than ours. On an issue of this sort it is for every member of the Legislature to act in accordance with his conscience, and every member has a right to do so, in whichever Chamber he sits.
To-day I want to deal, quite briefly, only with the reasons which compel me to vote in favour of the retention of the death penalty. First of all, I believe it to be a deterrent. If it is not a deterrent, why do we keep it on our Statute Law for treason? Why did we take part in the Nuremberg Trials, if we did not think that by convicting international criminals, as we all believed Goering, Ribbentrop and the others to be, we were deterring other people from taking similar actions? On this point, my noble and learned friend Lord Du Parcq put the matter on Second Reading in a way that I do not think could be bettered. He suggested that everyone of us must record his vote upon his own responsibility and went on:
If it rested with me to decide, then in the future, whenever I read in the Press of murder I mould be mentally confronted with the question: Would these innocent lives have been sacrificed? Would those innocent relatives have been bereaved, if the capital penalty had been in existence?
That is the test I put to myself and, believing that it is a deterrent, I feel compelled to make an effort to retain it as part of our criminal system. Let me add that I believe, equally with noble Lords who take the opposite view on the death penalty, in the sanctity of human life. But the human life for which I have most regard is the life of the innocent person, not the life of the man who, by the very act of which he has been convicted,
shows that he himself has no regard for the sanctity of human life.
§ What will Parliament have done if this Bill goes through in its present form? It will have put murder in the same category as a large number of other offences for which the maximum sentence is imprisonment for life: burglary, burning down a church or chapel or a stack of corn, burning down a railway station, buying or selling counterfeit coins, making counterfeit coins, stealing a postal packet, forging or stealing a will, embezzlement by an officer of the Bank of England, making a false record of stock in the records of the Bank of England, destruction of a register of births, and the impersonation of an owner of stock—to mention just a few. If this Bill goes through in its present form, it cannot be said that Parliament rates human life very highly. In the eyes of Parliament it would be no worse to destroy a human life than to destroy a will, or a register of births. That seems to me to be absurd. I do not think it is fair to the police, or to those assisting them in the execution of their duty, to inflict no greater punishment, say, upon the burglar who destroys the evidence by killing a policeman, than upon the burglar who gets the maximum penalty for breaking into a house at night. Nor is it fair to the innocent householder, who, quite rightly, is defending his or her goods.
§ Let it be remembered that at the present time what I may call the professional burglar practically never takes firearms about with him, or goes with a man who has firearms in his possession. He is afraid that his companion may, in the heat of the moment, use that firearm, and that in consequence both of them—one as an accessory before the fact, and the other as the man who actually pulls the trigger—may be hanged for the murder. I believe the very fact that capital punishment has been in existence has made those professional burglars, as I call them, adopt that attitude. In my view, it would be wrong for us to take away that deterrent from that type of man. It is not fair to the warders, if we take away this final penalty; nor, indeed, is it fair to some of the prisoners in our convict prisons. If a man has been sentenced for life for murder and gets bored with his warder, or with a fellow 24 prisoner, and murders him, he cannot be sentenced to anything more—except, possibly, to the punishment of whipping for grievous assault, which, I suppose, is what murder would be. That is the only punishment. He cannot be kept any longer in prison for the new offence.
§ Further, I believe it is right that we should send this matter back to the other place because of the repercussions which the acceptance of this clause might have outside the shores of this country. Had I spoken on the Second Reading, I was going to refer to the necessity of the death penalty in the Colonies. I intended to speak about it, however, only from the experience gained in a few weeks' tour in West Africa. I was glad that the noble Lord, Lord Milverton—whose experience enables him to do it with much greater authority than I—spoke of its necessity if ritual murders in the Gold Coast and the horrible leopard murders which have been taking place in Nigeria are to be stopped. It may be said that this Bill does not apply to the Colonies. That, of course, is quite true. In these days, however, we cannot go on in the British Empire having one law for those who have white skins and a completely different law for those who have coloured skins. We cannot, in modern conditions, continue the organising and running of this great Empire of ours on any such basis as that. There is bound to be—as there was in the case of the Chiefs who were convicted of ritual murders on the Gold Coast—not only in particular cases, but in general, a tremendous pressure on the Secretary of State for the Colonies to bring the law in the Colonies into line with that in this country. I believe that it would be a mistake to abolish the death penalty there, and that to do so would mean that in those parts of the Empire a large number of people would take the law entirely into their own hands. It would lead to more ritual and tribal feuds, the very things which, by an impartial justice, we are trying to stamp out in those countries.
§ Since the debate in the other place an interesting White Paper has been published, for which we should all be grateful to the Government. From that White Paper it appears that the long periods of solitary confinement which were applied before the war in most of the 25 countries referred to have been considerably reduced at the present time. But one does find that in one or two cases solitary confinement, with only a couple of visits a month, extends (in the case of a man sentenced to penal servitude for life for murder) to no less than ten years; and ten years is a frightful length of time to be kept in solitary confinement. However, I am certain it will be essential, if we take away the death penalty for the really cruel murderer, to have a longer period of solitary confinement and more rigorous imprisonment, if imprisonment for life is to act as anything of a deterrent to such people. It was the knowledge of that fact which made Sir Alexander Paterson favour the retention of the death penalty. I was a personal friend of his. He was at the same college at Oxford as I was, although some time before me. I think we all have a great appreciation of the wonderful work he did for prison reform in this country. In my view, it had some influence in the other place when in the last speech that was made in the debate there it was alleged that Sir Alexander Paterson had changed his views. The honourable Member who made that allegation has since had to withdraw it. But it was made, and no doubt it influenced quite a number of people to cast their votes in the way they did. I do not think it would be amiss, that misrepresentation having been made—I will not say whether innocently or not——
§ LORD CHORLEY
May I interrupt the noble Lord? I think the mistake made by the honourable Member who made the statement in another place was in saying that Sir Alexander Paterson had joined the Society for the Abolition of the Death Penalty and not that he had altered his views.
§ SEVERAL NOBLE LORDS: No.
§ LORD LLEWELLIN
I am much obliged to the noble Lord. I think that reinforces the point which I was making. It was always known, when he gave evidence before the Commission on Capital Punishment, that Sir Alexander Paterson gave his views that it ought to be retained. I should have thought that the statement of the honourable Member that Sir Alexander had joined the Society for the Abolition of Capital Punishment con- 26 notated that, in the meanwhile, Sir Alexander Paterson had changed his views.
§ LORD CHORLEY
Perhaps I failed to make myself clear. The honourable Member in another place did not withdraw his allegations that Sir Alexander had changed his views. What he withdrew was the statement that Sir Alexander had joined the Society for the Abolition of Capital punishment.
§ LORD LLEWELLIN
The noble Lord says it is not. On this particular point—because the Home Office were in touch with Sir Alexander—I much prefer the statement of the Home Secretary, who said that, so far as he knew, Sir Alexander Paterson was still in favour of retaining capital punishment. But do not let us argue about what one honourable Member said in another place. I believe the statement conveyed the impression to quite a number of people who heard it that Sir Alexander Paterson was of a different way of thinking from the way the Home Secretary had suggested. At any rate, it would not be a bad thing to let Members of another place have another chance of saying whether or not it did influence them.
I come back to what I said when I started, that there has been time in the country to test public opinion. I go around the country a certain amount, and at any meeting to which I have been I have tried, quite impartially, to put the question. I have never found at any meeting more than one or two who were in favour of the abolition of the death penalty. That, of course, is not a methodical way of testing public opinion; I am not saying that it is, although I have no doubt that it has been used by other noble Lords than myself. Where a survey was carried out quite accurately was in a representative constituency like Darwen, which has as its Member a Conservative. He happened to be one of the Conservatives who voted for this new clause and for the suspension of the death penalty, so that it cannot be said that his supporters voted the way they did, in the view: "Well, we had better back up our Member." The very 27 remarkable result was that out of the cards he sent round to his constituents, of those which were returned, 13,736 voted for the retention of capital punishment and only 718 supported the new clause.
Again, there is the way in which the Daily Telegraph put this question. It is quite true that the survey does not cover the whole country, but it is remarkable what results one achieves by these Gallup Poll methods. At one time in my life, I confess, I never believed in them, but now I find they show extraordinary accuracy, both here and in the United States. I noticed that particularly on the Gallup Poll with regard to the Presidential Election. At any rate, of the 6,114 people interviewed on this question of the death penalty, 4 per cent. had not heard that anything was happening about it; so we can eliminate those. To the others, the interviewer put the question very impartially: "How do you feel about the death penalty being abolished?" Of those who answered that question, 69 per cent. were unqualified in their disapproval of getting rid of the death penalty, and 13 per cent. were equally unqualified in their determination to try to get rid of it. I am not saying that Parliament is in any way bound to respect these feelings, but they do exist in the country. And I do say that it will be wise of Parliament to respect the very strong feelings which have been aroused in this country on this matter.
In view of that feeling, in view of the advice given by the Home Secretary—the decision which he said the Government had anxiously taken, having considered it for a number of months—in view, indeed, of the cogent arguments we have heard in this House from those particularly qualified to advise us upon these matters, I hope the House will accept the Amendment I am now moving. I believe that it is the duty of Parliament—particularly at times when, unfortunately, criminal calendars are continuously lengthening and are so much enlarged over normal times—to do nothing which makes the ordinary peaceful citizen in this country feel that he or she cannot live his or her life peacefully and without increased fear of a violent death. It is for those reasons that I beg to move.
Leave out Clause 1.—(Lord Llewellin.)
§ 3.17 p.m.
§ VISCOUNT SAMUEL
In the debate on the Second Reading I occupied a measure of your Lordships' time in explaining my reasons for opposing the clause which is now in the Bill. It is unnecessary to repeat arguments already advanced, and I do not propose, therefore, to make other than a brief speech to-day. Perhaps I may venture to summarise in a few sentences the course which I ventured to submit on Second Reading that your Lordships might be well advised to take. It was this: That we should not agree to the abolition of the death penalty, nor to its suspension for a period of five years, nor yet to leave the situation just as it is now, but that we should limit the infliction of the death penalty to certain categories of the gravest cases. That is the view which I had an opportunity of expressing to the Select Committee on Capital Punishment, nearly twenty years ago now, and I see no reason to change the view that I then expressed. Among the gravest cases I should include one class to which hardly any reference has been made in these discussions, and that is murder by political assassination: murders such as those of Lord Frederick Cavendish and Mr. Burke in Dublin, or of a member of your Lordships' House whom we all remember with affection and respect, Lord Moyne, in Cairo, or the promiscuous throwing of bombs on some public occasion. If crimes of that kind were committed, the outrage upon public opinion would be so great that I am sure there would be a revolt against a law which imposed merely a penalty of some years of imprisonment.
The second class of grave cases relates to the murder of the police or members of the public engaged in apprehending criminals who may be concerned in an armed robbery. The third is the murder of prison warders. If, in such a case, a man is already serving a life sentence, there will be no penalty whatsoever that could be inflicted upon him for this further crime. The last category would be very heinous crimes, callous and carefully premeditated, such as were instanced by some noble Lords, particularly Law Lords, during the Second Reading Debate. I think it would be difficult to define these categories in the terms of a clause in an Act of Parliament, and 29 therefore I feel that a discrimination should be made, such as is now exercised by the Home Secretary in the discharge of his duty in recommending reprieves to the Crown. Perhaps this might be done by an act of Prerogative on the advice of Ministers, and with either the explicit approval or the acquiescence of Parliament. When we are advised to follow the course adopted by many foreign countries which have abolished the death penalty, let us remember the procedure which was adopted in almost every case. They did not begin by passing an Act of Parliament to abolish the death penalty; it was allowed gradually to fall into desuetude. In many cases, ten, fifteen, or twenty years elapsed (capital punishment being adopted only in a small number of very grave cases) before the law was altered and capital punishment was abolished altogether.
Further, I would remind your Lordships that the Select Committee of 1930 recommended, in their Report, that if Parliament did not think fit to abolish capital punishment altogether this course of a wider practice of reprieve, amounting to a gradual abolition, was practicable. And they gave it as their opinion that it should be adopted. To this I would add the following proposal for your Lordships' consideration. If it is thought that this places too grave a responsibility upon a single individual—the Home Secretary—we might well adopt in this country the law and procedure which prevails throughout the British Colonial Empire. There it is the rule that the Governor of a Colony, or the High Commissioner of a Mandated Territory (I have myself had experience of this for five years, as High Commissioner in Palestine), in exercising the power of commuting the death sentence, should take into consultation the members of his Executive Council. In my case they were the Chief Secretary, the Treasurer and the Attorney-General. Although ultimate responsibility rests upon the Governor or High Commissioner alone, he naturally takes into account the opinions expressed by his colleagues. The procedure is for each to write on a piece of paper "Yes" or "No." These pieces of paper are placed in a bowl and the Governor is guided to some extent by the information expressed by means of that process. He can, if he thinks it necessary, overrule the members of his 30 Executive Council; but in that event he has to report to the Colonial Office. It might be suggested that in this country a Standing Committee of, say, three Privy Councillors should be appointed and that the Home Secretary might take this Standing Committee into consultation when exercising this very heavy and difficult duty. They should not, I think, be Judges, for the matter is not one for a juridical opinion, but rather laymen such as the Home Secretary himself is. There can be no constitutional objection to this, and no objection in principle, since it is already part of the British system in His Majesty's Colonies.
Passing from that, I have some observations to make as to the course which the Government propose to take, here and in the House of Commons, on this present Amendment. It appears to me to be a wholly untenable position. The noble and learned Viscount the Lord Chancellor said in the Second Reading debate in your Lordships' House, with great frankness:…holding as I do this great office, and being for the time being the head of the Judiciary, I owe it to myself and to your Lordships to make it quite plain that I am not in favour of the proposed change.A similar statement was made by the Home Secretary in the House of Commons, and the Cabinet as a whole expressed that view in Parliament. I cannot conceive how in any circumstances, having expressed these opinions, those Ministers should now vote for the retention of this clause. It was said that a free vote was allowed in the House of Commons because with many people this was a matter of conscience. The Home Secretary said that persons feel an individual conscientious responsibility in this matter, and for that reason the Whips were not applied when the Division was taken in the House of Commons. But how can a man's conscience tell him to give a vote one way, previous to the decision in the House of Commons on April 14, and to vote in the opposite direction after that date? No new facts have been advanced, no new arguments have been put forward; there has been no sudden mystical conversion. Up to April 14, conscience gave one direction to the soul; after that date it apparently gives an opposite direction.
Does anyone say that this change of view is justified, and necessitated by the 31 expressed will of the nation? I shall be most interested to watch whether, in the course of this debate, a single member of your Lordships' House gets up and says that in his judgment the opinion of the nation is definitely in favour of the abolition of the death penalty. If he were to do so, he must have information at his disposal which is not available to the rest of us; for so far as the ordinary methods of information are concerned, it is certain that the overwhelming expression of opinion of the nation is against the clause which has been inserted in the Bill. The Home Secretary said in the House of Commons when this matter was being debated:The Government find after the most careful review of this subject that they cannot recommend the House to support the Clause.… We believe…that the time is not ripe for undertaking this particular reform. I do not myself believe that public opinion in the country is in favour of this Clause at this time.Was he wrong as to the facts? Or is the argument to be advanced that the nation is against this proposal, but that Parliament would nevertheless be right to enact it?
I took some part in the old conflict between the two Houses, and was indeed a member of the Government in those days. We were then accustomed to urge that the hereditary Chamber should not be allowed to flout the opinion of the nation. But no one at that time ever argued that the House of Commons, because it was an elected Chamber, should be free to flout the opinion of the nation. There is no Liberal doctrine that would support that, and it is a very strange version of the democratic principle. I have often protested against the inclusion in Bills of wording to the effect that such-and-such a thing shall be "deemed to be" the case—although everyone knows that it is not the case. Are we now to be told as a constitutional doctrine, after the vote in the House of Commons at 10.15 p.m. on April 14, 1948 the nation is to be "deemed to be" in favour of the abolition of capital punishment? I submit to your Lordships that no constitutional issue can arise in this case. As the noble Lord, Lord Llewellin, has pointed out, and argued very forcibly, no one can urge that there is any mandate for this proposal. If 32 there were, the clause must have appeared in the Bill on its introduction, and if there were a mandate, how could the Prime Minister, the Home Secretary and the whole Cabinet vote against the proposal? It is said that a free vote was held in the House of Commons, but as a matter of fact it was not free, because Ministers who were in favour of the abolition of the death penalty were compelled to abstain. Consequently, the result was falsified to that extent; and if the vote had been really free, the majority would have been larger than it actually was.
On the next occasion, if your Lordships throw out this clause and if it again goes before another place, those who then abstained will be free to vote in support of the abolition, while the Ministers who were against it on that occasion will now be swung round and compelled to vote for the abolition which they previously opposed. The Government did not chastise the Back Benchers with Whips, but they are now themselves being chastised with scorpions. Since those members of the Cabinet, and others who in another place on the previous occasion voted against this clause for the abolition of the death penalty, are now to be transferred to vote the other way, each one of them will count two on a Division; and consequently, the majority in another place the next time will probably be far larger than it was on the first occasion—unless, indeed, many Members, after conversations in their constituencies, change their views as to what is desired. Consequently, the majority in another place, having been falsified in one direction on the first occasion, will be falsified in another direction and to a greater extent on the second occasion. We shall not be allowed to know what is the real conscientious opinion of the House of Commons as a whole. I say that all these facts should be taken into account by the country and by your Lordships' House. For my part, speaking for myself, I have no hesitation in stating that I shall vote for the Amendment which is now before your Lordships' House.
§ 3.34 p.m.
§ VISCOUNT TEMPLEWOOD
I agree with much of what the noble Viscount has just said about the confusion in which we have been placed by the way in which the Government have dealt with this question. However, I said something upon that subject in the speech that I delivered to this 33 House upon the Second Reading. I do not want this afternoon to repeat what I then said, nor indeed do I wish at this stage to enter into the details of the proposals of the noble Viscount, Lord Samuel, as to the categories in which the Home Secretary should authorise the death penalty and the other categories in which the sentence should be commuted. I will make only this one observation upon the subject today. For reasons that I stated in your Lordships' House two or three weeks ago, I am against the death penalty. I wish to see the abolition of executions. Therefore, any procedure that continued executions as a part of our criminal law would be most distasteful to me. None the less, supposing that Parliament decides against this clause, I should certainly hold myself free to support any proposal that restricted executions to the minimum. To-day, however, I do not intend to enter into the details of the actual proposals made by the noble Viscount, Lord Samuel. Let us discuss them in detail if and when the occasion for such discussion arises.
To-day, I have risen to say a few words upon one or two new developments in the controversy, and particularly the new developments that arise upon the issue of the Government's White Paper. Noble Lords may remember that in the course of the Second Reading debate I pressed the noble and learned Viscount the Lord Chancellor to produce a White Paper upon the subject, and to bring up to date the information that had been collected at the time of the Select Committee in 1930, and particularly the information about the experience of foreign countries. At the time of the Second Reading, the Lord Chancellor replied that it would be difficult to obtain the information in time. None the less, the noble and learned Viscount has obtained some of it, and I am most grateful to him for having placed it at our disposal.
The White Paper gives us information upon two sides of the question: first, the after-careers of the murderers whose sentences have been commuted to life imprisonment since 1920; secondly, the more recent information of those foreign countries that have now adopted abolition. Let me say a word or two upon both these aspects of the problem—first of all, upon the after-careers of the murderers whose sentences have been commuted since 1920. I attach great 34 importance to an analysis of this kind—for this reason. I myself have always attempted to look at these questions as far away from sentiment as possible, and to treat them, fact by fact, upon the actual available experience. On that account, I am sorry that this part of the White Paper does not go into even greater detail. At the time of the Second Reading, I asked that we should have particulars about the Individual case of every murderer whose sentence has been commuted since 1920. I am certain that that information is available, and I think it would have been much better if we had had it before us to-day. In the mean-while, we must take the information that is available to us to-day.
Let us look at the Waite Paper and see what it actually seems, I will not say to prove, because in all these questions it is very difficult to obtain definite proof, but what it generally implies. First of all, it shows, as I read the figures, that the great majority of the murderers whose sentences have been commuted have made good. If noble Lords will refer to the White Paper, they will see that out of 174 cases of commutation only five have been re-convicted of any serious offences, and only one—and it was that case to which I alluded on Second Reading—has been guilty of a subsequent murder. I will remind your Lordships' House of what was said about that very exceptional case on the Second Reading. It was a case of a man who, like many others during the war was granted a premature release. He went into the Army and, so far as I can discover, there was no after-care applied to him, and he committed a second murder. But I do urge noble Lords that that was altogether an exceptional case, and one upon which no general argument should be based. The general argument is that out of 174 cases only five were re-convicted subsequently of any serious offence.
Secondly, these figures go to show that a very large proportion of murderers are not what we understand as hardened criminals, but are first offenders, and are on that account, I suggest to your Lordships, all the more susceptible to reformative treatment. Further, they go to show that a very large percentage of murders are committed by the insane, the mentally defective, or the mentally abnormal. The general argument that I adduce from 35 these statistics is, first of all, that murderers, as a class—and here I am speaking generally—are a class of which a very large number can subsequently be reformed. I have talked this question over in the past with many prison governors, particularly in the prisons where the life-sentence criminals are interned, and they tell me that very often the murderer is much more susceptible to reformative treatment than many of the other prisoners for whom they are responsible. That is the general conclusion that I draw from the first body of statistics in the White Paper.
§ VISCOUNT CECIL OF CHELWOOD
May I interrupt my noble friend in his very interesting argument? What does he mean exactly by murderers being a class? Are not murderers of all sorts of classes? Is it not a fallacy to suppose that all murderers are alike? Some are more atrocious than others, and some are not atrocious at all.
§ VISCOUNT TEMPLEWOOD
I am obliged to the noble Viscount for putting his point. I certainly agree with him that murderers differ from each other to an extreme degree. But I was taking for my argument murder as a crime, as compared with any other generic crime, and I make the argument that if he will look at the careers of murderers he will, on the whole, find to be correct what was said about them, I think about thirty years ago, by Sir John McDonald, who was then a Master of the Supreme Court, and who made a careful analysis of all the murders of the day. His general conclusion was this—I am quoting his exact words:I am inclined to think that this crime is not generally the crime of the so-called criminal class, but in most cases is an incident in miserable lives in which disputes, quarrels, angry words and blows are common.My conclusion is borne out by the fact that if you carry this analysis a little further you will find that a great percentage of murders take place in industrial districts, and in the poorer quarters of those districts. However, I do not want to worry your Lordships with a detailed analysis of all these facts. I have made my argument to show, if I can, how necessary it is to look at these matters, fact by fact, and to judge not by sentiment, not by inclination, not even by fear of what is 36 going to happen in the future, but rather upon the actual facts so far as we can gather them.
I come now to the second part of the White Paper, which deals with foreign experience. I do not know what your Lordships think, but I have found that part of the White Paper to be of extreme interest and value. It confirms the view that I have just expressed, that a large percentage of murderers can be reformed. If your Lordships will look at the experiences of the various countries you will find that in no case where the death penalty has been abolished has there been any dangerous result, and in no case has there been any rise in the crimes of murder or even violence. Further, you will find that the general tendency in those countries where modern methods of penal reform are adopted (for instance, in Sweden and in Switzerland) is that more and more the murderer is treated in prison as are other serious criminals. The solitary confinement to which he was subjected years ago has been greatly modified. There is, for instance, the experience of Sweden, where, after a period of time and subject to his good behaviour, the murderer is allowed out on leave to visit his family; he is allowed to work at his trade and to earn the trade union rates of wages, those wages going to pay for his prison keep and, if necessary, compensation for his victim's family. You may say that sounds fantastically foolish. It certainly sounds very different from what we in England have always contemplated in the past; but there is the fact that Sweden and, in a lesser degree, Switzerland, have tried those methods with no serious result but in fact, with the excellent result that in many cases—and I have been given many cases—the murderer has subsequently made good. I venture to put this consideration before your Lordships to-day, if for no other reason than to bring the debate down to the actual state of affairs, the actual facts and the actual experience that have taken place in many other countries in the world.
Before I sit down, however, there are two arguments against the abolition of capital punishment upon which I would venture to say a word. First, there is the argument that has been made with great force to-day, both by my noble friend, Lord Llewellin, and by the noble Viscount, Lord Samuel—namely, that public opinion is opposed to this change. 37 That is a very serious argument. At the same time, as a former Home Secretary and as one who has studied in great detail the history of penal methods in this country, I remember the fact that public opinion, whenever it has been consulted, has in the past almost always been against changes in our penal methods. Public opinion is almost inevitably ignorant of the kind of details that I have been discussing this afternoon. And if, looking back over the last century, we had always waited for the expression of public opinion in favour of some great change in our penal methods—in favour, for instance, of the restriction, during the middle of the Nineteenth Century, of the capital sentence to a few crimes—I believe that almost always we should have found public opinion against the more expert view of Parliament and. Whitehall.
There was a further argument that also seemed to me to make a great impression upon the House during the Second Reading debate. It was the argument used with great effect by the noble and learned Lord, Lord Goddard. Lord Goddard horrified the House—if I may use that expression—by the description he gave of certain terribly depraved criminals, and he reached the conclusion that men of that kind had better be eliminated. I can appreciate the horror that is felt against the terrible crimes which the noble and learned Lord described. I can appreciate it particularly in the case of a Judge who actually sees the human monster before him. At the same time, I must say that I think the Lord Chief justice's argument goes too far. If we reach the conclusion that these human monsters must be eliminated, then we must extend the death penalty—as indeed was suggested by the right reverend Prelate, the Bishop of Truro—to other crimes committed by men who are as depraved as the type of murderer to whom Lord Goddard alluded. In the second place, I take the view that it is very dangerous, even in the case of these human monsters, to assume that their lives are hopeless and that they must be eliminated. That argument seems to me to go far too close to the totalitarian argument that eliminates people and, in-deed, races for this or that reason. On that account, I prefer to base myself upon what seems to me to be the solid position that human life may always be reformable I would hesitate to exterminate any human being as the result of a sentence, 38 even though his case may seem to us to be so horrible.
I will not weary the Committee with any further arguments. I have risen, as I said, to deal with these later developments rather than to go back upon the general considerations which were put before the House during the debate on the Second Reading. I claim, to-day, first, that many murderers are susceptible of reform and that, on that account, in any great measure intended to improve our penal system and based upon the intention and desire of the country to reform the criminal, capital punishment has no part. Secondly, I claim that foreign experience, of which there is now a great body available, as is clear from the White Paper, shows that an experiment such as we are now asked to make can be made safely and can be made successfully. On those grounds, I hope that even in spite of the formidable arguments that have been urged against Clause 1 the Committee will allow it to remain as an integral part of the Bill.
§ 3.55 p.m.
§ LORD OAKSEY
Before putting forward the arguments which I propose to address to your Lordships, I wish to say a word or two in answer to the two speeches to which your Lordships have just listened—those of the noble Viscount, Lord Samuel, and the noble Viscount, Lord Templewood. Lord Samuel, whilst supporting the rejection of this clause is also in favour, as I understood him, of classification of murder, and he referred to his own experience as High Commissioner in Palestine. But what benefit has that method over the method which at present exists? In my humble submission, it will place the Home Secretary—or whoever is the officer who has the duty of exercising the Royal Prerogative—in a much greater difficulty than he is now. He will have to define this classification, and will have to say into which classification or class a particular case falls. As for the suggestion—
§ VISCOUNT SAMUEL
Will the noble Lord forgive me for interrupting him for a moment? It seems that I could not have made myself quite clear. Contrary to what he says, I thought it was not possible to draw up legal classifications and definitions, and that it should be left to the judgment of the Home Secretary. 39 If it were thought desirable that he should be fortified by assistance, well and good; if not, not. I should be content to leave it to the Home Secretary, but many people think that it would be too grave a responsibility for an individual.
§ LORD OAKSEY
I must have misunderstood the noble Viscount, and I will not make further reference to that matter except to say this—that the Home Secretary, as I know from my own experience, does not, of course, act upon his own view alone. He has at his command the advice and the assistance of every officer in the Home Office and, no doubt, the benefit also of full consultation with his colleagues and with the Judge who tried the case. That is all I desire to say upon that subject. My noble friend, Viscount Templewood, has based the principal part of his argument upon the suggestion that murderers as a class—and, as the noble Viscount, Lord Cecil, has said, that is a new class to most of us—are peculiarly susceptible of reform. Is it not the murderers who are susceptible of reform who are reprieved? The noble Viscount then turned to the recent speech of the Lord Chief Justice and mentioned the instances which he gave of what Lord Templewood described as "human monsters." Does he ask the Committee to believe that these human monsters—poisoners and people of that sort—are susceptible of reform, and, as he says, peculiarly susceptible of reform? The only other point in the noble Viscount's speech which I wish to comment upon is his suggestion that public opinion lags after the expert opinion of Whitehall and Parliament. If the noble Viscount had had the experience that His Majesty's Judges have had, of summing up cases of murder to juries, he would realise that public opinion does not lag after the opinion of Parliament or after the opinion of Whitehall. The number of cases in which verdicts of "Not guilty" are returned and in which defences of insanity are put up and accepted show with what tenderness the people of this country regard the sanctity of human life.
I do not desire to say anything further about the speeches that have been delivered, but I would address some arguments to your Lordships who may be in doubt; and I apprehend that some of your Lordships are in doubt. I would 40 ask those in doubt: What is the true function on this clause of your Lordships' House as a revising Chamber? First, I would call attention to the history of this clause. I know that that has been done to some extent, and forcibly, by the noble Lord, Lord Llewellin; but what is the history of this clause? His Majesty's Government do not approve of the clause in its essence. The Lord Chancellor did not approve of the clause in its essence. And, so far as I have been able to judge, there appears to be no feeling in the country in favour of the clause. It is even extremely doubtful whether the majority who passed it in another place were not misled into doing so by the inaccurate statement which was made.
But the question of whether your Lordships as the revising Chamber ought to reject this clause does not rest there. I want your Lordships to consider the provision which this Bill makes for dealing with those murderers who are no longer to be subject to the death penalty. Are they to be subject to a true life sentence? The Bill does not make it clear. The Bill leaves it absolutely in the air, whether they are to have a life sentence for life, or whether they are to be reprieved the next day by the Home Secretary. I refer to Clause 52. If they are to be given what is in truth a life sentence, is that not a far less merciful course than to put them to death? As your Lordships know, Sir Alexander Paterson, who was one of the greatest authorities on prison life and prison reform, held the view—which I think was the governing consideration in his belief in the retention of the capital penalty—that after ten or fifteen years a prisoner became so mentally and physically deteriorated that it was far more cruel to give a man a life sentence than put him to death. Your Lordships do not know, so far as I understand the Bill, whether it is the intention that the class of murderers who are at present subject to the capital penalty shall be given a true life sentence or not. I ask your Lordships to consider what would be the position in prison if these men were to have a true life sentence.
Take the case of a poisoner: what is to be done with him? Is he to be released by the Home Secretary after a few years or is he to be treated as what this Bill euphemistically calls a "Broadmoor patient." If he is to be treated as a 41 Broadmoor patient, the Legislature of this country will have to introduce a new definition of insanity. I submit to your Lordships that if that were done it would be a great disaster, In every serious case in our Criminal Courts now, somebody can be found, some psychiatrist or psychologist, to come and say that a man is so abnormal as to be insane—not in the legal definition of insanity, that he did not know what he was doing, or did not know it was wrong, but that he was abnormal. And who is to define abnormality? What are we to do with these human monsters, of whom my noble friend Lord Templewood spoke? Think of it! Ten years, fifteen years, twenty years: what will they be like in prison, and what will be the effect on the prison warders who have to look after them? What are we to do when they are kept in prison for life, if they commit a murder in prison?
There has been a case recently of a prisoner who murdered a man in his cell. What if a prisoner murdered a prison officer? Presumably, he may be flogged, although I rather think he cannot be flogged twice. And is he to be treated for the murder of a prison officer in exactly the same way as if he used gross personal violence against him and did not murder him? Why should prison officers be treated with more care than the police—and this is, think, one of the most forcible arguments upon the subject of whipping—or, for that matter, than the public? Is it upon a calculation of chances, because the prison officer is more likely to be knocked about by one of these human monsters? Already the police are in sufficient danger. If we abolish the death penalty, what is to be the position in relation to the police? Are they to be armed? And, if they are armed, shall we not very soon find ourselves in that realm of gangsterism which has been found so terrible in other countries? We are going to gamble with the safety of the police, or we are going to arm them. These are the only alternatives.
I turn from that aspect of the matter to say a word or two about the object of punishment. I think my noble friend, Lord Templewood has the view that the object of punishment is primarily, if not wholly, that of reform. I submit to your Lordships that that is not primarily the 42 object of punishment. We do not punish a man in order to reform him. We punish him for the protection of society and for the satisfaction of the victims. We take from the victims the right to avenge themselves and we place it in the hands of the public. I submit to your Lordships that it is a satisfaction to which the public are entitled. It is the satisfaction of righteous indignation. It is all very well for us who sit in security. We are not living in the land of the revolver and the "cosh," and it is easy for us, in our safety, to take certain views. The farther we get from brutality, the less we think of it. When people have been subjected to brutal ill-treatment, or when it has been inflicted upon their fellow human beings, their relatives and friends, as I know from what I have heard in France and on the Continent, they take a very different view of it. I submit that the public, and the police in particular, have a right to be protected. I submit to your Lordships that, if you were to allow this clause to remain you would not be fulfilling the duties of Parliament, which are to represent, not to reform the electorate.
§ 4.11 p.m.
THE LORD ARCHBISHOP CANTERBURY
In view of some criticisms made in and since the Second Reading debate as to what has been loosely called "the attitude of the Church" in this matter, I wish, first, to say very briefly under three headings what, in tact, I believe the attitude of the Church to be. First, as to the murderer himself, the Church has only one desire—namely, that he may repent and be converted. It is our prayer for all men that they may have "time for amendment of life." The Church desires that time no less for the murderer than for any other man. But the Church cannot foresee or command the extent of that time which each man may have against the chances of this mortal life; it can only use such time as there is given to it, knowing that even in a short time a man may be turned and find salvation. Secondly, the Church, as the right reverend Prelate, the Bishop of Winchester, reminded your Lordships, recognises the full right of the civil magistrates, on certain conditions, to take away life whether in the case of a just war, or for heinous and grievous offences. 43 That is to say that, as the individual is allowed to take life without sin in the extremity of self-defence—although he need not use that right—so society has the same right; and that becomes or may become, for the State, which is the guardian of society, a duty.
Thirdly, in the administration of all criminal law the Church upholds certain principles which follow from its own doctrine, of which I will indicate two. The first is taken from the Old Testament. The punishment must not exceed the crime in gravity. The maxim, "An eye for an eye and a tooth for a tooth" is often regarded as a vengeful and vindictive maxim. It is well to remember that in its origin it was a restraint upon vengeance. It does not require that equivalent punishment, but it says that no punishment should go beyond that limit: no more than one eye for one eye, and no more than one tooth for one tooth. In other words, there must be a proportion between the crime and the punishment. I would say, secondly, in this connection, that within the Church itself always, and in the world so far as is practicable, the law of love, with its power to forgive, to convert, to reform and to re-fashion must permeate and shape the application of the law of punishment. So far, I think I may say, the Church speaks.
But, as your Lordships will have noted, in reference to the secular world I used the term, "so far as is practicable." The statesman—even the Christian statesman—has to deal with society as it is at any given moment; and though he be guided and impelled by Christian doctrine and ethics, he will have to decide constantly how far, in the fulfilment of his trust as the guardian of society, he must rely on preventive and deterrent methods of punishment only, and how far he can mitigate them and make them constructive by the operation of the law of love. It is that same question which every citizen and every Christian has to consider, and it has to be decided by each man according to his own judgment, discrimination and experience. The Church, in its corporate capacity, does not pronounce in such a matter. Each Christian has the duty of conscientious private judgment, and Christians very naturally and rightly 44 differ in their estimate of what is practicable. So in this matter it is altogether right and proper that spiritual Peers should give their advice according to their own wisdom, along with all those inside or outside this House, without being supposed thereby to be delivering the judgment of the Church. With the presuppositions of the Church firmly in mind, they may address themselves as freely as any of your Lordships to the question: Is it right and wise for the State at this time to diminish the penalty assigned by law to the crime of murder? In what I go on to say, I deliver my own opinion and not the judgment of the Church.
The answer is extremely difficult to find. As I have said, the duty of the State is to protect society against this horrible crime. There is, shall I say, a prima facie case for the law of the State to inflict the death penalty upon one who takes the life of another. That case does not rest merely, or indeed at all, upon the fact that it conforms to the Old Testament maxim which I have just quoted. It goes much deeper into the self-preservation of society. For its own essential purpose and duty, the State must begin by asking, as the noble Lord, Lord Oaksey, just said, not what is for the good of the murderer—that must come second—but what is necessary for the good order of social life and the safety of its citizens. Is capital punishment necessary as a protection to society and a deterrent to the murderer at this time? Archbishop Temple argued once that it was wrong to put a murderer to death as a deterrent to other people, because that was to treat him as a mere means to something else, which is always morally wrong. I do not quite follow that argument. What the State does is to say this: Murder is such an outrage upon society, so heinous a breach of social living and so ultimate in its effect upon the victim, that its penalty shall be death. It is not that each murderer is treated thus so as to act as a deterrent to other possible murderers. It is the proclamation of a law by which every man, if he becomes a murderer, shall be judged, and to which he shall know himself to be liable; it is the public recognition that murder is, in one sense, the worst, and certainly the most irreversible, of crimes.
The right reverend Prelate, the Bishop of Winchester, said, most rightly and 45 wisely, on the Second Reading debate, that the real question is: What does the abolition mean within the social life of the community? He asked this question:How far will it affect the general sense…that some crimes"—this crime—are infinitely more heinous than others?…People's minds are affected as regards what is right and what is wrong largely by what the State penalises and the extent to which the State penalises.He went on to say:that principle can only be left behind at great risk and great danger.There cannot be the same terrible warning against this crime if its punishment is only of the same kind as those for the crimes which the noble Lord read to us at the beginning of this debate.
Nobody can say how far any individual is deterred by that warning. Statistics in this matter seem to me to be completely unreliable. In the nature of the case, one cannot say what is the deterrent effect, but one can hardly doubt that in some cases it is a deterrent. I would, however, add that I have a feeling that the finality of that terrible warning does, in the public mind, lose something of its force by the working of the system of reprieve. Home Secretaries use the most anxious and scrupulous care in discharging their fearful duty of deciding for or against a reprieve. We can be utterly sure that their decision is profoundly weighed and, so far as humanly possible, entirely right. But the public can never be told the grounds upon which a reprieve is granted, and a series of reprieves, or a reprieve in some notorious case, often causes the public to think that the law itself is being somehow loosely applied. In that way the terrible warning of the law loses something of its proper effect.
I think it is generally felt that the weight of experience and argument is against this change at this time. I believe that public opinion is in the main against it. That does not mean that public opinion is necessarily right or always rests upon sure grounds; but the fact, if it be a fact, is significant. It indicates a general belief that the security of law and order cannot at this time stand the shock of a diminution in the severity of the punishment applied to murder. The law cannot safely go far in advance of public opinion without incurring ill consequences, 46 particularly the possibility—as was mentioned on the Second Reading—of men or of mobs taking the law into their own hands. It is quite evident flat the Judges who deal at first hand with crime and criminals are almost unanimous, if not quite unanimous, against the change. The present Home Secretary—and, I think, every former Home Secretary but one—is against the change, and the Government, who in such a matter bear a special responsibility, believe it to be a grave mistake. Indeed, they are now proposing to legislate against their own convictions. The noble Viscount has sufficiently chastised them for doing that. But I would say that, as upon one or two other occasions, the Government have got themselves and all of us into great trouble by well intentioned but hasty and ill-considered action. I think that they, like the rest of us, must wish now that the matter had never been raised at this moment, or that if it had, they had firmly secured its rejection. But it has been raised, and I do not think it can now, as things are, be answered merely by the deletion of this clause—although I would say that the House of Lords has full constitutional right so to delete it if it wishes to do so.
Yet I am certain that the situation cannot be met merely by passing this clause—some amendments there must be. For myself, I would hope that this reference to a period of five years will be removed. It seems to me quite idle. If experience demanded the change it would be made at any time, and it is quite vain to suggest that five years is necessarily an appropriate period for drawing conclusions. Secondly, the clause should certainly be amended so as to retain the death penalty for certain offences. The noble Viscount mentioned three categories, and I cannot see the slightest difficulty in defining those categories and in retaining the death penalty for them. In the case of the police it seems to me utterly right. The police are the appointed officers of society, to guard society. Society must, therefore, at all costs, safeguard them in the discharge of their duties. It is far better to do so by retaining the death penalty in their case than by arming them. At this particular point, if the death penalty is retained for the slaying of a police officer on duty, it would act in the most powerful way as a deterrent, because that fact would be constantly in the mind, conscious 47 or subconscious, of every criminal who is liable to find himself in conflict with the police. If it were possible, I think it might be well so to amend the clause as to distinguish between foul murder—for murder is always foul—and what I would call "murder most foul." If such a clause could be put into the Bill, I believe Judge and jury would have no difficulty in deciding which murders were in the category of "murder most foul."
I found it very difficult to follow the noble Viscount's suggestion that that distinction should be made by the Home Secretary, for where there was normally no death penalty the Home Secretary would have to say: "In this particular case there shall be." It seems to me that the criminal might have the complaint that he had not been judged by his peers, and that if there is to be such a distinction it should be made by Judge and jury and by nobody else. I am sure that there must be some amendment in this House or the other, unless even now the Government withdraw this clause and re-submit it as a separate Bill after very careful consideration and, for instance, after considering the immensely important matters which the noble Lord, Lord Oaksey, has just been raising about the treatment of the murderer if he is not put to death. That matter simply has not been considered. It is quite impossible, as it seems to me, to leave it unreferred to, and I do not see how it can be dealt with except by a separate Bill.
As I have said, I am also sure that now the question has been raised there must be some alteration of the existing law, partly for reasons which the noble Viscount, Lord Templewood, gave, based upon the White Paper, and, to my mind, for two remaining reasons. First, I believe that there is a profound uneasiness about the death penalty in the minds of many people. The operation of the reprieve system, however carefully exercised, does cause uncertainties and hesitation. It is felt that, great though the difference between murder and any other crime is, not infrequently the blackness of evil is seen in its blackest form when no murder is done at all, and there is felt some difficulty in distinguishing the penalty only by the fact that in one case the victim has been slain, possibly without 48 premeditation. Increasingly people are feeling susceptible to the argument that society itself often creates its criminals or allows conditions that breed them. War has certainly bred criminals, and society chose war—inevitably, but the choice was that of society. To some degree, and in some cases, society in punishing the murderer with death is using him as a scapegoat, and is dealing too simply with a very complex matter. Further, not only is crime complex, but so is the criminal, and there is a growing desire, quite properly, to achieve what the law of love desires to achieve—reform of the person, because the person is to be respected. This is not to be confused with mere sentiment—of which there is a great deal—which quite wrongly abhors every kind of pain and every kind of punishment. It must be confessed that there are many who desire reform who too easily assume that kindness and psychiatry can do the trick, and who know little of the essential costliness of the work of love after the pattern of the love of God. But there are these desires and there is this uneasiness, and they ought not to be left altogether out of account.
Finally, since a decision must now be made, it would, I believe, now that matters have gone so far as this, be a moral set-back simply to revert to the status quo. Christian belief is that human life is to be treated as a sacred thing, as a trust from God, and not, save in the utmost need, to be wittingly ended by man. That belief is being assaulted from many different directions. It must be asserted against many modern denials of it; it must be asserted against suicide; it must be asserted against ideas for legalising euthanasia. Its defence is a prime need of our time. It should be assisted by a modification of our present law. It would be weakened if now we merely went back to the status quo. There is a risk involved, and one which nobody can lightly incur. But, with our eyes open to it, I think we must go some way forward, if it be regarded, not as a concession to weak sentiment, but as a true progress—as the whole Bill is—in allowing the Christian law of love to permeate and influence the secular law of protective punishment. I cannot vote for the clause as it stands without amendment. Neither can I vote for its mere deletion, unless that be a step towards 49 the introduction of a separate Bill. I hope that some way may be found to amend it, so that while it is tempered to meet the exigencies of our present situation it may still be a step forward to that goal which every Christian must desire, even if Christians may still differ as to the rapidity of the pace with which it can be approached.
§ 4.33 p.m.
§ LORD CRANWORTH
I rise to say a few words, and I hope very few, on this Amendment. I speak not as an expert in criminal justice, nor as an habitual criminal, but as an ordinary citizen of this land—because, after all, this clause touches every ordinary citizen. For the purposes of this clause, I would divide the people of this country into three categories. First, there is the habitual criminal—not the man who commits one crime, but the man who has deliberately started on a career of crime. I think it must be apparent to everyone that this clause, and indeed the whole of the Bill, is not concerned with preventing crime; the concern of this clause and this Bill is the very high one of reforming the criminal and turning him into a good and efficient citizen. It takes as its text:…joy shall be in heaven over one sinner that repenteth, more than over ninety and nine just persons, which need no repentance.I think we may all join in wishing much joy among the angels of heaven—even though we have an occasional doubt. But one thing we can believe with all confidence is that, of this class to whom I am alluding, 100 per cent. will be in favour of this clause, the more so in view of their growing numbers. That is one of the factors that cannot be neglected.
The second category to which I wish to allude is that of the ordinary law-respecting citizen. I say "law-respecting" and not "law-abiding," because many of your Lordships know that, thanks to the great mass of restrictions and regulations which surge around us from every direction, it is almost impossible at the present moment for a man to be law-abiding. I mean the citizen who respects what he would call the real law, and who usually will not deliberately break it. Surely he deserves some consideration. We had an interesting debate 50 in your Lordships' House about a fortnight ago on the rights of man. Surely, among the rights of man is the right to have his life and property reasonably and adequately protected. After all, he is still in the majority—though perhaps a smaller majority than before. Moreover, he lives to-day under a burden of taxation which is not only unparalleled in the world but unparalleled throughout history. Those who bear that burden get good value for it—or some of them do. There are others who do not think they get so much value. But surely, in view of this immense taxation, all of them have the right to have their lives, and such property as the Government think it right for them to own, properly protected. It is from their point of view that I would regard this clause. Having listened to the speeches on the Second Reading and the speeches today, I find it almost impossible to believe that anybody would contend that this right of man would be helped by this clause. Rather would it be diminished.
There is one other class to which I wish to direct attention. It is a smaller class, but not unimportant. It has been referred to already. That class is the police. The police force of this country have earned and deserved the envy and admiration of the whole civilised world. I have been chairman of a standing joint committee for more years than I care to remember. That committee have administered a force that ware both contented and efficient. Up till about three years ago no more efficient force were to be found anywhere; nor, I think, a more contented force. They were adequately paid and housed; they looked forward to a good pension at an early age, and they were on top of their job. They prevented the vast majority of crime, and detected a very high percentage of such crime as they could not prevent. They were looked up to and respected throughout the community. Save in the fact of their efficiency, how different is that now! In my judgment, the police force are underpaid; they are undoubtedly undermanned; they are far less adequately housed than they were; they work pretty well throughout the twenty-four hours of the day. Moreover, I call your Lordships' attention to the fact that not only do the police themselves work but their wives also work unpaid for long hours, answering the telephone and 51 generally helping their husbands. The police are no longer on top of their job. The number of criminals has increased. In my district, in the last three years, they have quadrupled. They are better organised, they are more intelligent and they have access to more arms. In my view, the position of the police in this country to-day is very serious.
What is the view of the police with regard to this clause? We have not heard much in your Lordships' House about the views of the police, but I think it is a fair presumption that His Majesty's Government obtained the views of the police. I do not think it is an unfair presumption that the views of the police swayed His Majesty's Government to give such support as they did to the retention of this clause, and I do not think it is unfair that your Lordships should know exactly what are the views of the police in this matter. After all, your Lordships have to give a vote on it. I suggest to your Lordships that the police are the people who know the real truth, and the real merits of this matter, better than any other body of people in the country. I venture to hope that the noble and learned Viscount who introduced this Bill will, in due course, tell your Lordships what are the real views of the police as a whole, because I think that your Lordships are entitled to know. I may say that unless I hear that these views differ very greatly from what I have every reason to believe them to be, I shall vote for this Amendment. I shall vote for it with a great confidence that it will commend itself to your Lordships, and with a still greater confidence that it will commend itself to the vast majority of the law-respecting citizens of this country.
§ 4.43 p.m.
§ LORD PETHICK-LAWRENCE
It has been an inherent assumption lying at the back of all the speeches that have been delivered in favour of the retention of capital punishment, that that punishment is a deterrent, and even an effective deterrent, against the commission of murder. It has been alleged that, if this clause became law and if capital punishment were abandoned, even for a period of time, that it would be bound to have a deleterious effect upon the minds of the potential murderer, and that it would increase capital crime. It is my contention, 52 and, I believe, the contention of those who take my view with regard to this matter, that that assumption is unfounded. I will go so far as to say this. Quite unhesitatingly and frankly, I say that if it were proved to me conclusively, or even if I felt that there was a high probability that the abolition of capital punishment would lead to an increase in the murder rate, I would not stand for its abolition. But in fact those who are anxious to preserve capital punishment have brought forward no proof whatsoever that that is the case. So far as I can recollect, not a tittle of valid evidence have they established. In fact, such evidence as there is all points the other way.
Of course, I admit that it is post hoc ergo propter hoc; but, of necessity, there could be no other evidence. And I would venture to point out to your Lordships that had the position been the other way, if those who seek to preserve capital punishment could have shown that those countries which had abolished it had been subjected in the years that followed to an increase in the murder rate, your Lordships may be quite sure that those who advocate the retention of capital punishment would not have hesitated to remind us of the fact. Here in this country we are being told that there is a great increase of violent crime. If capital punishment had been abolished a few years ago, do you not think the advocates of its retention or of its reinstitution would have been only too keen to point out what happened following upon its abolition? In fact, that increase has occurred, not owing to the abolition but during the retention of capital punishment.
Why is it that noble Lords reject the evidence which is contained in this White Paper, which tends to show that in country after country where capital punishment has been abolished there has, in fact, been no increase in the murder rate? Why do they reject it? Do they suggest that we in this country are so fundamentally different from the men and women in the countries of Western Europe that what is true of them has no bearing upon what is likely to be true in our own country? I do not think that they can possibly put forward that argument. I do not think they can possibly sustain it. Or is it, perhaps, that their preconceived ideas bring to them the conviction that what is actually the evidence is so inherently improbable that it is 53 worthless? It seems to me that that is really the point; they assume that capital punishment is an effective deterrent.
But what is in fact the position? I agree wholeheartedly with the noble and learned Viscount, Lord Cecil, when he corrected the noble Viscount, Lord Templewood, and said that there was more than one class of murderer. Of course, that is true. Murderers are of a great number of classes, but I will divide them broadly into three categories. First, there is the category of murderer who is really a normal human being but who, in a moment, it may be of passion, it may be of outraged feeling, rushes into such a state of mind that everything that he has thought before is swept aside; and he commits a murder. He sees the red light, as it is sometimes said. I do not believe for one moment that a man whose whole ordinary convictions are swept aside in a moment of passion will be in the least influenced in the carrying out of his crime by considerations of whether, if he does so and he is found out and convicted, he will receive the death sentence or any other punishment.
Then there is the second broad category of what one might call calculating murderers. Some are anxious to obtain money, some position, and they work over a long period of time. They are not swept over by instantaneous passion; they work to a long and calculated procedure. Those people do not do that because they think they will suffer only fifteen years in detention; they do it because they think they will escape detection. I do not believe that the difference between capital punishment and a miserable life in prison for a great portion of the human span is going to affect their action. Thirdly—and this is something I believe quite a few people do not understand—there is another class—namely, the psychopathic murderer, who is enticed by the fascination of this horrible crime. So far as those persons are concerned, the death penalty works in exactly the opposite direction to deterrence.
All the tradition of "swinging for it," of a life for a life, adds glamour to their deed; and far from reducing the number of murders, in my opinion it substantially increases them. If you get away from all the paraphernalia that now exists—in the shape of the black cap, and all the appalling excitement and interest of a murder 54 trial, just because the alleged murderer's life is in jeopardy—if you get rid of all the notoriety and all the rest of it, and regard murder as the filthy, horrible thing that it really is, I believe the psychological evidence is that, far from increasing the murder rate, you would reduce it. That is why the facts are what they are. That is why all the evidence is against the view that the abolition of the death penalty would increase the murder rate.
I am forced by a consideration of these, facts to the view that the opposition to the abolition of the death penalty is not founded upon strong evidence. Indeed it does not seem to be founded upon any evidence at all. It is rather based upon a preconceived view of what the person holding it thinks ought to be the case, although in fact it is largely not the case. It is due sometimes to an inherent objection to change, which is so common in large numbers of people, to a refusal to be guided by evidence on to an actual predilection and satisfaction with punishment which was given vent to, quite candidly, by the noble Lord, Lord Oaksey.
Your Lordships will forgive me if I do not mince my words in this matter. As I see this question, the vote that your Lordships have to cast to-morrow is a division between sentiment and evidence. Sentiment is on the side of those who want to retain the death penalty; evidence and scientific knowledge are on the side of those who would repeal it. To-morrow it will be for your Lordships to give your verdict. If you give it in favour of no change, and against the clause, as I see it you will be giving it against the weight of the evidence. You will be giving it on sentimental grounds and because of your preconceived ignorant opinions. Your verdict, if given in that sense will, I am confident, be reversed in history. You may be able to retain the death penalty for a few more years, just as you retained the death penalty in the case of stealing for a few more years, when others would have got rid of it. But your verdict will not last, and it will be reversed by those who come after you. You will not be giving a verdict merely on the question of the death penalty; you will also be giving a verdict upon yourselves, and you will be giving a verdict upon this House. You will have shown conclusively that this House has not changed 55 that it has not progressed as some of us had hoped, that it is still the home of lost causes and discredited ideas.
§ 4.55 p.m.
§ LORD ROCHE
I addressed your Lordships at considerable length on the Second Reading debate, and I should be rendering a very bad return to your Lordships' attention if I occupied your time for more than a few minutes on the present occasion. I do not propose to deal with the speech of the last speaker save to say that, in spite of his arguments, I propose to adhere to my preconceived and ignorant opinions in thinking that this clause which we are asked to delete is a thoroughly bad one. I do so, in short, because my idea of evidence and its effect is so obviously radically opposite to the view taken by the last speaker that there is as much likeness between them as there is between black and white. Heaven forbid that I should say whether the noble Lord's opinion is white and mine is black, or the reverse! I and other Judges who have to try these cases, and Home Secretaries who have to deal with them (with the very notable exception of the noble Viscount, Lord Templewood), so far as they have spoken at all in this matter, have spoken with unanimity in favour of the deletion of this clause and in favour of the retention of the death penalty. That is what I regard as some evidence, and there is no doubt of the direction in which it points. So much for that matter.
There are just two supplementary observations which I desire to made. With regard to the observations of the noble Viscount, Lord Samuel, for strengthening the matter of the consideration of a reprieve, I should like to record my opinion, which is based on my experience. If Home Secretaries feel they need it, they should ask for it and get it by legislation or administrative action. In my experience in seventeen years as a Judge of the King's Bench, or what is familiarly called "a red Judge," I have had the misfortune to try as many murder cases as fall to the lot of the average Judge, and I have never known a wrong conviction in the course of that experience. As your Lordships know, the Home Secretary is immediately advised by a letter from the Judge as to his opinion of the course of the trial. And the Home Secretary has other sources of information and other means of obtaining advice. Speaking 56 for myself, as I say, I have never known of a murderer who was convicted and who, in my opinion, ought to have been reprieved but who was not reprieved. There have been, in my judgment and in my experience, no miscarriages of justice whatever. So much for that matter.
There is one fact which I would like to add to the very cogent argument which was put forward by Lord Oaksey with regard to the after-careers of murderers. The noble Viscount, Lord Templewood, rather complained that more detail was not given with regard to the later careers of the murderers who were reprieved and went forth into the world. I can see obvious reasons why more information was not forthcoming. These persons were persons who, presumably, were capable of being reformed—some of them or all of them—and when they went out into the world the last thing that would be desirable, if they were reformed, would be to acquaint other people too much with their past histories. I can think of cases where it would possibly be disastrous to talk much about a person who had been reprieved, and to disclose his past history.
The real point in that matter is this—and I think it cuts at the very root of Lord Templewood's argument. As Lord Oaksey pointed out, it is the bad murderer—if one may use that expression—who is hanged and about whom no more is heard. It is the few good ones—if one can say such a thing about murderers—the comparatively harmless murderers, who are reprieved. So far as I can gather from the statistics, the numbers are about half-and-half, with perhaps a tendency in earlier times for a larger number of people to be executed and a lesser number to be reprieved. At any rate, the irreclaimables were got rid of. I cannot believe that it would ever be safe or proper, on the chance of his reformation, to let out upon the world a confirmed poisoner. I cannot believe that the poisoner is not deterred by the death penalty. These crimes run in fashions or in sequences. There was a great deal of wife-poisoning at one time. It is, of course, a very secret crime. Then someone was convicted and hanged, and murders of that type stopped. There was a cessation of that sort of crime.
57 Those are the observations I desire to make, but there is one addition. I followed with great attention the speech of the most reverend Primate, and it seemed to me to be his view that this is an inauspicious time at which to make this change. I did not quite follow his view that some other reforms were necessary or that the public were very much perplexed by the punishment of death not being uniform and by some murderers being reprieved. If it is necessary to make such reforms, let them be made, but let them be made by some other Bill and on some other occasion. That is not the question upon which we are going to vote. We are going to vote on the question of whether the death penalty for murder is to be abolished or not. For my part, I have no doubt as to the answer which I ought to give and which I hope your Lordships will give. That answer is: "We are not going to abolish it."
§ 5.6 p.m.
§ VISCOUNT STANSGATE
I am very conscious that I am in a minority here to-day, even on these Benches, and certainly in the whole House. And when we come to the Gallup Poll, which I suppose will be the way in which your Lordships' opinion will be ascertained in the future, no doubt the minority will be even smaller. Whether that is frightening or stimulating, I do not know. Having heard the debate, I find that I still have some unresolved questions in my mind. Certain of them have been answered by the speech of the most reverend Primate the Lord Archbishop of Canterbury. I am very glad indeed that he has spoken this afternoon. I feel that he has made an enormously valuable contribution to our debate. It would have been a shocking thing if the two speeches made previously from those Benches had been the last word from those Benches on this question. The Archbishop, in common with everyone else, blamed the Government. Everyone seems in favour of the death penalty for the Government. We can all agree about that, at any rate. But I could not help wondering how it was that the Archbishop could bring himself to reproach the Government for their lack of unity in this matter, and then add that the Bishops would vote as they pleased. I could have hoped that he would persuade the Bench of Bishops that if there is a substratum of 58 agreement they should do what he enjoined the Government to do.
If I may be permitted to do so, as just an ordinary layman and an observer, I would like to say this. We Socialists look at this question of the abolition of the death penalty in this way. We agree that it is the duty and right of society to protect itself. We look upon poverty, ignorance, disease and crime as things which society should, by every possible means, seek to eradicate; or, if that is not possible, to correct. To eradicate them is the purpose of the State. It is a social duty. Though it overlaps with the moral duty, it is really, in essence, a different thing. That is why the speech of the right reverend Prelate the Bishop of Winchester was so shocking. He said, in effect, "Look at these health services, what a muddle they are: we shall not get any doctors at all. Look at the school-leaving age; it fills us with despair to see it raised. Too many doctors; too many psychiatrists!" Then the right reverend Prelate crowned all that with a piece of perfect logic, when he said: "So long as you divert private enterprise from its legitimate channels you must expect an increase in murder"—a piece of psychoanalysis for which I imagine the capitalist will hardly be grateful.
The question which I would like to hear answered—the noble Lord, Lord Pethick-Lawrence has put one side of it—arises in this way. We who believe that this clause is right, hold that you do more to produce murder by the degradation of the murder trial process than you correct by the process of deterrence. In time of war, naturally, the moral sense of the people deteriorates and sinks. You cannot have commandos, people smearing themselves with blood and dancing about with bayonets, without degrading the moral sense and reducing respect for human life. Our job at the present time is to try to lift the moral level of the country. That is the reason we want to get rid of the death penalty. Do your Lordships not agree that the interest in this question is a morbid and a bad interest? Why has there been a ballot for places in the gallery to-day? Was it that people wanted to come here to be deterred from committing the crime of murder? Why is an extra shilling charged at Madame Tussaud's to see the Chamber of Horrors when you can see the Cabinet 59 free? Why do the London County Council insist on cuts in the film No Orchids For Miss Blandish? The answer is that we agree that this sort of thing is a degradation of public taste and, therefore, potentially an increase of the incitement to crime. If you really think the horror of the hanging—which seems to be so much in the minds of the Judges—such an impressive point, why abolish public hangings?
In this connection, I would mention that it was a Bishop who was instrumental in getting public hangings abolished. They were abolished because it was found that instead of preventing murder they actually incited people to commit that crime. One striking piece of evidence on this matter which I recall is that of a chaplain who said that out of 167 people who were hanged, 164 had themselves witnessed hangings. So much for the deterrent effect of seeing a man hanged. If that sort of thing is to be regarded as a deterrent why was evisceration abolished ipso vivente, as they say in the Statute? Because the whole thing was not deterrency, but reprisal, while the whole problem is one of raising the moral life of the community. At any rate, that is the case as we see it. I should like very respectfully to say this about the noble and learned Judges who spoke. There is a fairy tale about the Emperor's clothes and the little boy who said he had nothing on. I assume that rôle, and I tell your Lordships that, from what I have heard—and I have listened with great interest and respect to the debates, and have re-read every word the noble and learned Judges have said—I cannot find in their evidence anything that really approaches the problem in a comprehensive way. They have not told the House what sort of homes these murderers come from. Do they come from homes where the parents were divorced? Were they born in an air raid? Does the father drink?
The noble and learned Lords do not know what happens to a man after he leaves the dock, although they have very learned and expert knowledge of the short phase of the criminal's life from the time he is caught until he goes to prison. What is the result? The noble Lord, Lord Roche, in his last speech, advocated the retention of the "cat." He wished to keep it in reserve. And the Lord Chief 60 Justice, in face of the opinion of every living ex-Home Secretary and the unanimous opinion of an expert and entirely unbiased Committee which examined it, advocated the retention of whipping. Therefore I say, with great respect, because when one feels as deeply as we all do one is apt to go beyond the bounds of the respect due to your Lordships, the evidence of noble and learned Judges is properly described as nihil ad rem.
Hundreds of years ago, as my noble friend Lord Pethick-Lawrence mentioned, this House was engaged in retaining the most savage punishments. In 1810 one could not steal five shillings without incurring the death penalty. Reforms were tried in 1811, 1813, and 1820, but steadily your Lordships voted against them and for the same reasons that have been advanced to-day in favour of the omission of this clause—that, in conditions of so much crime and so much disorder, that was not the time to reduce the severity of the law. And who was it that brought back our courts to a decent basis? It was not the Judges, and not the Bench of Bishops. It was twelve ordinary ignorant men in a jury box, probably most of whom could not read or write, who decided to break their oath and declare the prisoner innocent when they knew he was guilty. And so, under the common sense of these honest folk, the law fell into desuetude.
If you want to get the best opinion on this question, the House of Commons is not a bad guide. I do not at all deny the great authority of this House. I could not. I certainly cherish the freedom which your Lordships so kindly give to speakers who do not agree with most of you. Of course, there is great expert opinion here, but the House of Commons in certain circumstances can be a wonderful guide to the public conscience. I am speaking to many old colleagues who, like my noble friend Lord Samuel, have had long service in another place. It is said that this is the occasion for your Lordships' House to put matters to rights; that the House of Commons made a decision against the Government's advice; that they made a mistake. What a golden opportunity for your Lordships' House, so that it may be said that we have saved the country, in the nick of time! I do not want to misrepresent the case. It is much too serious 61 a matter for misrepresentation. The position is that the verdict of another place was given in face of the advice of the Government. Is that right? Very well, let us examine that.
This Bill came before the Cabinet. The Home Secretary did not say he was in favour of capital punishment, but he was against the abolition of it at the present time. The Cabinet have an easy way of deciding. A matter is made a question of Cabinet responsibility, and if you are a member, you either vote for it or go. But the Cabinet did not do anything like that. I can remember when, in the Cabinet of which Viscount Samuel was a member in 1932, one Cabinet Minister spoke for protection and another, from the same Front Bench, spoke for Free Trade. That is past history, but it is an example of how a Government can vacillate. The Cabinet said that they would advise the House of Commons in this matter and forbid the Ministers to vote against them, but beyond that they would not go. They said that if the House, without Whips, voted against their advice, they themselves were prepared to follow their decision. The clause was carried by a majority of twenty-three. Forty-four members of the Government abstained, presumably, almost certainly, because they were in favour of the clause. That would add up to a majority of sixty-seven, a substantial majority by which a matter is decided in the House of Commons.
It may be argued that they did it in face of the Government's advice. I would appeal to old members of the House of Commons who are present. When are the House of Commons at their best? We have all suffered from the Whips. In my day things were much freer. A man represented his constituency. Then the Whips began and we all had to deal with the pressure brought to bear by the Whips to go into what they called the "right" Lobby. Now there is a new terror coming in—pressure from outside. The noble Viscount, Lord Samuel, said that Members have to face the Gallup Poll. One of the most demoralising influences on politicians to-day is the Gallup Poll. If it be used as a map or a navigation chart, it is all right. I remember that Mr. Bonar Law once told the story of a man who was stopped while running after a procession. He said, "Don't stop me. I must catch them up. I am their leader."
The real relationship between Members 62 of Parliament and their constituents is a sensitive and tender affair. A Member is not elected to decide issues by a Gallup Poll, but because he is a man whose general outlook is the general outlook of the majority of his constituents and because he is one in whom they have confidence. There are many Members who, like myself, have disagreed with their Party and been carpeted before the local committee. When they have explained that that was their honest opinion, the committee have told them that while they did not agree, they wanted a man who could express himself and believed what he advocated. When we get a free vote of the House of Commons, we get as near as we can to a reflection, not of a sort of Littlewood's Pool but of real public opinion. I think the vote was the House of Commons at their best, and the best decision the Government have made for a long time was to say that they would abide by that decision. Of course, it is the duty of your Lordships' House to reject the clause or amend it, if you so decide—it would be a great waste of the wisdom and authority of this House if that power were not exercised to the full—and then it can go to the other place for reconsideration. If I were asked, I would suggest to the Government that in the other place they should have another free vote and let the members decide freely and decisively this great moral issue.
§ VISCOUNT STANSGATE
Although I am against a plebiscite as an instrument of government, I would point out that a plebiscite is something decided after wide public debate, whereas in a Gallup Poll somebody comes to the back door and asks the cook when she is busy whether she thinks Ruthenia should be given to the Soviet Union.
§ 5.21 p.m.
We have listened to a typically interesting and amusing speech from our old friend, Viscount Stansgate. After so many and learned speeches on the merits or dements of capital punishment, I do not propose to bore your Lordships with my views on 63 that subject. However, I do wish to advance three reasons why, whatever arguments may be adduced on that subject, we should remit this clause for reconsideration by the other place. The first is to give those who voted for it an opportunity to reconsider their decision. After all, as was pointed out by the noble Lord below me who opened the debate, the majority was only twenty-three and, to some extent, that may have been influenced by a misleading statement in the last speech. Secondly, the members of the other place had not at that time had the opportunity of reading the many learned and powerful speeches which were delivered by members of your Lordships' House on the Second Reading debate. Thirdly, as the noble Lord, Lord Llewellin, pointed out, there is an immense majority in the country against this change, and against this clause. It is a favourite slogan of the Socialist Party, as indeed of all Parties, that the majority will of the people must prevail. This day week noble Lords opposite will no doubt argue that your Lordships' powers should be drastically curtailed, indeed, made almost nugatory. One of the arguments noble Lords opposite will advance will be that your Lordships do not represent the will of the people; that your Lordships are not in touch with the will of the people; and that it is only the sacrosanct elected representatives of the people who are inspired by that insight. On this occasion it is clear that those 245 elected representatives were out of touch with the majority will of the people, and it may be that in the light of the experience of the last six weeks they would like to reconsider their decision. That is the first reason why I should like to reject this clause, in order to give them an opportunity to do so.
My second reason is entirely influenced by an answer which was given by the noble and learned Viscount, the Lord Chancellor, to a question put by the noble and learned Viscount, Lord Simon, before the Second Reading debate on this Bill. The noble and learned Viscount's question was: During the last ten years, how many persons reprieved from the capital sentence have been released from prison, and what is the average length of their sentences? If you ask the average man in the street what happens to a person reprieved from 64 the death sentence I think he would say that he is aware that certain persons, like survivors of suicide pacts, mothers who kill their illegitimate infants, people who put to death sick relatives, and citizens of that kind, are frequently released after serving quite short sentences; but, for the rest, I think he would say that a person reprieved from the death sentence serves imprisonment for life, subject to remission marks which may earn him release at the end of twenty years or, in exceptional cases, possibly after a shorter time than that. The Lord Chancellor's answer was that during the last ten years 104 persons have been so released. Of that number twenty-eight served sentences of between three months and five years. Those obviously would be the categories which I have just mentioned. But of the remainder only one served twenty years, and only two served fifteen years. Those I think we may disregard as having been unlucky murderers, who probably failed to earn remission marks in prison and, therefore, served so long. Of the remainder, twenty-four served between ten and fifteen years, and fifty-two—no less than half the total—served only between five and ten years. Adding together fifty-two, twenty-four and seventy-six, one finds that over three-quarters of the total number of reprieved persons served an average sentence of less than nine years. I do not know how those figures struck your Lordships, but they were a great surprise to me.
Who are these murderers who get off with less than nine years prison service? They cannot all be jealousy murderers, sudden impulse people, or comparatively respectable citizens of that sort. Surely a large proportion of them must be everyday common or garden murderers, such as an armed burglar, for instance, who might break into the home of a peaceful citizen like the noble Viscount, Lord Templewood, and find himself confronted by the noble Viscount, full of fight and perhaps armed with a poker, and who says to himself: "Well if I allow him to catch me, being an armed burglar I shall have to serve seven years anyhow; but if I shoot him, then I have a very good chance of getting away. Even if I kill him, according to the Lord Chancellor's answer, if I behave myself well I shall not have to serve more than nine years." It seems obvious that the only sensible thing to do would be to draw a 65 bead on the noble Viscount and chance it. Seriously, I do think that this matter should be given careful attention. If this clause is rejected the point will not be quite so important, but if the clause passes—as I believe in the end it will—then surely it is a mater of great importance that criminals should realise that if they do commit murder during the commission of a felony, or if they murder a policeman or prison officer, then the sentence will not be a mere nine years, but will be a sentence of much greater severity. For that reason I have ventured to put down an Amendment to Clause 52 to that effect, and I hope that may enjoy your Lordships' support.
My third and most compelling reason is, to give the Government an opportunity to clarify their position in this matter. We have heard very amusing and pungent debating points made by the noble Viscount, Lord Stansgate, but he does not speak for the Government. It strikes me as a remarkable thing that in this important debate, with some twenty-five speakers, not a single Front Bench Government speaker is to rise until the very last man. Therefore, we must be guided by what was said by the Lord Chancellor on the Second Reading debate. I feel that the Home Secretary is having a very raw deal in this matter. After all, the right honourable gentleman felt it his bounden duty—much against his inclination, but in the knowledge of all the facts and opinions of his great Department—to advise the Cabinet that capital punishment must be retained. The Cabinet—much against their inclination—felt it their bounden duty to advise Parliament in the same sense. It is quite true that the Prime Minister decided to leave the matter to a free vote of the House. I cannot help thinking that the Home Secretary had the right to expect that, in accordance with the normal working of the team spirit, his colleagues in the Government would feel it their duty to support him in the Lobby, whatever their private opinions might be. Certainly anybody with the long Parliamentary experience of the noble Viscount will know how often it is necessary to sink one's private predilections in order to support the working of the team. But the Home Secretary did not enjoy that support. No less than forty-four of his colleagues failed to support him, including all the four law 66 officers of the Crown and even his own private secretary.
Imagine the battalion commander coming to his second-in-command and saying: "Look here, Kenneth, I have felt it my duty to advise the Brigadier that we must take that trench system opposite. I do not like the job, and I know you do not. For that matter, nor does the Brigadier, but he agrees with me that we must do it. It is quite true that he says that anybody in the battalion who does not like the job need not fight. He does not explain how I am to command troops in those circumstances, but you and I know our duty. So I would be glad if you would go and get the battalion on parade." To that the second-in-command replies: "Well, Colonel, as a matter of fact I happen to know that about half the battalion do not intend to fight, and I agree with that half, so I am going to look on and I am afraid you will have to get on with the battle on your own account." Imagine the battalion commander in his bivouac the next morning, dishevelled, dejected and defeated, when in blows the second-in-command, bright and breezy as ever. He says: "Well, Colonel, it turned out just as I expected. Anyhow, you put up a very good fight. Towards the end I really thought you were going to win, but at the last moment Private Paget threw a grenade in amongst the rear rank. Evidently Paget is a very promising fellow, and I must remember him when I am looking for a new batman. But anyhow, Colonel, it is all over now, and here I am, still at your side, an ever present help and sure support in time of trouble."
Such conduct is in strong contrast to that of my leader, the noble Marquess, who, when he found himself at loggerheads with his leader in 1938, immediately resigned his office. Amid their growing anxieties the Socialist Government can always be relied upon to provide a generous measure of comic relief, and the present administration are working up into excellent form. Mr. Platts-Mills was expelled for saying this; Mr. Alfred Edwards was expelled for saying that[...], and Mr. Shinwell is almost always saying something. On this matter, intimately touching their departments, however, the law officers of the Crown, like so many Brer Rabbits, lie low and say nothing. But not so the Lord Chancellor—there is nothing of the Brer 67 Rabbit about him. On the Second Reading he stood up with the full dignity of his great office, fortified by long and eminent experience at the Bar, and said: "My Lords, I am not in favour of the abolition of the capital penalty," and those of your Lordships who agreed with him were elevated in consequence. But your Lordships' elevation was short lived, for about three minutes later the noble and learned Viscount said, in effect: "Take no notice of my forty-five years of experience. Listen instead to friends for whose judgment I have greater regard, who have voted in the opposite sense." I should like to quote the words of the noble and learned Viscount:…for whose judgment I have great regard, who feel strongly about this matter. No one can say whether they are right or wrong until we try. Therefore, I would say, 'Let us try.' I try with misgiving, I try with anxiety, but also I try with the hope that my worst fears may not be realised. If we pass this Bill now we shall all be wiser about the matter in a few years' time.Fired by this inspiring lead, I hastened to Hansard in order to identify the personalities for whose opinion the Lord Chancellor had greater regard than his own.
THE LORD CHANCELLOR
The noble Lord will forgive my interrupting. I am sorry to say that I have not, in this matter, a greater regard for anybody's opinion than my own. I personally made a bargain. I said that I would abide by a free vote of the House. I do not suggest that anybody in this House is bound, but I say I am in honour bound. That is my position and it is a perfectly simple one.
I appreciate what the noble and learned Viscount said, but he is the leader for the Government in this measure and, therefore, I am entitled to comment upon the advice which he gave to the House. That advice was to the effect "Let us try this." I was about to comment on the personalities of those for whose opinion he had great regard, and such regard that he advises us to follow their opinion rather than his own. That surely is all right. Therefore, I studied the Division List of the House of Commons, and my eye happened first to alight upon the list which contained names such as Attlee, Bevin and Herbert Morrison. Of course I said 68 to myself "Well, these are weighty names; these are worthy friends of the Lord Chancellor." I was thunderstruck that far from being his friends, those are the persons who had been so benighted as to vote for the rejection of this clause. Therefore, I at once proceeded to study the opposite List to find out the identities of those whose opinion is more important than those I have mentioned. I studied the list with growing bewilderment, and recognised the names of several old friends of House of Commons days, ladies and gentlemen whose hearts I remember had always been much bigger than their heads, and whose judgment upon any subject ought to be scrutinised with that reservation. But, apart from that, I am bound to say that I thought to myself: "What can have bitten the Lord Chancellor to have selected the opinions of these people?" Then, of course, the truth flashed upon me. I realised that all these ladies and gentlemen are not nonentities at all. They are really very important people—indeed the only really important people in the Socialist movement: they are the tail that wags the dog.
Therefore, that appears to me a compelling reason why your Lordships should remit this clause for the reconsideration of the other House. One must bear in mind that the members of the Government felt it their duty to advise the House to retain capital punishment. If they show such a ready deviation after six weeks' experience from what they then thought to be their duty, if they show such an easy acquiescence in the line of least resistance to the behest of their rank and file over such a comparatively trivial matter, then let them do so. Let the people see it; because then they may realise the sort of leadership which they can expect on that future day of rude awakening from the cocoon of economic delusion in which the masses of this nation are still wrapped.
§ 5.41 p.m.
I am one of those who hope that this Amendment will be rejected. So far from pouring scorn upon the words of the noble and learned Viscount the Lord Chancellor, which have just been quoted, I submit that those words are most apt. I should like at the outset to ask this question of your Lordships: Why not give this experiment a 69 trial, as the noble and learned Viscount suggested in his Second Reading speech? Everybody knows that there is a great dispute, and that weighty arguments about this matter are used on both sides. But there is ready at hand a way of solving that dispute, and that is to try the experiment for a limited time to see who is right. If this clause is agreed to, we shall try the experiment for five years. I think that that is right and proper; but we are not bound to try it for five years. In the event of the opponents of the change being right, there will be an outbreak of murders. If such a thing happened—and I for one am pretty sure it will not happen—a further Act of Parliament could be passed in far less than five years to restore the position as it was. That can undoubtedly be done, and therefore I submit that we should at least give the experiment a trial.
If the death penalty is not now abolished, agitation for its abolition will go on; there is no doubt at all about that. It will go on and on until the death penalty is abolished. In fact, I would go so far as to say that it is not so much a question of whether it should be abolished as of when. I suspect that there are few noble Lords in this House who in their heart of hearts really believe that capital punishment will never be abolished. I am perfectly certain that it is going to be abolished; and soon. And I think that that will be right. But why not try, and see who is right, in order to avoid the necessity for more and more of these debates until it is tried?
I appeal, therefore, if I may respectfully echo the words of the most reverend Primate, for risks to be taken. We suffer very much because we will not take risks. I believe that if we had taken more risks between the wars we might not have had a Second World War. We must take risks, and I appeal for a risk to be taken in this matter. One of the major questions, of course, as has often been said, is whether hanging is a deterrent. I submit, however, that there is something even more important than that: the certainty or otherwise of conviction for murder. That is more important even than any question of punishment. I believe that the most important thing that we can possibly achieve is to ensure that if a man commits murder he is more and more likely to be convicted of that 70 murder; and our major efforts should be directed to that end. If we abolish the death penalty we shall on that account alone, at any rate to a small extent, obtain more convictions in murder trials. I admit that I cannot prove that; I do not think anyone could prove the matter either way. But I believe that there are some juries—certainly there are some jurymen—who refuse to convict for murder when they would otherwise do so, merely because it would lead to a sentence of death. I believe that it is most important to get rid of that state of affairs.
It has been said that we all approved of the death sentences at Nuremberg, and that therefore we should approve of the death penalty for murder. But surely there is a distinction The crime of Nuremberg was not mere murder; it may have contained murder, but it was in itself something different from murder. An important distinction was that, unlike (as I think) most murders, the crime of Nuremberg was surely to a very great extent premeditated, carefully prepared, over a long series of years. Surely there is an important distinction there.
Public opinion has been mentioned, particular by the noble Viscount, Lord Templewood, with these views I most respectfully agree. But, as has been pointed out by several speakers, including the noble Viscount, Lord Stansgate, public opinion is not always sufficiently instructed before it is asked to take a vote. The people who are asked to express an opinion in some kind of referendum have not all studied the arguments for and against. Therefore, although it may be an unpopular thing to say, the verdict of public opinion is not as weighty as perhaps it ought to be. I suggest that we must not ignore either history or geography in this matter. We are, as a matter of fact, very liable to ignore them. As for history, there is the indisputable fact that in comparatively recent times the number of offences for which hanging is the penalty has been reduced (if my figures are correct) from about 200 to four. In almost all of these 200 cases, or at any rate all that mattered, there was opposition to the change—in some cases very great opposition. And, with great respect to His Majesty's Judges, I must say that from what I read and hear, it seems that in a great number of those cases the opposition came 71 from the Judges. In not one of these 196 cases have we, as a result of experience, reverted to the death penalty. That, I submit, is an incontrovertible fact, an historical fact; it is not theory, and it is not opinion.
What is the answer to this? I and those who agree with me say that exactly the same, thing will happen if and when the death penalty for murder is removed—and, incidentally, we are not removing all the death penalties. We shall not dream of going back to it, any more than have other countries which have abolished the death penalty. It may be the case—I am not sure—that some of the States in the United States of America, have reverted; but with that exception I think I am correct in saying that no country has gone back to the death penalty once it has left it. If that is not so, I hope that somebody will produce the true statement because I think that is most important.
THE LORD BISHOP OF WINCHESTER
As material for an answer to that question, is it not true that France has twice reimposed the death penalty?
§ LORD CHORLEY
If the noble Lord would really like to know, the two countries which did go back to the death penalty were Fascist Italy and Nazi Germany.
The position with regard to France I believe to be this. On two occasions the President of France was personally against the death penalty, and during his period of office he declined to allow it to be put into effect; but the law was unaltered. I think that is the position: that the law of France was never altered. I have here figures which I believe to be correct which show that, taking the countries of Europe which are most akin to this country—the Scandinavian countries, Holland and so forth—in every case, in those countries, the abolition of the death penalty has resulted in a decrease, and not an increase, in the incidence of murder. I will not read these figures, but I have them. I submit that that fact needs an answer from those who are against this change. What do they say? How do they explain the figures—because the figures do challenge the 72 theory that the death penalty is a deterrent. Take another country which, though far distant, is very much akin to this country—namely, New Zealand. As recently as 1942, New Zealand abolished the death penalty, in the middle of the Second World War, be it noted, when murders everywhere were increasing. In New Zealand, in spite of the war and in spite of the abolition of the death penalty, the incidence of murder has not increased. It is true that it has not decreased, but it has not increased. I think I am right in saying this. Here we have two countries, Great Britain and New Zealand. In Great Britain, where we have hanging, during the Second World War and of late years murder has increased. In New Zealand, where there is no hanging, it has not increased. Those facts, I suggest, require an answer.
Again, it is asked: What is the alternative? That is a question which those who wish to abolish hanging must answer. It is a very simple answer. The alternative is life imprisonment. However, it is said that life imprisonment, as practised in the abolitionist countries abroad, is more terrible even than death. One cannot have it both ways. Those who think that life imprisonment is more terrible than death must admit that it follows that life imprisonment is a greater deterrent than death. If they do not agree with that, I think that they are trying to have it both ways.
I do not see the parallel between the two. On the contrary, I agree with the speech of the noble Viscount, Lord Stansgate. When he dealt with torture, the noble Viscount pointed out with great force that just as there is all this opposition to the change that is now put forward, there was equal opposition to the abolition of torture. It has always been said: "You cannot do this because you will have a further outbreak of crime." That has already been said. I do not otherwise see the parallel with the noble Lord's question. For those reasons, I earnestly ask this House, whatever your Lordships may think about the other place, to express your own views and to say that, at any rate, this suspension is worth a trial, and that this more or less interminable 73 debate shall be resolved by an experiment for a limited time. In conclusion, I would add that I share the views of a good many foreigners who point to this country and say: "Your country cannot be wholly civilised so long as you have the death penalty," and who say that in any so-called civilised country which retains the death penalty there is an element of barbarism.
§ 5.57 p.m.
§ LORD LUCAS OF CHILWORTH
My approach to this problem is simple and can be briefly stated. I follow the excellent dictum laid down by the noble and learned Lord, Lord Du Parcq, who in the course of what I thought was an excellent Second Reading speech, said that one must cast one's vote upon this matter as if the whole responsibility of making the decision rested upon one's own shoulders. In arriving at that decision, I am not at all swayed by statistics such as those mentioned by the noble Lord, Lord Merthyr, and other noble Lords who have quoted like figures and alleged facts. I agree with the noble and learned Viscount the Lord Chancellor that in abolishing the death penalty we are carrying out a great experiment. For my part, I am not prepared to carry out that experiment unless I believe that it has the consent of the majority of the potential victims, the members of the British public.
Every indication that there is to-day points to the fact that the British public are against the abolition of the death penalty. If the British public are ill-informed upon this point, the fault lies with the protagonists for the change. But I deprecate the views of those who have asserted that these trends of public opinion which have been made apparent during this last week or so are the vapourings of the ill-informed mob. It is all very well to call an expression of public opinion that when one does not agree with it, but to describe it as the voice of enlightened democracy when one does agree with it. I think it is only right to point out to those who have publicly stated that, or have been reported publicly to have stated that, that at least it was this ill-informed mob that put them into another place. For those reasons, I shall vote in favour of the Amendment.
§ 5.59 p.m.
I was at one time what was called an Inspector in the Southern Sudan. It was part of my duty to try all criminals. I remember in particular a case in which one of my police had murdered a prisoner. After I had heard the case, I thought to myself: "If this man is to be hanged, I shall have to see him every day that I am in the station for at least two months before the sentence is confirmed. I shall then have to make the arrangements myself and supervise his hanging." I sent a report of the proceedings to the Chief Justice with a suggestion that the sentence be commuted. In due course, the sentence was commuted. Memories of those days came back to my mind when I was reading the Second Reading reports of the proceedings in your Lordships' House and trying to make up my mind on this difficult question, and those memories were largely responsibly for bringing me to the conclusion that the gallows is a "preposterous anachronism." I am indebted for that term to the noble and learned Viscount, Lord Simon, who sits on the Front Opposition Bench. He used it in regard to something very different; he applied it to the procedure which is adopted if one of your Lordships has the misfortune to be charged with felony. The noble and learned Viscount mentioned several features of that procedure and, in particular, that it involved the breaking of a wand. The question I would ask is: Is breaking a wand really more archaic than breaking a man's neck? I think there is no doubt about the answer.
The trial procedure in your Lordships' House in cases of felony is a medieval procedure, but the practice of killing men by hanging them is prehistoric. At the very dawn of our history barbarians sacrificed men to Odin by hanging them from trees, and I think there is no doubt that the reason that hanging is still upon our Statute Book is that that was the method of human sacrifice adopted by those barbarians. Therefore I come to the conclusion that the gallows is a survival of barbarism, in the same way as the quartering block, with which, as your Lordships well know, it was so long and so closely associated. As several noble Lords have pointed out, we still have barbarians in our midst, but the doctrine that barbarians should be treated barbarously 75 is one to which I hope your Lordships will not subscribe.
§ Moved, That the debate be now adjourned.—(Viscount Simon.)
§ On Question, Motion agreed to, and debate adjourned accordingly.
§ House resumed.