Lords Sitting of 21 February 1957

Preamble
The House met at half past two of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers

FOOD AND AGRICULTURE ORGANISATION
2.35 p.m.
LORD DERWENT: My Lords, I beg to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government—

(1) what benefits the United Kingdom and British Colonies receive from the United Kingdom membership of the Food and Agriculture Organisation of the United Nations;

(2) whether such benefits are worth the £444,824 which its membership cost the United Kingdom in the two-year period 1955–56; and

(3) whether such sums would not be more profitably invested by the United Kingdom in direct aid to the agriculture of British Colonies.]

LORD CHESHAM: My Lords, the United Kingdom and British dependent territories benefit from membership of the Food and Agriculture Organisation both directly and indirectly. They benefit directly by the mutual exchange of information and experience with other member nations; through participation in conferences and in other ways; and by being able to call on the advice of F.A.O. experts on particular problems. They benefit indirectly through the improvement in agricultural efficiency and living standards in the world generally. It is impossible to put a precise monetary value on these benefits. So far as direct assistance to agriculture in the dependent territories is concerned, Her Majesty's Government already provide substantial assistance from Colonial Development and Welfare Funds and through the Advisory Services of the Colonial Office.
In the view of Her Majesty's Government, the United Kingdom contribution is fully justified, not only on the broad grounds of international co-operation, but
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also because it reinforces and complements the help given directly to dependent territories. Our attitude to F.A.O. can be summed up as expressing support for the Organisation's direct activities in the field, while urging restraint in long-term theoretical studies, particularly in economic matters, and urging also economy in administration. In the view of Her Majesty's Government the main emphasis in F.A.O. activities should be one of concentration on work of the greatest practical value, efficiency and economy
LORD DERWENT: My Lords, I thank my noble friend for his full and comprehensive Answer. May I ask him whether Her Majesty's Government will continue to see that as little as possible is spent on administration, as I understand is, in fact, the Government's policy?
LORD CHESHAM: That is perfectly correct. We feel confident that the Organisation itself also is very desirous of running in such a way.

AQUILA AIRWAYS
2.38 p.m.
LORD AILWYN: My Lords, I beg to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they are satisfied that Aquila Airways are—

(1) a properly constituted and thoroughly responsible company;

(2) in every way fit and proper persons to render normal amenities and reliable service in the conduct of an air line;

(3) operating with safety and efficiency the flying boat services to Madeira during the winter months.]

THE PARLIAMENTARY SECRETARY, MINISTRY OF DEFENCE (LORD MANCROFT): My Lords, Aquila Airways, Limited, have been established since 1948 and have successfully operated flying boat services to Madeira since 1949. My right honourable friend the Minister of Transport and Civil Aviation is satisfied that the company's arrangements for this service are such as to ensure safety of operation. I can assure

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the noble Lord that the Minister would not otherwise have approved this and other regular scheduled services which are operated by the company with flying boats. There is, however, no sheltered water at or near Funchal, Madeira. Operations on the open sea cannot be undertaken when there is a heavy swell. Consequently, the Madeira service is particularly susceptible to delays owing to bad weather, especially in winter. I understand that, owing to the exceptionally had weather this winter, there have been some serious delays in the operation of the service which have naturally given rise to complaints by passengers. These complaints are at present being investigated. My right honourable friend has no reason to doubt the ability of Aquila Airways, subject to the operational limitations that I have mentioned, to provide a reliable service to the public on this route.
LORD AILWYN: My Lords, while thanking the noble Lord for his full reply, may I ask him whether he is aware, or his right honourable friend the Minister of Transport and Civil Aviation is aware, of the circumstances of a recent flight to Madeira, via Lisbon, by one of this company's flying boats when passengers were given misleading information, were subjected to intolerable delays and inconvenience, and suffered grave discomfort, while the advertised schedule of a nine-and-a-half hour flight to Madeira was prolonged to the astonishing period of seven and a half days? Will he not agree that this does savour of haphazard and unsatisfactory service?
LORD MANCROFT: My Lords, I am aware of the unfortunate case which the noble Lord has mentioned. It was due, as were several other cases this winter, as I have explained to the House, to exceptionally bad weather. The company are, I know, investigating this particular case, and a report will be available in due course. I am certain that the noble Lord will agree with me that safety conditions must in all cases be paramount.
LORD MORRIS: My Lords, may I ask the noble Lord, Lord Mancroft, a further question arising out of the original Question and the supplementary? I know that he will forgive me if I put
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two or three supplementary questions to him in one, so quick is he, both intellectually and on his feet. Is he aware that this is a matter of the gravest importance, and one which does not concern merely the Madeira route but also the route operated by this company during the summer from Genoa to Southampton. Would it be true to say that this company is, in fact, a subsidiary of the P. & O., and will he not consider providing facilities for a debate? Secondly will he not consider whether there should not be an inquiry into the operation of all these private airlines—not merely Aquila Airways? Thirdly, does he appreciate that safety considerations are absolutely paramount? These people have a shack—one could not call it an air building—at Genoa. I have flown with the company, I have been to Genoa and I know this shack. I ask the noble Lord, if he will, to give urgent attention—as I am sure he will—to these matters. I understand that later on this afternoon we shall be discussing the question of individual homicide. This sort of thing may well be mass homicide.
LORD MANCROFT: My Lords, if I may say so with respect, the noble Lord, Lord Morris, is going not only a good deal further than the Question on the Order Paper would allow me to go, but also a good deal further than the whole subject at this moment suggests. I agree with him, as I have already stated, about the paramount importance of safety. I agree that this company is a wholly-owned subsidiary of British Aviation Services, Ltd. I can certainly assure him—and I hope that this assurance will satisfy him—that my right honourable friend will consider carefully the report, which he will no doubt see in due course, and will study it in the light of the observations which the noble Lord has just made.

CHURCH OF SCOTLAND (PROPERTY AND ENDOWMENTS) BILL [H.L.]
THE MINISTER OF STATE, SCOTTISH OFFICE (LORD STRATHCLYDE): My Lords, I beg leave to introduce a Bill to amend Section 36 of the Church of Scotland (Property and Endowments) Act, 1925, in its application to benefices with

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more than one incumbency. I beg to move that the Bill be now read a first time.
Moved, That the Bill be now read 1a.—(Lord Strathclyde.)
On Question, Bill read 1a; and to be printed.

RATING AND VALUATION BILL
Brought from the Commons; read 1a; and to be printed.
PATENTS BILL [H.L.]
Returned from the Commons, agreed to, with Amendments: the said Amendments to be printed.
CONSOLIDATED FUND BILL
Read 3a (according to Order), and passed.

HOMICIDE BILL
2.45 p.m.
Order of the Day for the Second Reading read.
THE LORD CHANCELLOR (VISCOUNT KILMUIR): My Lords, there can be nobody in your Lordships' House who has forgotten the debate last Session on a Private Member's Bill to abolish capital punishment which came to us from another place. Your Lordships rejected that Bill, but only after many noble Lords had made it clear that, while not abolitionists, they were dissatisfied with the present state of the law of murder. Sonic of the noble Lords who voted in favour of the Bill would have preferred, I apprehend, a less radical change. Some who voted against the Bill would wish to see the scope of capital punishment restricted. I do not propose to-day to repeat the arguments for and against capital punishment. The Government's opinion is already known: that its retention is necessary in some cases to safeguard law and order. That principle is preserved by this Bill, but we have thought it right to go a long way to meet the views of those who are opposed to the application of capital punishment under the present law. We have introduced this Bill because it is
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a matter of such grave importance and because, in such a matter, it is the duty of the Government to give a lead and to try to find a solution acceptable to a majority, both in Parliament and in the country. This Bill, I believe, contains such a solution.
May I say a word about the nature of the problem? Your Lordships will understand that there are two aspects of the law of homicide with which the Government have to deal: first, what forms of homicide constitute the crime of murder; secondly, what should be the punishment for murder in varying circumstances. Part I of this Bill deals with the first part of the problem. It will amend the law as to the ingredients of murder so as to make that law more in accordance with what many of us believe to be just. Part I of the Bill makes four changes in the substantive law, and I should perhaps emphasise here and now that it applies only to England; he defects we wish to eliminate make no appearance in Scottish law. The first reform is the abolition, by Clause 1, of the doctrine of constructive malice. On these legal points may I put the position broadly at this stage a the Bill? As many of your Lordships realise, in the normal way to be guilty of murder one must intend to kill or to cause serious injury, but this is not true if one kills whilst committing a felony or resisting arrest. A person who uses violent measures in the course of a felony involving violence or the threat of violence is guilty of murder if these measures result, even inadvertently, in the death of someone else. Clause 1 changes this rule. In future, homicide will be murder only if there is intention to kill or to do serious injury. What is more, a man who embarks on a criminal enterprise will not, as he is now, be a murderer just because an accomplice uses a greater degree of force than he had realised to be likely and so causes death.
My Lords, may I say a word about diminished responsibility? I apprehend that more uneasiness has been caused to your Lordships by the refusal of the present law to make allowance for mental infirmity short of complete insanity than by any other substantive legal doctrine. Clause 2 is an attempt to remove the cause of that uneasiness. It introduces

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into English law the Scottish doctrine of diminished responsibility. This doctrine permits a man accused of murder to raise the defence that he was at the time suffering from an abnormality of mind which substantially reduced his responsibility for his act. I should make it clear that a real abnormality, not just an exceptional fit of temper or jealousy, must be proved before the clause will apply. If this defence is established to the satisfaction of the jury, the prisoner may be convicted of mansluaghter, not murder. It might be asked why this doctrine should be peculiar to murder. The answer is that in murder alone the sentence is fixed, and will remain fixed under the Bill: in other cases, once guilt is proved, the court, in assessing sentence, will always make allowances for human weakness. In murder it can make no such allowance. I have little doubt that this provision in Clause 2 will practically eliminate those distressing cases which I have mentioned, and will do so under a well-tried practice of Scottish law.
Clause 3 amends the law as to provocation. It has always been open to a prisoner accused of murder to raise the defence that he acted under provocation which would have driven a reasonable man to use extreme violence. But this rule of law has become restricted by a doctrine that words alone cannot—and I quote:
"except in circumstances of the most extreme and exceptional character"
amount to provocation. I think that justice requires that there should be no artificial restrictions preventing a jury from finding provocation if they are satisfied that there really was provocation in the particular case that they are trying. Clause 3 removes any such technical restrictions.
Lastly, my Lords, there is the case of suicide pacts. A survivor of a genuine pact is to-day guilty of murder if the other party dies. Nobody, I suppose, thinks it appropriate that he should be convicted of the most serious of all crimes. Accordingly, if, and only if—and I stress this point—the pact is genuine, the survivor will, under Clause 4, be guilty of manslaughter only and the sentence will be in the court's discretion. I have outlined very briefly, avoiding technical
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terms, so far as possible, the substantial changes in the law of murder. When I come to deal with the cases in which capital punishment is retained, I would ask those of your Lordships who doubt whether this Bill goes far enough towards abolition to remember that many of the cases which would otherwise be capital will not now, because of Part I, be murder at all.
I pass now to what I have no doubt will be the most controversial Part of the Bill. It appeared to Her Majesty's Government that an acceptable solution to our problem could be found only by restricting the death penalty to particular categories of murder. We were, and still are, fully aware of the difficulties involved. We thought it right, however, to try again, and I believe that we have found the answer; and it is contained in Part II of the Bill. Your Lordships will see that by Clause 7 the Bill abolishes capital punishment for all murders except those specified in Clauses 5 and 6. Your Lordships will want to know on what principle those exceptions have been made, and it is right that I should at this stage explain how it is that the Government have arrived at their decision. We did not feel that it is possible to classify murders according to their degree of moral heinousness. Moral guilt depends not on the objective circumstances of a class of murder, but rather on the circumstances of a particular murder; and even more of a particular murderer.
It has been proposed that the test should be premeditation. Naturally I have given great thought to that suggestion, but I doubt whether it would be possible to defines premeditation. Even if it were, I believe that such a test would not bear examination. Take the example of a mercy killing. It is nearly always premeditated, over a long period. On the other hand, a burglar who shoots a policeman usually fires on the spur of the moment, although he has previously made the choice of carrying a gun. I ask your Lordships to consider that distinction—I do not want to go into it at great length—just to show the sort of difficulties with which we have been faced in considering making premeditation the criterion.
The principle on which this Bill is based is different. It is this. The death penalty is to be retained for those cases where

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murder is most dangerous to the preservation of law and order, and where the death penalty is likely to be a particularly effective deterrent. Let me say at once that Her Majesty's Government realised that by abandoning the test of moral heinousness in favour of this principle they would leave outside the scope of the death penalty many crimes which ordinary people particularly abhor. This is inevitable. May I remind your Lordships (I apologise for not having given him notice, but these words are not quoted in any hostile or argumentative sense) of the words of the most reverend Primate the Lord Archbishop of Canterbury in the debate last Session—I quote from Hansard of July 10, 1956 [Vol. 198, col. 751]:
"It is true that some murders, some of the most abominable murders, would fall outside the categories and would escape the death penalty. They would be murders chiefly of a specially beastly and passionate kind. I think that if any are to be excepted from the death penalty, it had better be these…it is just in them that the temptation to indulge in this dangerous passion of making him pay '…is at its strongest and its indulgence most likely to be harmful to our own moral sense."
As I have said, the Bill selects those categories of murder which strike at law and order, and where the death penalty is likely to deter. Of course, all murders strike, to some extent, at law and order, but not to the same extent. Some of the most terrible crimes—and let nobody think that I or any of my colleagues regard them as anything but terrible—do not directly threaten the public safety or the peace which Her Majesty's subjects have a right to enjoy while they go about their daily tasks.
We have chosen to retain as capital murders those which seem most fraught with public danger: because they are committed by criminals carrying out other crimes, or because they are murders of the guardians of public order, or because they are carried out by means which are both dangerous and apt to be indiscriminate in their effects, and which appear to us to be those forms of murder against which the death penalty is most effective as a deterrent.
LORD PAKENHAM: My Lords, I am sorry to interrupt the noble and learned Viscount, but surely there are at least two principles at work here—although I do not want to quibble over words. There
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is the test of danger, and there is the test of whether the death penalty will be a deterrent. I do not know whether the Lord Chancellor is equating the operation of those two principles, but, on the face of it, there appear to be two principles at work.
THE LORD CHANCELLOR: I think I said twice that our process of thought included both these matters, and I was going on to develop them both. If the noble Lord will restrain his impatience for a moment, I will show how they are developed. I have not sought to hide that there are the two points—law and order, and effective deterrence.
LORD PAKENHAM: Since I have been challenged in regard to my powers of apprehension, may I say that the noble and learned Viscount referred more than once to one principle, and I could not help wondering if there were two. I dare say I should not have done so.
THE LORD CHANCELLOR: It is a long time since I attended lectures in logic under a distinguished don at University College, Oxford, but I do not know that he animadverted too much over a principle having two limbs. If he did, I am wrong, and I apologise. Perhaps I may alight from that line of logical excursion—and I bear no to the noble Lord—
LORD PAKENHAM: Nor I.
THE LORD CHANCELLOR:—to the path I was traversing and deal with the murders for which the death penalty is retained. This Bill will retain the death penalty for five categories of murder. First, murder in the course or furtherance of theft; secondly, murder by shooting or causing an explosion—I apologise to the noble Lord, Lord Pakenham, because I did say "five categories" and my second category has got the two limbs, of shooting and explosion, but I hope I have made that clear; thirdly, murder in resisting arrest; fourthly, murder of a police officer; and fifthly, murder of a prison officer by a prisoner. In addition, Clause 6 retains the death penalty for those who make a habit of murdering. I should like to say a few words on each of these categories.
First of all, your Lordships will remember that again and again in the debate last Session Her Majesty's Government

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stressed the need to preserve the death penalty for murders committed by those whom I may call professional criminals. There are real grounds for believing that it is because of the death penalty that these criminals do not carry arms. It would be wrong to relinquish a safeguard which protects the householder, the shopkeeper and the clerk collecting his firm's wages from the bank. The object of these professional criminals is always some form of theft, and that is why the categories include murder in the course of theft. And let it be bluntly said that if the choice is between the lives of innocent citizens and those of such criminals, there can be no doubt what our decision should be.
Murder by shooting or causing an explosion is included for three reasons. First, shooting or explosives are common accompaniments of the activities of gangs, and often involve danger to innocent passers-by who have nothing to do with the crime. Secondly, these means are those most often used by political fanatics and other enemies of law and order. Thirdly, Her Majesty's Government consider it most important to discourage the carrying of arms. I realise that many murders which are not directly aimed at law and order are done by shooting, and these will come within the category. I would remind your Lordships, however, that the Royal Prerogative can, and no doubt will, still be invoked. The last three categories—namely, murder in resisting arrest, or of a police officer, or of a prison officer—really all go together. The work and duty of these officers necessarily puts on these servants of the public a special risk from criminals. For this reason, they need special protection, which the clause gives them, as it also gives protection to citizens who assist them in the execution of their duty. The Government are under a special duty to these officers, and if capital punishment is to be retained at all, there can be no doubt that it should be retained for this class of murder.
Clause 6 retains the death penalty for "multiple murderers": it applies to those who commit murder more than once, if the murders are on separate occasions. I emphasise that point of separate murders, because it is not aimed at, and would not apply to, those tragic cases where a distracted parent kills his or her
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whole family at one time. It is aimed primarily at the man who makes a habit of murder, of which probably still the most famous example is the "Brides in the Bath" case, which the older amongst your Lordships will remember.
Those are the categories of murder which we propose should be capital. They exclude, and rightly, most of the cases where the killing is the outcome of a sudden rage and passion, and where no deterrent is likely to be effective. They include, we believe, those murders which are most dangerous to society. Many noble Lords will wonder, as others have wondered, why we have not included that most repulsive crime, murder in the course of rape. These are the reasons. If we did include such murder, it would often turn on difficult technicalities whether the murder was capital or not. This is plainly undesirable. Secondly, this type of killing is nearly always likely to be committed in a moment of passion or panic, when no deterrent will be effective.
Let me turn to another difficulty which I am sure has been in the minds of many of your Lordships. Poisoning is another crime which excites our revulsion more than almost any other. It was only after long consideration that the Government decided not to make murder by poisoning a capital crime. Morally, poisoning for gain deserves, no doubt, the highest of all penalties. In fact, few cases occur. In the last six years, there have been forty-two cases where murder by poisoning has been made the subject of a criminal charge. Nearly all these cases were domestic tragedies, and in only one was the convicted person executed.
Again I must make the appeal experto crede, although not taking to myself any of the credit of the rest of that line, or comparison with the person by whom it was said. I myself have tried very hard to deal with the drafting problem that this involves, and I have, of course, had the help of all my colleagues. I think it would be impossible to distinguish, by the drafting of the Bill, between the commonest form of poisoning, which is the mercy killing of an incurably sick person or the killing by the distraught mother of infant children, from the deliberate calculated murder for gain. I have tried it both ways—excluding one and including

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the other, and I have found it an impossibility. We wish to reduce to a minimum the cases in which the death sentence is passed although everyone knows it will not be carried out. In spite, therefore, of the loathing which we feel for the deliberate poisoner, the Government have come firmly to the conclusion that it would be wrong to include in the capital categories this crime.
Your Lordships will be relieved to hear that there is little I need say about the remaining provisions of Part II. There are only three points to which I should like to draw your Lordships' attention. The first is that even where the murder is capital, only those who take part in the actual killing will be liable to the death penalty under subsection (2) of Clause 5. Undoubtedly, the accomplice is guilty of a terrible crime—many may think he is as guilty as the principal murderer. But he may be comparatively, and only comparatively, much less blameworthy. He may merely take the part of a "look-out", on watch for the police; and the Government consider that it is better to err if they do err, on the side of leniency.
It is clearly right that a member of the Armed Forces tried for murder by a court-martial abroad—he cannot be tried for murder by a court-martial in the United Kingdom—should be liable to the death penalty only if the murder is capital within this Bill; and under Clause 8 this will be so. Thirdly, the sentence on those convicted of murder which is not capital will, under Clause 9, be imprisonment for life. On that, I need only say that clearly the sentence must be severe; that a life sentence gives the Home Secretary special opportunity to review it at frequent intervals and, finally, that no alternative sentence would, I apprehend, find any general degree of agreement.
Again, I am happy to say that I need not detain your Lordships long over Part III of the Bill. Its object is simply this: if capital punishment is retained, we all agree that as many as possible of its macabre accompaniments should go. The Royal Commission made three specific recommendations to this end, and these are carried out by Clauses 10, 11 and 12 of the Bill. The effect of these clauses will be this. Clause 10 will substitute for the present grim words in the
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death sentence words which, in the words of the Royal Commission, will be:
"as brief, simple and colourless as is consistent with tie solemnity of the occasion."
The sentence will be that
"the prisoner shall suffer death in the manner authorised by law."
Clause 11 abolishes the statutory duty to put up notices of execution on the prison gates. These notices contribute to some extent to the emotional and hysterical scenes which sometimes take place outside a prison. I am sure that every noble Lord would agree that this duty is as unnecessary as it is distasteful. Clause 12 makes it possible to avoid double executions in one prison by empowering the Home Secretary to order the removal of one condemned man to another prison.
I will now say one or two words on Part IV of the Bill, the application to Scotland. This Part of the Bill makes two changes in the law for Scotland, and I hope that I shall not be considered guilty of disrespect to my native land if I do not expatiate on them. They are technical and, if your Lordships give this Bill a Second Reading, much more suitable for discussion at a later stage. The point I do wish to make about Scotland is this. First, as I have already said, the substantive reforms in Part I of the Bill are applicable only to England: Scotland does not need them. Secondly, Part II will apply to Scotland. The effect will be that the death penalty will be applied only to the same capital murder, whether the case is tried in Scotland or in England.
My Lords, this is not merely a Bill to limit the operation of the death penalty: it is a comprehensive attempt to deal with anomalies, to make the law more humane and to remove some of the grim trappings which surround the death sentence and its execution. The House will want me to give some estimate of the effect of the Bill. It is difficult to be exact, since in the future the murder rate may vary because of circumstances of which at present we have no knowledge, but I can give some estimate of the effect that the Bill would have had had it become law some time ago. This estimate can not be exact, for precisely how the reforms in Part I would have affected the outcome of any given case is practically impossible to say. I will, therefore, leave

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Part I entirely out of account and assume only that Clauses 5, 6 and 7 had been in operation. Between 1900 and 1955 the annual average of persons sentenced to death for murder was 25, and the average number of executions was 13. If Clauses 5, 6 and 7 had been in force, there would probably on the average have been 6 death sentences and 4 executions a year. Your Lordships will realise that this estimate can only be rough, but over such a long period it gives some idea of what the effect of the Bill would have been.
May I say this word in conclusion? This controversy has been continued for a very long time and this Bill is an attempt by the Government to find a middle way which has three qualities. First, it is consistent with our duty to preserve the public peace and order. As I say, that is not merely a function but a duty of government which we cannot lay down. Secondly, it takes into account public opinion in so far as we can judge it. Thirdly, it utilises gratefully the views expressed with great force and eloquence both here and in another place. It is a compromise, but I make no apology for that; compromise is often the only way of solving difficulties. But it is not only to reconcile differing opinions that this Bill is brought forward. It is, we believe, a just solution which will commend itself to those who cannot go all the way with the abolitionists, or rest content with the law as it stands. This Bill will make the law more humane; it will preserve the death penalty where it is necessary and discard it where it is safe to do so.
Again, I ask your Lordships to look at the Bill as a whole. Some of your Lordships may not be satisfied with one bit, some may not be satisfied with another, and certainly not satisfied with every bit of it; but I ask your Lordships to remember that every shade of opinion must make some concession, and to recognise that this is a necessary attempt—I am sure it is a necessary attempt—to find a solution to a most intractable problem. The Government firmly believe that this Bill deserves your Lordships' support. In this spirit, I ask your Lordships to give it a Second Reading. I beg to move.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
3.25 p.m.
LORD SILKIN: My Lords, the noble and learned Viscount has introduced this Bill with the fairness, care and persuasiveness which we have come to expect from him and which we have received, but there can be no reasonable doubt that this Bill comes before your Lordships at this time and at this haste, not merely or solely out of a passionate desire to reform the criminal law but, in my view and in the view of a good many of us, in a desire to anticipate the operation of the Parliament Act, which would have operated if a Bill similar to the Silverman Bill had been allowed to go through another place and had passed. We have to remember that the Private Member's Bill of last Session—what is known as the Silverman Bill—passed through all its stages in another place on a free vote and was only defeated by your Lordships when it came to this House. If the same Bill had been presented a second time in the same form and passed again, it would automatically have become law, in spite of the objection of your Lordships.
A good many people, in my view not surprisingly, take the view that the introduction of this Bill within two days after the commencement of the Session, the haste with which it is being passed and the fact that not one single Amendment has been accepted in another place—inspite of the fact that the Bill was considered in Committee for eight whole days by a Committee of the whole House, and that a large number of Amendments were put forward by honourable Members from both sides of the House—indicate that there is something more than this urgent desire to amend the law which is operating at the present time. There has, in fact, been presented to another place a Bill similar to the Silverman Bill but it has not even been considered, and this Bill has been submitted, in my view, to anticipate it.
I think that the proper course for the Government was to have allowed a similar Bill to the Silverman Bill to be put forward again and once more to have given the other place a free vote. It may well be that on a second occasion a number of honourable Members in the other place might have taken a different view as a result of the discussions which have since taken place, and the result

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might have been that the Bill would not have passed the other place on the second occasion. But, in my view, it was the duty of the Government to permit a free vote for a second time in the other place this Session. I should like to ask the noble Marquess who is going to reply to the debate why it is that they did not do so. Is it because they feared the result of a free vote again? Is it because the Government are willing to grant a free vote only so long as they think the result is likely to be in their favour, but when they have some reason to doubt the result, they put on the Whips? At any rate, that is a legitimate inference from the way in which this matter has been handled.
I said that this Bill has not been amended in any way in the other place—not one single word has been altered. In view of the kind of Bill it is—a compromise Bill, as the noble and learned Viscount explained—it cannot really be so good that not one single word is capable of improvement. I wonder what is going to be the position in this House—whether your Lordships will have the opportunity of improving the Bill, or whether in the view of the Government it is still as perfect as it was when it left the other place. I have no doubt that your Lordships will, in a number of respects, desire to amend the Bill, as it ought to be amended, but it will surprise me, if the Government accept any Amendments here which they were not prepared to accept in another place. So we start off with a Bill which was inspired primarily, as I say, not by a desire to amend the law of homicide but by a desire to prevent the passage of a Bill which, if given a free vote in another place, would have come under the operation of the Parliament Act. So we are forced into this compromise Bill.
The noble and learned Viscount has described it as a compromise Bill, and suppose it is. But what is it a compromise about? There are two views, both passionately held: one, that capital punishment is wrong, the other, that capital punishment is a unique deterrent. It seems to me a compromise which results in the Bill being half right and half wrong. If it is a unique deterrent, it abolishes this unique deterrent in the case of a great many murders, and so the unique deterrent ceases to operate; on
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the other hand, it still retains the principle of capital punishment.
As many of your Lordships will remember, we had exacly the same set of circumstances in 1948. There, again, there had been a free vote in another place which had resulted in a declaration in favour of the abolition of capital punishment. The Government of the day had then introduced a Bill in which they sought to compromise in very much the same way as this Bill does, by abolishing the capital penalty in the case of a certain number of categories of murder. The categories are not exactly the same. I think that in 1948 there was included among the categories of murder in which capital punishment would hale applied the case of poisoning; but I believe, speaking from memory, that that is the only difference between the two circumstances. On that occasion a very eminent Member of your Lordships' House made this statement in the course of the debate. I quote [OFFICIAL REPORT, Vol. 157, col. 10641]:
"It is not, in fact, really a serious proposal at all. It is a mere pis aller, introduced not because of its intrinsic merits but because it has been hoped, perhaps overoptimistically, that it would satisfy someone and get the Government out of the jam in which they find themselves. I do not think that is an unfair way of putting it"—
and I certainly do not—
"Everyone knows that to be the position. We must all sympathise with the Government in their difficulties, even if some of them are, perhaps, of their own making. But I would assure them that it is not by such devices as this that they will restore their credit, either with the electorate or with their own supporters."
I accept every word of that, and I apply it as legitimate criticism to this Bill. The House will not be surprised to hear that those words were spoken by the noble Marquess who to-day leads this House. I should be interested to know whether he still accepts this description as being applicable to the present Bill, which, as I have said, is being brought before your Lordships in exactly the same circumstances as the Bill of 1948.
I said that this Bill is a compromise, and I recognise that undoubtedly it makes a number of vital improvements in the law of homicide; it would be unfair not to accept that. The noble and learned Viscount referred to them in his speech, and they are contained in Part I of the Bill. I need not refer to them at any

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length, except where I feel that they are the subject of legitimate criticism, and where I feel they ought to be dealt with by way of amendment at a later stage. The abolition of constructive malice will, I am sure, be acceptable to every one of your Lordships. It is a doctrine which greatly shocked public opinion some few years ago, at the time of the Bentley case, when a young man of nineteen was executed for being present at a murder where he was participating in an attempted theft and where he was alleged to have uttered encouraging words to the person who actually committed the murder. I think that everybody felt that this execution was unjustified.
I would say the same about the position of persons suffering from diminished responsibility, and those concerned in suicide pacts, although I feel that there some amendment may be necessary because, so far as I can see, the Bill does not permit of any alternative but terms of imprisonment. In the case of people where it can be established that there is diminished responsibility, one would imagine that ex hypothesi there is, in most instances, a case for some kind of medical treatment, and that medical treatment and observation, and opportunity of reform, would be more appropriate than a long term of imprisonment. I should like to see something in the Bill which would enable that to be done where it was thought by those in charge of the case that such an alternative would be preferable and desirable.
Then there is the Part of the Bill which deals with the law of provocation. On that point there has been considerable discussion in another place. The Bill provides in Clause 3, which deals with provocation, that the test to be laid down is whether the provocation, either by things done or by things said, or both together, was enough to make a reasonable man do as he did—that is, commit murder. The jury are asked to take into account everything both done and said and the effect which, in their mind, it would have on a reasonable man. I myself cannot imagine that any reasonable man would commit a murder as the result of provocation, and I imagine that most juries would be likely to take the same view. There must be sonic abnormality or some special circumstance,
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something in the life of the individual who commits the murder, which makes him so susceptible to words or things done as to induce him to take the extreme course of murder. So it seems to me that if this clause is left as it stands, it will be impossible for anyone to escape capital punishment by the test that is contained in the Bill: that of how a reasonable person would act.
I know that this matter has been debated in the other place. I have read the discussion, and I must confess that I remain convinced that the Bill would be rendered quite nugatory in this respect if the words were left as they are. I hope, therefore, that there may be further discussions in this House on an Amendment, and that Her Majesty's Government may see their way to make some alteration in the Bill so as to have regard to the circumstances of the particular person who is charged with murder. I will not give examples just now, as they are more appropriate for the Committee stage, but some striking examples were quoted in the course of the debate in another place. I believe that it might be right for the test to be whether the provocation was such that any person placed in the circumstances or conditions in which the person who committed the murder was placed would have acted as he did.
There are certainly great improvements in the Bill. The noble and learned Viscount did not say what effect these improvements in Part I would have in reducing the number of persons executed, but I imagine that they may well be proportionately fairly considerable. But the public will be most bewildered about Part II of the Bill, which deals with liability to the death penalty. The noble and learned Viscount did not, of course, shirk the issue. He dealt with it fully and also with many of the difficulties with which the public will be confronted; but with the best explanation in the world—and the noble and learned Viscount certainly gave the best possible explanation—the public will never understand the principle on which some murderers are to be treated as capital murderers while others are to be treated as what I might describe as "simple" murderers.
Her Majesty's Government have tried to lay down principles, and the Home Secretary on January 24 last, on the Third Reading of the Bill, put the case of Her

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Majesty's Government extremely well. He said [OFFICIAL. REPORT, Commons, Vol. 563, (No. 37), col. 417]:
"The death penalty is retained in the Bill for murder which strikes at the maintenance of law and order, and murder of the agents of law and order is clearly an offence of that kind. We therefore believe that there is a logical case for including this paragraph."
He went on to say that Her Majesty's Government had a special responsibility for those who are concerned with the preservation of law and order, such as policemen, warders and so on. But surely other murders, Bach as beating a wife to death, murder in the course of rape (to which the noble and learned Viscount referred) and poisoning, all strike at the maintenance of law and order; and if the death penalty is regarded as a protection for policemen and others, surely it is an equal protection for others who are less able than policemen to look after themselves. Why should certain classes of persons who are much better prepared for attack have the so-called "protection" of this unique deterrent while others have not? Obviously, this so-called "principle" leads to extraordinary results which the public will never be able to understand.
In the course of the same debate as that to which I have referred, and in which the noble Marquess took part, the Lord Chief Justice also spoke. He referred to the same question of giving special protection to the police, and I should like to quote his remarks. They have often been quoted and have become almost classic. I am sure most noble Lords who have studied this question will know this part of the speech of the Lord Chief Justice almost by heart, but it is nevertheless very true. This is what he said [OFFICIAL REPORT, Vol. 157, col. 1034]:
"There is also a paragraph put in to protect the lives of the police, and to deter people from shooting the police. I yield to none in my desire to support and protect the police, but I believe, and I am sure that every police officer would think, that the lives of the humblest of His Majesty's subjects are as valuable as the lives of policemen. It seems to me not right that a man who in the height of passion or temper kills a policeman—perhaps not deliberately, in the sense that he aimed a revolver at him—but in the struggle to avoid arrest (a man perhaps with a long record who is trying to escape) should be told that he is guilty of a capital crime, whereas a man who has taken an axe or a hammer, perhaps to a sick or ailing wife and has
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battered her brains out, should be told that he has committed non-capital murder. I cannot believe that that is a right provision to leave upon the Statute Book."
That is a view which is entitled to the greatest possible respect. Of course, the Lord Chief Justice and I part company at that point, because the inference to be drawn from what he is saying is that other crimes ought also to be capital, whereas the inference I draw from it is that this is not a crime which should be capital as against others and that I am in favour of abolishing both. But, at any rate, we are here in complete agreement as to the anomaly of treating a policeman in one way and treating other citizens in another way—citizens who are less able to look after themselves and cases where the crime may be much more shocking.
While I will admit straight away that the noble and learned Viscount, and no doubt the noble Marquess, with all their eloquence and skill can make a case on the basis of some kind of principle here, Her Majesty's Government have to carry the public with them. The noble and learned Viscount made the point that he is anxious that the public should accept this Bill and he wants a Bill which the public will regard as fair, reasonable and proper in all the circumstances. I believe that the Bill fails in that respect, because the public will never understand why one particular type of crime should be regarded as a capital crime and another type not so regarded. Her Majesty's Government have fallen into the error of trying to classify murders according to a doctrine which might be intelligible to them but which will not be intelligible to anybody else. The Royal Commission, after four years' study and close consideration of this very point—the attempt to classify murders according to different categories—came to the conclusion that it was quite impossible to do so and they expressed their views in paragraph 498 and other paragraphs of their Report.
The interesting point is that at that inquiry evidence was given on behalf of the Home Office. The noble and learned Viscount who sits on the Woolsack has been Home Secretary; and presumably he will knew that the evidence which is given on behalf of the Home Office is very carefully considered by the Home Secretary, and represents, I imagine, the view not only of the Department but of the

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Home Secretary himself. And this is what was said in the evidence for the Home Office.
"There are not, in fact, two classes of murders but an infinite variety of offences which shade off by degrees from the most atrocious to the most excusable."
So I say that, in the view of everyone who is qualified to judge, the Bill is anomalous so far as it attempts to lay down degrees of murder.
As I have said, I have no desire to condemn the Bill outright. In so far as it reduces, or will probably reduce, the number of cases of capital punishment, it is a step in the right direction. But I remain convinced that the case for the abolition of capital punishment is as strong as it ever was, both from the point of view of the protection of the public and from the moral point of view. In a way there has been a limited experiment since August, 1955, because since that date no executions have taken place. And yet there has been no increase in the number of murders. In the sixteen months before August, 1955, there were 247 murders in Great Britain, whereas in the sixteen months since that date there have been 240. Apparently the fact that there have been no executions has made little or no difference. Of course, it would be folly to place too much reliance on these figures; I should be the last to suggest that they prove the case for the abolition of capital punishment. But at least they can provide no comfort for those who want to retain capital punishment. And I am quite content to leave it at that.
I base my case against capital punishment almost entirely on the ground that it is morally wrong. I think it is wrong for the State to maintain an organisation for deliberately taking life, an organisation which brutalises and demoralises all those who take part in it. I am convinced that the day is not far distant, if it has not already come—some people believe that it has—when capital punishment will no longer be carried out. My noble friends on this side of the House are not treating this Bill as a Party Bill and they will not divide, if a Division is called for, as a Party on the Second Reading. We do not ourselves propose to call for a Division, but we hope that, in spite of its fate in another place, it
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will be possible to improve the Bill along the lines which we consider desirable—that is, still further along the road to complete abilition of capital punishment.

GHANA INDEPENDENCE CELEBRATIONS
3.55 p.m.
THE LORD PRESIDENT OF THE COUNCIL (THE MARQUESS OF SALIS-BURY): My Lords, I am very reluctant to intervene on a different subject in the middle of a debate so important as this, but there is a Statement which is being made in another place and which it is equally important should be made here. I think your Lordships will therefore forgive me if I intervene for a very few minutes in order to make it. It relates to the forthcoming independence of Ghana.
As the House knows, the Ghana Independence Bill received the Royal Assent on February 7. The effect of this measure is to provide that, as from March 6, Ghana becomes a fully independent sovereign state within the British Commonwealth. I ant glad to be able to say that after consultation with other Commonwealth Prime Ministers they have all agreed that Ghana shall, as from March 6, be recognised as a member of the Commonwealth. The importance of this occasion, which brings the first British dependency in tropical Africa to membership of the Commonwealth, will be emphasised by the visit to Accra for the Ghana Independence celebrations of Her Royal Highness the Duchess of Kent, who, with Her Majesty's gracious consent, will represent the Queen at the celebrations. The House will, I know, share the pleasure of the Government and people of the United Kingdom, and indeed of the Government and people of Ghana, that Her Majesty is to be represented in this way. I am also able to announce that Her Majesty's Government in the United Kingdom will be represented by a delegation led by my right honourable friend the Home Secretary and Lord Privy Seal and including my noble friend the Minister of State for Colonial Affairs, and the United Kingdom High Commissioner in Ghana. The Government intend to mark the occasion with an appropriate gift to the Government of Ghana.

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Arrangements are also being made for representation at the ceremonies of the General Council of the Commonwealth Parliamentary Association and of the United Kingdom branch of the Association. This latter delegation will consist of my noble friend Lord Dundee, the right honourable gentleman the Member for Lianelly and my honourable friend the Member for Wycombe. The British Group of the Inter-Parliamentary Union will be represented by the right honourable gentleman the Member for Coble Valley. The Armed Forces of the United Kingdom will be represented by a cruiser, "Ceylon," with a Royal Marine detachment embarked; by a frigate, H.M.S. "Mounts Bay" and by detachments of the Royal Air Force, including four Valiant aircraft. All other Commonwealth Governments will be represented at the Independence ceremonies to which certain of them will, in addition, be sending representatives or units of their Armed Forces.
3.58 p.m.
LORD SILKIN: My Lords, on behalf of my noble friends I should like to assure the House that we have had very great pleasure in listening to this statement. We should like to associate ourselves completely with the steps that are being taken to mark this great occasion, and it is certainly with great pleasure that I see that some of my own friends are being connected with the celebrations. I should like to ask the noble Marquess whether it is intended that there should be any sort of function in this country to mark the occasion, and, if not, whether he would consider it.
THE MARQUESS OF SALISBURY: My Lords, I understand it is intended that there should be a religious service of celebration in this country; but it is surely appropriate that the main celebration should be in Ghana itself.
THE LORD ARCHBISHOP OF CANTERBURY: My Lords, may I be allowed to amplify that statement? I was going to ask if I might intervene. Just as the noble Lord has associated himself and his friends, so I very particularly, on behalf of Christian opinion in this country and the Church of England, should like to associate myself most warmly with this step. It is the fact that on the day when Ghana attains independence, at the
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Church of St. Martin in the Fields, by arrangement with the Gold Coast Association, there will be a religious service for all those who can attend. I trust that noble Lords here present will recognise its importance as marking this great step in the development of the Commonwealth.

HOMICIDE BILL
Debate on Second Reading resumed.
3.59 p.m.
LORD MOYNIHAN: My Lords, only a few months ago, as your Lordships will remember, more people in your Lords-ships' House voted in favour of a Bill for the total abolition of the death sentence than on any previous occasion. Now, only some six or seven months afterwards, we find it rather difficult in that we are confronted with a Bill which keeps the death penalty in certain circumstances but leaves it out in others. This Bill is full of legal problems and difficulties, and I feel diffident about getting up to speak on this subject directly after two of the most famous lawyers in the country; but the ordinary man and woman in the street are very much affected by this Bill, if only in-directly, and I think that some words should be spoken from the lay point of view.
It is difficult to know whether to welcome (Ito Bill as a step in the right direction—and by that I mean a step towards total abolition—or to condemn it because it does not go far enough, and because some of the ways in which it does go appear to be rather incongruous. We have heard already that it is accepted as a compromise, but I feel that the compromise is not a particularly happy one. Last Session we had a Private Member's Bill, and it was left to the consciences of Members in both Houses to vote as they thought fit. This time, it is a Bill sponsored by Her Majesty's Government, and therefore Party comes into a question which, surely, above all others, should be left to the individual conscience. Last time, there was a clear-cut decision on the rights and wrongs of hanging. This time, the Bill confirms the necessity to keep capital punishment and withholds it in certain cases—or perhaps it is more fair to say that it keeps capital punishment in certain cases and abolishes it in all others. Whichever way we look at it, the

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Bill differentiates between types of murder, and, as your Lordships have already heard, that is not in agreement with the recommendations of the Royal Commission of 1949.
I feel that, on the whole, it is better to accept the Bill as at least a step in the right direction, not a particularly firm step, not a particularly happy one, but nevertheless a step forward; and because fewer people are likely to be hanged in future, it should be welcomed. Whether or not it will have the required result, I am not so certain. Looking at it again from the lay point of view, what is the required result? Is it simply to reduce the number of murders?—because surely that is what we want to do. If so, what is going to happen if the number of murders disproves the Bill? That is to say, suppose there are more murders for which the murderers will go to prison and fewer for which the death sentence will be imposed. Will the Government then say the Bill is a failure and that hanging must be abolished completely? Or is the Bill really an admission that hanging is wrong in principle and should be kept only for the most severe cases? If what I have suggested turns out to be true within five or six years, will Her Majesty's Government come forward with a further Bill to abolish capital punishment completely? Or, looking at it in another way, is this Bill just an admission that there are too many hangings in this country and that we must reduce them by having hanging only for extreme cases. And again, if the figures disprove this, will a new Bill be brought in for the complete abolition of capital punishment?
The question of deterrence is extremely difficult. I have not yet been convinced that hanging is the great deterrent that some would suggest, particularly if the alternative is imprisonment for life. At the moment, of course, imprisonment for life is at the discretion of Her Majesty's advisers and, apart from mental cases, rarely, if ever, means more than fourteen years. I am not suggesting that that is always the equivalent deterrent to hanging. A young man in his early twenties, knowing that he would be in prison for only fourteen years, might well consider, for various reasons which are unknown to us, that it would be worth while to commit a murder since he would be free
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at the age of forty. If we are going to have imprisonment, rather than hanging, as I strongly recommend, let the deterrent be for a period that will stop people from committing murder in these possible cases.
The question of deterrence cannot be proved until hanging is actually abolished. So this Bill, though I feel that it is rather half-hearted, may be the means of proving this. I feel that, whatever else happens, we should say that imprisonment for life must be for a considerably longer period than it is at present. I am not forgetting that, although many noble Lords agree that capital punishment should go, murder is still a crime by itself, something that we abhor far more than anything else and something that must be punished in a way that will stop as many people as possible from committing it. In passing, I have just one word to say about the danger of escape from prison, because this aspect seems to be somewhat neglected. It is, however, a very real danger, as your Lordships have known in recent months. I feel that in cases of imprisonment the public must be protected more vigorously against that very small section of the public that cannot be allowed to be at large.
Those of us who disagree with capital punishment obviously cannot be completely satisfied with this Bill in principle, and even those who feel that capital punishment should be kept in some cases are not in every way satisfied with the cases that have been chosen in Part II of the Bill. In three out of five cases in which capital punishment is kept, the police or prison warders are mentioned. I agree that the police have every right to be protected as much as anyone else, but what about the old women and the children who cannot protect themselves, and the poisoners, whose case, we have heard, raised considerable difficulty in the minds of Her Majesty's advisers before it was excluded from the list? I hope that we can seriously consider these questions if the Bill passes its Second Reading and goes into Committee stage.
I feel particularly that we should once more consider the question of poisoners. I realise the enormous differences there are in cases of poisoning. On the one side, we have what is generally known as euthanasia and, on the other, we have the most hideous poisonings that are

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maginable. When it comes to the point, I feel that we may well be allowed to discuss that matter again. I think there is no doubt in our minds that in general, as the Bill now stands, certain people will get off where others will be hanged which the public would put round the other way; in fact, they will be more horrified with the cases that will be sent to prison than with the ones that will now be hanged. How important public opinion is in a matter like this I do not know. Do we really know what public opinion is? It is usually our best defence; we say public opinion is behind us when we choose a particular line. But I think that the public will not be satisfied with the Bill as it now stands so far as an outrage to their feelings is concerned.
I do not in any way want at this stage to go into details of the Bill. Parts of the Bill, particularly Part I. I welcome; others I find extremely difficult to understand and very incongruous. It seems to me as H it might be a very difficult Bill to amend; that is, if we are going to be allowed to amend it at all. I also feel that it is going to be an extremely difficult Bill to apply. I was brought up in the legal world, some considerable time ago now, but I must admit that I am thankful that I shall not have to administer justice under the Bill as it stands at the moment. However, looking at it as a whole, it is a step towards the abolition of capital punishment. Many good things have been done by stages. I am looking at this as the first stage in the final decision not to hang people any more. It has already been hinted, both in another place and in the Press, that there will not be any more hangings in this country. I can see nothing, either in the Bill or in the debate in another place, to lead me to that conclusion. But in the hope that that is really the case, and in the hope that fewer and fewer people will in actual fact be hanged, I personally support the Bill.
4.13 p.m.
THE LORD ARCHBISHOP OF CANTER-BURY: My Lords, in the debate in July of last year, last Session, both the most reverend Primate the Lord Archbishop of York and I made as clear as we could what the doctrine of the Church is in the matter of capital punishment. We said that the State has a right, in
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the name of God and of society, to impose the death penalty, whether as an act of justice or for the protection of its own citizens from violence. I repeat that, not least because the noble Lord, Lord Silkin, said that in his view the imposition of the death penalty was immoral; and I feel hound to repeat what the most reverend Primate and I said last time, that there is no immorality in it at all. It may be wise or unwise, expedient or inexpedient; but it is not against the laws of God or the doctrine of the Christian Church.
My fellow Archbishop believes, as I do, that the choice for or against abolition of the death penalty does not rest on any absolute principle, but is a matter of weighing the total moral effects upon the county if one line or the other is taken. My co-Primate, so weighing the matter, found himself in favour of total abolition. My own conclusion was different. I could not, as things are at present, support total abolition; but neither could I support the present system unchanged, believing that in several respects, and especially in the fact that 50 per cent. of those condemned to death were in fact reprieved, the present system was very clumsy in its working, uncertain in its effect, and so clumsy as to rob the death penalty of the kind of solemnity and power in the public life of the community that it ought to have. So I sought for myself something which would limit the field in which the death penalty operated but would make it in that limited field almost certain to be imposed, thus creating, if there is such a thing as a deterrent in this world, a real deterrent. That seemed to be, in the present position of society and of public opinion, the right line to take. I find myself, therefore, entirely able to sup-tort the present Bill. So far as I can judge, I think it satisfies public opinion better than any other course would.
I should like, if it is not irrelevant, to draw attention, in a most friendly way, to some words spoken by the noble Marquess the Leader of the House in November last, during the debate on the Address. He said this [OFFICIAL REPORT, Vol. 200, co]. 87]:
"What I believe has emerged from all the discussions on this question, inside and even more outside Parliament, is that there is a very deep and conscientious cleavage of

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opinion throughout the country … That obviously must put any Government—at least any democratic Government—constitutionally in a position of immense difficulty. As I see it, their duty must be not to try to satisfy this or that section of opinion on either side of the controversy, but to try, so far as they can, to meet the wishes of the greatest possible number of their fellow-citizens."
That is a statement which I regard as of most fundamental importance for the whole government of a democratic country, and as applicable to anything in which there is deep conscientious cleavage amongst the people. But it is not the whole truth. A Government must retain the right to bear their own special and ineluctable burden of final decision and responsibility. In this matter the Government have consistently made clear that in their view the retention, in some form, of the death penalty is a social necessity. That being so, it is their duty to safeguard and secure what they think essential for our welfare. If I had a criticism to make at all of the Government, it is that they ever left a matter of such crucial importance to a free vote in the House of Commons. But they have, since then, sought to fortify their own judgment by regarding the general state of public opinion. And since (of this I am quite certain) there was no clear and decisive majority opinion throughout the country for abolition, they are justified in trying to retain the death penalty for the time being in some form more acceptable than the present one.
As to the Bill now proposed, there are, no doubt, details, many of them of a legal character, which deserve the most careful consideration. I do not propose to enter into any discussion of that, nor am I particularly qualified to do so. I will only say, in passing, referring to what the noble and learned Viscount said, that I am not yet completely convinced that the adoption of the basis of premeditation was an impossible course of action: that murder by premeditation should be a capital charge. The noble and learned Viscount asked: what about "mercy killings"? I have always been firmly of opinion that a "mercy killing" should be regarded as murder, and nothing else. It should not be differentiated because it is a "mercy killing," as if that did not matter so much. It matters every bit as much; and many people require forti-
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fying against the idea that "mercy killing" is rather a good kind of murder. There comes in here another consideration, that of provocation. One can conceive that, if premeditation were the law, then a "mercy killing" could provide a provocation of circumstances which might lead to a lesser penalty than the death penalty. However, I do not want to pursue that line. I want to leave the details alone and to make two further general comments.
The first comment is this. When this matter came up in 1948 I argued in favour of leaving it to the judge and the jury to decide whether a particular killing was to be adjudged murder deserving of death, or murder without that penalty. I was told then, and I have been told since, that it is impossible to leave such a decision, on which death depends, to the jury. I am therefore interested now to read Clause 3 of the Bill on provocation, which does exactly that thing. The jury are left to decide whether provocation, by word or deed, or both, was enough to make a reasonable man do as the accused did. If they so decide, the verdict will be one of manslaughter and not murder; if they decide in the other sense, it will be one of murder and not manslaughter. If it is possible to leave a decision of that magnitude to the jury, I still go back to ask whether it was not possible, also, to leave the jury to decide in general whether, as they try murders, it is a murder for which there is no excuse and for which the death penalty was appropriate, or murder with an excuse, which would justify a lesser penalty. However, the Bill does not proceed on that line: it does not attempt to distinguish degrees of murder, nor to measure (and this I do not criticise) their moral evil. That certainly cannot be done in any Bill. There I entirely agree with what the noble and learned Viscount on the Woolsack said: it is impossible, in a Bill, to measure degrees of moral guilt.
The Bill does create certain clearly defined categories of killing which shall carry the death penalty. There has already been discussion on those categories. In the main, they seem to me, roughly speaking, right. They are clearly defined and easily understood. Anyone can know that a killing in one of these categories will carry the death penalty, and their deterrent effect is, therefore, at

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the maximum. I do not follow why the public should find it so difficult to understand this system. The argument used was that they would be horrified by some murder which did not carry the death penalty, and wonder why a less horrifying murder should. The answer to that is quite simple: that the law is not trying to legislate by degrees of horror. And I think it is important for the public to learn that they ought not to judge what the law shall do by emotional reaction to degrees of horror.
It is true that, under this Bill, some killings of a specially horrid kind, done in the heat of passion, escape the death penalty altogether. I do not regard that fact as an objection. The noble and learned Viscount did me the honour of quoting at length something I said in July of last year, and I was happy to find that I still agreed with every word of it. Indeed, I would maintain that some of these abhorrent murders are far the most difficult to judge by the ordinary categories of responsible action. It is by categories of responsible action that this Bill proceeds, but in these murders of passion and hate responsible action is not in the question. There is some element of temporary insanity, and these cases fall into that clear borderline, which besets us all, between the normal and abnormal, the reasonable and unreasonable, the sane and the insane. For that very reason, they ought not to be in the Bill; they ought to be left not as capital murders, but as others.
The whole matter, I suggest, is not one of deep principle but one of expediency, as one takes into view the general state of the country and public opinion. The State has in this matter a power and a duty: how is it to exercise this penalty? I would say that this Bill seems to provide, for a time, at least, a workable solution. I should myself reject the description of a compromise, although I think the noble and learned Viscount on the Woolsack accepted it. I do not see that it is a compromise at all. You cannot compromise between hanging a man and not hanging him; it does not admit of compromise; you do one or the other. This Bill retains the death penalty, but in the process makes the working of the penalty more limited—which is an advantage in itself—more effective and more clear. That seems to me not a com-
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promise but, as has been said, a definite improvement on our present system.
I would add this. I could hope that if this Bill is passed into law this long and distressing controversy may be allowed to pass for a good time into oblivion. I feel that it is a damage to the dignity of the country—and, I would, say, very unfair to anybody meditating murder. It is really damaging and unfair that there should be going on this controversy, to hang or not to hang, depending sometimes not on the merits of the controversy but by accident of Panty politics and relations between the two Houses of Parliament. If we pass an Act, I would implore those who are abolitionists to see that, for a time at least, their wise course is to say little but to observe, to that for a time this Act (if the Bill becomes an Act) may enable the nation to respect itself. After controversy, there should be decision. That decision is clear, fixed and workable; it maintains the dignity and sacredness of human life and secures the deep principles for which society exists. Let it be accepted as such, and left to work for a time without any further criticism or tinkering about with it.
4.28 p.m.
VISCOUNT TEMPLEWOOD: My Lords, I have spoken so often upon this question that I must be careful not to repeat myself. I can, however, tell noble Lords that I shall be brief and I shall attempt put a rather different point of view than has been put in the previous speeches. First, I should like to congratulate those who think with me on this question upon the considerable progress that they have made in the last two or three years. First of all, they have educated public opinion, a most necessary thing on any penal question. The trouble with penal questions in the past has been that so few people have interested themselves in them. The first result, then, of this campaign, whatever may be the views of the noble Lords upon the particular issue, has been to concentrate public attention upon a most important question of penal treatment. The second result appears to be almost more concrete. The noble and learned Viscount the Lord-Chancellor has told us to-day that it is contemplated that executions will be reduced from an average of about thirteen to four—these, I know, are approximate estimates rather than factual numbers.

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They mean that executions will be reduced by something like 70 or 80 per cent. That I claim to be one of the definite results of the campaign that the abolitionists have been fighting during the last three years.
The Lord Chancellor alluded to the back history of the controversy. He seemed to me to suggest—I hope I am not misrepresenting him—that it had gone along on considered and reasonable lines and that eventually, after a lot of careful consideration, the Government had produced this Bill. I see the back history rather differently. I see, first of all, the Government advising another place against abolition. I then see the Government allowing a free vote, and next the Government giving pledges for facilitating the Silverman Bill. I may have misunderstood the pledges, but I certainly gathered—although in certain respects they were not specific that it was intended that, if the Bill went through the House of Commons, it would be given the constitutional facilities under the Parliament Act.
Next, I remember that noble Lords who are now members of the Government, in 1948 declared overwhelmingly against any attempt to put murder into categories. I now see in this Bill the division into categories as the very essence of the Bill—categories, I agree, different from the categories of the 1948 Bill. They differ in this respect. In 1948, so far as I understood them, they were based on moral heinousness. Now they seem to me to be based upon the particular kind of weapon that is used and the particular circumstances in which a murder takes place. I cannot believe that a Bill that contains complications and anomalies of this kind can possibly be permanent.
In the meanwhile, however—and I draw the attention of noble Lords particularly to this point—the Bill abandons the claim that the death penalty is an indispensable deterrent against murder. It has always been the basis of the case of people like myself that the death penalty was not an indispensable deterrent. Now it seems, after this Bill, that no one can possibly claim that it is indispensable. Look at the provisions in the Bill. If it is believed to be indispensable, why abandon it for ruthless poisoners and stranglers of women and children? Why,
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if it is indispensable, keep it for the protection of the police and the prison officers—and here I venture to repeat the question which the noble and learned Lord, the Lord Chief Justice, asked in our former debates—and deny it to the defenceless citizen? These anomalies are so great that they destroy any claim that the Bill is a considered and serious attempt to deal with the punishment of murder. They are so great that the Bill cannot possibly, in my view, remain permanent.
In the meanwhile—and this is the unfortunate aspect of the Bill—executions, it is presumed, will continue. If the Lord Chancellor's figures are right, they will be reduced from twelve or thirteen a year to perhaps four a year. So far as I am concerned, I am not interested in the actual number of executions. I disapprove intensely of executions, whether they be few or whether they be many. The effect of keeping the death penalty in being will be that all the mediæval machinery of executions will continue. Perhaps before the end of the debate the Lord Chancellor will tell me what is to happen in this respect. I understand that executions now take place in about ten different prisons. In each of them there is a condemned cell and a death chamber. Is all that machinery going on under this Bill? Or is it that, when the executions are reduced in number, they will all take place in one prison? If that be the case, I can imagine the morbid atmosphere that will be created in the prison that is exclusively reserved for executions. So long as there is any execution at all, we shall continue to have the morbid interest of the general public in the crimes and in the deaths of the criminals who suffer execution, and it may well be that the fewer the executions, the greater will be the morbid interest taken in them.
Finally, I agree with the most reverend Primate who has just spoken that this Bill is not a compromise. From my point of view, it is no compromise at all. It is nothing more than an expedient to extricate the Government out of a very difficult position. Sooner or later total abolition will come. In the meantime, I am not prepared to support a measure that, whilst abandoning the claim that the death penalty is an indispensable deterrent against murder, retains it in a way that will complicate the law, irritate

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the public, and satisfy neither the retentionists nor the abolitionists.
4.40 p.m.
VISCOUNT SAMUEL: My Lords, this Bill is really an outcome of the debate in your Lordships' House last year. At that time I found myself in the unhappy position of being unable to vote either for that Bill or against it. I could not vote for the Bill because it was uncompromisingly abolitionist, and I agree with the most reverend Primate, and not with the noble Viscount who has just spoken, in not accepting the view that there is an absolute principle of morals which condemns all capital punishment. At the same time, I did not agree with the course that the most reverend Primate proposed on that occasion, which was to vote for the Bill and pass it for Second Reading in order that it might be amended in Committee, because I was very doubtful whether—at all events, I felt no confidence that—in Committee your Lordships' House would be able to find any third course. All the authorities had declared that it was not possible to distinguish between degrees of murder. The late Home Secretary, Mr. Lloyd George, said a year ago in another place [OFFICIAL. REPORT, Commons, Vol. 548, col. 2550):
"The Government agree that neither the definition of murder an attempt to distinguish between different deuces of murder, offers a useful line of approach"
and the Chairman of the Royal Commission, Sir Ernest Gowers, said exactly the same in even more emphatic terms.
But this Bill, although disclaiming any attempt to distinguish between degrees of murder, really does precisely that. There are murders of different kinds. Some of them are to receive capital punishment and some are not. Whether you use the word "degrees" or not, there is a differentiation between murders, and I do not at all agree that ultimately the real differentiation is not between the degree of moral heinousness of the crimes. That, I think, from the standpoint of common sense and the ordinary view of the man in the street, is precisely the differentiation that he makes. When a jury find a murderer guilty, as they are bound to do on the facts of the case in accordance with their oath, but add a rider, a recommendation to mercy on the grounds of extenuating circumstances, is that not a very natural and proper thing to do?
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What are extenuating circumstances? They are such as reduce the degree of moral guilt. If we pass an Act of Parliament to abolish the death penalty in infanticide, it is homicide but of a less degree of moral obloquy and is not to be punished by hanging. If, in this Bill, there are provisions in effect commuting the liability to the death sentence in two or three particular cases, that is another example, and there are others.
The alternative now adopted by the Government is to base differentiation on the degree to which the public peace, law and order are affected, but that is a very unreal discrimination. Clause 5 draws various distinctions. If a person shoots with a revolver and kills his enemy he is liable to be hanged; but if the same person, for the same reasons, kills his enemy by hitting him on the head with a club, he cannot be hanged. If a criminal rapes a little girl and then, in order not to run the risk of being identified, strangles her, that is not a degree to be regarded as a grave injury to the public peace ant order. But if a person commits a murder in the course of a robbery, or even in Vie course of actions committed with intend to steal, as provided in the Bill he may be sentenced to be hanged. This discrimination in degrees of murder to the extent to which particular crimes affect peace and order seems to me very unconvincing. When this Bill comes into actual operation and cases come forward, month by month or year by year, in which public opinion is offended—when some criminal, who has committed a crime which, in everybody's mind, is of the utmost gravity and hideousness, escapes the death penalty, while another who has been convicted of sonic offence against property in the course of which he commits a murder is hanged—it will be regarded as inconsistent and illogical.
However, I agree that this Bill is a great step forward and that it will result in fewer executions. As an ex-Home Secretary and an ex-High Commissioner who for live years had to decide on death sentences in another territory, I rejoice that executions will be reduced to the lowest lumber possible. After all, I must admit that the alternative that would be open, ant which was the one to which I thought we must have resort if we could not distinguish between degrees of murder—namely, continued, and perhaps even extended, discrimination by the Home

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Secretary, the freeing of his administration from certain restrictions that are now imposed upon it by the requirement that he has to find some definite reason for interference with the course of the law—is also open to grave objection.
The jurists feel strongly that the law is a matter of trial by judge and jury, with public evidence, resulting in a sentence. With recourse to the Home Secretary in private, without any legal procedure, without any witnesses, with no one knowing what fresh evidence may be brought in and then the sentence of the court perhaps not being carried into effect, the Home Secretary has a jurisdiction which is not juridical, if one can draw the distinction. I agree that the judges as a whole have always been averse from making this one of the principles, one of the main steps or processes in the administration of the capital law. In those circumstances, it seems to me, we have to choose now, at this moment, between two courses that are both open to objection. One is this Bill, or something very closely approximating to it, which is in itself illogical and in many respects inconsistent; the other is a continuation and extension of the right and power of reprieve. Both are open to objection. For my own part. I certainly do not think that logic or consistency need necessarily have the last word. Therefore, if this Bill goes to a Division—and I am glad to hear from my noble friend Lord Silkin that the Opposition do not propose to divide upon it; and I see no reason why it should go to a Division—1, for my part, will certainly vote in its favour.
4.49 p.m.
LORD GODDARD: My Lords, I do not propose to discuss before your Lordships the merits or demerits of capital punishment, because last Session this House registered an emphatic vote in favour of retaining capital punishment as a penalty in English law. There is no reason to suppose that the House as a whole has altered its opinion, but there is one reason why I, and I think the Judges, would welcome this Bill: I hope that it will put an end to the perfectly intolerable situation which exists at present, which was referred to by my noble friend Lord Silkin and which is causing the judges considerable embarrassment.
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Just to develop the point, may I for a moment go back to what happened in 1947? When the House of Commons inserted into the Criminal Justice Bill a provision abolishing capital punishment, the Home Secretary of the day announced at once that he proposed to recommend a reprieve in all cases, and did so, until this House had refused to accept it; and after a time it was agreed that that provision should not remain in the Bill. One or two shocking murderers escaped the death penalty. When the Bill came before this House, I ventured to say that the action of the Home Secretary amounted to a use of the suspending power which the Stuart sovereigns claimed by saying, "We will not enforce the law". That suspending power was declared in the Bill of Rights to be illegal.
The Bill of Rights was passed a great many years ago, in 1688, but it is still one of the great constitutional safeguards and is still on the Statute Book. These are the words of the Bill of Rights in this respect:
"That the pretended power of suspending of Laws or the execution of laws by Royal authority without consent of Parliament is illegal."
If the Secretary of State said, as he did on that occasion, "I am going to advise a reprieve in every case", what he was doing was to abolish capital punishment by administrative action, and not with the consent of Parliament.
When the Silverman Bill (I use that expression as it was used by Lord Silkin) went through the House, the then Home Secretary, I suppose to escape its being said that he was exercising a suspending power, announced that he would consider every case with regard to its circumstances, including the circumstance that the House of Commons had voted in favour of the Silverman Bill. In other words, he was going to exercise a dispensing power. No one has ever denied that the Crown has a dispensing power; but, of course, if the dispensing power is exercised in every case it becomes a suspending power, as the framers of the Bill of Rights realised. Not only did King James II by the Declaration of Indulgence say that the penal laws should not be enforced at all, but in the cases which began with the famous case of Sir Edward Hayles, who accepted military office without taking the test, he was pardoning

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all the accused. Therefore Parliament, again, i a the Bill of Rights, said
"That the pretended power of dispensing with laws or the execution of laws by Royal authority as it has been assumed and exercised of late is illegal."
Since the Silverman Bill passed the House of Commons there has been not one execution; every single murderer has been respited, although the law of the land is that for murder the penalty is death. That fact got known, because last September at the Old Bailey, when a young criminal pleaded guilty to the murder of an old shopkeeper who was battered to death for the purpose of robbery, he inquired of the police officer who arrested him, "They are not hanging for murder now, are they?" So these things do get known amongst young criminals—"They are not hanging for murder now, are they?". And they were not, because, as I say, the Home Secretary was advising a pardon (it is a conditional pardon) in every case.
Is this going to continue? I ask that question for this reason. Since this Bill has been in another place there have been cases where, if this Bill were law, the murders would be of a capital nature, and the accused have been reprieved. Only the other day during the winter circuit there was a case in Huntingdonshire of which your Lordships may have heard, called the Fenland murder, in which an old farmer was brutally murdered and his body thrown into a ditch. He was murdered for money. He had a considerable number of banknotes in his house, amounting to £200 or £300, and they were found in the possession of the prisoner. So brutal a murder was it that, knowing that this Bill was before the House, Mr. Justice Donovan, when he sentenced the man to death said:
"I advise you not to consider that there is any prospect of a reprieve for a murder which has been carried out for theft, as yours has been."
But the man was reprieved.
Very soon after the Home Secretary made the statement that I have mentioned, a case came before the Court of Criminal Appeal, and, in accordance with his usual practice, the Home Secretary sent me the report prepared by the doctors whom he had sent down to examine the prisoner to see if by any chance there were grounds for reprieving him because of insanity. The report of
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the medical men which was sent to me is as follows:
"Neither on legal nor on medical grounds is there any case for saying that this man is insane."
The letter said that the Home Secretary had advised a reprieve.
My Lords, is this to go on? The judges are feeling a sense of the greatest embarrassment. They have to administer the law as it is. They will have to administer the law as it is altered. They have, at present, and have had ever since it was decided not to change the law, to pass sentence of death in every case of murder whore there has been a conviction. Now they will have to pass sentence of death in what is called capital murder. Although the so-called capital murderers now are being reprieved in exactly the same way as what will be known as non-capital murderers, I hope the Judges may now feel that they will not be put into the position of having to pass sentence of death, only to find that a reprieve is recommended. It seems to me that there is one virtue in this Bill. I cannot believe that if this Bill is passed and there are murders which are declared by the Bill to be capital murders, he law not be allowed to take its course. If the law is not to take its course than, in Heaven's name! let us abolish the whole thing altogether.
I cannot pretend that I look on the Bill with great enthusiasm, although I think there are some useful changes in the law of homicide, apart from questions of punishment, in the first Part of the Bill. There are, I think, some drafting difficulties to which I will call attention when the Bill reaches the Committee stage. They are one or two difficulties which I think the Judges will find considerable in administering the law, but I do not propose to go into those now; it is better to wait until the Bill comes into Committee. But, for the reasons which I have given, I hope that this unsatisfactory and, as I think, at any rate, unconstitutional method of reprieving everybody when the law remains what it is, will be put an end to. I hope that this Bill may go forward for that reason, if only for that reason.
4.59 p.m.
LORD MORTON OF HENRYTON: My Lords, some of your Lordships will know that I used to be a Chancery Judge, and Chancery Judges have little

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or nothing to do with crime or criminals. You may feel surprised that I follow the Lord Chief Justice. I do so, not as a judge, but as a citizen who thinks that he has a valuable piece of evidence to lay before the House, evidence that burglars are deterred from carrying lethal weapons by the fear of capital punishment. Whenever this subject arises, either in this House or in another place, or in discussions elsewhere, it is always said, as it has been said to-day, that there is no evidence that capital punishment is a deterrent. Of course the only man who could give first-hand evidence as to whether it does deter burglars would be a burglar, and I have not yet taken up that profession. But it is not likely, after all, that a man would have gone before the Royal Commission on Capital Punishment and said: "I am a burglar and I am deterred by capital punishment from carrying weapons." Comment has been made on the fact that there was no evidence of deterrence before that body. My evidence comes direct from a man who, so far as I know, had no other source of livelihood except burglary.
In order that your Lordships may estimate the weight of it, it is only right that I should tell you, very briefly, how it came to me. During the First World War, when my company and I were dug-in in very close proximity for the night, I heard two men boasting of the wages they had earned per week in munitions before they joined the Army. I then heard the very familiar voice of one of the corporals in that company saying contemptuously, "I have often pinched more than that in a night." I drew the obvious conclusion, and the next time we were on the move I took an opportunity to speak to him on another matter. And before we parted I said casually, "By the way, corporal, were you a burglar before you joined the Army?" He said, "Well, sir, that is not what is in my papers." I said, "I am sure it is not, but I should like to know, because I should very much like to learn something about burgling from what I may call the inside ', and I will not tell anyone anything you communicate to me." That is all a long time ago, and I am not giving any names. Later on, I asked the man: "Did you carry a gun when you went out to burgle a house?" He said, "Oh no, sir; me and
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my pals think that a man who carries a gun is an'—adjective—' fool." I asked "Why do you think that?" He told me, "It's no use carrying a gun unless you are going to use it if you are interrupted; and if you do use it and kill somebody you are for the 'drop'"—and he made a very dramatic gesture.
There was a piece of evidence from a man who was completely free, who was not at all ashamed of his profession and who, I believe, intended to go back to it if he survived the war. Is that not a very strong piece of evidence that there is a deterrent—and that at an early stage, before the man is put into the temptation of using the weapon? I suggest that that may afford some reason for the selection of crimes in Clause 5 of this Bill which one or two noble Lords have found rather arbitrary and capricious. There is a deterrent at that early stage in the case of a man who is contemplating burglary or robbery. And who can doubt that, if he does take a weapon, the easiest way to escape is to kill, and the person whom he kills may be the only witness who could possibly identify him?
I believe most sincerely that in this respect the provisions of Clause 5 are a very real protection to people who greatly need protection: the police who go to arrest a burglar, and the householder who, hearing a suspicious noise in the middle of the night, comes down to see what is the matter. I do not think that that protection should be taken away from them; I believe that Clause 5 of the Bill is right in retaining it. I have not come here to make any general observations on the Bill. I have tried to supply one piece of evidence which, from the way in which the subject has been treated before, seemed rather to be wanted. I have supplied it, I hope clearly.
5.5 p.m.
LORD CHORLEY: My Lords. it would be very tempting to pursue the argument so ably put before your Lordships by the noble and learned Lord, the Lord Chief Justice, both on a previous occasion and to-day, on the constitutional point as to the use of the so-called "suspending power"; but I do not want to do that: it would take up too much time. I will only suggest that the situation now, in 1957, is an altogether different one from that which existed when King

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James II was behaving in an unconstitutional way against the almost unanimous opinion of both Houses of Parliament and I would suggest that when a Bill was on its way to the Statute Book, as the Silverman Bill appeared to be rather over a year ago, when the Home Secretary adopted this course, which has been so severely criticised by the noble and learned Lord, however logical it would have been to pursue the policy advocated by the Lord Chief Justice it would certainly not have been politically right. Indeed, I believe that it would not have been humanly right, either, to continue to execute people for murder when, at that time, there seemed every possibility that within a very few weeks that crime would cease to be punishable by the death sentence.
This Bill is a very great disappointment to all men and women who are forward-looking in matters of crime and punishment. It shows once more how difficult it is in this country to get Parliamentary sanction for really important reforms in the criminal law, reforms which obviously have been necessary for generations. I am referring now to Part I of the Bill. Like every noble Lord who has referred to it this afternoon. I welcome it. I am not, of course, referring at the moment to the problem of capital punishment. Almost all the reforms which are contained in Part I have been advocated by responsible opinion for the last fifty years, but we have had to wait until 1956 to get them into a Bill before Parliament. They are none the less important for that, but it shows how slow are the workings of the Parliamentary system in matters of this kind.
It is, of course, the provisions on capital punishment in this Bill which are so disappointing, especially to those of us who for many years have been working to remove this relic of barbarism from the law of Britain. We should like to put ourselves right with civilised opinion all over the world, and a year ago we felt that at least we were on the point of doing so. Now we find the cup dashed from our lips. I do not propose, however, to revive the discussion of principle which we had last year on the Silverman Bill. I think the "hangers" then had the worst of the argument but the best of the voting.
I will only say that this provision in the Bill before us, as my noble friend,
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Lord Silkin, has indicated, really blows to bits the theory of the unique value of capital punishment as a deterrent, despite the eloquent speech which we have just heard from the noble and learned Lord, Lord Morton of Henryton. Her Majesty's Government themselves evidently do not accept his view because in regard to the majority of murders they are row removing this unique deterrent from the Statute Book; and it is difficult to see why, when last year they advised Parliament not to take away this unique and allegedly effective deterrent, they are Low proposing to do so in what is obviously a substantial majority of cases.
There is another point about deterrence which ought, I think, to arouse misgivings in the mind of everyone who voted for the retention of the death penalty last year because he was persuaded of the validity of this deterrence argument. I should like to say in parenthesis, in answer to Lord Morton of Henryton, that no one who argues that capital punishment is not an effective deterrent in murder cases has ever suggested that there is no single case in which a person has been deterred by the idea that he might be hanged if he committed murder. Of course, it would be a ridiculous suggestion. What we contend is that, by and large, and on the whole, the existence of capital punishment is not an effective deterrent to murder.
As was pointed out by the noble and learned Lord, the Lord Chief Justice, the Home Secretary has, for something like eighteen months, been giving what is, in effect, an automatic reprieve in all these cases. Th. interesting thing is that during that period the actual number of murders known to the police has been less than in any other year since the end of the war—and not only has it been less: it has been substantially less. The number of murder cases known to the police since the end of the war has been running at an average of about 170 a year, and during the year in question it was some, thing under 150. That, again, is not logical proof that capital punishment is not a deterrent, but it seems to me to be the sort of reasonable proof on which people act in everyday affairs of life. It certainly, in my view, ought to have great attention paid to it.
I should like also to say this, in answer to the most reverend Primate, who rather

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deplored the campaign against capital punishment which undoubtedly has been conducted with great enthusiasm and with great expenditure of effort on the part of many distinguished people in this country over the last years. I agree entirely with the noble Viscount, Lord Templewood, that it has had a most valuable educational effect. I do not believe that it has been a bad thing at all that up and down the country people have been discussing this very important matter. It is in this way that people learn to take decisions in matters of great political and constitutional importance. It is the only way in which people can get effectively educated in a democracy. And so great has the educational effect been that whereas, when this matter was before your Lordships' House in 1948, we were able to muster only twenty-nine of your Lordships to go into the Division Lobby with us, in 1956, only eight years later, we mustered as many as ninety-five. So the educational effect has been felt even in your Lordships' House.
Before I turn to the terms of the Bill, I should like to add my protest to that made by my noble friend Lord Silkin against the really unscrupulous evasion of the Parliament Act which is involved in this Bill. In my view, the course the Government have taken with regard to this matter has not been playing cricket. They told Parliament in 1956 that there would be a free vote on this matter; they were going to advise their supporters to vote in a particular way. No doubt they thought that their own followers would pretty unanimously accept their advice. When they found that they did not do so, and that the Silverman Bill had, in fact, been passed in another place, they proceeded in this way to try to smash it. Now they have succeeded in smashing it. It seems to me that this really is verging on dishonesty, and I add my protest against it to that which has been made by Lord Silkin.
May I turn to the Bill? It is of course Part II which is the pith and substance of it. However much one may welcome reforms made in other parts of the Bill as a Homicide Bill, this is the Part which is the pith and substance of it. Whatever one may say about the actual words used, it is obvious that it does, in fact, establish degrees of murder. It seems to me that it is mere word-chopping to suggest any-
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thing to the contrary. It is not that this is a new proposal at all. Indeed it has been operated in more than one of the States of the United States of America for well over a hundred years, as has been pointed out to-day. An attempt was made to introduce it in 1948, by way of some sort of compromise, when your Lordships had thrown out the relevant clause in the 1948 Bill. As has been pointed out this afternoon, it was ridiculed, particularly by the late noble and learned Viscount, Lord Simon, and by the noble Marquess who now leads the House. I think they very properly ridiculed it, because the Royal Commission which gave a very great deal of thought to this particular proposal took a lot of evidence about it in the United States, in some of those States where they have this method of degrees of murder, and advised very strongly against it. Experience in those States of the United States of America were it exists is that it is altogether unsatisfactory; and so the Royal Commission were informed when they were in America particularly to study this very matter.
No one would suggest that it is not legally possible to administer two degrees of murder. But it gives rise to very great difficulties and to anomalies which are only too obvious and which are immediately apparent on a perusal of the relevant clauses in the Bill. Several of your Lordships have commented on them very forcibly. The noble and learned Viscount who sits on the Woolsack himself referred to them, with the object of trying to show that they were not really so anomalous, after all. I think most of your Lordships will agree that, skilful and subtle as was his argument, he hardly succeeded in doing so. I have no doubt at all—and the noble and learned Lord the Lord Chief Justice indicated in effect that that was his view—that if they come on to the Statute Book in the form in which they now appear in this Bill, the Court of Criminal Appeal will for many years, be puzzling over them and will by trying to find some sort of solution to them.
I do not want to go over all of them, but shall take the case of breaking and entering to steal. If you do that and you unfortunately meet with the householder, knock him over the head and kill him, you will be guilty of capital murder. In the case of breaking and entering for the

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purpose of committing rape, which is just as serious and just as determined, you would not—even if you happen to kill the woman, or even if you happened to kill her husband—be guilty of capital murder. Moreover, if you were breaking and entering the house of your enemy in pursuance of a predetermined decision to get rid of him, and, in fact, you carried that out effectively—provided you were careful not to use a revolver, as I imagine you would be, having the provisions of this Bill in mind, and took with you instead a dagger-knife or one of the other sorts of weapons which have been exhibited in recent cases tried in the Assize Courts—you would again find that you had not committed capital murder.
These are examples of the sort of anomalies which arise under the Bill as it stands and, as the noble Viscount, Lord Samuel, pointed out, they are altogether inconsistent with the alleged policy on which the Government spokesmen contend that they have drafted this measure—namely, that they have retained the death penalty in cases where peace and order are at stake and let it go where they are not. I cannot think of anything where peace and order is more at stake than when a man deliberately breaks into a house for the purpose of killing his enemy or ravishing a woman. Those noble Lords who have said that public opinion will be puzzled and upset, and indeed outraged, at these anomalies are perfectly right. The ordinary man in the street can understand the clear, straight abolition of capital punishment, and in due course those who do not now accept it will come to do so, but he just cannot understand, because it is really unintelligible to reason, the attempts at distinction which are made in this part of the Bill.
I do not want to anticipate the Committee stage. as one is so apt to do when discussing the individual clauses of a Bill, but some of the clauses raise matters of principle which call for a little comment at this stage, I do not propose to take many of them, but I should like to refer to two or three, because it may assist the noble Lord to put the matter right at a later stage. The first clause deals with constructive malice. Everybody is pleased that that at last is being removed from the law of this country. There have no been many cases where the rules on constructive malice have been applied
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in recent years, but there was the well-known case of Bentley, which gave rise to a great deal of feeling. I am sure that it must have been an extraordinarily difficult decision for the noble and learned Viscount, who was at that time Home Secretary. There is one point in regard to this subject which is not clear to me—that is, the position of a person aiding and abetting in this type of murder. The Royal Commission, as I understand their Report, felt that this was a case where constructive malice ought to be retained. It would appear that the draftsman has gone further in this respect than the proposal of the Royal Commission but the wording of the Bill does not seem to me altogether clear on this point. It does not expressly deal with the cider and abetter, and I should like to have an authoritative view on that point.
In Clause 2 we have diminished responsibility, the Scottish doctrine, which certainly is a great improvement on our M'Naghten Rules. Some people take the view that this clause is intended by implication to replace the M'Naghten Rules, but others take the view that the M'Naghten Rules will continue to be effective and will be applied, so to speak, in parallel cases. I do not know what the noble Marquess who is to reply thinks about that. It is one of the matters which I hope it may be possible to persuade the Government to put right.
Again, where there is diminished responsibility, the crime is to be reduced to manslaughter. The ordinary case of manslaughter is punished by a term of imprisonment, often not a very long one. Many of these cases where there may be diminished responsibility are serious mental cases, such as that of the psychopath. Here, again, it is not so clear as it might he that a psychopath is within the ambit of this clause, and I should be grateful to know what the Government's view is on that point. Let us assume that a psychopathic killer is within the clause and escapes with a verdict of manslaughter and a term of imprisonment, it is obvious to anybody who knows anything about psychological medicine that there is the danger that when he comes out he will kill again. This, emphatically, is a type of case which should be dealt with by an indeterminate sentence of imprisonment, so that the medical experts looking after these men and women in the mental wards of

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prisons may determine whether a man is sufficiently recovered for it to be safe to let him out amongst his fellow citizens again. If there are some of these cases where manslaughter is the verdict and a murderer is imprisoned and a few months after he comes out he is found committing homicide again, there will be a great revulsion of public feeling.
Clause 3, which deals with provocation, introduces, I think for the first time in statutory law relating to criminal offences, the doctrine of the "reasonable man". It is not whether the prisoner before the jury was provoked by what happened, but whether a reasonable man would have been provoked. I suggest that this is giving a very dangerous sanction to a doctrine which has been developing in the criminal courts over the last half century or so. The old English law was that a prisoner had to have a guilty mind before he could be found guilty of the offence with which he was charged, but over recent years there has been the tendency to say that if a reasonable man would not have done what was done, then the accused is guilty, notwithstanding that he was acting under the impulse of some overwhelming emotion or something of that kind. It is disappointing to me to find the doctrine of the reasonable man, which in civil law is a very sensible and proper doctrine and is the basis of the whole law of negligence which has been built up successfully in the courts over the last hundred years, being introduced into criminal law, where the criteria are completely different, and now apparently being given statutory sanction.
In conclusion, I am sorry that I cannot agree with the noble and learned Viscount that this Bill is going to put an end to an age-old controversy. The most reverend Primate hoped that it would do so, too. In his view, there is nothing morally wrong in carrying through executions. Of course, the principles of morals are principles which change as generations go by. Many principles of morals which in the Middle Ages or more recently have been generally accepted by religious people and by ordinary citizens have now been discarded. I cannot agree with the most reverend Primate that this is not a moral issue. I assure him and the noble and learned Viscount that we, who have been taking part in this con-
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troversy, will not let it rest until we have succeeded in removing the penalty of death from the Statute Book altogether.
5.30 p.m.
EARL FERRERS: My Lords, I must confess that I feel, for the first time in my life, a certain affiliation with the Liberal Benches, if only for the reason that, like the noble Lord, Lord Moynihan. I have no legal qualifications whatever. Indeed, any observations that I may make upon this Bill are entirely my own feelings. They are, however, the feelings of an ordinary citizen and, like the noble Lord, I believe that that is not unimportant. In a matter such as this, I think both professional and lay opinions are, or should be, of some account, though far be it from me to suggest that my humble opinion will be of any importance whatever.
I think the Government have had an extremely difficult task with this Bill. They have recognised that there is, fundamentally, a body of opinion which wishes to retain capital punishment in some shape or form but at the same time there is the feeling, maybe large, maybe small, that capital punishment should be abolished. I think that the Government have made an honest and sincere effort to meet, so far as possible, both those points of view. But, like Solomon and the baby, I can only believe that neither party will be satisfied.
My main and greatest criticism of this Bill concerns Clause 5, in which capital murders are defined. Like many other noble Lords, I find it extremely difficult to understand why some murders should be capital murders and others non-capital murders. I find it difficult to understand why the murders listed in this Bill should be of a worse nature than some other murders. Indeed, let me quote what was said by the noble and learned Viscount the Lord Chancellor, during the debate on the Death Penalty (Abolition) Bill last July. He said [OFFICIAL REPORT, Vol. 198, col. 574]:
"Secondly, the attempts made during the passage of that Bill"—
he was referring to what is now the Criminal Justice Act, 1948—
"to divide murder into capital and non-capital crimes proved totally unsuccessful."
A little later, he said:
"For the purpose of this debate it is sufficient for me to say that they, too,"—

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he was referring to the Members of the Royal Commission—
"after exhaustive research, including, as my noble friend has said, inquiries into the experience of foreign countries, were unable to recommend any method of introducing what are sometimes called 'degrees' of murder."
My Lords, I am not a lawyer, but so far as I can see, that is precisely what the Government have done. They have brought in degrees of murder. It is amazing to me that under Clause 5 you can shoot a person and kill him, and you can be hanged; but if you stab him in the back, or strangle him, you will not be hanged. Why is it that murdering by shooting should be any worse than stabbing or strangling? Why is a bullet worse than a knife? I thought it was only a short while ago that one was given the option of epée or pistolet. I suppose, fundamentally, it must be that the Government consider that shooting or explosion is a breach of the Queen's peace. In other words, they consider that if things are blown up, or shots are fired, it is dangerous.
I would ask your Lordships to look at it this way. Who are we trying to protect if, by retention of capital punishment, the Government in this case are endeavouring to protect somebody? I ask them: who is it you are trying to protect? Is it the person at whom the shot is fired, or is it the person who might get hit if that target is missed? It seems to me that if you are trying to protect the person at whom the shot is fired, then it is illogical to say you cannot have capital punishment for stabbing or strangling. But if, on the other hand, you are saying you are trying to protect the person who might he shot, surely it is completely illogical, because you are protecting a secondary person and not the person who is fundamentally the target of the shooting.
My Lords, the type of murder which must be the most repellent, and the one which, during the debate in your Lordships' House some months ago, caused the most concern, was the type of murder that was committed by poison. Yet in this Bill it is not mentioned. In committing a murder of this sort, the person who does it takes a cool and calculated risk: he weighs up what he is trying to get: he weighs up his chances of success, and then he proceeds with his violent act. It seems to me strange that
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in a society where, for better or worse, the death penalty is retained, it should not be retained for this form of murder.
The noble and learned Viscount the Lord Chancellor mentioned "mercy killings." I understood that he mentioned it in a way to lead one to believe that one should not have capital punishment for poisoning because sometimes "mercy killings" were done by poisoning. That, to my mind, is a most staggering theory. I should like to associate myself wholeheartedly with the right reverend Primate in abhorring the thought of regarding "mercy killings" as suitable for leniency of penalty. If I might he allowed to quote once more the noble and learned Viscount the Lord Chancellor, again in his speech of seven months ago he said this [OFFICIAL REPORT, Vol. 198, col. 575]:
"I do not say for a moment that it is impossible to distinguish those kinds of murder which are most dangerous to society, for example, those involving the use of poison or firearms."
My Lords, if murder by firearms is dangerous to society, why is not murder by poisoning? If we are going to have capital Punishment for the one, why should we not have it for the other? I wonder, is it that poisoners are supposed always to try their hand a second time? Is it that, if they do so, they will be caught under Clause 6, which allows the death penalty for repeated murders? Maybe it is. But if it is so, surely that alone is reason enough to include poisoning in the Bill, because if a man is going to get caught the second time he does it, he ought to be caught the first time, in order to prevent the second killing.
Clause 6 seems to me to be an argument against itself. If it is to take effect, and anyone is to be hanged after committing two murders, surely that person ought to nave been hanged after one and so prevented from committing the second. It is all very well for noble. Lords to say that the State should not be allowed to take life, and that the individuals should be given a second chance. It is not those noble Lords who give the murderers the second chance; it is the would-be victim. If that murderer takes his second chance, the would-be victim will remain alive. If the murderer refuses his second chance, the would-be victim would become indeed a victim. There is one other point, in the first subsection of Clause 6, that. I find a little

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hard to understand, and I should be very grateful if the noble Marquess who is to reply would give some guidance on this. A murderer will be hanged if he has committed two murders, provided that both those murders occur in Great Britain. I wonder why that proviso is brought into the Bill. If a man has been fairly and justly tried, to me it would appear to be irrelevant where the murder occurred. I should be grateful if I could be told why the murder must take place in Great Britain.
There is, to my mind, one other great omission from this Bill, and that is the omission of people who commit their murders either during, or as a result of, rape. Generally, in cases of rape or sexual murders there are only two people present; that is to say, the criminal and the victim. It is clear that if the criminal were to dispose of his victim, he would dispose of the only witness. The chances are that he will not be found out and punished for his crime. If he has murdered his victim, and is found out, I would remind your Lordships that the sentence for rape can be life imprisonment; and by this Bill the sentence for murder following rape can also be life imprisonment. Therefore, he has little to lose.
It is said by the noble and learned Viscount on the Woolsack that most murders committed at the time of rape are committed under a feeling of passion, and that therefore it is wrong to include them in the Bill. That may be true. If it is, then the murderer will be saved by Clause 2, because he will be temporarily of unsound mind. It would appear, therefore, that there would be no objection to including a clause dealing with murderers who perform their acts after or during rape. If they are of a sound mind, surely, it is the duty of the law, such as it is, to protect women and girls from criminals who behave in this way.
Such criticisms as I have made of this Bill have been made with only one idea in mind, and it is, I am sure, the idea that pervades the minds of most people: that if this Bill is passed, we should be as sure as we can that no one person extra will be murdered than would be murdered under our present system. That seems to me to be absolutely vital. I feel that the prime object of any law
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must be to preserve the peace of the country and to protect its citizens. I humbly venture to suggest to your Lordships that this Bill does not give the public adequate protection.
5.44 p.m.
THE EARL OF HADDINGTON: My Lords, it is difficult at this stage of the debate to bring out many fresh points without reiterating what previous speakers have said. I am, and always have been, a confirmed abolitionist, and, in spite of the big guns that have been fired off this afternoon, I remain entirely unconvinced. As one who favoured total abolition, I was, of course, disappointed that the Silverman Bill was thrown out by your Lordships' House last summer. I hope that this Bill will be given a Second Reading, but for one reason only: not because I think it is a good Bill, but because it will mean that fewer people, on the average, will be hanged per annum.
We all appreciate the difficulties in which the Government have been over this matter and their honesty of purpose in their belief that only by retaining capital punishment for certain crimes of violence can they discharge their responsibility to the public of maintaining law and order. If they hold that view, then I suppose Clause 5 of this Bill is the logical consequence of their belief. But this strange compromise between total abolition and the status quo is the very reverse of the recommendations of the Royal Commission, who not only decided to reject the proposal to divide murder into degrees, but, in their final conclusions on the main issue (this is the summary of conclusions in their important Report; the last words of the Report written, in thick type, to emphasise their importance) they said:
"To our mind, it would be inescapable that in this country a stage has been reached where little more can be done effectively to limit the liability to suffer the death penalty, and that the real issue is now whether capital punishment should be retained or abolished."
Royal Commissions are appointed, and people best qualified to judge these matters are chosen to sit on them. They give weeks, months and sometimes years of their time, voluntarily and earnestly, in the public service; and when all is finished their unanimous recommendations are frequently brushed aside and

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disregarded. It is evident that a boy of eighteen years of age can still go to the gallows, in spite of the recommendations of this Royal Commission. The Royal Commission definitely recommended that the age limit should be raised to twenty-one. If the noble Marquess the Leader of the House in his reply can give any indication of what sort of Amendments we can put down, and what likelihood there is of their being considered, I should like to put down an Amendment to get that altered.
Public opinion is always much quoted in these debates, and I should like to say a word or two of what I think about public opinion. It is always said that public opinion will not tolerate abolition. Who can know what public opinion will tolerate and what it will not? Of course, public opinion can never be wholly in favour of abolition, and can never be wholly in favour of retention. What that section of public opinion that favours retention will think of this alteration in the law, where those crimes which are most greatly feared—the evil crimes that have been mentioned to-day—meet with the most lenient punishment, I do not know. As an abolitionist, I am not concerned with what they will think, but it seems to me to be a queer principle that if you rob and kill you die, but if you rape and kill you live.
It is almost indecent of me to criticise anything that the most reverend Primate, the Lord Archbishop of Canterbury, says, but he did say that this Bill should not be looked on as a matter of principle, but as a matter of expediency. I cannot understand how any Homicide Bill cannot be founded on principle; it must be founded on principle.
Let me turn to a bright: feature of the Bill, because there is one very bright feature—I think it is one of the best things in it and I know it will commend itself to all quarters of your Lordships' House. That is, that the Scottish Common Law of diminished responsibility is to be introduced into the law of England and Wales. I think all noble Lords from Scotland will congratulate themselves on that. This means that where proof of abnormal mental deficiency can be established, a verdict of manslaughter can be allowed instead of murder. Perhaps your Lordships will pardon my Scottish pride if I say that that is not: the worst of many good things which have come out of
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Scotland into the law of England and Wales. The Bill does a good deed to Scotland—and this is something which has not been mentioned this afternoon—because it removes an anachronism in the existing law. It amends the old Criminal Law of Scotland Act, 1829, and it substitutes for death the maximum of life imprisonment on conviction of a charge of attempted murder. That is an anomaly which the Bill is, I am glad to say, putting right.
Yet, when all is said and done, does this Bill lessen by one iota the chance that an innocent man can go to the gallows? The answer to that must be I fear, "No". The day of total abolition will come just as surely as morning follows night. I feel that many of your Lordships will not wish to oppose this measure, which is, at any rate, as has been said by so many of your Lordships, a substantial step forward towards the consummation of that ideal.
5.52 p.m.
LORD CONESFORD: My Lords, this Bill does two quite distinct things: it amends the law of murder and it restricts the penalty for murder. It restricts the penalty by dividing murder into two classes—capital murders, on the one hand, and all other murders, on the other. To these distinct branches of the Bill quite different considerations apply. On the amendments of the law of murder there is a large measure of agreement in every quarter of the House. In general, I believe those amendments will be welcomed and approved, though I would express my strong agreement with the words of my noble and learned friend the Lord Chief Justice that there are certain points which will need careful examination in Committee.
If I may give one example to my noble and learned friend the Lord Chancellor of something that I feel merits careful consideration, though I do not wish to make any dogmatic statement about it, I think there may be some risk that the effect of Clause 1 and Clause 5 (2) will be to increase one public danger—namely, the risk of murder by armed gangs, the gangs being so organised that the lethal weapon is carried and used by a youth too young to suffer the death penalty. He will then escape on the ground of youth, and it seems to me that, under the clauses have cited, all his assistants may escape

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by reason of the wording of those clauses. Let me say at once that my reading of the clauses may be wrong, and I do not for one moment suggest that my noble friend the Leader of the House, when he replies, should deal with this point. I thought it might be useful to give advance notice to my noble and learned friend the Lord Chancellor that this point was troubling some of us.
Let me pass now to what is, I think, the main subject of criticism, and certainly of acute controversy—that is the proposal to divide murders into two classes. On that, of course, there is no such agreement as on that first matter of amending the law of murder. Indeed, in my inquiries and experience I have found no one at all, irrespective of his views on capital punishment, who is happy about the Government's proposals as they stand. There are many who believe, as I do, that these proposals are unwise, and, indeed, morally shocking. I fear very much that, as these provisions become better known and understood, they may bring the law itself into disrepute. All this trouble, I believe, arises because Her Majesty's Government are attempting a compromise in a sphere where no compromise is possible. Every Parliamentarian knows that there are certain quantitative questions where compromise is possible and often wise. If it is a matter of a monetary claim, or taxation, or many other things, a compromise may be both good and wise. But compromise is impossible where fundamentally different views are held, and sincerely held, about right and wrong.
Many in this House and in another place, and outside Parliament, sincerely believe that the death penalty is wrong. They clearly cannot accept this Bill as ending the controversy. I do not share their view. I shall not repeat my own views on the matter, which I stated in the debate on July 9 of last year, when I explained why, in my view, the death penalty should be retained. I hope I gave my arguments in a way which was not offensive to those who take the opposite view. But I do not believe that a compromise between those rival views, both sincerely held, is possible, however much we may agree on amending the law of murder. What is wanted is not attempted compromise, but Parliamentary decision.
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What does this Bill do in this respect? It prescribes two different punishments for murder. Both in the terms of the Bill itself, and the arguments used in its support, the Government have made it clear that one of those penalties is more severe than the other. In deciding, however, which of the two penalties is to be applied for the same offence, no moral consideration is to be taken into account. I hope that I differ with respect and modesty from the views expressed by the most reverend Primate, but I cannot agree with him that that does not raise a moral question. If there are two quite different penalties which may be imposed for the same offence, one much more severe than the other, I think it is essential that, in choosing which to impose, some moral considerations should be taken into account.
Let me take the case—and it is a case that will be taken outside this House by members of the public—of the killing of a wife. If a man wishes to kill his wife but is a man to whom the fear of death is a real deterrent (and it is the Government's case that such men exist), what does this Bill, when it becomes law, say to him? It will tell him that he must not shoot her or blow her up with explosives. That would constitute a capital crime. A less severe view will, however, be taken if he strangles or stabs her, or uses poison, or sets her on fire. Quite honestly, I do not believe that members of the public will think that a very reasonable provision of the law. As these effects of the Bill become clear, I believe that the public will be astonished that Parliament should have thought fit to enact such preposterous distinctions. That is my main objection to the Bill: that moral considerations should have nothing to do with the choice between two differing penalties for the same crime.
There is, however, a practical objection, too. It was well expressed, I thought, by the noble Viscount, Lord Samuel, in his contribution to the debate last summer. Answering the most reverend Primate the Lord Archbishop of Canterbury, he said this [OFFICIAL REPORT, Vol. 198, col. 806]:
"The most reverend Primate seemed to think it a wrong thing that there should be any doubt or uncertainty as to whether the murderer should be executed or not, Certainty is an excellent thing, and everyone is always praising it in the application of the criminal law—certainty of detection, certainty of arrest,

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certainty of punishment. But I do not know that you need necessarily know in advance precisely what is going to happen to a particular murderer in order to enable him to make up his mind whether he shall commit his murder or not. It may be a wholesome thing to keep the doubt existing in the criminal classes."
With great respect, I think that that is common sense.
There is only one thing I would add—and it is on a different point—in reply to a point made by the noble Lord, Lord Silkin, and again, I think, from the Benches behind him by the noble Lord, Lord Chorley. They both said that statistics, as far as they went, showed that in the period during which it would appear the capital sentence was not, in fact, being imposed, there had been a diminution, if there had been any change, in the number of murders. I am certain that, in saying that, the two noble Lords had overlooked what was said on Third Reading by the Under-Secretary of State for the Home Department in another place. He said this [OFFICIAL REPORT. Commons, Vol. 564 (No. 46), col. 565]:
"The figures for the ton months from February last year, when the honourable Gentleman's Motion was carried or, rather, when the Government's Motion was defeated, and for the twelve months of the year, showed an increase in the number of murders known to the police over any year since 1952."
I agree with all noble Lords who have spoken that over such a short period we must not base much on statistics, one way or the other, but, in view of what the noble Lord said, I thought it right to call attention to that statement.
LORD SILKIN: In view of what the noble Lord is saying, I think it right to point out that I was talking of the period of sixteen months either way.
LORD CONESFORD: I see.
LORD SILKIN: But I was not placing great reliance on those figures. For what they were worth, taking sixteen months either way from August, 1955, there has, in fact, been a diminution.
LORD CONESFORD: I am very grateful to the noble Lord. I agree with him that too much should not be made of these figures, but, that one set of figures having been given, I thought it was appropriate to give the other.
The Noble Viscount, Lord Hailsham, said of another Bill with which we were
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dealing recently that the question really was, how one should vote on the curate's egg. That is very much the position, as I see it, about this Bill. In my opinion, it is very much a curate's egg. On this occasion, I gather, there is to be no vote. When the Bill goes to Committee, I think there will be a number of points to be carefully considered but, on the main distinction which it draws between capital murder and others, I believe the Bill to be unsound and irremediable. After giving the provisions of Part II of the Bill the most careful consideration, I cannot believe that they can be intellectually or, morally justified.
6.6 p.m.
LORD PAKENHAM: My Lords, the noble Lord who has just spoken, with his usual feeling, possesses a strong sense of logic—if I may refer to that thorny subject in the presence of the Lord Chancellor without running the risk of further rebuke. It is just one of these cases, however, where a strong logical sense which may be widely shared in the House leads to a number of different conclusions. As I heard the Lord Chancellor expound this Bill in his usual firm but friendly fashion, I felt that he was well satisfied with it: that he was labouring under the conviction that, after many years of trying to discover some way of distinguishing degrees of murder, going back, I think, to 1794, at last Her Majesty's present advisers had solved the puzzle. I think he experienced some small sense of pride that he had been able to play a not inconspicuous part in cutting the knot which had defeated so many for so long.
I am bound to say that my feelings were slightly different. If I may return to the philosophical field—I am not as much at home there as the Lord Chancellor is—I recall something supposed to have been written by Professor Sedgewick about an essay:
"It is cleat, nonsense; but is it the right kind of nonsense?"
It is really that test that I think most of us are trying to apply to this Bill to-day. I realize that some abolitionists, among whom I am an unrepentant member, will be discouraged. They will think that this is the enemy of something better and, to quote an old saying—a Bulgarian saying, I believe—they will feel that
"the lesser saints are the ruin of God."

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I do not exactly draw that conclusion. I recall the first time I met the late Lord Birkenhead, the very distinguished predecessor of the Lord Chancellor. I recall his being introduced to a leading Oxford economist, who was then tutoring his son. He said to this economist. "And what might be your faculty?" The economist replied, "I teach political economy"; at which Lord Birkenhead proceeded to say, "Political economy? That is nothing but a bastard science. It is neither politics nor is it economy." He added, very indulgently, "I will forgive you your bastard science if you will get my boy through his exams." Again, I approached the Bill in that spirit. It is, of course, if I may use the expression in front of the leading ecclesiasts, a bastard Bill. Turning for a moment to the jargon with which we are becoming familiar, the semi-psychiatric jargon which overtakes us on these occasions, I would say that it was born out of arrested development by a split personality, and one is not necessarily predisposed in its favour. But, at the end of the day, we come back to the test applied by the noble Earl, Lord Haddington—or at any rate the abolitionists among us apply it: does it reduce the number of people executed in our country? There are strong reasons for thinking that it does.
I do not wish to detain the House long, but, before coming to any specific argument that I should like to present, may I make two other points briefly to your Lordships? The noble Lord, Lord Silkin, has made it plain to the House that many of us on this side, and I think in other places, feel that the Government have meted out scurvy treatment to Mr. Silverman's Bill. While we all have a high regard for Mr. Silverman, it is not on personal grounds that we feel so much concerned. I am not, of course, accusing noble Lords opposite of a breach of faith; we know they keep their word as we try to keep ours. But obligations of a general character entered into by the Government can be interpreted generously or ungenerously. To put it mildly, I think the undertakings given in regard to that Bill have so far been very ungenerously interpreted. I hope that the noble Marquess will perhaps say something more in defence of the Government's conduct, because I think
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that quite a number of people are surprised at the way that that Bill has recently been treated in another place. There is one aspect, if I am not out of order in mentioning it—namely, that it was talked down with some considerable connivance from the Government. There have been other somewhat unpleasing features of the manner of its treatment, so I hope that the noble Marquess will at any rate feel called upon to defend—he will certainly do it most eloquently—the attitude of the Government to this whole question.
Coming to the Bill itself, I would say that, with other colleagues, broadly speaking. I welcome Parts I and III. But arising out of Part I there is one point of which I have given notice to the noble Marquess. Although it is something of a Committee point, it is quite fundamental, and I think he may be able to tell us something about it this afternoon. Ali of us who have psychiatric friends—that does not necessarily mean that we have spent any considerable period on what is, I think, called "the couch," but there are a number of us who are in touch with modern psychiatry—are well aware that Clause 2 is causing considerable anxiety in that profession and among others who are not technical people. I am speaking now, not as a representative but at any rate as a basic supporter of the abolitionists, and in that capacity I think most of us welcome the introduction of the "diminished responsibility" arrangements. But under this Bill we shall find a number of people, I suppose, convicted of manslaughter on the ground of diminished responsibility, who would otherwise have been convicted of murder. Apparently, those people will be sent to prison.
It has been said in another place that they will be given psychiatric treatment; but anybody at all in touch with our prisons knows that that is easier said or talked about than done, and I think most of us will want to know what is going to be done with these unfortunate people. How are they going to be handled? For some time we have heard about the East Hubert Institution, which is to be something between a prison and a hospital. But what has happened to it? The last word we heard about it was that its construction was being suspended. I beg the noble Marquess—I know I am speaking for a good many more significant people

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than myself—if he can, to give us any information about this institution, whether in fact it is being proceeded with or is being left in abeyance.
I turn to the main issue before the House. Undoubtedly the Government were faced with an awkward problem. There were a number of courses open to them. There was the course which would have commended itself to many of us—that of total abolition. I will not stop to argue that, although I may say a few sentences on it at the end. There was the course which was open to them—I am glad they did not follow it—of leaving things exactly where they were. Apparently, they are going to move into some central position. There were, I suppose four courses, or, at any rate, perhaps three courses, one of which had two limbs, if I may use phraseology for which I am indebted to the Lord Chancellor. At any rate, there were several courses open Lo them. One course in some cases, perhaps in all cases, of murder would have been to leave to the jury the discretion whether the capital penalty should be imposed. Another course would have been to leave it to the Judge. Another course would have been to give the Home Secretary a wider discretion. I think that that was the course commended by Lord Samuel last summer, but I gather that to-day he has begun to feel that there are quite strong objections to that course.
Failing all those courses, they had to fall back (I am not surprised that they should, because it is really the only remaining course) on the idea of distinguishing degrees of murder. On that question, I do not want to try to lay down any general propositions that have not been laid down already. We know that the noble Marquess, Lord Salisbury, spoke very sharply about the Bill which the Labour Government introduced in 1948. I will not read the passage most often quoted, because it has been quoted by Lord Silkin already, except to remind the House that the noble Marquess said:
"I consider that nothing can conceivably be based either upon justice, reason or common sense in the present proposals."
That is what he said in 1948. The noble Marquess is so expert a debater that it is almost a pleasure to see his ball in the bunker. I know that he will use his club and somehow chip it out: but I think he may need more than what is
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called a number 8—he will need a blaster to get out of this one. But, having got out of it, I only hope that he will not claim that he has placed his ball on the green, because I do not feel that that would be possible, even for him.
I would emphasise that while there are differences between the Bill which we introduced in 1948 and the present one, I do not think that they affect the noble Marquess's argument fundamentally. I should be greatly intrigued to see if he can distinguish in principle between that Bill and this one. There are differences—I am not trying to pretend that there are not one or two differences. But when we look the Report of the Royal Commission on Capital Punishment, it is worth noticing that in paragraph 493 they inform us that in their view
"The basis on which the clause"—
that relates to the amended Bill that was brought forward by the Labour Government—
"was drafted was that the penalty for murder should ordinarily he penal servitude for life. but the penalty of death should be retained for certain types of murder which were the main causes of nubile anxiety and in which the deterrent effect of punishment was likely to be more powerful than in other cases."
So the basic principle which was attributed to the Labour Bill in 1948 seems to me almost identical with the basic principle or principles which are attributed to the present Bill. There was, it is true, a reference in our Bill to express malice. I do not know whether the noble Marquess wishes to rest his argument on that. But the basic principle of the 1948 Bill as expounded by the Royal Commission is the basic principle of the Bill before the House to-day. So I wonder how the noble Marquess has managed mitigate the contempt that he felt for cur Bill in favour of the Bill which no doubt he is going to advocate so fervently in a moment.
There is a slightly wider point than that. It is not that this Bill is a lame or uningenious method of tackling the problem, I am inclined to think that, by and large, it is as good an effort as can be made. I am not saying that it is not. It is not very different from our effort, and I am ready to agree that perhaps it is about as good as most people could arrive, at. But do any of us believe that it is possible to arrive at any satisfactory distinction between degrees of

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murder? The noble Marquess did not appear to believe that it was possible to draw a distinction when he spoke in 1948. On July 20, 1948, he said:
"The Government have tried to do this by attempting to define what in fact cannot be defined, and as a result they have created a great many more anomalies than they have cured."
I hope the noble Marquess will agree that, at any rate in 1948, he thought that it was impossible to draw distinctions of this character, and that to attempt to do so was to attempt to define the indefinable. If I am misrepresenting the noble Marquess, or if he has since changed his view. I have no doubt that he will be the first to tell us so.
In the light of that, I am sure it will be no surprise to noble Lords if I refer once more to the finding of the Royal Commission (I need not quote it, for it has been before the House several times to-day), that it is impossible to draw a satisfactory distinction between degrees of murder. That is the general position which is bound to confront us when we are discussing a Bill which does try to distinguish between degrees of murder. As regards this particular Bill, I will not labour the points which have been made earlier, though I hope that we shall have a chance of returning to some of them at the Committee stage. The anomalies are of two kinds. On the one hand, there will be some injustice, if you like, between murderers. Someone who commits a murder with a gun will be executed, while someone who in the moral sense does exactly the same with a knife will not be executed, so that there will be an element of injustice there. That is one aspect which may well shock the public.
It seems to me that it is also very doubtful whether it can be claimed that, in so far as hanging is a deterrent at all, it operates with special force in special cases. There is certainly no accepted evidence on that matter. Some people, some of them of great experience, have a kind of "hunch" that some murderers of a certain type are more likely to be deterred than others; but there is no real evidence about that, and in practice I believe that anyone who accepts the retentionists' case will feel that Her Majesty's Government have abandoned the protection of society in an illegitimate fashion. I am not at all surprised that
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someone like the last speaker has reached that conclusion. If one really believes that the death penalty is a unique deterrent, then it is surprising that Her Majesty's Government should draw the conclusion that it is a deterrent only in certain cases; and it follows from that that noble Lords opposite who believe in capital punishment as a unique deterrent will feel that certain people are being abandoned to the murderer. However, that is a point with which I am not personally concerned to-night because I do not believe that capital punishment is a unique deterrent.
I therefore conclude, with other noble Lords, that this Bill is full of anomalies and inconsistencies, as any such Bill is bound to be. I do not say that that necessarily proves it is wrong. I think it is often the case that as soon as one begins any discussion of punishment (and here I share the view of the most reverend Primate) one is brought up against anomalies, because in trying to punish somebody one is trying to do a number of things and one arrives at a very illogical result in consequence. I believe that the anomalies are glaring and will do something to bring the law into disrepute. Those are factors that must be set on one side. Those of us who believe in abolition are grateful, with the noble Earl, Lord Haddington, for the Bill, because it has relieved our consciences by reducing the number of killings. And on that note, with just two or three more sentences, I should like to end.
The most reverend Primate, who I am afraid is not with us at the moment, and whom I am therefore nervous of misrepresenting, certainly said something to the effect that moral principle was not involved. I hesitate to say exactly what he said until I have read Hansard, but he gave me the impression, and I believe other noble Lords misunderstood him to say, that this was not a case of moral principle one way or the other. I think I understand what he had in mind. My view is that unnecessary killing must be morally wrong, and the question then becomes whether we regard killing as unnecessary and whether we regard State executions as unnecessary killings. We abolitionists are convinced that one does not save any human life, on balance (though that is not the same as saying that no one has ever been deterred by

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executions), and that a continuance of hanging is a continuance of unnecessary killings and, therefore, fundamentally evil.
We abolitionists were asked to restrain our exertions, at any rate for a little while, which reminded me of the famous letter written to the noble Earl, Lord Attlee, who is not at the moment with us, which was quoted in the life of an eminent professor and which concluded:
"A period of silence on your part will be welcome:"
I believe that was the hint conveyed by the most reverend Primate the Lord Archbishop of Canterbury. We are always most anxious to be deferential to his lightest wish, but I am afraid that we cannot concur; for as long as this great evil of unnecessary killing, capital punishment, remains on the Statute Book, so long must we strive by constitutional means to remove it. In the meantime, we consider that this Bill represents a small step forward, and. therefore I, at least, and I believe all who think like me, have no intention whatever of blocking a Second Reading of the Bill.
6.27 p.m.
THE LORD BISHOP OF CHICHESTER: My Lords, before the noble Marquess replies, may I add a word of comment on what has been said by the noble Lord who has just sat down about the most reverend Primate the Lord Archbishop of Canterbury, as his co-Primate was not present when he spoke? The most reverend Primate, whom I heard throughout, was, I think, most anxious to express the view that it was a question of wisdom or expediency which was before us; and he maintained that his co-Primate was in agreement with him that a moral principle was not in the particular matter raised. The most reverend Primate's co-Primate is in a difficult position, because he did not hear the exact words of the Archbishop of Canterbury; and I do not find myself in complete agreement with my Metropolitan because I do think that moral principles are involved, one being the sacredness of human life. Though of different mood and mind to the noble Lord, Lord Conesford, I agree with him that the present Bill, in its essentials, is morally shocking.
THE LORD ARCHBISHOP OF YORK: My Lords, may I just say that I agree
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also with the conclusion of the noble Lord, Lord Conesford, on that point?
6.28 p.m.
THE MARQUESS OF SALISBURY: My Lords, I must confess that it is with a feeling of great diffidence that I rise to reply to this debate. For, as we all know, the subject is not only one of extreme importance but also a very technical one: and I am not a lawyer, as are so many noble Lords who have spoken, and can give only a layman's view. We have, however, already heard from my noble and learned friend the Lord Chancellor a full account of the Bill. He dealt with it clause by clause, and explained both the effect of the various provisions and why Her Majesty's Government have included them in this measure. On all these matters he speaks with far more authority than I can. I have risen mainly to remind your Lordships of the main purpose which has actuated Her Majesty's Government in bringing forward legislation on this subject.
Some noble Lords have this afternoon entered again, at any rate by implication, into time great broad questions of whether or not capital punishment is desirable. I should be the last to come plain of Mat, but I hope they will understand if do not follow them on such fundamental grounds. The matter was fully debated on the last occasion on which we discussed this question, and do not think we shall get any further, or convince each other, by re-traversing the same ground to-day. Nor it is necessary to recall at any length what happened last year As has been said by more than one speaker, we all remember how a Bill to abolish the death penalty was introduced by a private Member in another place, how it passed through that House and how, when it reached your Lordships' House, after one of the most impressive debates that any of us here can remember, in which leading members of the Church, the laity and the legal profession took part, it was ultimately rejected on the Second Reading.
There was, I think, a tendency at that time in some quarters to represent that vote as merely a dispute between the two Houses of Parliament, such as we have experienced before, and that view, I suspect, may still he in the minds of certain noble Lords who have spoken to-day. Indeed, I think it was really voiced,

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if I may say so, by the noble Lord, Lord Silkin, in the speech with which he opened the debate on behalf of the Opposition. But I believe that that view, if I may say so, with all deference, is a very superficial one. As I see it, two things emerged from the discussions, inside and outside Parliament, which resulted from the Silverman Bill. The first, as I believe I said in the other debate (and I think my words were quoted by the most reverend Primate to-day), is that there existed throughout the country, and I think in all sections of society, a deep cleavage of view between those who believed conscientiously that capital punishment should be abolished, and those who believed conscientiously that capital punishment should be retained.
That situation, of course, placed the Government constitutionally in a position of very great difficulty. To attempt to retain capital punishment in exactly the present form, would have been to ignore completely the views of the very large body of conscientious abolitionists. On the other hand, merely to do nothing, and to allow the Bill to become the law and capital punishment to be entirely abolished, by the operation of the Parliament Act, would have been equally to ignore the views of the very large proportion of people who favoured retention. How was a responsible Government to bridge that wide gulf? As I see it, a way emerged—and I think your Lordships can take some credit for this—as the result of the debate to which we listened on the Second Reading of the Silverman Bill last year.
The vote at the end of the debate, as we all know, showed a considerable majority in favour of the retention of the death penalty. But equally, I should be the first to agree that there were a number of extremely impressive speeches—I would only mention those of the most reverend Primate, the noble Viscount, Lord Samuel, and Lord Keith of Avonholm—which showed clearly that there was a very important and extensive element of middle-of-the-road opinion which, while favouring retention, believed that the law relating to murder needed alteration and modification to bring it in harmony with modern opinion. That view was apparently, to judge from his speech, almost unintelligible to the noble Lord, Lord Silkin, But, believe me, it
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was very intelligible to those noble Lords to whom I have referred and, I think, to the House as a whole, as well as, I think, to a very wide body of public opinion 'outside. That, I believe to have been confirmed by a Gallup Poll in the News Chronicle, the result of which was published on November 15 last year. This poll showed that while 25 per cent. of those voting were in favour of keeping the law as it is, and only 13 per cent. of the total voters were in favour of complete abolition, 57 per cent. thought hanging should be kept for certain cases.
The view which was expressed in your Lordships' House by the most reverend Primate and a good many other noble Lords, and which I submit has since been confirmed from other sources, is, I believe, justification for the present Bill, which, while retaining capital punishment, seeks to take account of the proposals put forward in our own debate and outside for modifying the law relating to murder. That is why, if I may say so, the Government decided not to give further facilities for the Silverman Bill. The noble Lord, Lord Silkin, and the noble Lord, Lord Pakenham, and others, have suggested—and no doubt they feel—that the Government were guilty of grave constitutional impropriety in the course they adopted. But I have made inquiries on this question, and there does not appear to be any basis at all, either in law or in constitutional practices for this contention.
It has not, so far as I have been able to discover, been seriously suggested in any quarter that it would be right for the House of Commons to insist on any and every occasion that its will must prevail over that of your Lordships' House. Mr. Herbert Morrison said during the debate on the Second Reading of the Parliament Bill of 1949, apropos of the fact that the Labour Government did not seek to pass the compromise provision of the Criminal Justice Bill (as it was then) under the Parliament Act:
"Governments are not going to rush into the Parliament Act every time there is disagreement between the two Houses. It depends on the nature and the importance of the issue."
The object, in fact, of the Parliament Act, as I see it (I hope that your Lordships will forgive my dealing with this rather fully but I think it is rather important), is to ensure that when the Government introduce measures for

1233
which they believe themselves to have a mandate, and for which support of the House of Commons is forthcoming, they can secure that these measures are passed into law, subject only to the delaying power of the House of Lords. It would be inappropriate, I submit, that this instrument for ensuring that the will of the elected Chamber prevails over that of the Second Chamber should be invoked whenever a private Member succeeds in passing a Bill through the House of Commons, irrespective of the views of the country or of the Government: and it would be particularly inappropriate in a case such as the present one, where a Bill has been passed against the advice of the Government and is believed to be—at any rate, we believe it to be—contrary to the wishes of the electorate.
The noble Viscount, Lord Samuel, speaking as a member of the Cabinet which passed the Parliament Act in 1911—it was a very long time ago—made the following, I think, very relevant comment during the Second Reading debate on the Death Penalty (Abolition) Bill [OFFICIAL REPORT, Vol. 198, Col. 804]:
"The Bill we are now discussing has gone through another place without being in any way authorised—and no one claims that it is authorised—by the mandate of the people. At the last General Election it was never heard of. Moreover, it was passed by a vote in another place, not on the responsibility of the Government of the day but by the votes of Members as individuals; and as has already been mentioned in this debate, several of them have not only asserted but taken pride in the fact that they have voted for the Bill, although they knew that a majority of their own constituents were against it. That being so, surely it is the duty of the Second Chamber to give a further opportunity to the people to consider what their views should be."
That is what the noble Viscount, Lord Samuel, with all his great experience and authority, said.
There is, I believe, an interesting parallel with the present situation in the history of the Representation of the People Bill, 1920, which was a Private Member's Bill designed to give women the vote on the same terms as men. A similar Bill had previously been passed through the House of Commons and rejected by the House of Lords. The 1920 Bill was given a Second Reading, but in Standing Committee a Motion was carried to adjourn the Committee, on the ground that the Bill had no chance of passing into law. The Leader of the
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House was asked whether the Government were prepared to take whatever action was necessary to maintain the rights of private Members whose Bills had received a Second Reading. Mr. Bonar Law said:
"As it seems to me the rights of Private Members ate limited to the time that is given to Private Members. The Government is not under an obligation to find any facilities."
And he later declined to give any pledge that the Government would find time to deal with the subject matter of the Bill in the current Session. There is no reference, on this particular issue which I have been describing, either in the original Question or in the supplementaries, to the Parliament Act; but if there had at that time been any belief that the Government had a duty to enable a Private Member's Bill to pass through the House of Commons in order to take advantage of the Act, the point would, feel certain, have been made at the time. I do not believe that there was, or is, any such obligation. Indeed, I would go further and say that, in my view, and I believe in the Government's view, too, in a case of this kind the obligation of the Government to the country as a whole overrides other obligations. That is the obligation which the Government have tried to carry out.
And now I should like to return to the Bill itself. As your Lordships know, it makes extensive and massive changes in the law related to murder. First, it excludes murder committed under the stress of acute emotional excitement, when a man may be regarded as not wholly responsible for his actions. That would be my answer with regard to the very painful cases mentioned by the noble Viscount, Lord Samuel, in his speech this afternoon. Secondly, it abolishes the doctrine of constructive malice, which means, among other things, that no one would be regarded as guilty of murder unless he intended to kill or cause serious injury. Thirdly, it introduces the defence of diminished responsibility which, as the noble and learned Lord, Lord Keith of Avonholm, mentioned in the debate last year, has long applied in Scotland. Fourthly, it enables provocation by words only to be given their full weight by the jury in deciding whether art accused person is guilty of murder or manslaughter. And lastly, it excludes murder done as part of suicide pacts.

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In addition, apart from the five categories of exclusion which I have mentioned, I am afraid extremely briefly, the Bill retains capital punishment in cases where the accused person is guilty of more than one murder on separate occasions. Moreover, no one is to be liable to be hanged under the provisions of Clause 5 unless he has himself taken an active part in the attack which resulted in the killing. And finally, there is provision to remove those grim concomitants of capital punishment which have been widely held to stimulate an unhealthy excitement in certain sections of the population.
I know that there are noble Lords who have said this afternoon that the amendments in this respect have not gone far enough. Of course, that is a matter of opinion. But the fact is undeniable that a great change has been made, a change which I think the whole House will believe to be in the right direction. These are the main provisions of a Bill which greatly reduces the scope of capital punishment and, as your Lordships know, confines it to cases where a murder strikes directly at the maintenance of law and order and where the death penalty is most likely to act as a deterrent—that is, murder in the course of the furtherance of theft, murder by shooting or causing an explosion, murder in resisting arrest, murder of a police officer and murder of a prison warder by a prisoner. I think it is clear from the speech of the noble and learned Lord, Lord Morton of Henryton, who spoke this afternoon with great experience and authority, that these provisions of Clause 5 are likely to be a strong protection to householders and a real deterrent to the particular class of criminal with whom they are intended to deal.
I do not pretena that this Bill is perfect; and I do not suppose for a moment that it will satisfy everyone. On the one side, it will not satisfy those, like the noble Viscount, Lord Templewood, the noble Lord, Lord Pakenham, and others, who want complete abolition. Clearly, it does not give satisfaction to them. And on the other side, no doubt there will be some who feel that it goes almost too far in the abolitionist direction. To take one example, there are those—and I think this has been mentioned this afternoon—who feel that the Bill should have
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included among the crimes that invite capital sentence murders that are premeditated and murders done by poison. No doubt there are some crimes that come within these two categories which are the wickedest and most cold-blooded of all. But, equally, there are others which come within the two categories—what are called "mercy killings". I am not going to pretend that they are less than murder, but they are surely not so heinous as the others.
For example, a man may poison his mother because he wants her insurance money or he may poison his mother because she is slowly dying in great agony of cancer. The most reverend Primate said in his speech this afternoon that in his view—and, of course, his view must command our deep respect—both these cases are morally on the same level. For in both cases technically the convicted man has committed premeditated murder and in both cases he is a poisoner. But does that really mean that there is no difference between the two crimes? I cannot believe that they are morally quite on a level; and I suggest that the proof of this is that, even under the law as it stands to-day, a man in my first category may well be hanged, but the man in the second case would almost certainly be reprieved. And if the mercy killer is going to be reprieved, what possible justification can there be in making him go through the horror of being condemned to death? Yet that is what may well happen under the existing law. For, as it stands, it is impossible to make one of these two cases a capital charge and the other not. That is why, after the most careful and anxious thought, the Government decided to exclude premeditation and poisoning from the list of crimes inviting capital punishment, and I believe that a great deal of responsible opinion in the country will support us.
There are a number of other questions that have been raised in the debate about which I ought to say something. I have said something about provocation and I think I ought to say something about a few sentences which dropped from the noble Lord, Lord Silkin, in his speech. He said, if I did not misunderstand him, that he would not favour taking provocation into account; for he could not imagine that any normal man would commit a murder on any provocation, however strong. I simply do not agree with

1237
him: that is all I can say. I can well imagine provocation so strong that even a normal man might be driven beyond all endurance. Under the Bill the question of how far a man was provoked is a matter for the jury to decide, and I believe that that is a humane and just provision.
LORD SILKIN: My Lords, so do but I think that the noble Marquess misunderstood me. What I was criticising was not the fact that the Bill contains a provision for provocation but that the test in the Bill was that of a reasonable man. In my view, the test should be of what a person in the circumstances of the accused would be expected to do. It is only provocation in the circumstances of the case that should be put to the jury.
THE MARQUESS OF SALISBURY: I think we can deal only with the man who is normal in coming to this decision. Personally I think that "normal" is a better word than "reasonable" for most of us, but that is the yardstick, I should have thought, for the operation of the law.
Another important point, raised by the noble Lord, Lord Pakenham, arises out of the proposals with regard to diminished responsibility. He has suggested, if I understood him aright, that persons who establish the defence of diminished responsibility under Clause 2 of the Bill ought to be given an indeterminate sentence and sent to some kind of mental institution rather than to prison. I understand that the question of the appropriate sentence was very carefully considered while the Bill was being drafted, and it was thought right that a successful defence of diminished responsibility should lead to a verdict of manslaughter, since the intent was to some extent negatived, and that the court should have discretion to impose either an indeterminate sentence (that is, life imprisonment) or a fixed term of imprisonment according to the view the judge took on the medical and other evidence in the case. In Scotland I believe the verdict is culpable homicide, which is equivalent of manslaughter.
Given the verdict is to be manslaughter, there is, I understand, practical difficulty in providing for treatment of persons suffering from diminished responsibility, since where a person advances diminished responsibility and provocation, and the
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jury return a verdict of guilty of manslaughter, it will not be possible to say whether the defence of diminished responsibility has been accepted or whether the verdict was not due, at least in part, to the element of provocation. What the Bill provides is that the court shall, on conviction, have power to send the convicted person to prison for life or for a fixed term, or to take any other course, such as probation, binding over, or discharge. A probation order with a condition of residing in a mental hospital or attendance as an out-patient might he appropriate in some cases.
Where the convicted person is sent to prison and is found to be, or later becomes, certifiably insane, he will, I understand, be removed to Broadmoor or a local mental hospital where he can receive the necessary care and treatment. If he is certifiable as a mental defective he can be sent to an appropriate institution. If he is not certifiable he can receive any necessary treatment from the prison medical service. I would add that the cases of persons sentenced to long terms of imprisonment after pleading diminished responsibility will be reviewed at regular intervals like those of other long-term prisoners, and if such a person appeared to have recovered his mental health before the expiration of a fixed sentence, consideration would no doubt be given, in consultation with the judge. to recommending the remission of part of his sentence.
If it was the suggestion of the noble Lord, Lord Pakenham, that cases will occur in which a prisoner who is given a fixed term of imprisonment is still dangerously abnormal at the end of that term. although not certifiable—and I think that is really what he had in mind—and that it is wrong that such persons should be released among the public, I would reply that I agree that some element of risk is inherent in the decision to give the courts discretion as to sentence and not to compel them to pass an indeterminate sentence in all cases, as to which I have already explained the difficulties. I would freely admit to the noble Lord and the House that the problem he has raised is a very difficult and complicated one, and I think I can assure him that the Government will look at it again before the Committee stage, of course, without giving any commitment about it.
LORD PAKENHAM: I am most grateful to the noble Marquess for what he has said. I should like to study his words carefully before offering any comment. I asked him whether he could tell us anything about the progress of the East-Hubert Institution. Perhaps he has not had sufficient notice. I do not know whether he can say anything about that Institution.
THE MARQUESS OF SALISBURY: I think I could say something about it. I was anxious not to keep the House too long. On that particular point I would say selected cases might be sent to the East-Hubert Institution. This Institution is being built for the care, study and treatment of groups of carefully selected prisoners. The largest class of cases will be those needing full investigation and treatment by psychiatric methods, but there will also be prisoners with difficult personalities who might respond to a régime in which the emphasis is medical and psychiatric. I should take care not to give the impression to the noble Lord that all those cases of diminished responsibility will be sent to the East-Hubert Institution, but no doubt there are selected cases which might go there in suitable circumstances. Authority has already been obtained to build the Institution, but it has not yet been possible to start the actual building. That is all the information I can give to the noble Lord to-day. I am sorry I did not give it originally, but I felt perhaps the House would require certain limitations on what I had to say this evening.
One or two points were made by the noble Lord, Lord Chorley. He asked, first, whether abolition of constructive malice applied equally to the person who aided and abetted a killing. The answer is, Yes. Moreover, even where, on the ordinary principles of the criminal law, the airier and abettor is in future guilty of murder, he will not be liable to the death penalty unless he took an active part in the attack which resulted in the killing. Secondly, Lord Chorley asked whether Clause 2, which refers to the defence of diminished responsibility, supersedes the M'Naghten Rules and the defence of insanity which those Rules govern. The answer is No, though it is obvious that the defence of insanity will be raised less often in future. If the defence of diminished responsibility were
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raised, and the medical evidence led by the defence established insanity in the full M'Naghten sense, it would be open to the jury, under the direction of the judge to return a verdict of guilty but insane, which would result in indefinite detention in Broadmoor.
There is one other point about which I feel I should certainly say something, though it comes into a slightly different class from the points which I have mentioned up to now. The noble and learned Lord, the Lord Chief Justice, has drawn attention to decisions reached with regard to convicted murderers within recent months, and he has asked what the policy of Her Majesty's Government has been with regard to this during the period in question and what is to be their policy for the future. I have made inquiries and I am able to make the following statement. Only the Home Secretary can say all the matters that he took into consideration when he considered the question of pardon in any particular case. If he took into account the possibility or probability of changes in the law, and the effect on public opinion and public confidence in the administration of justice of an execution of the death penalty, he was entitled to do so. So far as the future is concerned, there is no doubt at all that, once this Bill has become an Act, no difficulty of the sort envisaged by the noble and learned Lord can arise; and that is the determination of the Government.
One or two other points have been raised in the debate, and I would assure noble Lords, even if I have not answered all their points, that, they will all be taken into account. In this connection, I think I ought to make it clear, in answer to the noble Lord, Lord Silkin, that the Government have given no undertaking that the Bill will not be amended in your Lordships' House. Naturally, having put forward what seems to us to be a reasonable and sensible solution of the problem, the Government hope that your Lordships will accept it and will not wish to make drastic Amendments. But any Amendments that may be proposed will be considered on their merits, and the Government's hands are free to accept any Amendment which they consider, in the light of the views expressed during the debate in this House, to be an improvement on the Bill. I want to make that quite clear, in view of a number of

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questions put by the noble Earl, Lord Haddington, and others during this debate.
Such, my Lords, is the Bill which the Government submit to your Lordships' consideration. The noble Lord, Lord Pakenham, twitted me with some words I used in 1948, but I do not really feel, if I may say so, guilty of any great illogicality in supporting this Bill. If I remember right—and it is quite a long time ago—the late Labour Government, faced with action on the part of your Lordships in throwing out a provision in the Criminal Justice Bill to abolish capital punishment, sent hack to this House an amended proposal which created, in our view, more anomalies within the existing categories of murder, than it cured. We thought ii (and having looked at it again, I still think so) rather a silly proposal, if I may say so. That is what I was attacking. I thought the compromise was a bad one and an impracticable one. I have it here. To give an example, it sought to distinguish between motives for poisoning. The first part of the clause said that:
"no person shall be sentenced by a court to death for murder unless it is charged in the indictment or inquisition and found by the jury that the murder was committed with express malice as defined by this section.…"
And the clause went on, in paragraph (c), to refer to:
"murder committed by means of, and in the course of the systematic administration of, poison…"
That is just the thing we did not think possible, and we do not think it is possible now. That is why we have excluded poisoning from the Bill. I am not complaining that the noble Lord, Lord
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Pakenham, raised this matter, but if he thinks I have moved at all, he should be grateful and not critical.
In conclusion, my Lords, I would say this. We do not claim that this is a perfect Bill, but we do claim that it is a sincere attempt, while retaining capital punishment, to mitigate the rigours of its application, and to limit it to those cases in which it is most likely to act as a deterrent and make it most in the interests of the community that it should continue. The noble Lord, Lord Moynihan, said that he thought the Bill was a step in the right direction towards abolition. I do not know about that; time alone will show. But it is not, as the noble Viscount, Lord Templewood, suggested, just device to get the Government out of an awkward jam. That, if I may say so, with all deference, I thought rather an unworthy comment on his part. On the contrary, it does, in our view, represent a via media which I believe will be acceptable to the great majority of the British people; and it is in that spirit that I recommend the Bill to your Lordships this afternoon.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

SOLICITORS BILL [H.L.]
Reported from the Joint Committee on Consolidation Bills, with Amendments, and re-committed to a Committee of the Whole House.
House adjourned at two minutes past seven o'clock.