§ 2.52 p.m.
§ LORD SHACKLETON
My Lords, before we proceed to debate on my noble and learned friend's Motion, it may be for the convenience of the House if, following as wide conversations as we could have with noble Lords, I explain what we suggest would be the most convenient way to handle the debate. Your Lordships will have noticed that there are two Amendments to the Motion, one in the name of the noble Lord, Lord Brooke of Cumnor, and the other in the name of the noble and learned Viscount, Lord Dilhorne. After discussions—and we appreciate the willingness of the noble 1107 Lords concerned to fall in with these arrangements—it appeared to us that it would be simpler if the main debate took place on the Resolution itself. Your Lordships will have noticed that both the noble Lord, Lord Brooke of Cumnor, and the noble Viscount, Lord Dilhorne, are speaking very early in the debate. This will provide them with a full opportunity to deploy the arguments for their particular Amendments so that all the issues and all the possibilities will be before your Lordships' House at an early stage.
To-morrow, in order to ensure that, if possible, any Division should occur at a convenient hour around 5 o'clock, it is suggested (though of course nobody can rule your Lordships' House in this matter) that we should confine tomorrow's debate mainly to winding-up speeches, with only about seven or eight speakers. Before the Question is put on the main Resolution, it will be—again by agreement—for the noble Lord, Lord Brooke of Cumnor, if he chooses and according to his intentions in the light of the debate, then formally to move his Amendment. Thereafter, depending on what occurs on that Amendment and what his decision is, it will be open for the noble Viscount, Lord Dilhorne—and I understand he has agreed—to move his Amendment formally. Therefore, according to the progress of the debate, there could even be a possibility of three Divisions—but I should not like to speculate as to what is actually going to happen. However, it means that the debate will take place on the Resolution and that it will be open to all noble Lords to take into account any issue they wish and to speak to either, or both, or neither, of the Amendments. I think the noble Earl, Lord Jellicoe, and other noble Lords concerned are content with this arrangement.
§ 2.55 p.m.
§ THE LORD CHANCELLOR (LORD GARDINER)
rose to move, That the Murder (Abolition of Death Penalty) Act 1965 shall not expire as otherwise provided by Section 4 of that Act. The noble and learned Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. For reasons I shall explain, the Government have come to 1108 the conclusion that the time has arrived when Parliament, on a free vote, should be asked to decide whether or not capital punishment should be abolished. In order to do so, I must deal briefly with the Parliamentary history. It has been a very long road from the days in the last century when we had capital punishment for some 220 different offences until now, when, apart from crimes of treason and treachery in the two world wars, there has been no execution for civil crime but murder since 1861.
In 1908 there was a big advance: we abolished capital punishment for children under 16. When my grandfather was 21 a boy of nine who had set fire to a house was hanged at Chelmsford. In a previous year a little way back, a boy of 7 and his sister of 11 were hanged at Lyme. In 1922 we abolished capital punishment for infanticide. In 1929 a Resolution in the House of Commons calling for the abolition of capital punishment resulted in the appointment of a Select Committee. In 1930 the Select Committee reported. In their Report they said:Our prolonged examination of the situation in foreign countries has increasingly confirmed us in the assurance that capital punishment may now be abolished in this country without endangering life or property, or impairing the security of society.And they recommended its abolition for five years. In 1931 capital punishment was abolished for expectant mothers. In 1932 the Children Act abolished capital punishment for those under 18.
In 1948 a clause was added to the Criminal Justice Bill suspending capital punishment for a period of five years. This was carried in the House of Commons, but when it came to your Lord-ships' House your Lordships said you could not agree to complete suspension of capital punishment but that you were prepared to agree to limit it to the worst murders, and that if the other place sent up to this House a proposal distinguishing between the capital and non-capital offences in that way, you would favour-ably consider it. The Law Officers of the Government produced a clause which would have done that, and it was accepted by the other place, but when it came here your Lordships, I think quite rightly, refused to accept it, pointing out by examples the numerous anomalies to 1109 which it would have led. The Government accepted that decision, and the clause was withdrawn on a promise to appoint a Royal Commission.
The Government realised that the division into capital and non-capital murders was a difficult one. It had necessarily been done under pressure of time. They thought that a Royal Commission with no time limit would be able to work out the best possible scheme for dividing murders into capital and non-capital murders. The Royal Commission spent some four and a half years in investigating what had happened on every relevant point in those countries which had abolished capital punishment. They visited many of them in Europe, and both abolitionist and retentionist States in the United States, and after four and a half years produced a Report which is generally regarded now in all countries as the most extensive Report there is on the subject. In this they unanimously recommended that no scheme for dividing murders into capital and non-capital murders could succeed because it would inevitably create so many anomalies that it could not last.
I think it may be useful to see why this is so, because it is an argument which I have always found no retentionist is ever prepared to answer. This debate forms a very useful place, therefore, for such an answer, and perhaps we shall have one. The reason is this. Of course, in the first place not everybody agrees as to what are the worst murders. If you ask members of the public, you will find that they usually mean those murders that are accompanied by the greatest degree of brutality. These are, in fact, usually murders by the insane, and we have never hanged the insane. But suppose you could agree, and suppose you could set out in a line all the murders in a year, with the least excusable on the left and the most excusable on the right. The Home Office had said to the Royal Commission, "There are in fact not two classes of murder but an infinite variety of them which shade off by degrees from the most atrocious to the most excusable." So let me suppose that one could do that, and that you could classify them in a row. Then, somewhere you put your finger down and you say, "Those on the left must die, those on the right can live." Now it will inevitably 1110 happen—inevitably is the point—that wherever you put your finger down in that chain you will find that the case to the immediate right of the place where you put your finger down and the case to the immediate left are almost exactly the same case; that if there be any difference between them it certainly is not one which can justify the difference between life and death.
In February, 1956, a Conservative House of Commons passed a Resolution calling on the Government to introduce forthwith legislation for the abolition or suspension of capital punishment. In June, 1956, the Death Penalty Abolition Bill passed the House of Commons. When that Bill came to your Lordships' House it was, as usual, rejected. My Lords, up to this point what had happened in the field of capital punishment had always been left to a free vote. Sometimes either a Conservative or a Labour Government had expressed an opinion, but the vote was always a free vote. In March, 1957, the Government, with the Party Whips on, passed the Homicide Act, which tried to do the very thing which the Royal Commission had unanimously said could not be done; namely, it divided murders into capital and non-capital murders. Under the Act, a case of slow poisoning murder, committed with premeditation, perhaps to inherit money under a will. was non-capital. If a man killed his wife in a paroxysm of jealousy with the nearest weapon to hand, then if the nearest weapon to hand was a gun it was capital murder, but if the nearest weapon to hand was a hatchet, it was non-capital murder. If a man raped a girl, then strangled her and stole her handbag, it was in practice a capital offence; if he did not steal the handbag, it was non-capital.
It is, of course, no use thinking that this was just a bad classification of capital and non-capital murders. It was merely proof that, as the Royal Commission had unanimously said, any scheme for dividing murders into capital and non-capital murders was bound to contain so many anomalies that it could not be defended. In the debate in your Lordships' House on July, 19, 1965, on the Murder (Abolition of Death Penalty) Bill, the noble and learned Lord the Lord Chief Justice said, at column 480:I am in favour of abolition not, I am afraid, on any moral ground, but merely 1111 because of the working of the Homicide Act 1957. I confess, looking back eleven years, that if anybody had then said that I should come out as a full-blooded abolitionist, I should have been surprised. But during that time, and particularly during the last seven years when I have held my present office, I have seen the complete absurdities that are produced, and have been completely disgusted at the result. I will not weary your Lordships with too many of the difficulties, but I will point out one or two.He then gave a number of examples, and added:I am sure that I have only to mention an illustration of that kind to your Lordships to make you realise how completely disgusted the Judges and the Chief Justice of the day are at the working of the Act. I suppose that Judges, as a body, are looked upon as very reactionary. For my part, I do not think that is true to-day. They sit in court; they see where the shoe pinches; they see where justice does not appear to be done, and when it is not done. I think I can say that all the Judges are quite disgusted at the results produced by the Homicide Act ".Some of your Lordships may have heard Mr. Hogg on Sunday when he said that he had not met anyone who supported the Homicide Act or wanted to go back to it.
My Lords, the Murder (Abolition of Death Penalty) Act 1965, as introduced, would have abolished capital punishment, but Mr. Henry Brooke, M.P. (as he then was), moved an Amendment in Committee in these terms:This Act shall continue in force until the 31st day of July, 1970 and shall then expire unless Parliament by Affirmative Resolutions of both Houses otherwise determines: And upon the expiration of this Act the law existing immediately prior to the passing of this Act shall, so far as it is repealed or amended by this Act, again operate as though this Act had not been passed, and the said repeals and amendments had not been enacted.The law existing prior to the passing of that Act was, of course, the Homicide Act.
My Lords, it was an unfortunate day. Mr. Sydney Silverman was fulfilling a longstanding speaking engagement on capital punishment in Canada. The Amendment was moved at half-past ten in the morning. The House had risen only at 6.39 that same morning, and, as was pointed out as soon as the noble Lord (as he now is) rose to move his Amendment, there appeared to be no abolitionists there. At all events, the Amendment was carried. Mr. Sydney Silverman told me afterwards that he was 1112 quite sure that the Amendment would be taken out on the Report stage. But he was then told by the Government that there was no time for a contentious Report stage: the Bill, if it was to become law at all, must be got out of the Commons. It did not in fact reach your Lordships' House until July 14, and it did not ultimately become law until November 8.
My Lords, I did not like to put down an Amendment reversing something the Commons had done, but I did put down an Amendment which would have had the effect that suspension would have continued after July 31, 1970, unless, by a Resolution of both Houses, it was decided to bring back capital punishment. The effect of that would have been that we could have gone on after July 31 until we had got a full five years' figures, or as long as we liked, before considering the matter again. In the arguments in the two Houses on these clauses it was pointed out, first, that five years was far too short a period and that it ought to be ten. The reason for that was a very simple one: in terms of murders per million of the population, there has been very little increase in murder this century, and over any period of ten years the figure is nearly always the same. But within any ten-year period there have always been considerable variations, which is very natural when one remembers that we are dealing only with 200 events in a population of 50 million people.
If I may take a simple example, in Scotland, where the numbers have varied even more than in England and Wales, the average number of murders in the 12 years 1916 to 1928, when there were a number of executions, was 12 a year. In the following 12 years, from 1929 to 1941, when there was no execution at all, the average number of murders was 12 —the same. But the number of murders in any one year in the two periods varied —in the first period from 6 a year to 19 a year, and in the second from 8 a year to 19 a year. So that in particular years there have always been these very wide variations, but at the end of 10 years it works out much the same.
Let me take, for example, the figures of murders known to the police per million of the population in England and Wales. I take these figures because they 1113 used to be the only figures. They were the figures in the Appendices to the Report of the Royal Commission. With a greater degree of sophistication in statistics, we found some years ago that in fact the figures of murders known to the police are always an exaggeration because as time goes by and cases are tried one case is found to be suicide, another one accident, manslaughter or self-defence, and so on. I take these figures because the only comparable figures, when one goes far back, are the figures of murders known to the police per million of the population. 1900 to 1909, 4.4; 1910 to 1919, 4.0; 1920 to 1929, 3.8; 1930 to 1939, 3.2; 1940 to 1949, 3.9. I continue them up to date: 1950 to 1959, 3.7; and for the nine years, 1960 to 1968, 3.8. One cannot therefore tell anything from a few years' figures.
Secondly, we pointed out that the figures of "murders known to the police" do have to be revised, and that takes time, and normally when a year's figures are published, usually in July, even then it has to be reported at the same time that there are still a number of outstanding cases which have not been tried. Therefore a five-year period could not result in more than three and a half years' figures being known at the end of the five years.
Thirdly, it was pointed out that the Royal Commission have said, in paragraph 65 of their Report:Whatever date may be selected, it cannot safely be assumed that variations in the homicide rate after the abolition of capital punishment are in fact due to abolition, and not to other causes, or to a combination of abolition and other causes. There is some evidence that abolition may be followed for a short time by an increase in homicides and crimes of violence, and a fortiori it might be thought likely that a temporary increase of this kind would occur if capital punishment were abolished in the country where it was not previously in abeyance but was regularly applied in practice; but it would appear that, as soon as a country has become accustomed to the new form of the extreme penalty, abolition will not in the long run lead to an increase in crime. The general conclusion which we have reached is that there is no clear evidence in any of the figures we have examined that the abolition of capital punishment has led to an increase in the homicide rate, or that its reintroduction has led to a fall.My Lords, in this House my Amendment, which as I say would have enabled 1114 us, if we had so desired, to go on after July, 1970, and then looked at a later time, was lost by four votes. Owing to the form of Lord Brooke's clause we cannot extend the period of suspension by a Resolution or by amending this Resolution. It is important to understand this. We have throughout been advised that that would not be effective in law. The reason for this is that while, of course, Parliament can always change the law by legislation it cannot change the law by a Resolution unless there is a preceding Act which says that the law can be changed in that particular way by a Resolution passed by both Houses.
If Parliament wants to provide that an Act enacted for a limited period can by Resolution be extended for some further period or periods, it says so. There are a great many examples, of which I choose the following:Supplies and Services (Transitional Powers) Act 1945, Section 8(1):Subject as hereinafter provided this Act shall continue in force for the period of five years after the passing thereof and shall then expire:Provided that, if at any time while this Act is in force, an Address is presented to His Majesty by each House of Parliament praying that this Act should be continued in force for a further period of one year from the time at which it would otherwise expire, His Majesty may by Order in Council direct that this Act shall continue in force for that further period.Agriculture (Miscellaneous Provisions) Act 1954. Section 2(1):The period …
- "(a) is hereby extended until the end of July, nineteen hundred and fifty-nine; and
- "(b) may from time to time be extended by a further five years by order made with the approval of the Treasury …Agriculture Act 1937, Section 1(3):Provided that the prescribed date may be postponed for not more than two successive periods of one year each by orders made by the Minister with the consent of the Treasury and confirmed by resolution of each House of Parliament.15(3). Grants shall not be made … after the prescribed date … provided that the prescribed date may be postponed for not more than two successive periods of one year each by orders made by the Minister with the consent of the Treasury and confirmed by resolution of each House of Parliament.Agriculture (Miscellaneous Provisions) Act 1950, Section 3(2):… Provided that the said period may be extended once by an order made by the 1115 Minister of Agriculture and Fisheries and the Secretary of State acting jointly and subject to the approval of the Treasury so as to end on a date specified in the order, being a date not later than the thirtieth day of June, nineteen hundred and fifty-five.Air Corporations Act 1967, Section 19(1) and (2):(1) … the provisions of sections … shall continue in force until 31st March 1971 and then expire.(2) The Board may by order direct that the said provisions—Of course this shows only that when Parliament wishes to provide that a decision is to be made as to whether or not an Act is to expire, but that, apart from expiring or not, it may be prolonged for a period or periods, it always says so. Lord Brooke's clause does not do that. He will no doubt tell us whether at the time he felt that it probably would. It says that on July 31, 1970, the Abolition Act shall expire and the Homicide Act return,
- "(a) shall continue in force permanently after the date on which they would otherwise expire; or
- "(b) shall continue in force after that date for such period as may be specified in the order and then expire; but no such order shall be made unless a draft of the order has been approved by a resolution of each House of Parliament."Unless Parliament, by Affirmative Resolution of both Houses, otherwise determines"—that is to say, determines that the Act shall not expire, which is the Motion before the House this afternoon. It makes no provision for one or more extensions of this period.
My Lords, I am too old a lawyer not to know that there is hardly any question of construction on which it is not possible to find some lawyer to take a different view. Although the Government have always been advised of this can well believe that somebody might take a different view. If that happened, we should have to wait until there was a murder in August and the case came to court, and possibly came up to your Lordships' House where, the noble and learned Viscount might be sitting to have the point determined. I do not think I need labour the point further, because I do not think the noble and learned Viscount, Lord Dilhorne, will contend that the period can possibly be extended by any Resolution of this House alone, and the other House has passed no such 1116 Resolution and is obviously not going to do so. They have passed the opposite Resolution which is before the House to-day, but if I am right, and I submit since the House has not passed a similar resolution to that of the noble and learned Viscount, it must be right.
The sole effect of voting for his Amendment is exactly the same as voting against the Government's Resolution. The important point is that the Government know that the period of abolition could not be extended by any Resolution, therefore either we pass this Resolution or the Homicide Act comes back in July. If we waited until March, or even June, we should not have the corrected figures for 1969 which are comparable with those in the Home Office publication, Murder. We have over three years' worth of figures; they are quite inconclusive. The issue therefore is a simple one: either we abolish capital punishment now or the Homicide Act comes back in July.
So, my Lords, the position is this. There never was any five-year period. I have read a lot of things about the five-year period. The Act passed into law on November 8, 1965. The date chosen by the noble Lord, Lord Brooke, was July 31, 1970—that is less than four and three-quarter years, and by that date we could not possibly have had more than four years' figures of "Murders known to the police" or three years of the corrected figures. In fact, we have three years' corrected figures and since yesterday four years' "Murders known to the police "figures. What do they show? They are all in the Home Office publication Murder. I was going to read your Lordships exactly what my right honourable friend said yesterday about the provisional figures for 1969; but I understand that copies are available in the Printed Paper Office, and I know that it is always easier to read figures than to listen to them. They show what they usually show; they show that murder is, in the main, a family affair; they show that in one-third of all cases the murderer commits suicide either at the time or soon afterwards in cases suggestive of a disordered mind. As to numbers, in the first full year after abolition, 1966, they fell; in 1967, they rose; in 1968, they fell; and it looks as if in 1969 they are likely to have fallen again. 1117 There is one thing which I should like to make clear, because this is a subject on which, rightly or wrongly, I have always said what I think myself. I think it is absolutely useless to try to guess what would have happened in murder cases if the Homicide Act had been there when it was not there. I am sure that it was with every good intention that the Home Office sought to do so; I am quite sure that they have done their best; but there is no such thing, in reality, as capital or non-capital murder. That was simply the name given to the division unwisely made by the Homicide Act. It seems to me to be hopeless to try to guess whether a particular murder committed since abolition would have been capital or not capital if the Homicide Act had been in force. Of course, the Home Office make it quite plain that their guesses are approximate, that the division is not reliable. They have done the best they can.
Few people plead guilty to capital murder. Everyone in the courts knows that the whole atmosphere of a murder case has entirely changed. Juries very often convict differently in capital cases. I remember the noble and learned Lord, Lord Goddard, saying to the Royal Commission that juries find manslaughter in the most extraordinary cases. Other factors change as well. A case was mentioned in another place yesterday of a woman who was going to support her husband's false alibi. Then she discovered that he could not be hanged; so then she told the truth. Look at the effect, for example, in Scotland, where, on a charge of murder, juries may find culpable homicide. In the years from the war until the 1957 Homicide Act less than one-third of the charges for murder resulted in convictions of murder; more than a quarter resulted in convictions only of culpable homicide. Since abolition, the proportion of convictions for murder has nearly doubled while the proportion for culpable homicide has halved. From the statistics there is what looks like a substantial increase in murder in Scotland; but that may only reflect the fact that juries now convict of murder who would have refused to convict of murder and would have convicted of culpable homicide in the days when we had capital punishment.
My Lords, what else is there? There are the murders of police and of prison 1118 officers. In the case of the police there is no real change. In 1966 there were four—three of them in the shocking event at Shepherd's Bush, the other killed by a boy of 14. In 1967 there were none; in 1968 none; in 1969 none. Prison officers have been killed in borstals. In 1965 a prison officer in a borstal was killed by a 19-year-old borstal trainee. But in all our history—certainly it has not happened in this century—no prison officer has ever been killed by a prisoner in a prison.
The statistics show nothing that is not consonant with the findings of all such Inquiries, from that of the Royal Commission. to which I have already referred, to the latest United Nations International Research Report, which says:With respect to the influence of the abolition of capital punishment upon the incidence of murder, all of the available data suggest that where the murder rate is increasing, abolition does not appear to hasten the increase; where the rate is decreasing, abolition does not appear to interrupt the decrease. Where the rate is stable, the presence of capital punishment does not appear to affect it.Had time permitted, I should have liked to read what my right honourable friend said as to his concern about the increase in crimes of violence other than murder. This is the extraordinary fact: the awful increase, particularly since the war, in crimes of violence and the relatively static position of murder, which seems to be the only crime of violence which is like a rock and which nothing seems to change. I should have liked to speak of his concern, the research which is being done and of the steps which he is taking to deal with this increase in violent crime; although, as he points out, the increase in violent crime has been less since abolition than it was before.
Finally, my Lords, I would say that to bring capital punishment back would seem to me to be an odd course, for this reason. In all Western Christian democracies, capital punishment is virtually at an end. As your Lordships know, it has been abolished formally in most of the democracies of Western Europe. It has not been formally abolished in Belgium, but there has been no execution for murder since 1863; and it has riot formally been abolished in Luxembourg, but there has been no execution for murder since 1822. What, however, is equally significant is the extent to which it is carried out in practice in the very few 1119 Western Christian countries where it still exists.
The only countries in Western Europe which still practise it are Spain, France, Eire and Northern Ireland. I have tried through the Foreign Office, but found it impossible, to obtain from the Spanish Government figures of recent executions. In the last 10 years the annual number of executions in Northern Ireland has been: 0, 0, 2, 0, 0, 0, 0, 0, 0, 0. In the last 10 years there have been no executions in Eire. In the last 10 years in France, where the number of murders a year is now substantially higher than it is here, the annual number of executions during the last 10 years has been 4, 3, 2, 1, 1, 0, 0, 4, 1, 1. It is I think well known that President Pompidou is a strong abolitionist. He has so far reprieved all the cases, and it may be that we have seen the last execution in France.
Canada has recently abolished capital punishment except for the murder of prison officers and policemen. Since then, there has been the murder of a policeman, but the murderer was reprieved because of his state of mind. Their total number of executions in each of the last 10 years has been: 3; 3; 3; 2; 1; 2; 0; 0; 0; 0. Last year in the United States—I doubted this figure, but I have had it checked from Washington, and they say it is what their computer says—the number of murders was 13,650. When one remembers that their population is four times ours, this makes our little 170 look rather silly. The number of executions for murder in the whole of the United States in each of the last 10 years has been: 41; 54; 33; 41; 18; 9; 7; 1; 2, and last year, for the first time in the history of the United States, none. My Lords, when practically the whole of the Western Christian world has either formally abolished capital punishment or virtually given it up in practice, would it not be an extraordinary time for us to start using the noose again?
I cannot understand why it has been said that the Government are acting precipitately. The arguments on capital punishment are no doubt relatively unfamiliar to the public, but they are very well known to all Parliamentarians. I have, naturally, discussed the subject with retentionist friends. Some say, "We appreciate your wish not to have the 1120 Homicide Act back; we do not want the Homicide Act back either. If only you had left it till March we should have been perfectly happy, because by March we should have got the 1969 figures known to the police." I have said, "Do you really think that anybody in this controversy is going to be affected by one year's worth of uncorrected figures?". They said, "Well, suppose there had been an enormous jump. All we want to have is the 1969 uncorrected figures." I am afraid that I have said, "I bet that if you had them you would have thought of something else." Now they have got the 1969 uncorrected figures.
Of course, some of them want to abolish the Homicide Act and to make all murders capital again, and then have a reprieve board. I think that Mr. Callaghan has been rather hardly treated. He has been very much abused in the Press for saying that he would not be prepared to remain as Home Secretary if he had to exercise the power of life and death. That has been said to be arrogant; but, if I understood him rightly, that is also Mr. Hogg's position. He wants a reprieve board which, of course, would have to be a board of people who believe in hanging, because they would not get abolitionists to serve on it. Then I have been told, "If you wait for further figures we could have a Bill." What this Bill is to do exactly I do not know. But in a subject in which the other place, whenever they have been asked their opinion about capital punishment, for a quarter of a century have always said, "Abolish it", this idea that some Bill to do something—I am not clear what—could possibly be got through both Houses in a matter of two or three months seems to me absurd.
What some people want, I think, is that the Home Office should go on keeping figures and then at some future time, when we have five years' worth, or perhaps seven years' worth, of figures we should look at the matter again. If that is what you want, the only way you can achieve it is by voting for the Government Motion; then Parliament can review the position at any time. Because, as I have pointed out, the only effect of voting for the Amendment of the noble and learned Viscount is exactly the same as voting against the Government Motion. If the Government Motion is 1121 not passed tomorrow, nobody can say whether it ever will be, or what will happen.
My Lords, I have sought to deal with this matter by rational arguments. I have not involved myself in emotional arguments, those being the words used by people to describe other people's moral views with which they do not agree. But I should not like to conclude without making it plain that I do not think that the practice of putting men and women who are your prisoners to death, in cold blood, and telling them a fortnight beforehand that you are going to do so, is right. I believe it to be wrong; and I applaud the moral courage—which is not required in the same sense in this House— of those in another place (many of whom had their seats and their way of life to lose) and particularly of one man of whom I am thinking who expressed the opinion which they so forcibly expressed last night. My Lords, I hope very much that your Lordships' House will take the same view. I am personally confident that this House, as it now is, will do so. I beg to move.
Moved, That the Murder (Abolition of Death Penalty) Act 1965 shall not expire as otherwise provided by section 4 of that Act.—(The Lord Chancellor.)
§ 3.34 p.m.
§ LORD BROOKE OF CUMNOR
had given Notice of his intention to move, as an Amendment to the Motion to leave out all words alter "That" and insert "this House declines to come to a decision on the question of the continuance of the Murder (Abolition of Death Penalty) Act 1965 until after the publication of all available relevant statistics covering the full year 1969." The noble Lord said: My Lords, the noble and learned Lord the Lord Chancellor has moved the Government Motion with the conscientiousness and care which we always expect of him. It is part of my case that this is a very complex and difficult matter, and I doubt whether anything in the speech of the noble and learned Lord will have dispelled that idea from your Lordships' minds. On the Order Paper there are two Amendments, one in my name and one in the name of the noble and learned Viscount, Lord Dilhorne. I feel sure that what your Lordships would desire to-day and to-morrow is a free-ranging debate 1122 covering the content as well as the timing of the Government Motion; and, indeed, anything and everything that is relevant to the whole issue of punishment for murder. I respectfully agree with the noble Lord the Leader of the House that it will facilitate this if I delay the moving of my Amendment until the end of the debate to-morrow afternoon or evening.
Then, after the noble and learned Lord the Lord Chancellor, has wound up the general debate, as I understand he has in mind to do, I will move my Amendment formally and press it to a Division. I greatly hope that it will be carried. Should it not be, it will then naturally be open to the noble and learned Viscount, Lord Dilhorne, to move his Amendment and to take a vote on that if he desires. I understand that this course is equally acceptable to the noble and learned Viscount, who will, of course, have full opportunity to explain the subject of his Amendment when he speaks in a few minutes time from now, just as I am going to explain the subject of mine. In this way it will be open to your Lordships to have a free debate to-day and to-morrow ranging over the subject of the Government Motion, the subject of my Amendment and the subject of his, and then to come to a decision at the end.
My purpose is to persuade noble Lords on both sides of the House to vote for my Amendment when it is moved. On any Division it will be a free vote, at any rate so far as the Conservative Opposition is concerned. I note that my noble friends Lord Harlech and Lord Walde-grave have already signed a statement in favour of passing the Government Motion unamended. I respect their views, but I hope that the overwhelming strength of the case against taking a premature decision now may persuade them, and any others who may have been thinking like them, that the right course for Parliament is not to let itself be rushed into a conclusion until all the information that it can possibly have is available to it. It would be a strange and an un-British court that reached a decision in a contentious case before all the evidence relevant to the case had been tendered.
Some of your Lordships may fear that if my Amendment is carried it will not be possible, under our Standing Orders, to raise the matter again in this Session; 1123 which would mean that we should reach the critical date of July 31, 1970, for the expiry of the 1965 Act without having reached any decision. I have taken the hest advice available and I am advised that that is not so. I am advised that if the House resolves not to come to a decision on a Motion until after some condition stated in the Motion has been carried out, there is nothing to prevent the original Motion from being tabled again and moved again at any time after that stated condition has been fulfilled.
What this means is that it would be in order for the Government, or indeed for any noble Lord on either side of the House, to table this original Motion afresh, and for the House, if it thought fit, to approve it, as soon as the House was satisfied that it really had had all the available statistics covering the full year 1969. Otherwise I certainly would not be bringing forward this Amendment which demands more information, because the last thing I desire is that your Lordships should fail to reach a positive decision before July 31, whatever that decision may be.
My Lords, I would not wish any of your Lordships to be in doubt about my own position. I wish to be perfectly frank. I opposed the 1957 Bill which created two different categories of murder because at that time it was my belief that any relaxation of the death penalty would lead to an increase in murder. I cannot claim that up to that time I had made a profound study of the subject, but that was my instinctive view; and as proof of it I have copies of replies which I sent to letters from my constituents at that time expressing that view quite firmly and unequivocally.
But, my Lords, after serving for more than two years as Home Secretary I became convinced that there was not sufficient evidence to prove that the death penalty was the uniquely powerful deterrent that I had believed it to be. I therefore voted in favour of the Second Reading of the Silverman Bill, which became the 1965 Act. For one thing, I could not find in the experience since 1957 that the abolition of the death penalty for certain defined types of murder had made any perceptible difships will therefore see that for my part I have nothing against the Amendment the prospect of many long years in 1124 prison, one would think that would-be murderers after 1957 would have been inclined to murder in ways which would not bring them in peril of the rope. But that did not happen. Capital forms of murder did not become scarcer nor did non-capital forms become commoner. The ratio between them remained exactly the same, in spite of the fundamental change in penalties which the 1957 Act made.
Now there is some evidence in the figures for the four years from 1965 to 1968, available in this booklet published by the Home Office, that the ratio has altered in the direction of so-called capital murders now that they no longer carry the death penalty. But those figures in the Home Office booklet apply to England and Wales only, and over the same years one sees that the ratio in Scotland has altered in the opposite direction. My conclusion is that one must be very chary of accepting as final and conclusive the evidence of any statistics, though one can certainly gain guidance from statistics and one should study them for all they are worth.
All the time we should remember that what we are debating to-day is a small part, albeit an important part, of a far, far greater subject—that is, the growth of violence. We can be thankful that over the years murders have not increased in this country to the spectacular extent that crimes of violence have increased. We cannot widen this week's debate, but we should be getting matters seriously out of proportion if we failed to recognise our duty not only to fight murder, but to use all the powers of legislation and enforcement, education and deterrence, to reduce the rise in violent crime as a whole which endangers and disgraces our whole society.
But to return to the 1965 Bill. It seemed to me at the time that the abolition of capital punishment was too difficult a subject, and fraught with too much consequence, for Parliament to make a decision on it then for all time. Therefore, in Committee in another place I moved and carried an Amendment to limit the life of the Silverman Bill to five years. The noble and learned Lord on the Woolsack says that when I did that there were no abolitionists present. I think he must mean that when I rose to move my Amendment somebody called attention to the strange fact that none 1125 of those whose names were on the Bill as supporters of the Bill were present in the Chamber. In fact that was soon corrected, and abolitionists both supported and opposed my Amendment when it came to a Division. All that happened in May, 1965.
My object in moving that Amendment was to ensure that in the summer of 1970 Parliament would have to give attention to the whole subject afresh. We should by then have had five years' experience and we could take into account the effects of there being no death penalty, before deciding whether to make it permanent or to go hack to hanging. The noble and learned Lord the Lord Chancellor sought to make a point, that, though the Amendment said July, 1970, the Act did not in fact receive the Royal Assent until November. That is perfectly true. I inserted the date July 31, 1970, because at that time it was expected that there would be no difficulty about the Bill becoming law before the Summer Recess. It did not do that. Nevertheless, throughout 1965 it was known to everybody that there would be no death penalty for murder. So I cannot accept the noble and learned Lord's argument that the test period would only have begun in November, 1965.
I had a further consideration in mind. That was, that at that time there was a Royal Commission on the Penal System sitting, under the distinguished chairmanship of my noble friend Lord Amory, and it seemed likely that before 1970 that Royal Commission would have reported. It would certainly have had to cover the question of capital punishment in its Report and that additional and most authoritative evidence would be available before Parliament had to consider the matter afresh. I know that that Amendment of mine made the 1965 Act more acceptable to a great many people than it otherwise would have been.
It is easy to be wise with hindsight, and I can certainly see now that it would have been better to set a longer period, of eight or ten years, for the period of trial. On the other hand, had I set a longer period originally, it is an open question whether my Amendment would have been carried at all. Your Lordships will therefore see that for my part I have nothing against the Amendment standing in the name of the noble and 1126 learned Viscount, Lord Dilhorne, except that it is premature. I want to submit very strongly to your Lordships that when Parliament has decided on a five-year trial period up to a certain date, your Lordships ought not to be asked to reach any decision at all until the trial is virtually complete and all the information arising from it is available, not just part of the information. I cannot conceive why the Government have been so un-wise—so gratuitously unwise, it seems to me—as to ask for a decision from Parliament in December, 1969, when Parliament had made it unmistakably clear that it wanted to take its next decision in the summer of 1970, after an experimental period running up to then.
I have looked up my speeches of four years ago and the intention of my Amendment was made perfectly clear—a five-year trial period. It was not a last moment Amendment. It was passed in Committee in another place. Whatever the reason, no attempt was made on Report stage in another place to whittle it down, and in due course it became law unaltered. And then, on December 9, 1969, a Government Motion appears on our Order Paper seeking a once-for-all decision, at less than ten days' notice, with no figures whatever later than December, 1968, available to us. This, I submit, is not treating Parliament with proper respect. A vote for my Amendment will be a vote declaring that Parliament must be treated with respect, and that Parliament will be ready to reach a decision when the proper time comes, but not before.
And now, in our newspapers this morning, we find that preliminary figures for a large part of 1969 have been hurried out, in such a way that there is a minimum of time to study them. Is this a serious subject, or is it not? To me and to anyone who has to decide under the law that a man must die, as I have had to do, it is a very serious subject. The only reason that the Government have given for wishing to rush the final decision before the end of 1969 is a political reason; that hanging must be got out of the way in time, so that it does not become an issue at the General Election. I think the Government have so foolishly acted that it is much more likely now to become an Election issue. All my experience of politics has taught me that 1127 if you wish to handle something quietly the wise course is to bring it forward at the natural time, neither hastening it artificially nor postponing it.
This is not the natural time for a decision. The natural time is the summer of 1970. To judge by the short notice at which the Government think these matters can be handled, the Motion need not be tabled for debate again until July, seven months hence, by which time there will have been seven months to complete, refine and correct the crude figures given yesterday. For the Government themselves have made it clear—and the noble and learned Lord on the Woolsack confirmed this to-day—that the crude murder figures are not reliable for some months, until they have been revised and corrected in the light of trials and appeals and further information.
But, my Lords, I should not wish to wait quite as late as July. I should never be a party to bringing back the 1957 Act. That Act is entirely friendless. To give one example, a happily married husband who has his home broken up by another man coming and seducing his wife, and who then is carried away by his natural feelings and gets hold of a gun and shoots the seducer, under the 1957 Act is liable to the death penalty. I personally had to deal with a case like that. On the other hand, a man who tortures and strangles a child, or a husband who deliberately and in cold blood administers doses of poison to his wife until she dies, is under the 1957 Act at no risk of the death penalty. There is no secret as to what the judges thought of the 1957 Act from their experience of administering it, and I fully agree with them. I will not have it back: and if by the end of June there was a risk of a disagreement between the two Houses such as might automatically resurrect the 1957 Act, the Government can feel quite certain that there should be no difficulty whatever in passing quickly a one-clause Bill to ensure that that did not happen.
There are some people, my Lords, who find it easy on grounds of principle to reach a decision on capital punishment one way or the other. I do not. When people tell me, for instance, that hanging is obscene, I say that murder, too, can be obscene, so that by retaining hanging we 1128 may be diminishing the amount of obscenity in the world. I would beg all those who find it easy to say that the death penalty should be abolished to bear in mind that by taking that course it is possible that they personally may be leading to the death of innocent victims of murder. Equally, I would beg all those who find it easy to say that the death penalty should be restored to bear in mind that the decision that a man must die is a terrible decision, and that the putting of a man to death is a terrible happening, and that the onus must beyond question be on them to make absolutely sure that the death penalty is the uniquely powerful deterrent that they think it is, and that I once thought it to be.
I know that the time must come when as a Member of Parliament I must say "Yes" or "No", exactly as a member of a jury knows that at the end of the case he must make up his mind and say "guilty" or "not guilty". But, just as a member of a jury would refuse to return a verdict in a long case with the evidence incomplete, so at this unnecessarily early point of time I am unwilling to say "Yes" or "No". It is too difficult, and lives hang on it and I only want to take the lives of murderers if I am convinced that that would save the lives of victims. So at this point I believe it is right not to hasten a decision: to say neither" Yes "nor "No", but "Not yet". That is the purpose of my Amendment, and I hope that the majority of your Lordships, whether leaning individually towards retention or abolition, will agree with my argument and vote for it to-morrow.
§ 3.55 p.m.
§ LORD FOOT
My Lords, we are at the beginning of what will be a long debate, and no doubt in the course of it almost every aspect of this sombre question will be canvassed before your Lordships. I think it is incumbent upon anybody as fortunate as myself, who finds himself speaking so early in the proceedings, to be brief and not to attempt to cover more than one or two aspects of the question. I am not going to say a word upon the general issue of abolition or retention. 1 will content myself by simply affirming my own position. I am a confirmed and lifelong abolitionist. I do not believe that this is a unique 1129 deterrent. I do not think that anybody is beyond redemption. I think that when society uses this penalty we are all diminished, and the society that we live in is debased; and I am appalled at the possibility, that must always remain while we are fallible mortals, of an innocent man being hanged.
I will content myself with asserting what my own position is, and I want to devote my few remarks entirely to the Amendment in the name of the noble Lord, Lord Brooke of Cumnor, because, with the greatest possible respect to him, I believe that on this occasion he is inviting the House to take a course which can effect no useful purpose, and at the same time could confront this Government, this House and this Parliament with a situation which would be near desperation. I want, if I may, to try to explain what I mean. First of all, the noble Lord's Amendment is based on the assumption that it is vitally important, in order that we can pronounce upon this grave issue, that we should have available to us all the statistics, and particularly the correct statistics for the year 1969. The whole of the argument for the Amendment is therefore based upon the assumption that the figures for 1969, when they are known, will disclose something of significance and will add to the sum of our knowledge upon this problem. That must be the assumption. If they are not going to be of some significance, if they are not going to differ in some way from the pattern of the figures for 1966, 1967 and 1968, then they will be of no value to us, and we shall be no further forward. That, therefore, is the assumption.
But, even theoretically, is the assumption valid? There are at least three theoretical possibilities about these figures when we eventually get them. The 1969 figures may show no significant difference in the pattern of the three preceding years. In that event, we shall be no further forward. The second possibility is that the figures will show a decrease in the number of murders—either in murders as a whole, or murders of different characters. In that event, they will be of no significance to this House, and certainly they will be of no assistance to the retentionists or restorationists. The third alternative is that we should find a sudden and staggering increase in the murder figures. But of 1130 what avail would that be to us in determining the question whether the death penalty is a deterrent?—because we abolished the capital penalty in 1965 and not in 1968. If you have a sudden, startling and staggering increase in 1969, it would have no bearing upon the question whether the death penalty is a deterrent.
Whichever way you look at it, theoretically we could not expect to get any useful answer when these figures eventually become available. That was the situation up to the day before yesterday. Yesterday, in the other place, Mr. Callaghan gave us the uncorrected figures up to the beginning of this week, the figures for 1969. The noble and learned Lord the Lord Chancellor has said that he would not burden you with them, but I crave leave to quote these figures because of the one conclusion which I suggest can be drawn from them.
In England and Wales in the year 1969, up to the beginning of this week, there were 172 murders known to the police, of which 92 were unresolved murders. The comparable figures for 1968 were 208 murders in England and Wales known to the police, of which 105 were unresolved. Then if you take the Scottish figures you will find that the figures for Scotland in 1969 were 25 murders, 11 unresolved; in 1968, 40 murders, 8 unresolved. When Mr. Callaghan gave those figures in the other place he very properly pointed out that they had to be received with the greatest possible caution and it would be dangerous to draw any firm conclusions from them because they are uncorrected. They are only up to the beginning of this week; they are not for the full year; therefore it is dangerous to draw any conclusions.
But there is one conclusion which I suggest it is perfectly safe to draw: that is, that these figures give us the extremes, the limits, between which the corrected figures will fall, when we get them. What is overwhelmingly probable is that at the very worst the figures for 1969—and I repeat "at the very worst"—will not be significantly different from those of 1968. If that is a proper conclusion, it means that we are being asked by the noble Lord to postpone a decision in this matter in order to wait for information which we know in advance will not be of any assistance to us. 1131 I have read again the speech which the noble Lord made in the House of Commons when he introduced Section 4, as it became, of the 1965 Act. I should like to read back to him some words which he used on that occasion. He said:I feel sure that most of those who voted for the Second Reading of the Bill, on 21st December last, did so because they believe as I believe, that there can be equally effective methods of deterring people from committing murder; that the decision, the awful decision, that a man should be put to death—the decision which I alone now in the House of Commons have had to take—is something which, in this modern world, we should not retain unless it is absolutely necessary for us to do so."—[OFFICIAL REPORT, Commons, 26/5/65.]The question I should like respectfully to address to the noble Lord is this: does he seriously believe that when we have the corrected figures in July they are going to be so staggering, so remarkable, that they are going to influence anybody's decision as to whether it is absolutely necessary?
It may be said—the noble Lord did not say so to-day, but he might say— "Well if we wait for the figures until July no harm will be done." It is my submission to the House that there is the possibility of a very grave harm being done. Would your Lordships consider what the situation would be if to-morrow the Lord Chancellor's Motion were rejected? It would mean that Section 4 of the 1965 Act would not have been complied with. There would have been only the Affirmative Resolution in the House of Commons, with the result that on July 31 or August 1, 1970, the 1957 Act would again be coming into operation. What would happen in fact if the noble and learned Lord's Motion were rejected? What would happen is that the Government would have to do something about it. It would be intolerable—intolerable not only to abolitionists but, I suggest, to retentionists—that we should go back to the 1957 Act. Everybody is agreed about that. In the controversy which raged on this matter back in 1965 there was only one aspect of the question upon which there was anything approaching unanimity, and that was that the 1957 Act would not do, and that it was full of anomalies, paradoxies, indeed, almost obscenities, which could not be endured.
1132 Much has been said recently, in the Press and elsewhere, about public opinion in this matter, and we have had Mr. Duncan Sandys bringing his bales of petitions into the other place. We have been told—and I dare say correctly—that one public opinion poll recorded that as many as 80 per cent. of the public were in favour of the restoration of the death penalty in one way or another. I suggest that those figures are of no value unless you go on to ask the question: "What form of capital punishment do you want to see restored? To what crimes do you want to see it applied? Who will be the victims?" Until you ask that question you may have something almost approaching unanimity, but as soon as you ask it you are in a welter of discord because nobody agrees about where you draw the line, or how you draw the categories.
On the condemnation of the 1957 Act there is something approaching unanimity. Everybody is agreed that it will not do. Therefore I suggest that it is plain that if this Motion were rejected to-morrow, the Government—whoever they might be—would have at once to state what steps they were going to take to fill the void, because it is intolerable that we should revert to 1957 by standing aside and letting that Act come back into operation. The moral offensiveness of the 1957 Act is that it is capricious. It is capricious in matters of life and death, and that is something which neither the people of this country nor the Members of these Houses, would be prepared to tolerate.
Therefore some alternative would have to be found. What would have to be done? Presumably legislation would be necessary. What form would it take? Should we start again upon the long controversy and argument which the noble and learned Lord told us about and of which he gave us the history when he was opening this debate? Are we going back again to see whether it is possible to reach some compromise between the abolition of the penalty and the mandatory sentence of death for every murderer? Are we to start upon all that again? If we are, and if legislation is to he introduced in order to fill the void and avoid the reactivisation of the 1967 Act, then seven months will be a very short time in which to do it. 1133 When the noble Lord says that it is disrespectful to Parliament to bring this Motion forward at this stage, I say that it would have been taking very dangerous risks if the Government had done anything less. They would have been playing ducks and drakes with us upon this most solemn issue. That would be the situation if this Motion were rejected tomorrow.
But what if we accept the noble Lord's Amendment? Suppose we put off the decision until July. It will be July at the earliest, because if we are going to put off the decision in order to have the figures, then we must have the accurate figures. We cannot work on inaccurate figures. If the whole object of the issue is to get figures, they must be accurate, and we cannot get them before July. What will happen then? Then the Motion of the noble and learned Lord will no doubt be re-tabled. Suppose it is rejected then—within a week of the expiry of the 1965 Act; within a week of the reactivation of the 1957 Act. What shall we be faced with at that time? How will the situation be coped with? It would be entirely unmanageable. That is the danger into which, as I suggest, the noble Lord is luring us.
Of course, I recognise that we are in special danger of this Amendment's being accepted because it is moved by the noble Lord. One has not to be long in this House to recognise the influence and the authority which the noble Lord so rightfully exercises: the almost mesmeric effect he has upon his political associates. And of course the noble Lord is entitled to speak with great authority upon this subject, because I do not suppose anybody here will have forgotten the occasion when he went down to the other place and made the declaration that he had changed his mind and that his experience at the Home Office had turned him into an abolitionist. I do not suppose it often happens in Parliamentary life that a single speech makes a really significant influence and impact upon political opinion. I think that that was such a speech, and I have always held the noble Lord in the highest esteem because of it. He is entitled to speak with great authority upon this question. But it is my earnest belief that on this particular occasion the noble Lord is offering to this House advice which will 1134 be unproductive and advice which might lead us into a very perilous position.
My Lords, I can only hope that, if the noble Lord feels there is any sort of force in the arguments which I have sought to address to the House, he will consider, before we divide to-morrow night, whether it really is necessary to press this Amendment to a Division.
§ 4.13 p.m.
§ VISCOUNT DILHORNE
had given Notice of his intention to move, as an Amendment to the Motion, to leave out all words after "expire" and insert, "until the thirty-first day of July 1973". The noble and learned Viscount said: My Lords, I would start, if I might, by saying that I think the course proposed by the noble Lord the Leader of the House is indeed a convenient course: that we should discuss both Amendments together with the main Motion, and then to-morrow, towards the end of the debate, I should move my Amendment if the Amendment in the name of the noble Lord, Lord Brooke, is not moved, or if it is moved and defeated. So I propose to take the course followed by the noble Lord, Lord Brooke, and explain the reasons which have led me to put down an Amendment in different terms from his.
We have heard, as we would expect, a very powerful and eloquent speech, unemotional, and rightly unemotional, from the noble and learned Lord the Lord Chancellor in support of his Motion. I should like to draw your Lordships' attention straight away to two parts of his speech which I myself thought of great importance, quite apart from the historical review. The first was that in his view the period of five years was too short a period for the statistics to reveal a true trend; that there may be variations from one year to another. I think he made his view perfectly clear: that to obtain accurate figures upon which one could rely to show a trend there should be a trial period at least in excess of five years. That to some extent supports the view I am seeking to put before your Lordships.
The other observation of his of which I should again like to remind your Lordships was this: that if he had had his way and his Amendment had been carried those years ago, this 1965 Act would have continued in operation unless both 1135 Houses, by Resolution, otherwise determined. I think it is a pity that that Amendment of the noble and learned Lord the Lord Chancellor was not carried. If it had been, we should not have been debating this issue to-day, unless of course the retentionists had put down a Motion for a return to capital punishment. If his Amendment had been carried, there would have been no question of returning to the 1957 Act at the end of next July. I regret that it was not carried. I do not know how I voted on it then; I cannot remember.
§ VISCOUNT D1LHORNE
Well, if I did, my Lords, I am expressing my regret for having taken that course.
What the noble and learned Lord the Lord Chancellor did not say, and did not really explain, was why it is necessary for us to reach a final decision on this subject at this date when, on what he has said himself, the figures available are not sufficient to show a proper trend. However it came about, it cannot be disputed that it was in 1965 the intention of Parliament that there should be a proper trial period. Those of us who argued this matter, one way or the other, so often in past years had the hope that figures would become available which really would conclude the matter, one way or another. I am sure that that was what was behind the thought of the noble Lord, Lord Brooke, when he moved that Amendment.
But, my Lords, what are we asked to decide on now? On figures for three years, and crude figures for a fourth. I agree with the noble and learned Lord the Lord Chancellor that that is for far too short a period. Whether it will make any difference when one has had a period in which to study the 1969 figures in full detail, and not just the crude figures, I do not know. And I agree with all that the noble Lord, Lord Brooke, said in the course of his speech against being made to decide this issue to-day. My Lords, I should like a decision to be postponed still further. I would make two things clear. First, I do not want a return to the 1957 Act; and secondly, I want abolition to remain for a further extended period.
It is said by the noble and learned Lord the Lord Chancellor that the 1136 Amendment in my name would be ineffective. I should like to deal with that point. Any Amendment carried by this House is of course ineffective unless a similar Amendment is carried in another place. That is perfectly clear. As the Act stands, the noble Lord, Lord Foot, is right. If the Motion before the House in the name of the Lord Chancellor is not carried, and if nothing else is done, then the 1957 Act will come into operation.
But what the noble Lord, Lord Foot, ignored, I suggest, with the greatest respect, in dealing with the Amendment of the noble Lord, Lord Brooke of Cumnor, and in dealing with the matter, was this. There is the possibility, by a very short Act of Parliament (if an Act is required) of extending the period of operation of the 1965 Act. I should not mind—and indeed I would support it—if a one-clause Bill were brought in on the lines of the Lord Chancellor's Amendment, to say that the Act would remain in operation unless, by Resolution of both Houses, it was decided that it should cease. That is a possibility that the noble Lord, Lord Foot, did not consider.
My Lords, may I now come back to the position with regard to the Amendment I have tabled. It is said that it would be ineffective in law if both Houses passed a Resolution that the Act should continue in force for another three years. The noble and learned Lord the Lord Chancellor referred to a whole series of Acts in which express provision had been made for a limited extension. It may well be the case that Parliamentary draftsmen, when drafting to enable a temporary extension to be made, use words of that sort and different formulae. But the Act we have to consider is the 1965 Act and the language of that Act. There, my Lords, the language is that the Act shall expire on July 31 unless decided otherwise by Affirmative Resolutions of both Houses, and in this context I do not think the word "Affirmative" has the slightest significance, unless by Affirmative Resolution both Houses otherwise determine.
The noble and learned Lord the Lord Chancellor is asking us, and the Government are asking us, to determine otherwise by saying that the Act shall be a 1137 permanent Act. But, my Lords, surely it is determining otherwise also to say that the Act shall continue in force for a limited period. Both are determinations otherwise than allowing the Act to expire and, bearing in mind that what would have to be construed is the particular Act which contains the provision—that is the 1965 Act—I venture to doubt very much the effectiveness in law of a Resolution passed by both Houses in the terms in which I have tabled mine.
But let me assume that I am wrong—it is very easy to be wrong; even the Lord Chancellor and his advisers may be wrong. Assuming then, for a moment, that I am wrong, would an expression of opinion by this House that the Act should extend for a further period be of no force? I believe that it would. It would be an expression of view that would give the Government serious cause to consider, and if they felt that there was real doubt about the validity of two such Resolutions, then again I would say to the noble and learned Lord: introduce a Bill to bring about such a limited extension. I, for one, would certainly support it. I do not myself believe that it would need to be more than a one-clause Bill, and I believe that it would receive general support everywhere.
If it be that the reason (I am not suggesting that it is; I do not know) for having this debate to-day is the hope that it will avoid capital punishment becoming an Election issue, I would just point out that a Resolution of both Houses, or a Bill to extend the duration of this Act without making it permanent, would have —and would be bound to have—the effect of avoiding that becoming an Election issue.
My Lords, the reason why I want more time is this: I want to see more figures; I want there to be more facts. I want there to be more facts for the public to see than even the 1969 figures. If we pass the Lord Chancellor's Motion to-day, I do not think the public will be in the least degree satisfied. If the Act is extended, as I suggest, for three more years, and if by 1973 figures are available which support the views of the abolitionists, then, my Lords, at that time, after eight years' experience of abolition, I think there would be a real chance of acceptance by the public. Surely, what- 1138 ever views we hold on this matter, we ought not to ignore the public attitude and public opinion, misguided though it may be. I am sure that a decision to-day will materially increase the risk of a reaction; and one thing I should be very sorry indeed to see is that in every Parliament attempts were made to change the law, one way or the other, on this issue.
The arguments for abolition and for retention are familiar but I should like, if I may, to repeat why it is that I have throughout opposed abolition. It is not because I believe in retribution—"an eye for an eye, a tooth for a tooth", or anything of that sort—it is because it has been my belief that in the present state of our society we really could not dispense with capital punishment without increasing the risk of the loss of innocent lives, and the risk, which should not the ignored, of a number of people suffering grievous and permanent injuries at the hands of criminals even though, fortunately, they did not result in their death. In this connection, when one is considering the numbers and figures of murders, one surely should not ignore the fact that it is only due to the advance of medical science and the skill in keeping people alive, and helping them to recover, that the numbers of deaths are not greater than they have been, and so the number of charges of murder not more.
One could draw all sorts of inferences and conclusions from the Home Office statistics, and I agree with the noble and learned Lord the Lord Chancellor that really no value is to be gained by efforts to dissect murders since 1965 into what would have been, or might have been, capital or non-capital murders. In my view, in those Home Office statistics the most significant paragraph is paragraph 46. There it is said that there is no conclusive evidence of any relationship between the commission of murders and professional crime—I have paraphrased that, my Lords. But it also said that in recent years three-fifths of the convicted murderers (I have added the two figures together) were persons who had been previously convicted of crimes of sex, of violence or in relation to property. It goes on to say that in 1968 there was a higher proportion of convicted murderers with previous convictions for crimes of violence and with property. 1139 I should like to know—I do not know at the moment—whether the figures for 1969 were greater than they were in 1968; that is to say, whether there were more persons convicted of murder who had previously been convicted of crimes of violence, of sex or in relation to property. If there were, I think it would be significant. It would be significant, too, I think, if there were less. But the figures which I should like to see—and I hope that in due course they will be made available—are not the figures of murders which are committed by persons with previous convictions: the figures I should like to see, and which the Home Office statistics do not give, are the figures where violence was used in the course of the commission of other crimes, such as robbery and theft; violence of a serious character causing, in some instances, death, and in others permanent injuries.
If we had those figures for the period before 1965 and the period after 1965, and for years to come, I think they would afford real evidence, one way or another, to support the view, or to show it to be false, of the retentionists who think that capital punishment is a real deterrent to the use of violence by the professional criminal. I should like to know what those figures are. I wish we could have them, because I am concerned about the belief of so many people that capital punishment is a real deterrent. I do not believe for one moment that 80 per cent or 85 per cent. of the people who answered the Gallup Poll did so because they wanted to see 18 or 20 people hanged in the course of one year. It was because of their belief that it was a real deterrent, and their alarm and apprehension at the breakdown of law and order which is shown by this terrific increase in crimes of violence. That is what they want, a tougher policy for the maintenance of law and order.
What have we seen? For twenty years now, and usually for good reason, we have been making changes of a relaxing character in the sanctions behind our criminal law. It was, I think, just twenty years ago when flogging was abolished. I do not regret that for one moment. It was a terrible punishment, but it was also a terrible deterrent. In those days there were fewer crimes of robbery with vio- 1140 lence. We have abolished birching. We have restricted the powers of the courts. We have done it gradually, and always good reasons have been advanced, and I am not saying that those changes were wrong. But what I do say is that we have seen throughout that period a very great increase in the rate of crime. One reason—this is a further reason—why I should like a decision on this issue postponed to-day is because it may be that the other steps that have been taken on the constructive side have not as yet begun to take effect. If we could suspend the decision of this issue for another few years, then we might see that result. And I would say to those of your Lordships who disagree with me on some of my views that if I could be satisfied that abolition would not be harmful to the maintenance of law and order—and I cannot be satisfied to-day—I would gladly vote, and unhesitatingly vote, for permanent abolition.
My Lords, I have sought to speak without emotion, as I believe anyone should. This is a most serious subject. I am alarmed at the impression which will be gained from making abolition permanent now that the criminal law is becoming even softer. I think that is a mistake. Is it really necessary? I put down my Amendment before The Times published a leader a few days ago. I was delighted to read it. It expressed so much that I would have said to your Lordships if it had not been written. I commend it to your Lordships. If the noble and learned Lord the Lord Chancellor is right and my Amendment is ineffective, if by itself it would be inoperative, nevertheless I hope that there are those of your Lordships who agree with me. I am sure that there are many people outside this House who have not as yet a concluded view and who would be glad to wait until the information became available which would enable them to vote for permanent abolition with a clear conscience.
If my Amendment is carried, or the Amendment of the noble Lord, Lord Brooke, it may be that it will be followed by the introduction of a Bill by the Government. I do not think it has been accurately stated that the choice now before the House is whether to abolish permanently or go back to the 1957 1141 Act, because there is plenty of time for the Government to take action. If either Amendment is carried, I think the Government would feel compelled to introduce a Bill. If Lord Brooke's Amendment were carried, I suspect the Bill would be for total and permanent abolition. That might prove controversial. If the Amendment in my name were carried, I should have thought, indeed I would hope, that there was a real chance, in the light of what the noble and learned Lord the Lord Chancellor has himself said about a five-year trial period being inadequate, that the Government would introduce a Bill to extend the life of the 1965 Act for a limited period. My Lords, if only the Government would do that instead of bringing forward this Motion, then I believe there would be a chance of getting the Government's action supported by public opinion.
§ 4.37 p.m.
§ BARONESS WOOTTON OF ABINGER
My Lords, this is the tenth time that the issue of the death penalty has been debated in one or other House of Parliament since the end of the war. That, I may say, is a conservative estimate. In arriving at that figure I have taken no account of occasions on which specific cases were raised or when very brief discussions took place in either House; I have counted only the occasions when a Bill was in course of passage, and I have counted it as only one occasion although the issue of the death penalty was often discussed on many stages of the Bill. For that reason, there is nothing new that can be said on the general topic, but I hope your Lordships will bear with me if I do two things: first of all, summarise very briefly the arguments that I think are decisive in relation to the general issue, and then say something about the Amendments proposed by the noble Lord, Lord Brooke, and the noble and learned Viscount, Lord Dilhorne.
There are, in my view, five arguments which taken together are, to me at any rate, decisive. Indeed one or two of them alone would have that effect. The first argument is the moral argument—. and I use that word in the opposite sense from my noble and learned friend on the Woolsack. I use it to refer to the emotional prejudices of other people, which I share. I do not propose to say 1142 anything about the moral argument for the reason that nothing that is said in this House or elsewhere is likely to change anybody's opinion which is based upon moral grounds. If you think profoundly and on reflection that to take life in cold blood is wrong, your opinion will not be changed, I think I may say, by anything said in this House. And, equally, if you do not think it wrong, it is unlikely that you will be persuaded by argument to change your opinion on that issue.
The second argument is the unique deterrent argument. I have been very much saddened by the attitude of a number of noble Lords in previous debates in this House on this particular topic. This is not a topic on which opinion has the slightest value. But I have heard noble Lords, one after another, and many persons of influence outside, simply make the categorical statement, "I believe that the death penalty is a unique deterrent". My Lords, it makes no difference what you believe or what I believe: this is a question of fact and it is a question upon which the facts are extremely difficult to come by. One reason why they are very difficult to come by is that one has to extricate the facts about the people who are deterred from the facts of the people who are not deterred, and that is very tricky evidence. Another reason why the facts are difficult to arrive at is that they are essentially statistical. I am not one of those who believe that there are three grades of untruth: white lies, lies, and statistics. I hold that there are many issues which can be very helpfully illuminated by the use of statistics, but this is not one of those cases. There is very little that can be gleaned from the statistics; there is even less that can be gleaned from the statistics for relatively short periods.
I shall therefore say only a few words about the statistics which have been produced in the Home Office publication for murders. They show that there has been an increase in the number of murders since abolition, but the year that immediately followed abolition was a year of low murders. 1966 was a year that was good in this respect. 1967 and 1968 have been worse. From what my right honourable friend said in another place yesterday, it now looks as if 1969 may he better again. So far as the 1143 murders which are estimated to be capital are concerned, there has been an increase that began before abolition. There was an increase that goes back to 1962; there was a rise from 1962 up to 1966: but after 1966 the rise in non-capital murders has overtaken the rise in those which one now has to say are supposedly capital. At the end of the story we are left with a murder rate of three per million, which is exactly the rate at the time of the passing of the Homicide Act.
One is glad to see also from the figures that the anticipated dramatic rise in murders of prison officers and police officers on duty has not taken place, as the noble and learned Lord the Lord Chancellor pointed out. There have been a few tragic and horrible incidents, but one is thankful to see that they have not set an established pattern. There has also been a rise in murders with firearms, and these are in the capital category. Every time I read of a murder with firearms I ask myself, why do we take it so lightly and so much for granted that any criminal who is setting out on a criminal excursion can decide whether to take a gun with him or not? It has been said outside this House in discussions on this issue that if abolition is continued, criminals will take their guns with them. How do they get these guns? Do they get them legally? Is there an inquiry every time there is a murder by shooting as to how the offender got the gun? If they get them legally, what are we doing that we do not tighten the law? If they get them illegally, what are we doing that we do not find the leak and stop it? The right way to handle murders by shooting is to make it virtually impossible for people to get guns, and there is no reason why we should not do that.
But so far as the deterrence argument is concerned, the fact of the matter is that arguments from small numbers, as every statistician knows, are always inconclusive—and we may be thankful to record that the numbers in this country, even now, by standards of international comparison are small. The four years' figures told us nothing, and I feel quite prepared to assure the noble and learned Viscount, Lord Dilhorne, that he should keep the record of his speech today so 1144 that if his Motion is carried he can make it again in five years' time, because I am prepared to wager that he will find himself in exactly the same position, with short term fluctuations in relatively small numbers. Even if you take a wide sweep across the subject, you will still find that the figures are inconclusive.
I shall quote only one example from outside this country. In the United States of America the five States that have the lowest murder rate are the five States that do not use the death penalty. The five States that have the highest murder rate are the five States that do use the death penalty. The inference to be drawn from that, and from the inconclusive figures contained in our own Murder pamphlet, is simply that the incidence of murder is the result of complex social conditions in which the presence or absence of the death penalty plays obviously an insignificant part. That is my second argument.
My third argument is, I think, a very serious one, and it is the argument about mistakes. There can be mistakes. One mistake has been acknowledged in recent history: that of Timothy Evans. Within the past 20 years there are three other cases where responsible persons have expressed grave doubts whether the right man has been convicted. Two out of three have been hanged, and the third is serving a life sentence. I do not want to be understood to be implying that I am convinced that these were mistakes; I simply say that responsible persons have grave doubts about them. The first is the well-known case of Hanratty and the A.6 murder. The second is the case of the Somali seaman Mattan, which has unpleasant resemblances to the Timothy Evans case, because this man was convicted and hanged in 1952 for the murder of a shopkeeper, and subsequently a principal prosecution witness, with a long record of convictions for violence, has been convicted of attempted murder of an alarmingly similar character. The third is the case of Townsend. In the case of Townsend two brothers were involved in a fight in which a third party was fatally injured. The dying man said, "It was the tall dark one who did it"; it is the ginger-haired one who is serving the life sentence. Four mistakes, or possible mistakes, within a period of less than 20 years is, I think, extremely disturbing. 1145 My fourth argument is an argument in favour of certain murderers. A penitent murderer, and there are such, can be a very valuable person. A friend of mine at the age of 19 committed a motiveless and horrible murder. He is an American. He was very nearly executed, but not quite. He served in prison from the age of 19 to the age of 52, after which he was released and, among other things, had the pleasure of taking luncheon in your Lordships' House. During the whole of that time he has tried to make restitution for the wrong that he did, and he has been haunted by it. He tried in prison—he is a very well-educated man—prisoners who were less well-endowed than he was. He offered himself as a volunteer and was used as a guinea pig for medical experiments, and after his release he is serving as a technician in connection with medical research. Taking his life as a whole, he has made a valuable contribution to society. Had that life been cut short at 19, that contribution could never have been made. Such cases are not perhaps typical, but this case is not unique.
The last argument, my fifth, is that I do not like the company we should be keeping. As the noble and learned Lord the Lord Chancellor has said, every democratic country in Western Europe has done away with the death penalty now that France appears to be joining the abolitionist group. There is the exception of Spain; and, though she is not a democratic country at the moment, one should perhaps add Greece, who is no longer a member of the Council of Europe. I do not like the company we should be keeping; and I like it the less because there is one country, and I think only one in Europe, which has in recent history done exactly what we are discussing doing to-day and what the opponents of this Motion are asking us to do to-day: to restore a death penalty that had been abolished. That country, my Lords, was Hitler's Germany.
My Lords, that is the end of the summary of arguments. Now we come to the matter of the Amendments, and the timing. I have already mentioned that this subject has been discussed in one or other House of Parliament at least ten times since the end of the war. If the noble and learned Viscount, Lord Dilhorne, gets his way, it 1146 will be eleven times; and if the noble Lord, Lord Brooke, gets his way, that will make it twelve. My Lords, can we never make up our minds? In reference particularly to Lord Brooke's proposal, I would point out that those who support a delay of a few more months are of the opinion that we cannot make up our minds now because we have not got adequate evidence; we have only three years' good evidence and, since yesterday, one year's bad evidence, or one year's crude evidence, bar two months. But we shall be able, we are assured, to make up our minds when we have the evidence of another year. This is in effect saying that this grave matter will be decided on the figures for one year—despite the fact that we all know there are enormous and totally unpredictable fluctuations from year to year.
If, on the other hand, we are to wait another five years, surely we are open to the criticism that what we are establishing is a permanent temporariness in the death penalty, and surely we shall be exposed to grave criticism on the ground that we are totally incapable, in 20 years and after 12 discussions (as it will then be), of making up our minds. Finally, my Lords, if we say that we can make up our minds perfectly well in another three or four months but that we cannot make them up now, and if we have to have the whole of this debate all over again in another three or four months' time, surely this House will appear ridiculous in the eyes of the public.
Those seem to me to be crucial reasons why a decision should be made tomorrow, and at no other time, that we will abolish the death penalty permanently. The noble Lord, Lord Brooke, said—and he grew quite heated about it—that we were showing disrespect to Parliament because Parliament had said there was to be a five-year period of trial. With great respect to the noble Lord, Lord Brooke, Parliament said no such thing. Parliament could perfectly well have said that. But what Parliament in fact said was that this Act was to remain in force for five years unless there was an Affirmative Resolution which determined otherwise.
We have been accused of rushing this matter. But, my Lords, such an Affimative Resolution could have been put before Parliament at any time in the five 1147 years. Parliament did not say that an Affirmative Resolution must be put before Parliament at the latest possible moment in the five years. I would therefore submit to your Lordships that it is totally misleading to suggest that we shall be going against the declared wishes of Parliament if to-morrow, as I hope we shall, we carry without amendment the Motion which has been moved by my noble and learned friend on the Woolsack.
§ 4.55 p.m.
§ THE MARQUESS OF SALISBURY
My Lords, if I intervene very briefly in this debate, for which so many noble Lords have put down their names, it is not because I have anything very new to say but because there is one aspect of this problem which has hardly been referred to at all by earlier speakers, apart from the noble and learned Viscount, Lord Dilhorne. Perhaps those speakers have not regarded it as important, and indeed it may not be regarded as important by the House as a whole. But it is very important to me, and, I believe, to many others outside this House. I speak as one of those who, on the last occasion that this difficult subject came before your Lordships, voted against the abolition of capital punishment. I did not do this, I can assure your Lordships, with any pleasure, for capital punishment is a horrible thing. I did it because I thought it must be in some cases, at any rate, a deterrent against something yet more horrible; and that is murder.
The decision that was reached on that occasion, as we all know—it has been mentioned a number of times already this afternoon—was to abolish capital punishment for a trial period of five years. But now, my Lords, we really are being asked to agree to quite a different proposition; namely, that that trial period be converted into a permanency, though the original five years have not yet run out and though such evidence as has been given to us up to now (and this includes the evidence that was made available yesterday) has not, I believe, gone to show that those who thought that abolition would lead to an increase in the number of murders were necessarily wrong. I will not put it higher than that. And I am afraid that I still feel this, even after listening to the extremely able exposition which we have had today by the noble and learned Lord the 1148 Lord Chancellor. Indeed, I think he never really claimed that: the most he suggested was that there was no clear evidence either one way or the other.
My Lords, that being the case, what conclusion are we to draw from the sudden re-raising of this question now? The noble and learned Lord did not explain this, and I am afraid that, for many of us, there is only one possible conclusion we can draw. It is, I think, that we took the Government's acceptance of this idea of a trial period far too seriously. It was never really meant by them as a genuine test. They hardly pretend so now. It was just a device for getting the Bill through, and, having served its purpose, it is now quite deliberately scrapped.
§ LORD SHACKLETON
My Lords, may I interrupt the noble Marquess? He said "the Government's idea for a trial period". I may have misunderstood him, but I thought it was Lord Brooke's idea for a trial period.
§ THE MARQUESS OF SALISBURY
But the Government accepted that view, and I do not believe they meant it.
§ THE LORD CHANCELLOR
My Lords, we did not accept it. On the contrary, we both spoke and voted against it. I did so myself.
§ THE MARQUESS OF SALISBURY
At any rate, the trial period was to last five years, and that is what passed through Parliament; and the five years are not up.
My Lords, that is not a story, as the noble Lord, Lord Brooke, has already said, that makes a good many of us very happy. But of course we must all recognise, as I most certainly do—and this is the main point of the remarks I want to make—that there are numbers of noble Lords in all parts of the House who have genuinely very deep moral scruples about capital punishment and who may say, "Possibly it is true that the Government have not behaved in an altogether creditable manner over the whole of this affair, but that does not alter my view: for me it is a matter of individual conscience". That, though he sedulously avoided this in his speech, has, as I understand it, been the basis accepted by the Lord Chancellor and the basis accepted by the Leaders of all Parties towards the 1149 whole question of capital punishment. That is the basis that each has recommended to his Party for this present debate and that is why, as I understand it, we are to have a free vote. I cannot but respect that view, yet I personally find it difficult to accept that here and now as a basis for our decision, as I think the noble Baroness, Lady Wootton of Abinger, did by implication.
One may, I am sure, fairly ask this question of those who take that view: the individual consciences of whom? My Lords, there are in the House of Commons just over 600 Members, and there arc in your Lordships' House upwards of 1,000 Members—about 1,500 in all; and there are in our country as a whole about 50 million inhabitants, of whom about 36 million are qualified to vote. What about the individual consciences of these 36 million people? They were never mentioned by the noble Lord, Lord Foot, or the noble Baroness, Lady Wootton; nor, I think, by the noble Lord, the Lord Chancellor. Yet this is not, I submit, a matter which we in this House can laugh off or ignore.
From the evidence of Gallup Palls—and that is the only way these unhappy people have of making their views known at all—there is a majority of something like 70 to 80 per cent. against the abolition of capital punishment. We know from what Mr. Duncan Sandys has said that he has in his possession a petition signed by a million people in favour of the restoration of the death penalty, and I myself not so long ago had an experience of very much the same kind. I received a letter from a lady protesting against the abolition of capital punishment and asking me to present a petition against it. I wrote to her telling her that Parliament had already abolished it, at any rate for the time being, but that if she wished me to present a petition I would certainly do so. She sent me a petition signed by 40,000 people, which I duly presented to the noble Lord, Lord Stonham, who at that time represented the Home Office in your Lordships' House.
My Lords, in spite of what some people seem to think—and I felt it in particular, if I may say so, in listening to the noble Baroness, Lady Wootton—let us not make any mistake. This is not a matter for our 1150 own consciences alone. If we to-day make permanent the abolition of the death penalty we shall be doing something which affronts bitterly the consciences of a vast proportion of the British people for whom we are trustees. No doubt this would be the right occasion to hold a referendum—at least that is my view. I only wish that on a question like this, which is social rather than political, it were possible to hold one. It is, after all, a question which is well understandable by everybody. But in this country it is not, at any rate at present, possible to have a referendum; and that being the case I believe our decision should be based so far as possible, not so much on our own individual consciences as on a mature assessment of the facts; and can any of your Lordships put your hands on your hearts and say that we have certainly had either the necessary time or the necessary material for that?
Some of your Lordships, after listening to the noble and learned Lord the Lord Chancellor may say, "Yes", but I would remind you that in a report by two leading criminologists, Mr. Louis Blom-Cooper and Professor Terence Morris, of which The Times gave us a short preview on December 10—though I must say that the report, as I understand it, on the whole came down in favour of abolition—it was stated definitely as their view (and I quote the words of The Times which I take it were quoted from them):Three years is too short a time from which to draw firm conclusions.And this I believe, in spite of what the noble Lord, Lord Foot, said, still to be true, and that even the trial period of five years approved by Parliament may in practice not prove long enough to enable us to reach a decision one way or the other.
That being the case, may I most earnestly and with all deference to your Lordships suggest that the right course to-day or to-morrow should surely be to accept the Amendment which has been tabled by the noble Lord, Lord Brooke, or the alternative Amendment which has been tabled by the noble and learned Viscount, Lord Dilhorne, whichever ultimately holds the field. These, I would remind your Lordships, do not ask us to bring back capital punishment immediately: these do not tie us now 1151 either one way or the other; and they would give us time, and the public time, for more mature reflection so that if, in the light of further experience and further information, Parliament did decide at some later date to restore capital punishment it could be done, and could be done in a more satisfactory form than that which previously obtained.
Though I do not wish to misrepresent the noble and learned Lord the Lord Chancellor, if I understood him to assume that the only alternative to abolition would be for this country to return to the Homicide Act that is surely not correct. Parliament can do what it likes about that, when the time comes: and in any case we should be able to feel that we have done our duty by our fellow citizens, for whom I at any rate feel so high a degree of trusteeship. My Lords, for the reasons I have tried to explain I greatly hope that the Government will find it possible even now to accept that view, otherwise I am sure that I shall be only one of many who feel that they have no option but to go into the Lobby against them.
THE LORD BISHOP OF SOUTHWARK
My Lords, before the noble Marquess sits down I wonder whether he would help us in arriving at a judgment by answering this question. If I understood the noble Marquess aright, in arriving at a decision we ought to be very careful to take into account the views of the majority of the people in this country. Does the noble Marquess state that that applies just to us who sit in Parliament in this country or does it apply universally? In short, ought the Parliamentarians in Rhodesia to take into account what the majority of people in Rhodesia, who of course are coloured, might think of this particular matter?
§ THE MARQUESS OF SALISBURY
My Lords, this is going a bit wide on this debate even in your Lordships' House, but I would say that why I may specialise in this particular type of question is because this was not a Bill that was brought in by any Government; it had not the official backing of any Government. It was brought in by a private Member, and it was not on the programme of any Government at the last General Election. For that reason, 1152 I felt it ought to be put in a special category.
§ 5.9 p.m.
THE LORD BISHOP OF DURHAM
My Lords, in a field as well ploughed as this one it is very difficult not to go over the same ground again, and I only hope that what I have to say will not be unduly repetitive and that even if it repeats familiar arguments it will put them in a rather different perspective.
I was encouraged by the generous suggestion of the noble Lord, Lord Brooke, that we might roam more broadly than the two Amendments might suggest. So often the arguments for or against capital punishment for murder ignore the sheer complexities of the overall issue, complexities which relate obviously to the motives and responsibility and behaviour of the offender, the reaction of society, the circumstances and reaction of the victim's family, the intricate court proceedings as a means of establishing justice in these cases, what actually is involved in terms of the prison setting, the preliminaries, the hanging, the post-mortem details, the effect on prison staffs and prisoners and so on.
It is that kind of complexity which makes me, for one, sit very loose to the kind of statistics that seem to be available on this issue. There is no question of, say, murders multiplying by 20 as soon as the death penalty is abolished—we are moving amongst figures like 3.2 or 3.8 or 2.9. We may say that we seem to be lost in a statistical fog where no particular path is evident—although I realise that that is but a metaphorical way of putting an argument which the noble Baroness, Lady Wootton, put much more skilfully a little while ago.
To return to the complexities of the issue, small wonder that, with this multiple complexity, there are radical disagreements; small wonder at this when the empirical effects are so difficult to hold together! So difficult, indeed, that it is almost disingenuous to talk of waiting for more facts; we already have far too many to cope with. When the matter is so difficult, there are bound to be conscientious difficulties. The point can be put in terms of a very simple illustration given in a Report entitled Punishment which was produced a few 1153 years ago by the Church Assembly Board for Social Responsibility, the work of a group of which I happened to be the Chairman. I read:A judge may, for example, see the victim of a violent assault in the witness box and be impelled to pass a heavy sentence. A prison governor seeing the steady disintegration of the offender's personality years later may be equally impelled to support a proposal for his release.It goes on:Both have experiences which are equally compelling and it is impossible to say easily of judge or governor that one is wrong or to find any easy way of balancing the evil done to the victim against that done to the criminal.It concludes:Both judge and governor can reasonably say, 'If you had seen what I have seen you would think differently '.So, my Lords, I, for one, am glad that with a subject of this intricacy, which all of us approach from so many different standpoints, the issue went to a free vote in another place and in so going crossed Party divisions. No doubt it will do so in this House. At least in that context, I do not see that it relates to a forthcoming Election at all.
Where there is this degree of intricacy, where there is this divergence of opinion, may I start from a point which I think all of us will be agreed? We are undoubtedly shocked and appalled at the violence in our society. We are disturbed and troubled by attacks, imagined or actual (I am bound to add those words after what the noble and learned Lord on the Woolsack has said) on policemen or prison officers or bank clerks or defenceless old ladies. We are rightly appalled. We find these murders when they occur morally revolting. I may say here that I do not use "morally" in what I discern as rather a weak sense as when used by the noble Baroness, Lady Wootton. It is entirely right, it seems to me, and formally fitting that we should say in these circumstances that we cannot ignore these events; that we must do something about these grievous evils. Those who support hanging will claim that it is precisely because human life has the enormous significance it has that nothing but a removal of the offender's life will register a sufficient degree of disapproval. They would say that murder brings with it, as a deep moral 1154 necessity, the ultimate penalty as a kind of counter-balance.
Further, let it be granted immediately that, while that view may be vindictive and revengeful; while it may display that authoritarianism, that rigid, insensitive aggression and aggressiveness that a sense of shocked frustration always encourages, nevertheless it has rightly been called "vindicative", rather than "vindictive"—in so far as it may witness to a view which all of us would share, and share in the cool hour; namely, that the evil of murder brings with it a moral demand for some counter-balance, for some appropriate moral response—a response, I should hope, which all would expect to be creative and positive.
Again, still within the area of agreement, there is the natural cri de cœur which all utter at a revolting murder: "As much as in us lies to prevent it, it must not happen again." In other words, we all want to deter others from these revolting crimes; we all want to improve a society which includes offenders and victims and ourselves alike. That, I believe, is the fact—as I think the noble and learned Viscount, Lord Dilhorne, implied— which lies behind the 84 per cent. support (or whatever the figure is) of the public opinion polls: this conviction that somehow it must not happen again, though I must say that I do not think that referenda would do more than just give that off-the-cuff reaction. On the whole, referenda and conscientious decisions do not always of necessity go hand in hand.
At least with this kind of background, with this kind of impression which crimes make on us, with the desire to see that they never happen again, those in favour of hanging would then say, What can express our disapproval, what can deter better than the prospect of that tolling bell, the gallows, the drop? "But what, in these same circumstances, do those like myself in favour of abolition then say? Hanging undoubtedly expresses intense disapproval. That is bound to be granted. The question is, what does it do as well? For instance, what is the effect—do we know it?—on prison officers who must administer the penalty? Does it tend to demoralise? I make no criticism in the emotional heat of the moment. Let me merely read again from the Report to 1155 Which I have already referred:Is it desirable thaton these occasionsa prison officer should suppress any sensitivity and sympathetic imagination he might have? Is it desirable that a prison officer should participate in capital punishment as 'just another day's job"?At the same time we honestly admitted that this is a difficulty which a prison officer must share, a strain he must share with people like doctors, nurses and indeed clergy in their pastoral ministry. But it does not mean that it is any more easily answered by saying that it is repeated in other professions. Nor does it say that we have to multiply the occasions as often as we can.
Again, have those who support hanging sufficiently taken into account all that hanging implies during the 14-day period at large and on the last day itself? What then if there are features, which, in the actual event are enacted in prison, in that particular treatment of a particular person—what if there are features just like those which we see in our wider society; violence, not necessarily better for being done in cold blood; insensitivity; the degrading of personality which, outside that prison, all of us would condemn?
It might now be said, What of the desire to deter and to reform?" Do the gallows deter? If so, I presume that they would deter all the more if everyone knew precisely what was involved in the hanging and all the details: but I fear that at this point the argument must take a curious turn.
May I make another reference to the Report which I have already mentioned?… if hanging is private (as at present) the details of death by hanging are largely unknown. Yet it seems that public executions were stopped "—and public executions might be the logical outcome of the deterrent argument—partly because they proved to be morally offensive and called forth more sympathy for the hanged than moral condemnation of his crime.… So capital punishment seems to be in difficulties either way. To make it private weakens it as a deterrent; to make it public is. morally offensive.Why should it be morally more offensive outside the walls of some prison than within? Again, hanging is less of a deterrent the less that a murder is plan- 1156 ned; the less that the circumstances are coolly assessed. But, my Lords, the possibility of the gallows is only one of innumerable features in this assessment; even if we suppose that, like men studying for an examination, potential murderers sit down in the cool hours and work it all out, the supposition that the prospect of the gallows determines their decision is very much open to question. If they do decide on murder, I gather that criminals have a wonderful self-confidence which, you might say, is appropriate to their job and which tends to make them feel considerably optimistic. I quote again:Most potential criminals are optimists … if they do weigh the pros and cons, and if they know there is a fair chance of evading punishment, they will assume that they are going to be among the lucky ones,and therefore ignore all the penalties, no matter how severe.
But, my Lords, even if the gallows did, and do, deter, they would be a very negative deterrent. They can hardly be said positively to help forward the reform of anyone. Indeed, to hang is surely to create and encourage social attitudes which make penal reform all the more difficult. How far does hanging show a concern, any concern, for the person who is hanged? You might say it does it when the judge commends the criminal to God—"May God have mercy on your soul". His soul is that which is distinctively himself. It may be said that this is the point at which a deep concern for the prisoner is expressed. Well, my Lords, in my view hanging would be even more objectionable than it is if it were done in a purely secular society. That has to be admitted. But we need not be hanged to share and to benefit from the mercy and the redeeming love of God. That possibility could be equally well provided for, with a different punishment altogether. If I may put the point in a sentence, it is no merit to leave everything to God when He would have us do something about a problem ourselves.
Further, if we acknowledge, as we all must, the empirical complexity of murder, what of the possibility of mistake which was mentioned by the noble Baroness, Lady Wootton of Abinger; or, at the very least if diminished responsibility is allowed, of failure to take all relevant facts into account? No doubt all of us share in human frailty; all of us have 1157 made a wrong decision, even in circumstances of great consequence and when we have used every care. But that means (does it not?) that none of us can honestly suppose that even courts of justice have built-in guarantees, absolute guarantees, against mistaken verdicts in murder trials. Even one mistake, one person being hanged in error, when hanging has to be set in the context in which I have tried to set it, seems to me far too high a price to pay, when that price is measured in terms of a human life, and when the human error involved is irrevocable.
I am of course aware that the abolitionists cannot and must not be content with being negative, with just saying, "No hanging". Something must be done, as I said at the start, to meet the right and proper moral revulsion that murder brings with it. I am sure that, in present conditions of our prison life the alternative is not long sentences. When my chief constable friend Mr. Alec Muir, in County Durham, remarked at an undergraduate meeting a little while ago that he would be in favour of quiet liquidation rather than long sentences; and when everyone rose up in criticism of Alec Muir, I tended to be on his side to the degree that I deplored the fact that so many of his critics failed entirely to face up to the major problem which those remarks raised. What is the alternative to hanging, or as he put it, "human liquidation"? It is in that context, while approving of abolition, that I was heartened to hear, if I heard it aright—or, more accurately, if I read a headline aright while travelling in a train—that there is to be a Government inquiry into crimes of violence.
I would suggest that if that inquiry is to occur, it ought to include also a reference to appropriate methods of punishment. I would very much hope that it would. Certainly all those of us who, to-morrow, vote for the abolition of hanging outright have an urgent and pressing duty to devise some alternative punishment which adequately expresses the moral revulsion which we all rightly feel; which establishes more firmly a moral ideal. I would remind your Lordships that the only deterrent which in the long run brings any success at all is the power—may I say the inspiration?— 1158 of an ideal; and it must be a punishment which, at the same time, makes rehabilitation possible.
In any case, my Lords, it is no argument for hanging that other present alternatives are unsatisfactory (especially if, as I believe, while they are unsatisfactory, they are far less unsatisfactory than the gallows) because hanging can also help to breed an authoritarian attitude at large; it can help to breed a detached satisfaction; it can encourage us to neglect social reform, which a knowledge of the complex causes of murder may suggest, and also cause us to ignore the need for large-scale reforms in our penal system.
While the call for hanging is a very understandable reaction against the violent criminal who kills defenceless old ladies, or bank clerks, or policemen, or prison officers; and is a very understandable reaction to the moral revulsion which these occasions bring with them, it is also, as I have tried to show, negative, incoherent and entirely devoid of creative possibilities. In one sense it is all too easy a punishment to carry out and, even more importantly, it has a built-in tendency to disvalue personality and to encourage insensitivity. I must say that I cannot see any point whatever in waiting one year or four years. The logical conclusion of that argument is, as I think was implied by the noble Baroness, Lady Wootton, that we wait indefinitely. That, my Lords, is the reason why my vote to-morrow will be for the outright abolition of the death penalty.
§ 5.30 p.m.
§ LORD SALTER
My Lords, the question we are being asked to decide is whether for always and without exception the death penalty should be abolished. Let me confess at once that when I am asked that question I feel unable to answer. I should want to know more than I do now. I would suggest a few things that I should want to have in mind and which perhaps some other noble Lords would like to have in their minds before taking part in a definite and irrevocable decision. I shall not develop, a long and logical argument. I shall shamelessly refer to certain experiences in my own lifetime which make me have these hesitations in my mind and make me want to have further time before I 1159 am a party to any such irrevocable decision.
I would say in the first instance that I hope we can remove from this discussion altogether the word "hanging". There is no reason at all why those who ultimately come to the conclusion that in certain limited cases the death penalty should be exacted should insist that it be by such an emotive method as hanging. If there is to be a death penalty in certain cases, let it be by the most humane way that is possible.
There was a period in my life when I had, and was bound to have because of my position, certain very secret information. I had certain information that our enemies—the Germans at that time—knew I had, and they wanted to extract it from me if they could get me. For the period in question I was never without a pill in my pocket which would have enabled me to end the matter, as I should have done, just as your Lordships will remember a different person on a different occasion, Goering, when he was tried at Nuremburg, had a pill in his pocket and in due course used it. Therefore let us, if we can, remove from all our arguments the emotion-raising word "hanging" and say "death penalty".
I personally feel that I must have a little more knowledge than I have at present before I can make up my own mind. One thing I want to find out is the real opinion of this country, not in the sense in which it can be obtained by Gallup Poll or referendum. In that long period of our history between Nelson at Trafalgar and the time when aeroplanes were invented—that is, when we were effectively an island—we could do what no other country in Western Europe could do; we could engage in the affairs of another country without fear of any retribution for ourselves. We were invulnerable—an unfair advantage, other countries in Europe thought, but we had it. During that period it was possible to find what was the real view of the people of England, in a different sense from that in which it can be ascertained by public polls.
What I have in mind is well illustrated by opinion in this country when we took an active party in the struggle of Italy to become one country. We developed a 1160 tradition of a kind of basic opinion in the country that was different from the kind of opinion which is natural to a world in the air age. That is the kind of opinion we ought to try to find and which I think we could find if we approached it in this way. I am not going at this time to trespass any longer on your Lordships' time. I repeat that I think we should have rather more time than we are being given now before we make up our minds.
§ 5.37 p.m.
§ THE EARL OF LONGFORD
My Lords, no Member of your Lordships' House has rendered such service to the House as the noble Lord, Lord Salter, and we are always glad to see him in such good health and speaking form. I should like to deal with one point which the noble Marquess, Lord Salisbury, in a sense shared with the noble Lord, Lord Salter. Both seemed to feel that a Government, of whatever complexion, might reach a conclusion that according to its own collective conscience it was wrong to go on hanging or otherwise executing people, but the opinion of the country might compel such a Government to hang or otherwise execute a person. That seems to me to be an impossible position. Whatever may be the case with other subjects, on this subject, above all, it is an unbelievable reflection that one can say to a man, "We are sorry, we do not believe in hanging. Our consciences rule it out altogether. But you have seen this Gallup Poll—so, the 'drop' for you!" Noble Lords are saying that a Government should allow its conscience to be overridden by popular sentiment. Whatever may be the case—would the noble Marquess allow me to finish my sentence, because I feel just as strongly about his point as he does—I should regard it as utterly intolerable and unworthy of the noble Marquess, of the noble Lord or of anybody else in this House.
§ THE MARQUESS OF SALISBURY
My Lords, the noble Earl, I know, has a powerfully directed, lively and sensible conscience. I am not criticising that at all. But the fact remains that if we are a democracy we cannot ignore that 80 per cent. of the population disagree, and say, "It is my conscience and my conscience alone that matters". I cannot accept that.
§ THE EARL OF LONGFORD
My Lords, before I joined in executing anybody, I would say that. If the country said that they do not like a Government, then I would say, let them find somebody else. This I have completely clear in my mind, and (I say so respectfully) I do not think the noble Marquess could possibly have considered the actual implications of allowing popular sentiment to override Governmental conscience. That is my conviction; and the noble Marquess has recorded his.
I do not say that this debate has risen above earlier debates in this House—and my recollection goes back many years, as does that of the noble Marquess—but so far we have avoided some of the perils which they encountered in another place, where some of the retentionists attempted to put themselves in the places of murderers, saying to themselves, "If I were a murderer and hanging were abolished, I would take my gun and do all sorts of things, to the point of committing murder". We have avoided that fairly well, because, at least in this House, we are conscious that we are probably not particularly well equipped to put ourselves in the mental shoes of murderers. Certainly the noble Lord, Lord Salter, is not; and I know that the noble Marquess is not, either. So we have avoided that peril and have tried so far, in a rather laborious way, to look at the facts—though some speakers on the other side have shown remarkable timidity in considering them.
We have before us Amendments from the noble Lords, Lord Brooke of Cumnor and Lord Dilhorne, which have been trenchently dealt with by my noble friend Lady Wootton. In my view, Lord Dilhorne's Amendment makes much more sense than does Lord Brooke's Amendment. That is not saying a great deal, because the Amendment of the noble Lord, Lord Brooke, makes no sense at all. But I think the Amendment of the noble Viscount, Lord Dilhorne, is one that is clearly a reasonable form of argument. I think we should all agree, on reflection, that, apart from the fact that it is impracticable and would not serve its own purpose, Lord Brooke's Amendment would be totally evading the issue, on the most flimsy grounds. He is saying, in effect, that we have had all these years (not just five years; and I will come back later 1162 to that point) to study this problem; that he has taken this view and that view; that he cannot make up his mind just now, but that if he is given until the spring he might reach this momentus decision and he hopes that nobody will take a decision before the spring, or possibly the summer, or it may be even the autumn. That is so farcical when one sees it in terms of practice that we can, I think, dismiss it on any sort of rational grounds.
The noble and learned Viscount, Lord Dilhorne, puts a different and much more serious argument. He says: "Well, it is still pretty obscure. Let us try to clear it up and give ourselves a proper time to do it in." I do not think one should treat that argument with the ridicule with which, if I may say so, I think the arguments of my old friend and one-time chief, the noble Lord, Lord Brooke, should be treated. But, if I may say so to the noble and learned Viscount, Lord Dilhorne, he was inclined to talk as though this study had started in 1965; that we had taken some momentous step in 1965, and quickly got down to it; that figures had been produced, but they did not carry us far and we wanted another five years—like Jacob, your Lordships will remember, labouring away first of all with a less favoured bride, and then getting his Rachel (if I remember rightly) at the end of 14 years. That would be a more reasonable approach if in fact this question had not been threshed over in this way and that way for at least 40 years.
Let us cast our minds back (my mind does not go back that far, in the sense that I was not in this House at that time) to 1930 in this House. It may be within the recollection of one or two of the oldest Members, though everybody looks so young these days that I do not see any old Members about—well, the noble Lord, Lord Salter, looks very sprightly. But when we go back to 1930, it is, I believe, a matter of history that at that time all the Bishops in this House, with the exception of Bishop (later Archbishop) Temple, were in favour of hanging; but now, so far as I know, they are all against hanging or any form of execution. It is not, of course, because the principles of Christianity have changed, and it is not because the Church has suddenly become more "swinging", or, as some people say, less "swinging". 1163 It is because in the course of that period this whole subject has been gone over so thoroughly.
I suppose the crucial point for many of us, and certainly it is for me, is the question of the deterrent. I was never actively a retentionist, although I was for many years worried, even after my sympathies were so-called Left Wing, about this question of the deterrent, and it was not really until the Royal Commission had investigated and laid bare the evidence, not only affecting this country but evidence from all over the world, that fair-minded people, including the Chairman of that Royal Commission, who was converted, it may be recalled, by his own studies as Chairman of the Commission, were nearly all forced to the conclusion, rather to the surprise of many, that hanging or any form of execution was not a unique deterrent. That conclusion was reached quite a few years before the Act of 1965. So the study did not start there, but had been going on for a very long time.
I should like to say one thing about the question of the absence of evidence. I know that this is a rather confusing phrase. One noble Lord (I am not quite sure who it was) argued that, in a sense, there is now no evidence either way. That is not the position. It is not a question of there being no evidence either way. It is a fact that there is no evidence that hanging is a unique deterrent. I think it is clear to any thinking person that if hanging were a unique deterrent there would be evidence. If there is no sign of its being a unique deterrent, and no indication of it at all, that means that it is not one. In fact, it is quite clear that a negative proposition has been demonstrated, that hanging is not a unique deterrent.
§ LORD SALTER
My Lords, perhaps I can suggest one kind of deterrent for which I think there is some evidence. That is what happened in cases of burglary. There was a long period during which the fact that there was a capital sentence was a deterrent against the burglar's taking a firearm with him. By that, I think many innocent lives have been saved. We have clear evidence that it was in that particular class of case. A man knew that if he carried a firearm and committed murder he would be subject to the death penalty.
§ The EARL OF LONGFORD
My Lords, I am afraid that I cannot for one moment accept the "hunch" of the noble Lord—if it is a "hunch", as it appears to me. If he says that is evidence, all I can say is that we have heard four speeches from that side putting forward the argument, and no-one has come forward to argue in favour of that proposition or any other which would suggest that hanging is a unique deterrent, I am afraid that I cannot stop to deal with particular statistics of particular cases, because there are another 30 speeches to be made after mine. I would submit this further proposition: that if hanging is not a unique deterrent, then there is no justification for it whatever; and if it is not a unique deterrent, it is a unique atrocity.
Let me take up what might be called the moral aspect of it, or one moral aspect of it.
§ LORD ROBBINS
My Lords, as one who has not taken sides on this matter and is diligently seeking after truth. may I ask the noble Earl whether he would maintain with the same emphasis the proposition that he has been maintaining if the word "unique" were omitted?
§ THE EARL OF LONGFORD
Well, hanging is a deterrent in the same sense that long-term imprisonment is a deterrent. But when somebody does a murder, the whole argument is whether it will serve any moral purpose in deterring him or somebody else from committing another murder for 10, 20 or more years. That is the significance of the phrase, "a unique deterrent". However, I am grateful to the noble Lord for enabling me to clarify myself.
Now I should like to say one or two words from what might be called the moral standpoint—though, heaven knows!, I am no more qualified to speak about this than many, and much less than some. I will not deal with the question of innocent victims of the rope. The noble Baroness mentioned cases in the past, and I could mention by name a young man in a well-known case, Michael Davis, who was convicted of what was called the Clapham Common murder. Books have been written since to demonstrate his innocence, of which I and the late Lord Monckton were convinced. I mention him only in passing, because I 1165 think this point should not be lost sight of.
I certainly should have liked to speak at length, but I am not going to do so, about the topic raised by the right reverend Prelate, the Bishop of Durham: the whole question of how we treat people who have been convicted of murder when they are incarcerated over long periods. That raises a very grave issue, and I hope the right reverend Prelate will table a Motion on that one subject in this House at an early date. I want to speak about just one side of the whole moral issue. Lady Wootton said something about it, but I speak from rather a different point of view. I have no doubt that there are many noble Lords who have known persons convicted of murder, but I dare say that I have known, intimately, as many as most. Perhaps nobody in the House knows, intimately, as many as I do—but I may be wrong there. At any rate, I have known several murderers, and know several at the present time, and know them well. They are persons who have been convicted of murder by the gun, or the knife, or otherwise. It is quite clear that all such people are redeemable. The one conviction brought home to anybody who has anything to do with people of that kind over a period of years is, not that they all become reformed characters—the ones I should be delighted to get to know well would be those who were more capable of redemption, because the others would not be so anxious to be befriended by me; so it is not quite a fair sample—but that there is no doubt whatever that these men are capable of redemption even in this world below, whatever possibilities exist later on.
I will give only one example, and I will not mention him by name. I know one person convicted of the most heinous crime who is struggling to make his way from the paths of evil to those of good—struggling rather heroically. Recently he has learnt to type in Braille in order to help with providing books for the blind. That shows a purpose of self-redemption which can be paralleled in various ways among many who have been convicted of very serious crimes, whether they have been murder or not. So when we are thinking of whether somebody could in any circumstances be executed by any instruction in which we share, we have to 1166 bear in mind that we are, so far as can be in this world, extinguishing the possibility—this infinite possibility—for good.
If I may say so finally, and I hope without impertinence in front of the Bishops, I hope that many who are hesitating, or even may be reluctant, to abandon hanging and are, at the same time, Christians at least as good as I am, and I hope better, will recall St. Matthew 25, where at the last day the sheep are placed on the right hand, and the Lord says to those on the right hand:Come, ye blessed of my father, … I was hungered, and ye gave me meat … inasmuch as ye have done it unto one of the least of these my brethren, ye have done it to me.And so with the execution of a fellow human being. It may be said that it does not lie within our power to extinguish the Christ in anyone, but in so far as it does lie within our power, then I say that if we hang someone without any shadow of justification we are, to the best of our human ability, killing the Christ in our victim, and we are killing the Christ in our souls.
§ 5.56 p.m.
§ LORD MORRIS OF BORTH-Y-GEST
My Lords, I wish only to say, with the utmost brevity, why I favour the Motion of the noble and learned Lord the Lord Chancellor. I do not take the view that it is never right for the State to take life; I do not take the view that it could never be proper to have the death penalty. But I do take the view that the death penalty ought to be retained only if it is shown that it is absolutely necessary and essential for the purpose of saving the lives of potential future victims. My approach to the problem has been along those lines.
It is now some years since I had the responsibility, the unenviable responsibility, of presiding at murder trials. My experience dates back to the late 1940s, when I had such share of that responsibility as came in the ordinary course of things to a Judge of the King's Bench Division. In those days—the late 1940s—a verdict by the jury of "Guilty" could be followed only by one sentence of the court. So those whom my colleagues and I in those days saw in the dock and who were found by the jury to be guilty were all people who had not been deterred by the death sentence. 1167 The experience of the judges was of observing a succession of people, if found guilty, to whom that applied. In many cases—probably the majority—the reason was that at the time of a killing no thought whatsoever had been given to the consequences. In a small number of cases if there had been any thought at all, the only thought was that there would be neither detection nor apprehension. But I must remember that it may be there were some whom we did not see in the dock only for the reason that they had been deterred. It may be there were some whom we saw on lesser charges and who were not arraigned on more serious charges only for the reason that they had been deterred. So one cannot be positive and certain. I hope that in expressing my view against capital punishment I should never be assertive or dogmatic. We can only do the best we can on the available evidence to form a conclusion.
So, starting with judicial experience tending to show that capital punishment was no deterrent, one can only do one's best to study the material in this publication of the Home Office Research Unit, and to study the other available evidence. I approach the matter by accepting, as I think all in your Lordships' House accept, that capital punishment is something abhorrent in itself, something that ought to be resorted to only if it is shown that it is such a unique deterrent that, regrettably, unfortunately and unavoidably, it must be retained. I take the point put by the noble Lord, Lord Salter, a few moments ago. I have never thought that capital punishment could not be regarded as any kind of deterrent. I think the case instanced by the noble Lord, Lord Salter, was an illustration of a possible situation where there may be a deterrent effect.
But, my Lords, all these questions that so torment us and exercise our minds and our consciences are questions in which the argument is not all one way. Life would be very simple if we could all see a clear answer to every question. But I consider that in this matter the best one can do is to weigh up all the available evidence and come to a conclusion. The conclusion that I have reached is the conclusion that it is not shown that capital punishment has such 1168 an exceptional potency as a deterent that it is essential we should keep it.
Is not the test whether we feel that the objections to what we all regard as abhorrent are outweighed by something that is shown to be a supreme, unfortunate but inevitable necessity? I do not think that that has been shown. Can we be sure that the utter and irrevocable finality of the death penalty can always be matched by positive certainty of guilt? In no country, with the fairest system of law, with the most humane and conscientious judiciary, do I feel that we can be satisfied of that. So, in agreement with the noble Earl who has just spoken, I think we can base conclusion not merely on the last few years, but on all that we have learnt in past years—the experience before 1957, between 1957 and 1965, and after 1965. The conclusion that I have reached, my Lords, is that it is not shown that we must retain this abhorrent form of penalty.
On the question of timing, I hope your Lordships will excuse me from saying more than a word or two. Some noble Lords may think that a conclusion cannot be based on just a few figures. Those noble Lords will, then, not be assisted by having just a few more and relatively minor figures. If some noble Lords feel that they really cannot come to a conclusion within the next few months, or without a few more details, that is so much a matter for the individual that I would not presume to express any opinion in regard to that. But, for myself, I see no advantage in deferring decision until 1973, 1974 or 1972.
If, most unhappily, there were some dreadful deterioration in future years, it might be necessary for Parliament to think again. There are no handcuffs on any future Parliament. If, most unfortunately, it was shown that some completely new situation had developed and it was necessary to think again; if it was thought that some reversal of policy was needed, the debate in your Lordships' House has shown that a return to 1957 would have few friends. There would have to be, in a new situation, new thought and new suggestions on new lines. We have heard nothing of them so far, and past experience gives little hope of being able to arrive at some new and satisfactory solution. 1169 For my part, my Lords, having the honour and privilege of being a Member of your Lordships' House, and this matter arising for decision, I feel that I am able to form my conclusion, which is the conclusion that I have expressed; and therefore I hope that your Lordships will vote that the Act do not expire.
§ 6.5 p.m.
§ LORD MOLSON
My Lords, it has been said that this matter has been discussed for so many years that it is difficult to say anything new upon the subject. In the very few moments that I shall detain your Lordships I hope not to repeat at any length the arguments which have been advanced before. I feel, however, that on a matter of this importance, where I intend to vote for the retention of the death penalty, I should give my reasons. I am also provoked a little into doing so by the underlying assumption among the abolitionists that there is a higher moral standpoint than that of those of us who believe in the retention of the death penalty. I believe that a feeling of indignation that demands some kind of retribution is not an ignoble sentiment; I believe it arises out of a sense of justice and of rightness.
I have mentioned on a previous occasion my own indignation when I was in Rome and learned that the murderers of Mateoti had been convicted in circumstances that left no doubt of their guilt in a singularly cowardlly murder; and my feeling of indignation that, because there was no death penalty in Italy, they were still alive. I did not know Mateoti; I was not an Italian; I was not even a Socialist. But I cannot believe that my moral feeling of indignation that the law of Italy did not exact the ultimate penalty from those cowardly murderers, who had premeditated their crime, was an ignoble sentiment on my part. Therefore I reject wholly the assumption that there is no justification for retribution in punishment.
I would add this, too. There is a very great danger if the law gets out of line with the moral feelings of the majority of people of the country. The noble Earl, Lord Longford, thought that it was wrong that either Parliamentarians or a Government should defer to the views, 1170 with which he disagrees, of a great majority of the electorate. I feel there is a very great danger indeed if the majority of the people of this country feel that the law in force in this country does riot give effect to what they feel to be their own righteous indignation.
I was naturally impressed, as I am sure all your Lordships were, by the speech of the noble and learned Lord. Lord Morris of Borth-y-Gest. When one hears a High Court Judge, with his long experience, speaking of his feelings and of the judgment at which he has arrived, one naturally feels much inclined to be finally influenced by his opinion. He spoke of those accused and convicted of murder who had been before him, and said that obviously in that case the deterrent had not proved effective. I wonder whether he had ever before him some of the people who have recently been convicted of murder, where it is known that they have been engaged in gang warfare and planned in advance the crimes that they committed; where it has gone on year after year as a deliberate policy; arid where even torture has been used for this purpose. My Lords, I cannot feel that there is anything morally wrong in feeling that murderers of that kind should pay the ultimate penalty.
I beg the House not to allow itself to be unduly influenced by those, like the right reverend Prelate the Bishop of Durham, whose speech, I am sure, made a great impression upon your Lordships, who assumed that any punishment must be capable of bringing about rehabilitation or reform. Surely all the evidence goes to show that there are some people who are completely incapable of being reformed. In how many cases recently have we not heard of individuals who have been convicted of murder and have been allowed out on licence, on the assumption that they have been reformed. and have taken advantage of their liberty to repeat their crime? The safety of the law-abiding and innocent community is a consideration which should weigh very heavily indeed with your Lordships, and it is folly to assume, as is so often done, without any proof at all, that all human nature in this world is capable of being reformed.
I wholly accept what was said by my noble friend Lord Salter, that there must 1171 be a certain deterrence in the case of a burglar who is setting forth upon his nightly occupation. If in the course of his burglary he is likely to be apprehended and to use a gun in order to prevent his own arrest, surely there should be a greater deterrent than merely the small difference in the period of imprisonment which is given for burglary and that which is given for murder at the present time.
The right reverend Prelate the Bishop of Durham had the courage to face the difficulty as to what is to be the kind of punishment awarded to murderers. He spoke about the possibility of painless liquidation, but he rejected it. An ex-Home Secretary, who does not belong to my Party, and a friend of mine in my Party who has served in the Home Office, have both independently spoken to me about the appalling deterioration which can take place after long years of imprisonment. These long periods of imprisonment are essential, first, for the protection of society and, secondly, in order to act as some kind of deterrent to criminals. If the effect of these long terms of imprisonment, which the present and the last Home Secretaries have said they believe will be a necessary consequence of the abolition of the death penalty, is such as to bring about a moral and physical deterioration, so that it is the living death of a living man, surely it is preferable to retain the death penalty.
The right reverend Prelate admitted that something will have to be found as a substitute for the death penalty. He said that he cannot see one at the present time: but when he concluded that that is not a reason for retaining the death penalty, I felt that, for the first time, there was a complete lack of logic in an otherwise very persuasive speech. My Lords, I am a convinced retainer of the death penalty. I believe that great flexibility is needed in order that it should be inflicted only in the essential cases. But I believe that there is that residue of cases, to some of which I have referred this afternoon. The total abolition of the death penalty would, I believe, be inexpedient, would be dangerous to society, and would affront the public conscience. Therefore I do not believe that your Lordships should pass this Motion.
§ 6.17 p.m.
§ LORD GOODMAN
My Lords, I shall detain your Lordships for as brief a period as I can. This is a debate of great importance. A variety of viewpoints have been expressed, but until now I had not heard the viewpoint so enthusiastically and atavistically expressed as it was by the noble Lord, Lord Molson. I have the deepest respect for the noble Lord, Lord Molson; he is a very humane man. But I cannot help thinking that the arguments which he advanced in this matter are not, for once, helpful to our deliberations, and it is unusual that his arguments should not be helpful.
As I understand him, he made two points: one was that he has a moral position, just as the abolitionists have a moral position. I should prefer to refrain from any moral position in this matter. I am not quite sure what sort of moral position it is that is maintained by a sense of retribution, a determination that somebody should suffer because he has committed a crime. It seems to me that this takes into regard only the crime and not the criminal. It discards entirely all the careful examination of the circumstances of the crime that we now regard as indispensable, and regarded as indispensable when we had hanging. We reviewed with great care the background of the criminal, the circumstances in which he came to commit the crime, and a number of other factors that were so highly relevant that the whole element of retribution in this matter could have no further part in a civilised consideration of the question.
The other matter raised by the noble Lord was the question of public opinion. This, I think, has featured in a number of the speeches we have heard to-day. It is apparently suggested that it is possible to gauge public opinion on this matter and to derive some benefit from the communal view that one extracts as a result of that gauging. I believe this to be a totally impossible and irrelevant proposition. I do not think—and I speak, I believe, as a sincere democrat, as sincere as anyone here—that public opinion has the slightest relevance in regard to this matter. I say this unapologetically and unhesitatingly. When we wanted to review this matter very carefully—and I think the most elaborate review of it was undoubtedly the Royal Commission 1173 which reported in 1953—after four years, we assembled a number of extremely expert people who reviewed evidence over the period of four years. They travelled in a variety of foreign countries, they heard innumerable witnesses, they studied the subject as closely and meticulously as conscientious human beings can do, and they arrived at a conclusion.
It is important to remember, and I have no doubt that the noble and learned Lord the Lord Chancellor, whose speech unhappily I was prevented from hearing, will have reminded your Lordships, that they were debarred from recommending the abolition of capital punishment. That was excluded from their terms of reference. They had therefore to consider whether the operation of the death penalty should be limited. Abolition was not a course which it was open to them to recommend. They have after years of deliberation arrived at a particular conclusion on an informed basis. How can we suggest that a task fulfilled by these people after those exertions can be passed on to the whole community? Nor would the community thank us for it. This is a specialised matter of penology. It deserves to be dealt with by specialists. It is, if I may say so, entirely avoiding the difficult issue to pretend that you can make some appeal to an electorate on a question of this kind. I think it is dodging our own responsibility to assume that there is an electoral voice that can have any relevance in regard to a matter of this kind.
There is another question. It appears to be regarded in some quarters as rather tactless and indelicate to indicate the nature of the matter we are discussing. I think it was the noble Lord, Lord Salter, who said that he hoped we would not talk about hanging. I am afraid we must talk about hanging, because hanging is the operation with which we are concerned. If your Lordships read the Gowers Report, you will find that the Royal Commission carefully considered the possibility of any alternative and arrived at the considered conclusion that there were no alternatives at that stage. They considered the gas chamber; they considered the electric chair; they considered the possibility of injections of some form or another, and they arrived still at the conclusion that the only thing that we 1174 could do was to hang people. It is therefore hanging that we are dealing with. However squeamish we may be about it, however reluctant we may be to face up to the fact that it is this hideous human operation with which we are concerned, that is the matter we have to deal with.
To drive the point home, although it may on the whole cause an amount of embarrassment to a number of people, I should like to draw attention to some of the matters that this unfortunate Commission had to consider as an inevitable consequence of retaining this abominable practice. I have no wish to harrow anyone, but I do not think we should engage in a debate of this kind unless we are prepared to consider the details. None of them are especially harrowing, and here are some of them:Prisoners under sentence of death should be allowed to listen to the wireless, subject to any conditions that the authorities may prescribe.The rule should be maintained that prison officers may not smoke on duty in the condemned cell.The provision of sedatives for prisoners during their stay in the condemned cell, and in particular immediately before execution. must lie within the discretion of the prison medical officer.There are innumerable hideous details of this kind with which this wretched Commission had to deal.
How obvious it is that if we can once and for all discard this appalling practice we must do so with an enthusiasm unequalled by any step we have taken in this House, But, of course, we must do so only if we are convinced that it is right to do so, and at the same time safeguard the public interest. But certain it is that we should know what it is we are talking about.
There are two matters with which we are concerned at the moment: one is the preliminary matter about whether we have sufficient information. In my view, any one of your Lordships who has read the Gowers Report is seized of all the information he can possibly require on this matter; I do not believe that there is any information that can usefully be added. It appears to me to be absolutely nonsensical—and I use the word deliberately—to suggest that there would be added a relevant amount of material to that corpus of knowledge by an additional few months of investigation. 1175 It is absolute nonsense; there is no other word to be used in respect of it, and therefore I use the word, because in a matter of this importance I think the right words ought to be used.
There is another consideration. I believe that it is vitally urgent that we dispose of hanging, because until we abolish capital punishment we shall not derive the benefit of the abolition of capital punishment. I believe that the twilight period with hanging suspended above us gives us the worst of both possible worlds. I think the neurotic and neurasthenic atmosphere that prevails leads many criminals to believe that they are escaping the gallows because this is the transitional era. I think that when we have abolished hanging we shall then be able to know what the final effects are likely to be. Until we have abolished it, I am absolutely convinced that all the statistics will be irrelevant.
There is another matter. We are told that we need six months, five months, four months in this period of time to add additional relevant statistics. But is this a relevant period of time? Is it a characteristic period of time? We must remember, for reasons that I will not assign any responsibility to, that we have injected into society in the last few years a desperate set of new criminals. We are enjoying an abundance of gambling in this country unequalled previously in its history. This has produced a mass of criminals of unprecedented activity, vigour and determination. They can be removed by sensible legislation by this House and elsewhere, but at this moment of time they are here and they are rendering any kind of test, any kind of standard, quite unrepresentative. I cannot see how we can possibly pretend that this moment of time is a representative moment of time in which to take a test. It is quite remarkable, if I may venture to say so, that we have had so little increase in murder during this particular period. It seems to me clear on the face of it that the experiment has stood the test, the most exacting test that it could possibly receive. It has stood the test of a period of time when determined criminals are operating under conditions that did not exist before.
We must remember that the type of criminal with whom we are now dealing 1176 is not a criminal deterred by prospects of punishment. He is a criminal who believes that he has acquired wealth and influence in society that will save him from any sort of punishment. Many of these criminals, we know, formed the view—and apparently formed it with sufficient validity for us to alter the time-honoured principle of unanimity of jury verdicts—that they can tamper with juries. These were not people worried by the prospect of being hanged. These were people firmly convinced that they had their fates in their own purses. This is demonstrated by an inspection of the same sort of situation in the United States of America. If you look at America and observe the activities of the Al Capones who mowed down men in the famous Valentine Day murders in a State where capital punishment was retained, he was not worried about the prospect of going to the electric chair. He knew that he had the lawyers and the judges and the senators and everyone else who was determining his fate safely in his pocket.
What is required to safeguard the community is not the retention of an abominable anachronism but a certainty of conviction; that is what is required. And we shall not be doing the police force any service, if I may venture to say so, by procuring the retention of this penalty. Hideous penalties produce hideous social conditions. When people say, as Lord Molson said, that we must not interfere with a penalty which expresses the righteous sense of indignation of the multitude, what would he have said 200 years ago when people were being hanged for theft? Would he have said that we must not interfere with the hanging of people for theft because this expresses the righteous indignation of the multitude? When howling mobs were watching people being hanged, drawn and quartered, would it not have been an unjustifiable interference in the sense of righteous indignation of the multitude to make any change in this practice? If I may say so, these arguments give us no help of any kind.
I think this is an extremely difficult question. I think it falls to be dealt with by people who have made a detailed study of the subject. I think this House contains a unique collection of people who have made such a study. I do not think we need make any appeal to outside knowledge, to democratic decision. 1177 to the knowledge that is assembled by people who have not made such a study, to decide what we want to do.
I think that we ought to disregard entirely the political implications. Apparently for some reason a number of people's feathers are out of place because it is felt that bringing the debate on at this moment is a convenience to the Government. May I say that, speaking from these Benches, I am astronomically indifferent to the convenience of the Government. I think the Government will accept that without hesitation. But I do not for one moment see why, because we believe that the Government may be convenienced by this, we should regard that as an argument for not dealing seriously with the issue. Unless the suggestion that they are being convenienced interferes in some way with the validity of the argument and the relevance of the considerations, it should be dismissed entirely from all our minds.
A much more logical course was adopted by the Opposition in the other place; it was perfectly logical to seek to pass a vote of censure. It is totally illogical to seek to postpone the decision for several months, and I hope I shall not be accused of making a debating point if I point out that it is a little odd that in the other place the Leader of the Opposition Party should not have regarded himself as precluded from making a final decision by any absence of information, when now we are informed, with great emphasis, that they cannot make their decision because they have not the information. Mr. Heath, and a great many other people, who are very responsible people and make decisions on a very responsible basis, found it possible to reach that decision yesterday, without waiting for the additional four months.
I have kept your Lordships too long. I would conclude only by saying this. We must in this matter all respect each other's positions. We must not assume superior moral attitudes. I do not believe that moral attitudes have anything to do with this subject, but I believe that we are making a decision that is of immense importance for the community in which we are going to live. Almost all the young people with whom I talk regard the retention of capital punishment as 1178 some sort of peculiar whim on the part of elder folk, who clearly must have some sexual interest in the matter. I have found absolute horror on the part of the young with whom I have consulted over the notion that this type of penalty should be preserved in their society. And remember, please, that it is their society we are making.
§ 6.31 p.m.
§ LORD AILWYN
My Lords, after the whirlwind, the calm. I speak with great respect to the noble Lord, whose eloquence I have always greatly admired. At least I shall be very short in the few remarks I am going to make. I rise to support the rejection of the Motion before the House. I found myself in complete agreement with the noble Lord, Lord Molson. May I say that I listened with very great interest to the speech of the noble and learned Lord, Lord Morris of Borth-y-Gest, whose views I have always greatly admired, but with which I am afraid, in the present situation, I find myself unable to agree.
Like so many other noble Lords I deplore the action of Her Majesty's Government that we are discussing to-day—an action that seems to me to be completely unjustifiable, unfair, and, I would have said, injurious to normal Parliamentary usage. That having been said, I should like to say just a word or two on the deterrence aspect of hanging. We all know that there is a very strong call from the general public at the present moment for the reintroduction of capital punishment. The general view, I think, is not that hanging necessarily deters but more and more the feeling—which I personally share—that it would bring what I firmly believe is required to-day, an element of retributive justice. I know that that is an unpopular view, but that is the view that I hold.
With regard to deterrence, I would remind your Lordships of what the Gowers Report, which was quoted just now by the noble Lord opposite, said about deterrence. In paragraph 59 the Gowers Committee says:Capital punishment has obviously failed as a deterrent when a murder is committed. We can number its failures. But we cannot number its successes. No one can ever know how many people have refrained from murder because of the fear of being hanged.1179 There is one other paragraph that I should like to read, paragraph 61 of the same Report:Of more importance was the evidence of the representatives of the police and the prison service. From them we received virtually unanimous evidence, in both England and Scotland, to the effect that they were convinced of the uniquely deterrent value of capital punishment in its effect on professional criminals.If I may quote one other thing, there was an extremely interesting letter by Sir John Lomax in last Monday's Times.
§ LORD GOODMAN
My Lords, I hesitate to interrupt the noble Lord, but as he is quoting rather selectively from the Report, I feel he ought to read paragraph 68, which is the Committee's final conclusion.
§ LORD AILWYN
My Lords, I would if the House would not be bored by my reading any more quotations. I have read those final conclusions, and, so far as I remember, nothing I have said contradicts what the noble Lord is referring to. To return to the letter in The Times from Sir John Lomax, he wrote:… common sense …accepts the axiom that hanging is a deterrent in proportion as it is applied. A capital punishment régime which allows all but a tiny percentage of convicted murderers to escape will deter very few. Mandatory execution would deter most criminals.My Lords, I find that a very interesting letter.
I have only one other point. Criticism has been made lately, very largely in the Press, and elsewhere, regarding the method of execution. To go back to the Gowers Report, Chapter 13 says:Hanging is defended on the score of humanity by witness after witness.—that is to say, the witnesses who were appearing before the Committee. Then in paragraph 734 the Committee state that hanging is superior to any other form of execution, on grounds of humanity, certainty, and decency. My Lords, hanging is beastly; so is murder.
§ 6.36 p.m.
THE LORD BISHOP OF EXETER
My Lords, I rise to speak as an abolitionist, but I do not propose to go all over the arguments for and against that case, which are all too familiar to your Lordships. I would simply make one reference to the speech of the noble Lord, 1180 Lord Molson, and the last speech which has been made, about the retributive element in punishment. It seems to be assumed by retentionists that every abolitionist must have come to exclude entirely the retributive element from his theory of punishment; but this is not true. I myself believe in the retributive element of punishment, and I think my right reverend brother of Durham, in the course of his speech earlier this afternoon, made it quite plain that he thinks the same. The point at issue is whether capital punishment is the right retribution for the crime of murder; that, and for me, that alone.
I should like to spend my time this evening attempting to compare the relative merits of the Government's Motion and the two Amendments to it. Abolitionists and most retentionists seem now to be fully agreed that on no account must we go back to the 1957 Homicide Act and to capital and non-capital murder. That point would appear to be not in dispute at all. No noble Lord who has so far spoken has suggested for one moment that he would advocate a return to the 1957 Act. The great merit of the Government's Motion is that if it were passed in this House, as it has been passed in another place, it would become impossible for the 1957 Act to be revived at the end of July next year. That is its great merit. In the Amendment of the noble Lord, Lord Brooke of Cumnor, I can find no merit at all.
I find the argument advanced by the noble Lord, Lord Foot, absolutely unanswerable on this charge; if the Amendment of the noble Lord, Lord Brooke of Cumnor, were carried, when we get to the spring, or to the late summer, what is to happen? I thought that during the course of his speech the noble Lord practically gave a pledge that, no matter what the further evidence of the corrected 1969 figures might be, if it came to a choice between having to re-enact the 1957 Act or voting for some such Resolution as the Government have now put before this House, he would vote for the Government, or, alternatively, for some form of Government Resolution, which might take the form of a one-clause draft Bill, to extend the working of the 1965 Act for another three or four years—in other words, for Lord 1181 Dilhorne's Amendment. So I cannot understand why the noble Lord, Lord Brooke, does not vote for the Amendment of the noble and learned Viscount, Lord Dilhorne, to-morrow, and be done with it.
THE LORD BISHOP OF EXETER
I hope he will. I myself will vote for Lord Dilhorne's Amendment if I get the chance; but if I have to choose between Lord Brooke's Amendment and the Government's Motion I shall have not one moment's hesitation in voting for the Government.
The reasons why I support Lord Dilhorne's Amendment are briefly these. If the retentionists were ever to win their case in Parliament it would be necessary to enact a new Murder Bill to take the place of the 1957 Homicide Act. Now one cannot draft a Bill of that character in a matter of months: it will require a great deal of careful thought and consideration—though I, for my part, in view of the arguments which are advanced in the Royal Commission's Report, cannot imagine what conceivable kind of Murder Act there could be which would retain capital punishment but would not fall into the grievous errors of the 1957 Act. But there are very clever people in both Houses of Parliament and in the Home Office, and, given time, they may come up with something. I would suggest that if Lord Dilhorne's Amendment were accepted, then these clever people should immediately be set to work to try to devise a Bill of that kind, which could then be put in the Government's top drawer for use if, unfortunately, it ever became necessary.
My second, not very serious, reason is that if Lord Dilhorne's Amendment were accepted it is probable that the Resolutions on the 1965 Act would come up in the middle of the lifetime of a Parliament, and would therefore be in no danger of getting mixed up with a General Election; and I feel very strongly, with the noble Lord, Lord Goodman, that this is not a matter which should be referred to the people at a General Election.
Thirdly, there is no doubt, I think, that there is great public uncertainty, if not unease, about the abolition of the 1182 death penalty. I know that it is the business of Parliament to lead and not simply, like sheep, to follow public opinion. I appreciate that; but, on the other hand, it does not seem to be right wholly to ignore clearly expressed public opinion. It seems to me that if we could get the present 1965 Act extended until, say, 1973, it would give further chance to educate the public. It is not improbable that if the murder figures remain roughly as they have remained over the last decade, public opinion will by then have come to accept the abolition of capital punishment, and these Resolutions would go through both Houses of Parliament with hardly anybody noticing it.
My last reason is, again, that some consideration should be given to public opinion. I think that what underlies the public unease and uncertainty is the startling rise in the number of crimes committed with violence; and I was delighted when I heard of the Home Secretary's decision to establish a Research Committee into the causes of these crimes and into methods of prevention. I cannot say that I envy them their job very much, but I hope that they will come up with some convincing conclusions and prescriptions. Greatly daring, I would offer one tentative suggestion to the learned and rather formidable Cambridge professor who is in charge of the research. As we have heard in this House already this evening, it used to be said—I do not know with what accuracy—that in the days of capital punishment most professional criminals were very careful not to carry a gun with them or to allow any of their accomplices to carry a gun with them on their operations lest, in the heat of the moment, they should lose their heads and use it and, in consequence, would lose their lives by hanging.
If that is true—and I suspect there may well be some truth in it—my suggestion is this. What appalls the ordinary man, I think, is the almost casual way in which people nowadays carry around with them weapons of violence. My suggestion is that if a criminal, in the course of his criminal activity, is found to have upon him a weapon of violence, however you describe it—a gun, a cosh or whatever may be decided—then, whether he uses it or not, the mere possession during the 1183 course of a criminal act of a weapon of violence on his person should constitute a separate crime which would attract a second and additional punishment, to be added to whatever punishment was thought right and fit for the actual crime itself. I believe that this might well have, as its result, a tendency to make people think a little more carefully about whether it is worth while to go around with shotguns, coshes, bicycle chains and all the rest of it. I believe also that a general knowledge that the Government were even contemplating some such determined, tough action against the too-ready resort to violence on the part of criminals would vastly reassure the public and do a great deal to diminish their present unease about the abolition of capital punishment.
A great deal has been said about capital punishment as a deterrent, or as a unique deterrent. I think it is only too easy to attach far too much importance to the element of deterrence. After all, I can think of many punishments which have been administered in the past, and which in some countries are administered to-day, which would, I imagine, have an extremely deterrent effect. You can use torture; you can use body-mutilation, like ear-cropping or cutting off a hand; you can have labour camps; you can have concentration camps. There are many things you could do which, I should have thought, would be equally as deterrent in their effect as the death sentence. But those are things which our ancestors gave up and which we would not now for one moment consider re-introducing, simply because, deterrent or not, they are disgusting, abhorrent and degrading—and it is my judgment that the death penalty comes into the same class. It may or it may not be a unique deterrent, but even if it is I would say "No", because it is also degrading to and corruptive of our society.
§ 6.50 p.m.
My Lords, I put my name down to speak on this Motion principally because, unlike so many of your Lordships, I have not previously been involved in all the arguments for and against the abolition of the death penalty. I thought there might be some small value in saying a few words as one who is uncommitted by legal or Party or 1184 pressure group attitudes, and my views are solely those of one individual as a parent and as a Member of your Lordships' House who has to make up his mind how to vote to-morrow in the best interests of country and family.
I listened with great attention to the speech of the noble and learned Lord the Lord Chancellor. He gave us some figures, and I noticed his comments on the unreliability of attaching too much importance to any one set of figures. I think this was a point that even the noble Lord, Lord Brooke, covered in his own very forceful speech and plea for more time. I do not think that any individual figures by themselves mean very much. They can be used to support or oppose abolition, and I do not believe that any constructive thought can be based entirely on figures. They are, after all, only an indication rather than a justification for what ought to be done.
I base my own views—and they are nothing new—simply on the generally agreed facts that serious crime is rapidly increasing and that there is a general feeling of lawlessness abroad in our society and that the criminal, and particularly the would-be murderer whom we are considering now, is perhaps receiving somewhat the better of the odds in escaping just and rightful retribution. I feel, as many others do, that this is the wrong time to take further steps away from capital punishment. Indeed, my Lords, I am very far from convinced that the death penalty should not be restored for murders of what I would call the first degree, such as beastly and sadistic child murders, murders of policemen and warders in the execution of their duty to the nation, who look to them for loyalty and protection and the upholding of the law; for all those second-time murders of any description, premeditated murders such as poisoning and deliberate-risk killings such as the Bishop of Exeter mentioned—those who go out on nefarious affairs armed with a revolver or other weapon which they may use in an emergency.
As for serving life sentences of perhaps even twenty years in prison, I cannot see anything constructive in such punishment other than as a means of keeping the murderer away from further risk to the public. Personally, I would rather be dead than serving life imprisonment. 1185 Moreover, I understand that the cost of keeping such people for such a length of time may be in the region of £25,000. But again figures are not important here, although I deplore wasting such money to keep some of the murderers alive that we are keeping alive today. There are other problems of keeping certain classifications of murderer in prisons. When it comes to certain types of crime, I do not consider that the ancient "eye for an eye and tooth for a tooth" such a very bad thing, and I believe that in the case of first degree murders capital retribution is both right and proper, and we have just heard the right reverend Prelate the Bishop of Exeter say that he believed in a measure of retribution. The knowledge that you will forfeit your life in certain circumstances will, I think, still influence some of the would-be murderers and therefore still retain some measure of deterrence.
I cannot accept that all life is sacrosanct. Certainly the murderer himself does not do so, and the present indications are that a large majority of people in this country do wish to retain the death penalty. I would agree, my Lords—and the Bishop of Exeter has made reference to this—that the task of government is to lead as well as to guide, and it is true that enlightened leadership can of necessity often be in advance of public opinion. I do not think, however, that it should be so in advance of public opinion that the gap is appreciably widening with successive Acts of Parliament. Political thought in Westminster and Whitehall frequently shows a deep gulf between rulers and ruled, but if the rulers in their remoteness have the facility to look at problems more objectively than the ruled are able to do, it is still by no means certain that the rulers are always wiser or more practical than those who have to live with the results of over-hasty reforming zeal. I know that the noble Lord, Lord Goodman, would not accept that contention. If I may say so, I thought he swept away any idea of public participation in this argument a little too hastily.
I noticed that none of the earlier speakers in the debate made any real reference to public opinion until the noble Marquess, Lord Salisbury, said that he thought that 36 million voters also had their consciences in this matter as well as ourselves. I fear that the impression 1186 is abroad to-day that consideration for the murderer is weightier than consideration for the victim. We cannot put right overnight all the unhappy evils that lead to crime, but also we cannot, nor should we, consequently absolve the murderer from full responsibility for his crime unless he is certifiable. I regard this Motion as ill-timed in that it does not appear to give any semblance of consulting the electorate on a subject which electors feel very strongly about, and I think it probable that, in the event of this Motion passing this House to-morrow against the background of current crime and public opinion, it will be widely interpreted amiss in the country as a whole.
In my opinion, like other noble Lords, this is yet another major social issue which should receive much wider discussion at constituency level, and even at the next Election when the general temper of the electorate can be more widely assessed. You must take the people with you if you are going to legislate for them. To hurry this Motion through Parliament at short notice, and well before the expiry of the true trial period, seems to me the negation of wise democratic action, concurrently when strong representations against abolition of the death penalty are coining from the public and those who carry responsibility for maintaining law and order. I noticed, incidentally, that the noble and learned Viscount, Lord Dilhorne, referred, I thought a little unwarily, to the misguided views of the public on abolition. But are they really so? At least I think Parliament should spend a little more time finding out, which is what I think the noble and learned Viscount wanted.
I have said nothing that is new to your Lordships, but in adding my voice to those who distrust the likely consequences of total abolition, I hope that when we come to the Division most of your Lordships will feel that the time and social climate are inopportune to approve this Motion. I do not think it is right that we should be railroaded into a snap approval when all the indications are that at best Parliament may subsequently lose some measure of credibility in the eyes of the electorate, and at worst may well exaggerate the difficulties in the prevention and detection of crime at what I would say is a difficult stage in the battle. 1187 I shall vote against this Motion and in favour of the Amendment which offers the earliest opportunity of reconsidering the whole matter, and with electoral participation as a prerequisite of the final Parliamentary decision.
§ 7.0 p.m.
My Lords, I have listened with great interest to all the speeches that have been made this afternoon. I feel very much more in sympathy with some speakers than with others; but I will not add to what they have said, since they speak with greater ability than I can. All I will say is that I feel favourably towards the Amendment tabled by the noble Lord, Lord Brooke of Cumnor.
§ 7.1 p.m.
§ LORD GORE-BOOTH
My Lords, I feel very great diffidence about rising to speak to-day: first because I have claimed lately far more of your Lordships' time than is really seemly in a very new Member. Apart from that, I come as one other speaker, perhaps only one, as someone who has not devoted in the past specialised thought or specialised time to this very difficult question. If so learned and experienced a Member of your Lordships' House as the noble and learned Lord, Lord Morris of Borth-y-Gest, can approach the subject with such evident humility, I feel great diffidence in approaching it at all. I do so only because several friends of mine have suggested that I should speak not as representing anybody but myself, but still perhaps reflecting some views of people like myself who have thought a little and lately about this but not in great length or any past depth. On this basis, I should like to make a few remarks on timing and then try to let the arguments of substance in a manner develop itself. This may not succeed, but I will try.
On the matter of timing, I find myself in agreement with those noble Lords who have argued that to wait just a few months for just one further lot of figures really will not solve our problem either way. I feel that of the Amendments, therefore, the one which demands the most serious consideration is that of the noble and learned Viscount, Lord Dilhorne—and may I venture to pay to him the compliment of saying that I felt 1188 very much when he spoke that humanity shone through his caution? On the other question of timing, I must just register one point of regret. I register it in common with a number of others whom I might call, in one way, professional laymen, a number of writers in newspapers. For people like myself (there must be some in the other place as well) who have not been through this argument before, it is a little difficult to focus in less than ten days. I think it would have been helpful to the Legislature as a whole if the Executive could have seen its way to giving us, shall we say, one month instead of less than a fortnight. I will not say more than that, but I wanted to register that much of regret.
As to the substance, I think that what I should try to do is a little de-glamorising, in a way that perhaps has not yet been done in this debate. I think, if I am not mistaking things, that most noble Lords felt that some time, somehow, the human race should stop killing individual members of itself even though those members appeared to have deserved it. In other words, somehow, at some time, some way should be found out of the situation in which the judge and, if you like, the hangman find themselves.
In thinking of this matter in detail I find myself in sympathy with the noble Lord, Lord Salter, rather than with the noble Lord, Lord Goodman. I think the word "hanging" is emotive. I think it conjures up the 16th century and not what is actually happening, and that we should think of this event as the death penalty. Then I also think, again in the spirit which I started this intervention, that we should think of the execution not as something hideously immoral, as though we had invented it ourselves, but as a later stage of an historical process in the growing up of society. In more primitive society, to put it crudely, we can say that people knew no better and that this was a convenient way of getting rid of people who were a menace, and nobody could think of anything else. Nobody criticised it very much as a process unless you emphasised the cruelty, and even then it got by. As society developed, everybody felt more and more unease about this form of deterrence, or even retribution, and we come more and more to the feeling, as this country has done—and other countries are further along that path—that there ought to be 1189 some better way of dealing with the sort of thing for which in the past people have suffered the death penalty.
Next, I think it is necessary to say that if Parliament as a whole approves what is in the Motion of the noble and learned Lord the Lord Chancellor, then people who believe in abolition are not at the end of the road; they are at the beginning of it. It will then be incumbent on them really to go after and find those forms of deterrence and correction which will be equally effective with hanging for the future period. Here I find myself with the noble Lord, Lord Goodman, because at least it could be said that abolition will compel people to think urgently and deeply in precisely those terms.
In other words, my Lords, it is not simply a matter of appointing a Committee to examine motives, although that declaration by the Home Secretary is very welcome. It is a matter of going with the greatest urgency, yet again into the whole problem of deterrence and correction and trying to find, excluding nothing—nothing, that is, that keeps people alive—which might at least be in the same rank of effectiveness as the death penalty. That is the task; that is what the people who are in favour of abolition will have to undertake and, indeed (although not everybody may realise it) are pledging themselves to undertake.
Perhaps I may just give one concrete instance of what I mean. It is not only a question of removing the death penalty for someone who actually murders another person. Only a few days ago, not very far from where I live, somebody came upon a thief trying to break into a house and gave pursuit. He caught the thief up, and then the thief said, "If you try to detain me, I shall kill you". One way or another, whether we believe in hanging or not, it is that kind of thing which has become so widespread that, somehow or other, we must try by all means to overcome.
Where does all this get us to, my Lords? Here, if your Lordships will forgive me, I will once again try to look at it from the broad historical perspective. I think that any student of reform has to agree that reform is not one steady slope. It is a series of violent steps upwards, of sliding downwards some- 1190 times but on the whole progressing. It is always a matter of taking opportunity, and sometimes opportunity for reform occurs before people are ready to digest it. In a situation like this one has to ask oneself whether that risk is the risk that should be taken. Here I come to my own point of view, arrived at with the same difficulty that all noble Lords who have spoken had in arriving at theirs. I found that, difficult and agonising though this is, we have here a chance of doing something which, deep in our hearts, we all want to do at some time; and possibly if we delay we may lose the opportunity. Therefore, with the greatest hesitation and with very considerable agony, but none the less feeling that it is the right course, I shall vote for the Motion presented by the noble and learned Lord the Lord Chancellor.
§ 7.11 p.m.
§ LORD FERRIER
My Lords, I am not one of those who agrees that Parliament should necessarily lead public opinion; indeed I see dangers down that path. To me the idea savours in some measure perhaps of intellectual arrogance which I think out of place, especially in a case like the present. My Lords, those were the opening words of a speech I made on the Second Reading of the Murder (Abolition of Death Penalty) Bill in July, 1965, and I see no reason to think otherwise to-day, except that I would not to-day say "perhaps". Nor do I see any reason to alter the view I held then, that capital punishment should be retained in the background for those who murder a warder or a policeman acting in the course of their duty, or any member of the public going to the help of such warder or policeman.
I listened with the greatest care to what the noble and learned Lord who sits on the Woolsack said, and I have read the Royal Commission's Report. I feel certain that by isolating a particular type of victim a law could be drafted, where the experts all seem to agree that it is almost impossible to draft a law isolating a type of crime. In that respect I go a long way with what was said by the noble Lord, Lord Wedgwood, though I do not share his feeling that the latter type of isolation could be embodied in a law. I have been written to and lobbied on this whole subject and on the problem 1191 which is being discussed in this debate, to an extent which has surprised me inordinately. I shall try to recount to your Lordships some of the impressions I have formed from this series of rather extraordinary interviews which I have had, not of my own volition.
We are debating the question whether Parliament should submit to what, I am convinced, is an evasive device. It is, indeed, the third in as many months. I refer to the negation of the Home Secretary's Order on the redistribution of Parliamentary seats and to the current failure fully to carry out the provisions of the law against incitement to violence. Now there is this attempt, which I hope will be unsuccessful, to—if I may use the word—"bounce" Parliament. Ostensibly it is to keep the issue out of Party politics at a General Election, but really, I believe—and other speakers have said roughly the same thing—it is in order to establish the will of a pressure group or groups; and that is what worries so many ordinary people. This conviction leads me to support one or other of the Amendments which have been put down. I look forward to hearing the rest of the debate, having listened to most of the speeches which have been made, before making up my mind which of the Amendments meets the points which I propose to make to your Lordships to-night.
My Lords, it is unfortunate that the Hansard of yesterday's proceedings in another place was not available this morning. It has, I think, been a grave handicap to a dispassionate analysis of the situation. And of course the Division Lists have not been available. But I feel worried—
§ LORD SHACKLETON
My Lords, may I interrupt the noble Lord? He is aware that the Division Lists would not have been available, even if Hansard had been published, because the Division was taken too late.
§ LORD FERRIER
My Lords, I am aware of that; nevertheless, I regret it. The lists would, of course, have come out the following day. It would have been a matter of interest, in the light of this debate, if they could have been available to your Lordships in the course of to-day, and that might have been possible 1192 through the photostat system. I think that many of your Lordships will agree with me when I say that I am alarmed and dismayed at this continued interference with the process of Parliament; because it simply means that the trade unions are now at the throat of Parliament itself.
It is difficult to analyse what the Division meant yesterday, but I understand from the newspapers that only three members of the Labour Party voted against the pre-emption of the decision which in the view of many of us—and as deployed by the noble Lord, Lord Brooke of Cumnor—was not due to be taken until, say, July. To anyone who knows the state of the public mind, certainly in the North, the voting system last night was very odd. I believe that people in Scotland will be gasping with dismay and disbelief to-day at this extraordinary display. As I have said before, I feel that if only three Members out of all that number voted against the measure, it savours of some sort of pressures which are beyond me. The people up in the North know, and I know, and I think there must have been some sort of unreality about the whole thing.
That brings me to what was said by the noble Marquess, Lord Salisbury, which I found deeply disturbing, true though it may be and, I believe, is. The noble Marquess, referring to members of the public, indicated that the only way they were able to make their opinion known was through the polls. That followed what was said by the noble and learned Viscount, Lord Dilhorne, about the importance of public opinion; a point which was touched upon by the noble Lord, Lord Gore-Booth, and the noble Lord, Lord Wedgwood. This appeared to me to be a confession of the enormous chasm which now exists between the people as a whole and the other place. I say the "other place" deliberately, because I believe, as I have always believed—and this belief is enhanced as time goes on—that in some measure this House has closer contacts with the people than is possible elsewhere.
My Lords, everyone respects people who have moral principles about taking life and hold views against capital punishment. But I think that ordinary people expect those who hold such views to regard them as their own, because 1193 in the ordinary way people are becoming disenchanted with the idealists and intellectuals, what they call the highbrows, eggheads or the starry-eyed, when they associate themselves with manoeuvres of this sort. I believe that people have had enough of the assumption of such that they and they alone have all the correct answers. I gather, for instance, that the Home Secretary is appointing a committee to examine the spread of violence, a matter which is of extreme anxiety to many people. It is about time—and why has it not been done before? Why should the chairman be the leading signatory of a letter in Monday's Times supporting abolition? This is a surprise to me.
§ LORD FERRIER
My Lords, I am the first to admit that. That is not my point. I am certain that the American expert who is going to be called in is regarded as the leading expert in America on the subject. Nevertheless, it fills me with anxiety. I entirely disagree with the noble Lord, Lord Goodman, in what he said, and sympathise with the noble Lord, Lord Wedgwood, who said that Lord Goodman went too far in saying that ordinary people do not count, though I agree with his declaration that the certainty of detection is the prime deterrent—and I was one of those who joined in the cry of "Hear, hear" when he said it. I must say that the noble Lord made me think when he read from the report about the condemned cell, and I wondered whether a murderer thought of the comfort or sedation of his victim before they put him away. As an ordinary sensible member of the public said to me this morning, "With bank raid or wage snatch every day, violence everywhere, police sirens wailing, indiscipline the order of the day, some people seem to be living in a cocoon of their own self-esteem." I think that we should bear that in mind as a possibility, though it is rather uncharitable, because I believe that the views of the abolitionists are held with the utmost sincerity.
I sometimes wonder whether the pragmatism about which we once heard so 1194 much, which many, including myself, hoped might be the matter-of-fact treatment of affairs, has turned rather sourly into the other definition of meddling. I think that the action the Government are taking in this instance is a rather meddlesome interference with the Parliamentary process, as most people conceive that should be. I consider that their decision should not have been reached, and I join with others who have spoken on this side in saying that another year's figures and a more detailed analysis of the figures already to hand should precede a final and decisive move of this sort. When I say a further analysis, I think of various questions such as, shall we say, the numbers of attacks on warders, the advances in medical science. the recovery of people who have been the subject of murderous attacks and the like.
I agree that this should not be a Party issue, though last night's voting seemed to me like a Party political job on one side at least. I consider that between now and July the possibility of a referendum should receive serious consideration. I would go further and say that if there is not sufficient time to give consideration to it, perhaps the noble Viscount's Amendment might provide a solution. The noble Marquess, Lord Salisbury, referring to this possibility, said that he did not think it was practicable. That has always been the opinion in between elections, but in the Glasgow Herald of December 13, Mr. James McIntyre wrote this:When a leading criminologist, Mr. Neville H. Avison, lecturer at Edinburgh University's Department of Law and Criminology, states 'After all, it is up to the community to decide how murderers should be dealt with—it is they who have to suffer them', I believe he is 100 per cent. right.In view of an impending General Election why not have the hanging question settled by the issue of a coloured voting paper along with the usual ballot paper?I believe that this is a matter which deserves serious attention. The opportunity of a General Election approaches. The issue is clear cut, and to put the question to the people themselves takes it out of Party politics, so far as the Parties and candidates are concerned. I think I am right in saying that the leaders of both Parties feel strongly that this is a most desirable objective. It would only 1195 remain for whatever Party who wins the Election to present a Bill to enact the people's decision as best they can. That may not be so easy, but it is the people who count and this is one way in which the people could decide. Let us be pragmatic in the matter-of-fact sense.
I return to the point made by the noble Lord, Lord Goodman, that the young people feel strongly on this. This is one way in which young people could register their views. If a majority of people opts for abolition, I would accept that decision without further demur. In any case, as a result of such a referendum a new situation will arise, as the noble and learned Lord, Lord Morris of Borth-y-Gest, said in his impressive speech. I believe that it is possible for Parliament to move again in this matter, and in that respect I agree strongly with some of the remarks on this made by the noble Lord, Lord Wedgwood. Meanwhile, I will vote for one Amendment or the other and against the Motion, if it comes to a Division.
§ 7.28 p.m.
§ LORD STOW HILL
My Lords, I have had the experience, which I have had so often in your Lordships' House, of hesitating about rising to address your Lordships because all that I wanted to say has been so admirably expressed in the many speeches which have been delivered in the course of this debate. I was tempted, nevertheless, by the speech to which we have just listened because I thought that it was a little difficult to follow. I cannot make out what the noble Lord sees so surprising in the fact that the House of Commons—sometimes known as "the other place"—should vote by a majority of 158 in favour of abolition. What is so surprising about that? Why should that induce the noble Lord to suspect that some sort of improper pressure was brought by somebody on some people in another place. They are elected Members who habitually see their constituents. They go back, weekly or monthly, and meet their constituents in their committee rooms. It seems to me a little odd that the noble Lord should be so' scathing about the differences between the view expressed by Members of another place and what he conceives to be the view of the community as a whole.
§ LORD FERRIER
My Lords, if I may interrupt the noble Lord perhaps I can explain what I meant. One Party split about equally, and the other Party split about three, and the rest.
§ LORD STOW HILL
On every single opportunity that I personally had, when I was a Member of another place, of voting against the death penalty, I voted against it. I can assure the noble Lord that nobody ever brought any pressure, either improper or proper, to bear on me. I voted according to my own conscience. I see noble Lords here who were Members of that House at that time, and I know them well enough to say that they voted according to their consciences. I hope that that sort of aspersion will not be made again in the course of this debate.
As your Lordships may have gathered, I speak as a rather convinced abolitionist. I should have hoped that we could all start from common ground; namely, that we are discussing an abomination, something utterly abhorrent; the trussing of a human being into a machine and the deliberate snapping of his neck by pulling a lever. I know what I am talking about, because I have been in a condemned cell and I have gone on to the scaffold. Those in charge, out of deference to my feelings and health, did not proceed to the ultimate extremity—and I should explain that I was not on the scaffold for the usual reason but because I was on what is generally called a fact-finding mission. But the whole thing is utterly abhorrent. It is to me abhorrent that we should expect perfectly decent prison officers (I met many of them and have the highest regard for them) to take part in this gruesome procedure. I do not think it makes it any better that we do it out of sight behind closed doors. It seems to me, if anything, hypocritical to wrap a prison wall round it and call it respectable.
My noble and learned friend the Lord Chancellor issued a warning against the danger of using emotional or emotive language, and I must try to rein myself in. But I feel very strongly that what we are dealing with, when we are talking of this gruesome, obscene procedure, is not just punishment in the ordinary sense. It is really no better, as the right reverend Prelate the Bishop of Exeter said, than tortures of a far more terrible character 1197 that could be inflicted. If we ransacked the records of the Inquisition and the Gestapo I dare say we could find methods of meeting death that are even more terrible than death on the scaffold. If death on the scaffold is a deterrent, then it is reasonable to suppose that, logically at any rate, these more terrible ways of meeting death would be an even stronger deterrent.
Why does nobody in this House or in Parliament, or outside, advocate such more terrible methods? It is for the simple reason that they are utterly abhorrent to civilised reason and conscience. I say exactly the same about the process of hanging. That is equally abhorrent. It will not assist the debate to go through the details of the procedure, but one can imagine it. My noble friend Lord Goodman gave some details that he had read in (I think it was) the Gower Report of the things that happen when that procedure is carried out. Therefore I start from the position that unless there is the strongest overwhelming evidence that without this abomination society will suffer some grievous harm, we ought not to tolerate it for a moment. One thing I should have thought about the whole of this debate with which everybody would agree was the figures were utterly inconclusive as to whether it was a deterrent, a unique deterrent or any sort of deterrent at all.
We debated the whole of this matter in 1965 when the Murder (Abolition of Death Penalty) Bill, as it then was, was being discussed. At that time Parliament had before it an exhaustive analysis of the figures in various countries and of various situations, as my noble friend Lord Goodman reminded your Lordships, carried by the Royal Commission on Capital Punishment which reported in 1953. When we were discussing the matter in 1965 we had the advantage of the figures before the passing of the Homicide Act 1957 and those after that Act.
The Royal Commission said most formally and precisely that no safe conclusion could be drawn from the figures on the question whether or not the death penalty was a powerful deterrent. Precisely the same conclusion emerged from a study of the figures before the 1957 Act and after the 1957 Act. Your Lord- 1198 ships now have before you the Home Office publication, Murder, analysing the figures in the greatest detail from 1957 to the end of 1968. As the result of requests, my right honourable friend the Home Secretary yesterday made available to Parliament the best figures that he could collect showing what the position was up to December 15, 1969. Precisely the same conclusion emerges: the overall number of murders shows a drop in this country from the figures in 1968. Therefore I should have thought that we have had, quite apart from the debates which have gone on in past times—in 1947 and earlier, as my noble and learned friend the Lord Chancellor reminded us —the most minute examination of the arguments for and against the death penalty, and the most minute examination of the figures right up to last week which can be made available. What more we want, I just do not know.
My own conclusion, therefore (your Lordships may think it right or you may think it wrong), is that, starting with the fact that we are dealing with something utterly repulsive—and even more than repulsive: damaging to society—unless there is the strongest reason why we must retain it in order to avoid serious harm being done to society it must be got rid of once and for all as soon as possible. That is my personal approach.
I think that a noble Lord behind me used the words "railroaded into a snap decision." I wonder whether, in moments of calm reflection, if he ever thinks over that phrase he will wish to adhere to it. "Railroaded into a snap decision"—after all the debates in 1965; after the years that have gone by since, and after the Home Office analysis; after the 1969 figures, when the suspensory period up to July 31, 1970, which was selected, and deliberately selected, after debate by Parliament has some seven months to go before it expires! My Lords, if we are not to take a decision now when are we to take a decision?
The noble Lord, Lord Brooke, says, "Put it back for a few months." What is the point of that? What conceivable advantage can there be in just deferring a decision until we have the figures from December 15, plus a breakdown of the figures for 1969 and a few more figures for January, February, March, April and 1199 perhaps May? If figures over years, carefully analysed, produce no conclusive indication as to the efficacy of this penalty as a deterrent, what reason can there be for thinking that something in the figures for a few months longer will throw a blinding light that will reveal to us a truth which we have not yet discovered? I hope that noble Lords, whatever conclusion they may come to, will not accept Lord Brooke's Amendment.
I come now to Lord Dilhorne's Amendment. A difference of view has arisen as to what the effect of his Amendment would be, if it has any effect in law at all—and that I gather depends on a nice construction of the word "otherwise" in Section 6 of the 1965 Act. But whoever is right or wrong as to the meaning of that word, what nobody can dispute is that if Lord Dilhorne's Amendment is carried and a similar Amendment is not carried in the House of Commons, we go straight back to the 1957 Act. And the other point on which everybody in this House is agreed is that that is the one thing we do not want to do. If the noble and learned Viscount were here, I would ask him whether he really thinks that the other place. having deliberately voted by a large majority to put an end to this obscenity, once and for all, are really likely to go back on their decision and pass a Resolution in terms of the noble and learned Viscount's Amendment. The answer is obviously that they will not. It is equally obvious, in my submission, that if your Lordships adopt the Amendment of the noble and learned Viscount we go straight back to 1957.
We have inadequate time to propose any really adequate substitute for the Act of 1957, if it is possible to do so at all. As the noble and learned Lord the Lord Chancellor pointed out, it is almost impossible to find any alternative to bringing in the death penalty for all murders or abolishing it for all murders, because the facts and situations of each murder differ so enormously. Therefore I entreat your Lordships to say that the time has come when we must make a decision. I personally doubt, whether, as the right reverend Prelate the Bishop of Exeter said, in a matter of this sort we are justified in applying a purely pragmatic test, asking in utilitarian terms whether the advantage outweighs the disadvantage in terms of the effect as a deterrent.
1200 There is another utilitarian consideration which in my view, at any rate, we should throw into the balance. I am convinced that the repeated carrying out of this gruesome ritual behind closed walls —it is really no better than if it were carried out in front of a gaping mob at Tyburn—demoralises and brutalises society. The events that have happened in which perfectly ordinary, young soldiers in the United States Army—the matter has not been proved, and I hope it will not be proved—are said to have taken part in massacres in Vietnam, and the happenings which are said to have taken place, and again are not yet proved, in California, show that the beast in us is not too far to seek. Civilisation is based upon a very brittle fabric of gentle thinking and kindly feeling. We ought to put away from us this source of harshness and cruelty which does not do good to anybody, and which does not conform to the spirit of modern civilised thought and feeling.
I very much hope that in these circumstances your Lordships will say that you support the Government's Motion. Suppose you support it, as the noble Lord, Lord Goodman, said (and I adopt what he said, again), supposing it turns out that we are all wrong, and that in 1970, 1971, 1972 and 1973 the picture changes in an extraordinary sense and that capital murders, or deliberate murders, race up in numbers into the sky, Parliament can even then change its mind and bring in fresh legislation, so that really nothing will be lost. It is not as if we are binding ourselves irrevocably for ever. In this great community of ours we ought to be able to make up our minds on this. Let us make up our minds now, and forget whether there are political considerations or not. This is a basic, important social question. We have had plenty of time to think about it; we have had plenty of evidence before us; it is time we decided, and I hope that your Lordships will accept the Government Motion.
§ 7.44 p.m.
My Lords, my speech will be very short, but I have been deeply worried about one aspect of this Motion. As reported in the Press, 532 M.P.s took part in the Division in another place. It would appear probable that about 250 will vote in to-morrow's Divisions in your Lordships' House, 1201 making an approximate total of 782 individuals. I have been asking myself whether we in Parliament have the right to ride roughshod over the undoubted wishes of the people of this country and, above all, the unanimous decision of the police. I have come to the conclusion that we have that right, but only after very careful consideration of all the factors. I consider that by the Home Secretary's decision I have been denied the time to consider this question fully. I deeply resent the fact that I am being forced into a far reaching decision at about ten days' notice. The Home Office have announced a programme of research into crimes of violence, as reported in the Press this morning, and I welcome this. But why not before, rather than after, a decision in Parliament is made? In this House we have had no time to read the speeches made in another place, and we shall be unable to refresh our memory to-morrow on what was said to-day and to think it over. I find it quite intolerable that we should be treated in this fashion.
I find it difficult not to put myself in the position of the parents of a child violated and then murdered, and trying to assess what my feelings would be. I am also deeply concerned that any decision made to-morrow may eventually bring a demand for the arming of the police. My Lords, you may have come to the conclusion from my few words that I am undecided as to the rights and wrongs of capital punishment—and you are right. I reiterate that I am deeply disturbed by the actions of Her Majesty's Government and the unseemly haste in which they have treated this Motion.
After listening to the debate I believe that Lord Brooke's Amendment does have difficulties. Hence I shall vote for the Amendment of my noble and learned friend Lord Dilhorne. I shall vote on the undoubted knowledge that I have not been given enough time to consider what is a matter of life and death. Should the figures in the next three years show no deterrent, I firmly believe that both myself and the public will be far more willing to accept abolition. Nothing will be lost, and no one will be hanged. Many more will have their minds set at rest should statistics show that capital punishment is no deterrent. The whole question will be 1202 taken out of election politics, which I think is of vital concern to everybody in this country.
§ 7.48 p.m.
§ LORD O'HAGAN
My Lords, one of the troubles with your Lordships' House is that you are so complimentary to people of my age that I speak far too often, and I hope it will not be thought churlish of me if I say that I do not want praise to-day, I want votes to-morrow. Some of your Lordships may feel that those of us who wish for hanging to be banished, now and for ever, from this country are more concerned with the murderer than with his victims, more concerned with the criminal than with the police. The protection of the public is one matter—by all means let us prevent murders. Let us control perhaps more fully the availability of guns. Let us insulate from the community those who are a danger to the community—if necessary, for a long time. I do not think we in your Lordships' House should be justified in voting in favour even of the possibility of what is in fact murder by the State in times of peace. I am worried about violence and crime and I welcome the new inquiry. But violence and crime are matters which need practical attention from the Government, if possible in preventive form. The taking of life for life, tit for tat, is a moral matter, and morality must come first.
I would not go so far as to say that noble Lords who do not vote for permanent abolition of capital punishment are murderers at one remove—many of your Lordships are advocates of permanent temporariness, as the noble Baroness, Lady Wootton, put it—but I would say this. Many people regard your Lordships' House as an anachronism, a useless anachronism, or a positive nuisance. I do not share that view. I can almost say that I have learnt more by coming here than from the rest of my education. So I believe your Lordships' House has a great responsibility in discussing this matter. Are your Lordships going to give a clear moral lead to the country, or are you going to prove that that caricature portrait, which so many people want to believe in, is the right one? I believe that your Lordships will be doing this House and the country a great disservice if you vote in the wrong 1203 Lobby to-morrow. If you do, the message will go out from this place: "Vengeance is mine", saith the Lords.
§ 7.52 p.m.
THE EARL OF LYTTON
My Lords, age follows youth, and I appreciated the remarks of the speaker before me, the noble Lord, Lord O'Hagan. I come to treat this matter as a straight issue between abolition and retention. However interesting, however irritating, it may be that the gun has been jumped, it seems to me that the issues are too important to be ruffled by that. I come also to bring a human episode of one of the cases where I was associated with the death penalty. It was the first case, and I was assigned the task of executing a man for the second time. He had been in hospital for eight months, being treated for injuries which he received while escaping from a firing party; and having been put together by devoted nursing, he was handed over to me in an emaciated condition, on crutches, and I took him part of the journey of about 400 miles with ox wagons, at 12 miles a day, to return him to his tribesmen, one of whom he had brutally murdered long ago. They said: "Do it in public and do it properly this time; and await only confirmation of the precise date when you are to do it".
I waited for months. This man sat under a tree, with his crutches propped up, and he became the garrison cobbler. The Askaris, none of whom was in his tribe or of any rival tribe, came to like him very much. I suppose he can be regarded as a representative murderer. That is how I produce him. Everybody had a good word for the man and passed the time of day, and he had a grin for everyone, although he spoke hardly a word of anybody's language. Everybody liked him. I went through the processes of thought that one does about an execution—How do I tie him to a tree? Where is his heart? Suppose he will not stand up and insists on sitting down. How many Askaris do I align in front of him? Do I put a blank round in the chamber of one of them? I am aware, from experience with animals, that a shot through the heart does not always prove instantly fatal. Some animals go half a mile with a bullet through the heart. Where, then, am I 1204 to stand with my automatic pistol in order that I may "finish him off" if he requires finishing off? All these matters I thought about. And yet—and I suppose my Askaris thought the same —nobody wanted to demolish him at any time. We got fond of him. Nevertheless. we would have done our duty. We waited to do our duty when the order came.
Then I turned round to see what the customs were among my primitive pagan tribes in these circumstances. To my surprise, they did not execute—not at any rate invariably, or more often than not—a murderer. They made him work for the bereaved family. There seemed to me good sense in that. I turned to another tribe and found that they had quite different standards of capital punishment. For instance, they were prepared to execute a man who had intercourse with his wife between specific stated periods; namely, between the first signs of pregnancy and a public weaning ceremony two years after the birth of the child. They had such a high regard for the vigour of the coming race that this was the way in which they considered it best and right to protect women.
I am not sure that we go back to savagery, or that we are in a state of savagery, with capital punishment; or that we progress if we abolish it. I found pagans as enlightened as we are on this subject. At a time when we were killing people for stealing a sheep, I think the Abyssinians were only cutting off the man's hand, which is a lesser evil. He can get about, but it makes it less easy to catch sheep.
However, my Lords, as the result of my prolonged thought on this matter, I came to the conclusion that anybody who votes for capital punishment should go through all the thoughts that go with carrying it out himself. If it were hanging, I agree with the noble Lord, Lord Stow Hill, in that I personally could not do it, for a great many reasons. If we abolish capital punishment tomorrow, we also, I think, abolish hanging—I hope I have read it correctly—and I would vote that way, even to abolish hanging, which I agree, following the excellent and convincing speech we have heard, is unthinkable and horrifying. If we ever go back to capital punishment, as we may well 1205 have to do, some method other than hanging could surely be devised: something more humane.
I see no moral wrong in inflicting capital punishment; and no moral obligation to do so. It can be judged by the society in question for the particular offence, not necessarily always murder, but possibly, in different conditions, something else. It should be judged by society. I am not at all convinced of what our people really think. I do not believe the matter has been thoroughly debated. The idea of debating it, or voting for it as an adjunct to a General Election, seems to me to be totally horrifying, because people vote on questions such as how much more wages or agricultural subsidies they are going to get. They vote in regard to little personal advantages. If the matter is to be decided by our people, then I think that one day, if the circumstances justify it and if it is really thought that the wishes of our people are in favour of it, they should be consulted specifically on that one point, in conjunction with the method of carrying it out, if they so decide—and Heaven forbid that they should!—to return to hanging. That, my Lords, is all I have to say.
§ 8.1 p.m.
§ VISCOUNT NORWICH
My Lords, I have been reading, as I expect a good many of your Lordships have, the copies of Hansard of the debates we had four and a half years ago. During those debates, I had the honour of making my maiden speech before your Lordships and, together with all the other speeches that I read, I naturally read through my own again with particular care because I was interested to see what I had said specifically on the question of whether or not the death penalty is a unique deterrent, and I wanted to see whether, and in what degree, my views had changed in the intervening period.
I see that on that occasion I adduced two reasons why I believed the death penalty was not such a deterrent. The first reason was based on the fact that after the passing of the Homicide Act, where two categories of murder were defined, normally it would have been expected that, had hanging been a deterrent, people contemplating murder would have selected a method which would not lead them to the scaffold. This they did 1206 not do, and a survey of the three years immediately before the passing of that Act, and of the three years immediately before our last debate on the subject, showed that the comparative statistics for murders which could be classified as capital were virtually identical.
The other point which seemed to me to be conclusive—more conclusive, certainly, than any statistics we have before us to-day—is the Gowers Report, and in particular that section of it which described how the members of the Gowers Commission had toured Europe and America and had been unable to find one single set of figures which showed that the homicide rate had risen as a result of the abolition of capital punishment, or that it had appreciably fallen as a result of its re-introduction. It seems to me that these two reasons are infinitely more conclusive, more compelling, more persuasive than any of the rather paltry and certainly, in my view, too small to be finally decisive figures which we have before us now. I see nothing in the present statistics which make me want to change my opinion.
But, my Lords, last night, one of Her Majesty's Ministers in another place pointed out feelingly that he felt he had been saturated with statistics. I think we all have; and I wonder whether this saturation has not possibly led us to overestimate the importance of this question of the deterrent. Even if all these statistics proved conclusively—which they by no means do—that the death penalty was a considerable deterrent, would this necessarily mean that we should be justified in re-introducing it?
I am all for a deterrent, but I think there are certain deterrents which demand too high a price. I am prepared to believe that if we were to re-introduce the public hanging, drawing and quartering of every murderer at Tyburn, this might prove to be a considerably greater deterrent even than the grizzly activities that go on—or that did go on, and may indeed go on in the future if we are not careful—in the execution shed. But this does not mean that we should reintroduce hanging, drawing and quartering. There are moments when one has to say, "No, the price is too great. We cannot go back to medæival barbarism." And that, my Lords, is not only what 1207 hanging, drawing and quartering is; that is what hanging is. It is the last remnant of the old tradition of the eye for an eye, the tooth for the tooth. My Lords, we do not rob robbers or blackmail blackmailers, or rape rapists—why should we kill killers? There is no other example in the whole of penology of this direct retributive practice. It is purely vindictive and as such it is an admission of total defeat and total despair because it allows no possibility of correction.
That is all I have to say about why I dislike the death penalty as such, but before I sit down I should like, if I may, to interject a word of warning in relation to the views that we have heard expressed by several of your Lordships this evening, including those who have proclaimed themselves—I have no doubt sincerely—to be convinced abolitionists. It is that we should wait a little—whether for three months or three years or more or less, it does not seem to me to make much difference—until such time as public opinion has to some extent caught up with us. In the first place, I have absolutely no reason to believe that public opinion will catch up with us. I think it is quite possible that it may be moving in the other direction, that it may be hardening; but I also believe public opinion to be uninformed, and I see your Lordships and Members of another place as being in this particular case leaders rather than followers of public opinion.
Your Lordships in particular have the privilege of not even having electors whom we have to represent. We can vote and we can think entirely according to our own consciences. Let us, for goodness sake! do so, and let us also remember that surely in this particular case "public opinion" is another way of saying "popularity". What we are afraid of doing is something that may be unpopular. Surely it is more important to be right than to be popular. I am absolutely certain, more certain than I have been of anything before in my life, and any subject that I have spoken on in your Lordships' House, that this is the rightest thing we can possibly do. Now we have an opportunity to do it. In three months or three years, when there will probably be another Government in 1208 power who may not feel the same and may not act the same, we may not have that opportunity. Now we have. Let us take it.
§ 8.7 p.m.
§ LORD RITCHIE-CALDER
My Lords, I am moved by the excellent and very moving account by the noble Earl, Lord Lytton, of his own experience and of his anthropological studies on hanging, and I will tell one story which I hope your Lordships will appreciate. In the Eskimo code, with which the noble Lord, Lord Tweedsmuir, and I happen to be familiar (I think the Eskimos are our only constituents) in the Eskimo language, there is no word for "war". They are an extremely peaceful people. Under their ethic they kill for two reasons only: one is for stealing, which would sacrifice and destroy the group in a state of famine; and the other is for madness. They would kill a madman as they would kill a rabid dog.
To return to my story, it so happened that two Eskimos killed two priests who, according to the Eskimos, in their attitude were behaving like mad dogs. They insisted on going on when it was quite obvious that a blizzard was blowing up and they started to beat the Eskimos with whips—but that is the least of it. The Eskimos killed them, and the Canadian Mounted Police arrested the Eskimos. They did not have to chase them. Under the Canadian Mounted Police practice, they apply Ottawa law according to the Eskimo ethics, but in this case Ottawa insisted upon sending a hanging judge to override what had been the convention, and the two Eskimos were sentenced to be hanged. They were hanged on Herschel Island. They built their own gallows; they cooked not only their own breakfast but the breakfast of the Canadian Mounted Police, and they went on to the scaffold and were hanged.
I quote that story because the one group of people who feel most strongly about it happens to be the Canadian Mounted Police. They felt that this was the greatest mistake Ottawa had ever committed. In the first place, it was introducing a punishment for something which, according to the Eskimo ethic, was justifiable homicide. But apart from that it showed complete ignorance of what in fact the Eskimos were, of how they behaved; and certainly it was not 1209 going to deter them from killing other people because they do not go around killing people.
I quote that story merely to reinforce what the noble Earl, Lord Lytton, said and to emphasise, as he and so many others, including the noble Lord, Lord Goodman, did, the excessively gruesome ritual involved in what we are talking about. It is really quite repugnant to any human being even to contemplate, and we have hidden it away in a shed and asked other people to do it for us. I have repeated it so often that I hesitate to repeat again, but I had pretty extensive experience as a crime reporter, not only watching people dodging the issue in the courts, but having to stand outside the gaol and watch that notice being published. In those circumstances, even from my youngest days I was against hanging. I wanted no part of it; I did not want to be there with the relatives and others when the notice was posted.
I want to make a point which deals with the whole absolute humbug of the figures. We are talking about the figures which are going to be produced between now and whenever it is that the noble Lord, Lord Brooke, wants to have his mock auction. The figures are meaningless; they always have been. The thing that I would expect, completely different from any figures produced from now on, would be the fact that it would be very surprising if we did not have more murder verdicts. For instance, in Scotland, where we had the verdict of culpable homicide, juries dodged a verdict of hanging; they did not want the responsibility of hanging a human being, so they escaped into culpable homicide. I saw this happening in the courts.
There we are talking about something much more important than anything the noble Lord, Lord Ferrier, had to say about something which he apparently has canvassed much more thoroughly than I have; that is, Scottish opinion about this or that. What is much more important than any poll, with people simply thinking aloud or talking to a man across a beer, is when you vote by desuetude, when you are not asked just to pass a loose opinion but are called upon as a jury to sentence someone to death. Gradually, as I saw in Scotland, as people got. if I may say so, more and more humane and sensitive, they rejected 1210 the capital verdict. This is a more important vote than any poll that we can produce. People will not now face up to this absolutely repugnant practice of sentencing somebody to death when they are conscious of the fact that they are doing it. They will talk to the pollsters about it and talk on television. I saw one woman a few nights ago offering to be the executioner.
We are talking about figures and about polling. It is meaningless in statistical terms. The Royal Commission produced all the arguments which to me were unassailable, and if the noble Lord, Lord Ferrier, or anyone else, feels that we have not given the public enough time to think about it it is only because the public have not been so concerned as some of us have to complete their adult education on this subject. Anyone who is anywhere near this business of penology knows perfectly well that hanging is not a deterrent. To have a real deterrent you ought to emasculate people. If you are going to rely on this ritual of cutting off their lives, it just does not work. How many cases can we conceive—I am not talking about figures, but about cases being threshed out in court—of the kind the noble Lord, Lord Goodman, was talking about: the new gangsters being incited to become reckless by all kinds of profit and organised gambling methods, or at least to feel that they can buy their way out, where you could have said that the death sentence would have stopped the person from doing it?
Awareness of the death sentence is something that you have battened down, if it is premeditated murder; you have made the choice. If it is emotional murder, it does not come into it. If it is a reaction murder, in circumstances where you are fighting your way out of something, that is quite different. But the number of cases where people could conceivably have been deterred from an act of killing by the threat of hanging, in my opinion is just negligible. Therefore, it is not a question of saying that we want more figures. The figures are quite meaningless, because you are not going to get any significant figures between now and next spring. Why the spring I do not know; I thought spring was when life blossomed. As the noble and learned Lord on the Woolsack has made clear, you are not going to get these figures. 1211 The figures you are going to re-devil over this period are no reflection whatever of the trend, because the trend of crime and violence is something quite different from what we are talking about in this situation. The crimes of violence which occur now are forming a quite different trend. That is why I welcome my right honourable friend's proposal for the inquiry—and I very much congratulate the Home Secretary on the appointment of the Chairman of that Committee, again with all deference to the noble Lord, Lord Ferrier.
We seem to be getting ourselves in a muddle over this by trying to arrogate to this House the apparent responsibility for following public opinion. I do not follow public opinion even although I am a publicist, because at any time at which you feel the pulse of public opinion the process is being corrupted in the very act of doing it. It depends entirely on what happened last week. I do not believe, I have never believed, that it is the function of the other place or of this House to follow public opinion. As the noble Viscount who preceded me very properly said, they are confusing this public opinion with popularity. There is no popularity in doing the kind of thing which we are called upon by wisdom—and I insist upon the word wisdom—and compassion and understanding to do in this case. Popularity does not come into it. I am sorry to be pursuing in his absence the noble Lord, Lord Ferrier, but what he said about the other place is intolerably wrong. If there is this great reaction of feeling against the abolition of the death penalty, then every one of those M.P.s who stood up and were counted yesterday on behalf of abolition is apparently sacrificing his or her prospects of re-election. If that is really the truth, I swear to you that the people who have taken their courage in their hands on this issue have demonstrated that they are capable of leadership.
We get this absolute contradiction all the time. At one time it is said that the country is desperately looking for leadership; and then when we start giving leadership we are accused of running ahead of public opinion. I cannot imagine anything more ridiculous than to suggest a referendum or any other 1212 way in which people could decide on issues which we have discussed here and canvassed here. I think most of us have studied this subject in considerable detail, and certainly not only in the last 12 days. If any noble Lord comes into this House with only the background of what he has been "devilling up" for the last 12 days, then all I can say is that history has passed him by. For this historical process has been going on for years and has been part of the thinking of most of us.
I say again that I reject absolutely the Amendment of the noble Lord, Lord Brooke of Cumnor, which (I am sorry to say this in his absence) I think is humbug. It is no more, no less, than humbug; because it will not be possible to produce, in the time he is proposing, what he wants to produce. As everybody here agrees, what the noble and learned Viscount, Lord Dilhorne, is saying is a little more difficult. I again suggest that it is entirely specious. The speciosity of it is that it does not take us out of the dilemma that all of us are in now. It does not take us out of the dilemma in which—and let us face is—your Lordships have been placed by the newspapers' approach to these things. They have tried to find a political pretext, a political device, when in point of fact there is no political device. What the Government are doing, and what I commend them for doing, is facing up to the facts as I hope noble Lords will do to-morrow.
§ VISCOUNT MASSEREENE AND FERRARD
My Lords, before the noble Lord sits down, may I say a word? He has rather confused me, because I have often heard from the Benches opposite that we in this House ought to take note of public opinion. We are always being told by the noble Lord's Party that it is the majority who count, and he has rather confused me when he now says the majority do not count. May I also say that I am inclined to agree with the noble Lord over the meaninglessness of figures regarding this subject. I am not too happy about the figures, but there is one point that I should like to put to the noble Lord. Twenty years ago—when of course medical science was not so advanced—if we had had the same kind of violence as we have now many of the people beaten up would have died. 1213 whereas to-day, with equivalent injuries, they can live. Therefore the figures can go both ways. That is a point that has been, I think, overlooked.
§ LORD RITCHIE-CALDER
My Lords, on the first point, I certainly think your Lordships' House ought to pay attention to public opinion. But when I say "pay attention", I mean just that: you do not have to follow it; you have to analyse it. You respect what is valid in public opinion, and then you will pursue it according to your own wisdom.
On the question of what has been mentioned in this House, I commend to your Lordships the logic of what the noble Viscount, Lord Massereene and Ferrard, has said. if we are really to accept the fact that, through medical science, we are to-day keeping alive victims of violence, people who years ago, would have died, in which case the people who practised the violence would have been executed, then we had better carry on the logic of this thing and introduce capital punishment for all kinds of violence.
§ 8.25 p.m.
THE EARL OF HARROWBY
My Lords, I am afraid that I have not been able to follow the debate, but I hope that nothing I say will prove to be redundant. Obviously, the case has turned largely on deterrence and the 1957 arrangement. I have nothing to say about deterrence— I am sure it has been argued backwards, forwards, and sideways—except that I think the relevant consideration should be confined to murder and not to anything to do with the courts. A vast mass of cases never reach the courts at all, and I think that that is the relevant factor. In fact, I do not consider that deterrence is by any manner of means the whole story, and it is not what I intend to have a few words about to-night.
We are always told about the 1957 arrangement. I have no interest in the 1957 arrangement, and I see clearly all the objections to it. It seems to me that it is far better to go back to what things were before, but to standardise more the arrangements for clemency. They were absolutely complete; figures which have been produced about the 1214 way that verdicts have lapsed down to a very few bear that out. All that is wanted is someone to hold the hand of the Home Secretary, probably aided by the noble and learned Lord, the Lord Chancellor (I am sure he would be delighted to help in a case of this sort), and probably the Lord Chief Justice and the judge of assize, to recommend when clemency should be exercised.
Of course, there are a number of cases where death has occurred in a mêlée or where a man was acting in self-defence. I imagine that in such cases the question of capital punishment would not arise, because the facts would have been borne in mind at the time of the trial, and the man would have been acquitted on the more serious charge of murder. There are many cases I am thinking about, but the sort of case that particularly springs to my mind is one in which a man saw that his wife or child had been raped, or in which extreme violence had been used; or in other cases where the murdered person was obviously the villain of the piece and the person who committed the murder was very much less guilty than the murdered man. Those are cases of the sort which I should imagine would be proper cases for clemency. But any unbearable provocation of that sort is, to my mind, a matter which ought to be dealt with under the old provision, and probably was so dealt with.
I cannot see that there is any hardship —if hardship is not the wrong word to use; but your Lordships will understand what I mean—by going back to the old procedure. Wrong hangings may exist, but they are very rare, and they should be set against all the deplorable ghastly risks as to things that happen at present. Apart from parole or good behaviour pre-release, which I understand cannot occur when there is any actual verdict which would have been murder, there is also—what is very serious to-day—the liability of escape. This is a very real danger, and an added terror for the people who have been in a district where terrible things have happened; and most of us have known that experience.
There is also the further danger that a man may become a murderer in the face of terrific provocation by reason of the fact that he knows that the State is going to carry leniency to the extent of 1215 being absolutely flabby and unrealistic about the situation, and therefore he feels that he has to take the matter into his own hands. I am not advocating that reason, but we are dealing with something which happens as an instinctive reaction on the spur of the moment and in a split second; the sort of feeling, "If I don't kill him now he will never get any serious punishment. He will only be nursed in prison." That feeling may make a person commit a murder whereas he otherwise would not.
I now come to my main reason for saying a few words, because I think they probably have not been said before, and they very badly need saying. It is with some diffidence—and I think it is untraditional—that I raise this type of issue in this House, but it is inevitable, in view of the way that the Christian aspect has been invoked in so many quarters. I do not know whether it has been invoked in this House to-day, but it has been invoked in many quarters on this issue. It just shows the depth to which Christianity has sunk, aided by so many of its heirarchs in modern times. It suggests that the Christian message is that death is the crowning evil and the arch monster which has got to be provided against. I utterly and absolutely refute that.
The chief illustration of all is the Cross—and that was crucifixion, which was vastly more serious than anything we do. Not that I am saying that hanging is a good method: I am not arguing that point at all; but certainly crucifixion was a most bestial method. But one of the two murderers said, "We have got what we deserved". It would have been an admirable chance for them to say that they were the victims of a vicious social or governmental code in their being crucified—and they had not done anything comparable to what anybody would be hanged for in this country. It was the same with the Almighty Himself on that occasion. He made no complaint. It would have been as easy as anything for Him to say that this was a terrible thing to do, but He made no remark of that sort at all. The reason is that Christianity is barking up an entirely different tree altogether. It is not considering the question how things are done; it is considering the code in private life on which all one's absolutes 1216 should be based, with all the many other things as well.
If the suggestion is made that this question has arisen out of the progress of civilisation, that may be so to some extent, but it is certainly not the progress of Christianity, because there can be no "progress" in Christianity since the Christianity of 33 A.D. That is the apex of Christianity, that we have never attempted to approach since. It is the fons et origo of the whole of religion. There is no question of judgment in this matter. No one is being judged. It is a question of earthly needs being met. Judgment rests only on one side, and that is on the Other Side, when we shall all get it. But it is remarkable that such judgment as there was was to welcome one of the other people on the Cross into salvation. So it just underlines the fact that what is done on earth has nothing whatever to do with the question of salvation. There is never any hint from the Almighty in the New Testament about society not being protected, by whatever means it thinks necessary, to meet the appalling menace of our day. Of course, that applies to many other things, quite apart from the question of hanging, or anything of that sort.
I do not know whether your Lordships have ever read—probably very few have, because it is a long time ago—General Spears's book called Liaison 1914, in which General Maud'huy deals with a soldier who has been condemned to death in the French Forces. I cannot go into that now, because it would take too long, but it is well worth while reading. It is less than a page, but it gives a very good insight into the proper approach to man controlling the question of killing fellow man. If soldiers in battle are going to be obsessed with this idea of death as finality which is so prevalent to-day, you can imagine the sort of thing that will happen. I can quite understand—it is very understandable—that the whole question of death should be an unholy terror to non-Christians, but to Christians this attitude should be absolutely anathema; and it is really tragic that they should regard death with that degree of finality. There are many higher priorities over this evil of death —because, of course, it is an evil, and doctors and everyone else are fighting against it. But it is only a question of priorities, and 1217 there are many higher priorities. The white slave traffic is vastly more serious than any death has ever been; and so, very often, are broken homes. And even in the ordinary way, we all know many cases when death can be a blessed release. That is accepted as being within the knowledge of all of us.
I am afraid all of this has come to the fore very much because of the postwar permissiveness, which has had a great deal of backing from the Churches. Its progress seems to be regarded by people as bringing one nearer to Christianity; and the expression we always hear is "trend of the times". The trend of the times is the one thing which was fought against during the whole period A.D.1 to A.D.33. Christ was fighting against the trend of the times. Personal lives were all wrong, and through personal lives being all wrong other things went wrong, too, because they all spring from personal lives. Of course, the people who have this view about what constitutes progress in terms of permissiveness, regard all those who do not hold those views as being non-Christian by their hostility. All this would have been utterly unthinkable in pre-with-it days. No one would have been able to bring that sort of thing into the argument at all until modern times.
My Lords, I ought to make it clear, really, that in saying all this I am not applying it particularly to murder. It applies to all cases where things of this sort are linked with Christianity. Christianity has no business to look any further than curing people's shockingly bad lives, in most cases. I do not mind saying that, because it applies to myself. No one is more aware of my own deficiencies than I am myself. God help me if I were to be prosecutor for the Crown when I got on the Other Side! It applies to all things, but murder is a very striking case just at the present moment. To my mind, it is the job of politicians— I will not say statesmen, because that is an individualistic thing, but politicians in the mass —under God's guidance, to devise a code of laws which will protect society from, I was going to say, fear and terror, almost to the degree of panic in some cases, and from danger; and provided they are doing that with a Christian 1218 background and spirit and with the knowledge of all that that implies, they will not be going far wrong.
I am afraid—and, although I am saying it to this Government, I can quite see my saying it to any other Government—that they must be accused of not realising in the least the degree of the absolute menace of appalling crime in this country to-day and the feeling it is creating. You always get it when a case happens locally, and it is right that people's interest should be concentrated on the terrible things that happen to families and to small children, or even to young wives. It may be to anyone, of course. Instead of that, there is a tremendous whip-up of agitation of the tragedy to the person who does it. The whole thing is soft-pedalled as regards the people and the families who are the victims.
Leadership on the Christian side has been absolutely tragic in not emphasising that side of the individual person. How can you cure the ills of the country, and how can you cure crime, when you have not cured the individual? It is the old, old tag—we have all been trying it and it has never come about— "We cannot make people better than we are ourselves". The whole time the Gospel Story is based on curing individuals from their personal sins. When you have got the person right, then your policies (of course, this is an intensely Utopian angle) will inevitably come right. I hope this has not been said before, but these days I cannot take in all that is said. But I think it very badly needs saying. Whenever I come here I come with that in mind: to try to say things which are not said by others. I hope I have not been rude to anyone, but I am speaking of things about which I feel very strongly.
§ 8.40 p.m.
§ THE LORD ADVOCATE (LORD WILSON OF LANGSIDE)
My Lords, the noble Earl, Lord Harrowby, will forgive me if I do not immediately follow him in the matters which he raised in his speech, to which I listened with great interest. During the course of to-day's debate a number of quite startling assertions have been made in the course of, as I see it, an utterly misconceived attack upon the Motion which stands in the name of the noble and learned Lord on the Woolsack. It all started, you 1219 remember, with the assertion that the Government were not treating Parliament with respect. My Lords, the point was answered far more effectively than could I by the noble Lord, Lord Foot, but I would just add this. Surely in the light of all that has been said to-day, and in particular by the noble and learned Lord on the Woolsack, any Government who failed to do what we have done would be treating Parliament without respect and, worse, would be showing an utter lack of a sense of responsibility to the people whom it represents. I say that advisedly and in spite of the evidence that there is of certain public opinion polls that a majority of the people are against abolition.
The position is not quite as simple as these polls would make out. That point was made in another place by my right honourable friend, and was also taken up by the noble and learned Lord on the Woolsack. What appears to be the position is that the closer the people come to this problem with which we are to-day concerned, the more they depart from the attitude which seems to be suggested by the results of these polls. That is perhaps nowhere more graphically illustrated than in our experience in the criminal courts in Scotland, as already touched on by the noble Lord, Lord Ritchie-Calder. He will forgive me if I repeat it, because, since the abolition of capital punishment, the conviction rate of charges of murder has gone up from 26.7 per cent. in the period following the 1965 Act up to the end of 1968 to 53.1 per cent., and I hasten to add that the other 47 per cent. were not acquitted but convicted of some other crime. This, surely, graphically and significantly suggests that the attitude of the people brought close to this problem is not quite so simple and clear cut as it is sometimes represented to be by those who wish to return to capital punishment.
My Lords, may I just remind you, because he made the kind of speech I would dearly like to have been able to make myself, of the point that the noble Lord, Lord Foot, made in opening this debate, when he warned your Lordships that if we took the course urged upon us by the noble Lord, Lord Brooke, we would be taking a course which would serve no useful purpose. I would add that it would make us look a little absurd 1220 in the eyes of the rest of Christendom if we returned, as would be the result, to the capricious and unloved measure of 1957.
My Lords, this is not, I suppose, an occasion appropriate for levity, but when I listened to some of the things that were said to-day in opposition to the Motion of the noble and learned Lord on the Woolsack, I was reminded of a strip cartoon which I once read. I do not know whether your Lordships are in the habit of reading strip cartoons, but this was my favourite of the genre. The first picture showed a judge upon the Bench and in front of him in the dock a rather hideous-looking criminal. The judge was saying to the criminal, "Are you guilty or not guilty?" The next picture showed the criminal looking at the judge and saying, "What do you mean, am I guilty? There is no guilt and innocence nowadays. These things are out-dated; I am just a product of society", and the climax came when the judge said, "So am I: hang him."
A number of your Lordships have spoken of the desirability of speaking, on these matters without emotion, and emotional arguments by and large have been eschewed, I suppose rightly so. But it is as well to remind ourselves that powerful emotions are aroused in this context on both sides, and while it would be wrong to be unduly swayed one way or the other by them it is perhaps not inappropriate to remind ourselves of what they are. Your Lordships remember the ritual surrounding the pronouncement of the death sentence. You remember the awful obscenity, the execution itself, the killing in cold blood, and the lonely occupant of the condemned cell and the waiting whether for reprieve or execution, and the effect of all that on the prison and the prison staff. And remember, too, the burden of the decision which rested upon the Secretary of State, and the dissatisfaction, if my recollection is correct, growing in the years immediately prior to 1965 with the decisions reached; and remember, too, the widespread fear of wrongful conviction and the awful consequences of such.
My Lords, all these things raised powerful emotions on the one side and human life would be the poorer without them. But the same consideration must be given to the emotions roused on the other side and the horror of it all for the 1221 wives or the husbands and the children of the victims, and the natural and understandable indignation of the public. There is nothing ignoble about that. The noble Lord, Lord Molson, I think it was, told us of his feelings when in Italy he learned of the escape from justice of the murderers of Mateoti and he asked rhetorically the question, "Was there anything ignoble in this?" I think not, my Lords; there is much that is understandable about it. I have a much feared predecessor. He was known eventually as the Jeffries of Scotland, who used to say of those indicted before him that they would be "nane the waur o' hanging". This is understandable, but a dangerous guide for people in the twentieth century dealing with these particular problems.
Before I sit down may I endeavour to clear away one or two of the points raised in the course of the debate, the kind of point which usually arises in the context of this sort of discussion, both here but much more outside the House and in public. I think they are better dealt with because they confuse the issue; they lead to misunderstanding, particularly among ordinary people, as to why the Government are doing what they are doing.
Thus the noble Lord, Lord Brooke, expressed concern at the growth of violence. Those of us who support the Motion of the noble and learned Lord the Lord Chancellor share to the full his disquiet and concern about that. He did not, to be fair, suggest—he did not; but somehow or other the idea always seems to get about the streets—that those who are concerned to abolish capital punishment are not concerned about the volume and incidence of crime. The Government recognise that high priority must be given to bringing this particular problem of violence, as well as the other problems concerned with law-breaking, under control as quickly and effectively as may be. Relating to this, the noble and learned Viscount, Lord Dilhorne, expressed concern. In effect, if I understood him aright, he asked: were we in the criminal courts becoming soft towards the criminals? I am not quite sure what he means by "soft". I do not want to be like Humpty Dumpty, but the Government are under no illusions that being soft with criminals will bring the problem under control. So far as those responsible for the prevention and detection of crime and 1222 the prosecution of criminals in Scotland are concerned, no such illusion, I can assure your Lordships, exists—and in this context I bear a heavy responsibility; and I never forget it.
The third thing that is perhaps worth saying is this. I think it is agreed on all sides now that the numbers game will not produce the answer. Playing with figures will not do. It is an illusion, this idea that with the figures for 1969 we shall be in a significantly better position to reach a sensible solution. Of course the figures have to be looked at, to see and to assess apparent trends. Beyond that, the general shape of the argument is not materially altered. Let me just add this, going back a little. The way to bring down our crime figures, be they for housebreaking or for violence in the streets, is to make the perpetrators aware that detection is as certain as it is reasonably possible to achieve; that conviction is equally certain and that the appropriately salutary punishment is also certain. It is thus that we shall get at this problem. It is because we are satisfied—and no evidence has been produced to-day to the contrary—that the retention of capital punishment will make no positive contribution to this that we propose its abolition.
My Lords, one final word. There has been some criticism of the Government that, somehow or other, in adopting the course we have adopted, the issue of capital punishment has been taken into the political arena. I am afraid that it has always seemed to me to be there. Certainly it was a live issue at all the Election meetings at which I spoke at the last General Election; it was very much a live issue in the West of Scotland. The question was always put and always answered, honestly and straightforwardly according to the view of the candidate who was answering it. And one got the impression, discussing it closely with the people, not as a pollster on the doorstep, that their attitude was perhaps not quite so clear-cut and simple as has been represented.
Is it in the political arena? Does it matter? What really matters is how we treat it when we have got it there. It was the late Earl Attlee who was wont to say, with that kind of simple understatement of which he was the master, that there is always a danger of political Parties concentrating exclusively on winning 1223 votes. If in the search for votes politicians, whatever their Party allegiance, were to trifle cynically with the passions and prejudices and the fears which surround this great issue, this would indeed be to introduce into our national life a new dimension of political depravity. I do not think that that will happen.
The Government commend this Motion to your Lordships. There is no evidence of which we are aware—and no evidence has been produced to-day—to suggest other than that this is the only sensible course for this House to adopt, and I ask your Lordships to support this Motion.
§ LORD FERRIER
My Lords, before the noble Lord sits down, may I point out that earlier in his speech I got the impression that he implied that certain of us had supported a return to the 1957 Act. Would not the noble Lord agree that that has not been the case? Indeed, many of us have been seeking some alternative to the 1957 Act.
§ 8.58 p.m.
My Lords, it is extremely difficult in this House, in a debate of this length, or of any other length, for somebody who is bad at doing it, to try to pick up points from speeches that have been made and to give his personal reactions to them without becoming a nuisance. It is particularly difficult for me at this moment, having just heard two very long, and, if I may say so, in their totally different ways, very effective and sincere speeches. There was one from the noble Earl, Lord Harrowby, who may have felt that he was a little out of touch with the general feeling of those in the Chamber at the time. I can assure him that there was one, myself, not at all out of touch with his feelings. There were several points that he made for which I was grateful and should have liked to introduce.
I will not attempt—it would be impertinent—to say anything about the speech which we have just heard, a speech which was delivered with great authority and knowledge. But there is one point I would mention. The question of religion has been introduced; the noble Lord said that we should look a little absurd in the eyes of the rest of Christendom if we were to re-introduce hanging. I personally should not have used the word 1224 "absurd; I think that obscene" would have been the right word. But (and the point has been dealt with by the noble Lord, Lord Ferrier) so far as I am aware—I have heard only a certain number of speeches—nobody in this debate has attempted to re-introduce hanging. The problem that I find more difficult to resolve this afternoon is which of the three proposals before the House to support. As I understand it, none would introduce hanging, though some of them might have a danger of doing so later.
My Lords, I had better explain my own position as shortly as I can because I do not wish to waste your Lordships' time. Like the noble Earl, Lord Harrowby, my own feeling—and it leads me personally to object strongly to capital punishment—is based on religious feelings which might be called by some a woolly or orthodox form of Christianity. They are based upon what is commonly called the Sanctity of human life. That term has been used with great sincerity and conviction by the noble Earl, Lord Longford, and it was used by the noble and learned Lord the Lord Chancellor during the Second Reading debate on a previous Bill on this subject. It is used sometimes, if I may say so, a little loosely by people who are not Christians, and I am never quite sure what they mean by it. Applying that to capital punishment, if it were simply a straight issue, whether we should abolish capital punishment here and now, being in a position to do so, my vote would be, Yes ". But for reasons that I shall give, I am not sure that it is quite so simple as that; and I will give my reasons for saying why I think so.
Punishment, as I understand it, has a number of implications and intentions. It is meant as a deterrent. In some cases it is meant to be remedial. In the past, it has been meant to express the indignation of the public or society with certain things which they thought unpleasant, and it is meant to promote what could be called the public safety or security. Of those issues, taking the remedial one, I do not think we need to discuss it. The governess in Oscar Wilde's play who, when a wicked brother was carried away by a severe chill, said, "What a lesson for him!" could only have meant, I think, "What a lesson for him in the next world!" 1225 On the matter of indignation I am not so happy, because I believe that on Christian grounds the general reason for opposing execution is, "Vengeance is mine ' saith the Lord: I will repay." Here we are saying, "Vengeance is not ours, say the Lords; we will not repay." The inference is that someone like General Goering, Mr. Enoch Powell, myself, or whoever maybe the villain at the moment, can behave as he likes without any punishment at all, unless there is some sort of feeling that a punishment is a punishment as well as a remedial exercise. The noble Lord, Lord Wilson of Langside mentioned a strip cartoon, and some of your Lordships may have seen a carton by Osbert Lancaster yesterday representing two very orthodox clergymen saying about a more picturesquely dressed one who was in front of them, "What I cannot stand about him is his 'Trendier-than-thou ' attitude." With great respect, I sometimes feel a little difficulty in swallowing the "more-liberal than thou" attitude of some people who speak on these subjects.
I have always stated my views, I think openly, on this issue, and I have carried them to the extreme case of defending the lives of children even before they are born, when they are none the less there; and old people, even though they may be thought to be unnecessary encumbrances. Everything that has been said about the appalling effect on the people who have to carry out executions could of course be said about abortion, but that would raise much larger issues. I am not entirely clear why human life is to be regarded as sacred only in a case where it is visible and you can see it going on, and not when it is, as it were, swept under the legal carpet, as some of these operations are.
On Christian grounds I have no doubts whatever. But we are not debating the matter on Christian grounds; we are debating it, as the noble Lord rightly said, on political grounds. Here the problem seems not to be quite so simple, because the noble and learned Lord who sits on the Woolsack, if I understood him aright, said the simple position was that either we abolish capital punishment, or hanging, permanently, or we return to the Homicide Act. However, other noble Lords have suggested that it is 1226 not so simple and that there may be other alternatives. Not being an expert on this, I should like very much to wait and hear what the opinion is, because I agree strongly with what was said by the noble Lord, Lord Brooke of Cumnor, and the noble and learned Viscount, Lord Dilhorne: that we do not want to be rushed prematurely, if it is unnecessary, into making an irrevocable decision, if there is another way round.
§ LORD SHACKLETON
My Lords, if I may interrupt the noble Lord, why does he say an irrevocable decision? It is open to Parliament to change it at any time, and it really is intolerable that noble Lords should talk about this as an irrevocable decision.
My Lords, I apologise. I was trying to interpret the words "to abolish permanently" which, I think, were used by the noble and learned Lord on the Woolsack. Perhaps he did not mean that; capital punishment can be brought back by any Government. If the noble and learned Lord intends that it should not be irrevocable, then surely that should be in the Motion. But I think it is clear that nothing cannot be revoked.
I listened with interest to the noble Lord, Lord Goodman, and find it difficult to follow some of his arguments. He said that we ought to disregard the political aspect, and went on to say: "I am astronomically indifferent to the convenience of the Government." I am not astronomically indifferent to the convenience of the Government—it would be an impertinence of me to use the word "astronomically"—but surely this does not prevent it being a political issue. It is a political issue in that we have here a duty not to the Government, but to the people of this country as a whole. The whole question of crimes of incidental violence would be more clearly arguable if we had more statistics. That point was raised by Mr. Hogg in another place. Many people would like more information on it.
The noble Lord, Lord Goodman, went on to say that we must not take moral attitudes but that we should abolish this abominable anachronism. The word "abominable" suggests a moral attitude, and "anachronism" is not a word that I should use for something which has 1227 gone on for so long. If it is something that is wrong, I believe that it is wrong at all times. I think it is a pity to use an expression suggesting that these are merely passing reasons for abolishing the death penalty.
That leads me to my last point. The noble and learned Lord, Lord Morris of Borth-y-Gest, said that life would be very simple if we could look at every question and be certain of the answer. I am certain of my own personal answer as to whether hanging should be abolished. I believe that it should be abolished. I am not certain whether it is the right thing to do now. We are being presented with a rather rapid choice of either abolishing it or making up our minds on whether there is an alternative. We have to make up our minds whether to accept one Amendment or the other, and the Amendment of the noble and learned Viscount, Lord Dilhorne, seems to give time to think. I shall listen with interest to the other speeches that are to be made.
§ 9.13 p.m.
§ BARONESS BIRK
My Lords, it is usually said of a woman that she likes to have the last word, and I am terribly near to having the last word in this debate. My noble friend Lord Stow Hill started his admirable speech by saying that most of what he wanted to say had been already said, and about ten speeches later I feel this even more so. The noble Viscount, Lord Barrington, has said that he still wants to be persuaded whether he should support one of the Amendments that may be moved to-morrow. I hope to play my part in persuading him which way he will vote. I hope that he will support the Government's Motion. Figures have been used in this debate, in the debate in another place, in the newspapers and almost everywhere, in quite an extraordinary fashion. This orange has been squeezed so dry that really there is no juice left in it. What struck me as rather extraordinary, not being a statistician and not being a legal entity, is that in other areas, when decisions of far less import than this have to be made, most people—. certainly most people who have taken part in this debate and in the debate in the other place—would insist on having the decisions reached on the basis of proper 1228 research and evaluation. It seems to me strange that here the people who are wanting to have more time to study the figures are still clinging to what seems to me to be a very crude connection between inadequate figures and a deterrent. It seems to me, also, that this can be likened only to an analogy between mediaeval surgery and modern surgery. It is all fantasy and guesswork, and quite unworthy of a society that is adopting methodology and proper scientific evaluation in the way it is carrying out its tasks.
When I think of the many points that have been mentioned by other speakers in the debate, there are two on which perhaps a few more words could be said. One is (and I think the noble Lord, Lord Ferrier, in particular mentioned this) that the public have not been sufficiently consulted. We have recently passed through Parliament the Children and Young Persons Act. If a Gallup Poll had been taken before that Bill went through Parliament and people had been asked at that time whether they thought that it was right that children below the age of 14 should no longer be treated as criminals and that they should have treatment rather than punishment, I wonder what sort of result we should have got.
I think it is true to say that almost every social reform that we have to-day and that we now take for granted has in its initial stages had to be introduced against what was at that time the will of the people. There is nothing wrong with this in a democracy. It can be argued that it is not direct democracy; that it is not government by referendum, nor is it government by Gallup Poll. We are a representative democracy, and what strikes me—and I am sure it has struck most of us here to-day—about the vote last night in the other place is the number of people who were voting knowing perfectly well that their vote would cause them a great deal of unpopularity, and probably lose them votes in their own constituencies. That is why I find it strange that the noble Lord, Lord Ferrier, seemed in his turn to find it strange that only three Labour Members voted against the Motion. Frankly, it was in their own interests to have voted against the Government Motion, but they did not do so. With great respect to your Lordships, I think that Members of another place are 1229 probably nearer the grass roots than we are here.
Another point that I think is of extreme importance (it is something the public are talking about and taking into account; it has been touched on in speeches to-day, and was dealt with quite powerfully in the debate in another place by the Shadow Home Secretary, Mr. Quintin Hogg) is the connection between violent crime and capital punishment as a deterrent. This, in my opinion, is an issue that is rather fudged by many people, and certainly many members of the public, and this argument needs to be followed to its logical conclusion. The right honourable gentleman in another place did not disagree for a moment with the Home Secretary on the lack of conclusions that could be drawn from the murder figures. What he said he was concerned about was the connection between the possible use of the deterrent and the amount of conspiracy to murder, malicious wounding, attempted murder and assault, which, as he pointed out, were on the increase.
If one takes this argument, accepting for the moment that there is a connection (and even this has not been proved), then it seems to me that logically one must increase the number of offences for which one would hang people. In other words, why should somebody who is a bad shot, who shoots at a person and misses, get off rather than somebody who is a better shot? Why should the man whose victim has a better constitution than somebody else who is shot get off? When more than one person goes out with a gun, and it happens that one, two, three, or four people are together, why should the one who actually shoots be hanged? We have had this argument before, over, for instance, the Bentley case, and it was because of the public abhorrence of hanging people when they had not personally committed the crime that we then got the 1957 Act, and after that the Abolition Act, which we are unfortunately still discussing. It is very important that these conclusions should be faced, otherwise it makes nonsense.
The noble Viscount, Lord Dilhorne, mentioned that many people were saved who would otherwise have died because of the advances of medical science, and this has opened up the argument still further. Should we then say that a few years ago you would have died if it had 1230 not been for the discovery of this new drug, therefore your assailant deserves to be hanged? In that case we get ourselves in not only a tragic but an absolutely ridiculous situation—in fact it is really an Alice in Wonderland situation. What is extremely important is what the noble Lord, Lord Goodman, said with regard to getting capital punishment out of the way and dealing with crime. Incidentally, it is no good saying, as the noble Lord, Lord Gore-Booth said, that we should get rid ofthese emotive terms which conjure up the sixteenth century, anyway that is not the way it happens "—for that is the way it happens. People are hanged, and it is no good hiding it under euphemisms. This is rather like the expressions which are used in the Vietnam war. To "flush out" means when napalm is used. To "clean up" is the expression when a village is destroyed by heavy fire. Let us say what we mean. Some Members of this House have said to me they are against hanging, which they think is barbaric, but would be in favour, in certain circumstances, of a death penalty. I am not in favour of the death penalty at all, but I would say that even those who take this view must accept that this is not what we are discussing. There is no question of any alternative. We are discussing abolition, or a return to the 1957 Act, which would mean hanging for certain capital cases—an Act which was found not to work in any case.
The noble Lord, Lord Goodman, made the very valuable point that while this is hanging over us it is very difficult to get on with effective measures for conviction that are needed to cut down crime. Any abolitionist who think that in some miraculous way he or she will, by voting for the Amendment of the noble Lord, Lord Brooke of Cumnor, to-morrow, have more time to think it out, is what I would call a "mañana" abolitionist: someone unwilling to commit himself; believing he believes in it, but not wanting it to-day, always wanting it to-morrow. We have to make up our minds to get this out of the way. Once that is done we ought then to press on with better methods of conviction, and other things—as the Home Secretary has said.
I entirely agree with my noble friend Lady Wootton of Abinger that it should 1231 be made more difficult to get hold of guns, and the question of higher penalties should be examined. We really ought to be looking at the motivations—as the Home Secretary announced yesterday—and the causes of violent crime. It is really rather absurd when the Shadow Home Secretary in another place talks as though there are hundreds of very calculating, rational criminals who are working out every point with legalistic nicety, almost as if they would really have been Law Lords if they had not gone the wrong way. This is absolutely absurd, because the clever criminal, the master mind, probably never handles a gun himself at all; he gets other people to do the work. And who are they? Many of them are psychopaths, disturbed people. These are the things we need to know about. Until we take our blinkered eyes off the whole issue of capital punishment and get it out of the way, it is going to be very difficult for us to get down to the things we really need to do.
A great deal of work is going on to-day in being able to predict delinquent tendencies, and even predicting the possible lines along which people will develop from an early age. Studies on chromosomes are going on, which show that the chemical make-up of a person can lead him into violence. Are we suggesting that we should then hang these people? There is a book written in the United States by Professor and Mrs. Gluck, Unravelling Juvenile Delinquency, which proves that one can pick out at school children who are at risk. There are pockets of research of this kind being done in this country. I did not hear, with respect, the name of the criminologist quoted by the noble Lord, Lord Ferrier, but to the best of my knowledge (and I have looked into this question so far as I could) no criminologist of any reputation or authority, here or anywhere else, supports a death sentence as part of a penal system.
The question of mistaken identity has been raised and I will not dwell on that, but it is fair to say that there has been a spate of cases over the last two or three years in which identification has proved to be wrong. I would not only [...] that if there are mistaken convictions in other crimes, then it is not unfair to say 1232 that it is possible for this to happen in murder. This must be taken into account—mistakes are made.
Finally, my Lords, I myself feel that the corrupting influence of execution on a society is tremendous. This is why, over and above all the facts which seem to me to be quite cool and clear and not to come down in any way in favour of capital punishment as a deterrent, it seems to me that there could not be a more effective means of adding violence to a society—a society in which we should be committed to reducing violence—than continuing to keep over society this aura of a projected return to capital punishment. I, fortunately, am not in the position of some noble Lords who have mentioned being present at executions, but I was working as a prison visitor and lecturer at Holloway Gaol many years ago when a woman was in the death cell under a death sentence—a sentence which was eventually commuted. I can only tell your Lordships that the atmosphere in that prison, the hysteria on the part of the prisoners—it was the only time that I had myself felt frightened during my work there—and the complete restlessness and confusion of feeling among the prison officers themselves, was something which I think would make people realise, if they came up against it, the effect that this can have, and indeed does have, on the people who are concerned with the actual execution. The whole idea of it, I believe, can have a brutalising effect.
My Lords, while I understand from what the Home Secretary said that the Prison Officers' organisation have put forward a plea to retain capital punishment when a prison officer is killed, or for other offences, I find it hard to believe that this is supported individually by any prison officer who has, himself or herself, been involved with a man or a woman due to be executed. What I say is this, my Lords. For goodness' sake, let us do away with this whole nasty business and get down to the prevention of violent crime, and give a civilised lead to the country in order that we may deal with the uncivilised elements in it.
§ 9.30 p.m.
§ LORD MONSON
My Lords, to a borderline abolitionist like myself, the choice before us to-morrow evening 1233 presents a real dilemma. One considers on the one hand the decent people in our prison service—the governors, the warders and wardresses, the prison doctors and the prison chaplains—and the prospect of society once again obliging these people from time to time to assist in the putting to death in cold blood of a man or, worse still, a woman towards whom they can have no personal hostile feelings, is absolute anathema. On the other hand, any alternative sentencing policy which might add as little as 5 per cent. to the physical risks faced by such vulnerable members of the community as policemen, prison warders, night watchmen, elderly shopkeepers, sub-postmistresses and people of that ilk, seems to me to be a bad policy and one that ought not to be supported. I would go further, my Lords, and say that any alternative sentencing policy that adds to the feeling of insecurity, to the worries and tensions felt by such people, leaving aside the actual physical risk, ought to be reconsidered.
We have all seen and heard statistics which seem to show that the experimental period of abolition has made virtually no difference to the murder rate. Some of us have seen other statistics which seem to show the opposite. For example, I am bound to say that my interpretation of the table showing the murder rate since 1957, circulated by the noble Lord, Lord Foot, and his friends, differs from their interpretation, in that it shows capital murders, which are the ones about which we are concerned, in the three full calendar years since 1965 to be 133 per cent. higher in absolute terms and 43 per cent. higher in percentage terms than in any three-year period between 1957 and 1965.
We know also that crimes involving firearms rose by 31 per cent. during 1968. Is it not perhaps possible that any levelling out in the so-called "capital" murder rate that may be seen could well mask a notable increase in successful armed robberies, because the victims no longer put up any physical resistance, in the conviction that in the absence of adequate sanctions the gunman will not hesitate to shoot? Certainly it is right that discretion should be the better part of valour in such cases; but surely any increase in successful armed crime—even if happily unaccompanied by physical 1234 injury to the victim—must weaken the fabric of society.
The noble and learned Lord the Lord Chancellor mentioned in his opening speech that very few people pleaded guilty to a charge of capital murder when capital murder was in force. He cited the case of a woman who decided to testify against her husband when she realised that the charge against him was not a capital one and that he could not be hanged. That seems to me to indicate that there is a certain deterrent value in capital punishment. I would agree that it is not only capital punishment that deters, but it seems to me that vis-à-vis the alternatives we have at the moment there is a slight additional deterrent value in it.
Every bit as important is the public attitude to murder and to what should be the appropriate punishment for it. The opinion polls—which one must concede are usually accurate to within 2 or 3 per cent.—show an enormous majority seemingly in favour of the restoration of capital punishment for the worse types of murder, with between 84 and 86 per cent. in favour. This majority is more or less sustained throughout all age groups and all shades of political opinion. Even those with higher education seem to be in favour of the restoration of capital punishment, by a majority of more than two to one. The unhappy and, I believe, thoroughly undesirable situation that this creates between the mass of the people on the one hand and what one might term the Establishment "on the other, will be evident to your Lordships.
The issue was concisely put by Mr. Ronald Butt, the political correspondent of The Times, on December 11, when he wrote:Democratic representative government can never be in flat opposition to what most people want … The politicians will endanger public trust in democracy if they appear to go their own way contemptuously against a persistent majority of public opinion … What the public is really saying is that it is becoming desperate about the increase in violent lawlessness, and disgusted by the prevalent climate of vocal opinion which appears to them more concerned for the criminal than for his victim … It is damaging to democracy … to ride roughshod over public opinion and cut short public discussion over so serious an issue as capital punishment ".1235 It is pertinent to note two things: first of all, Mr. Butt is a convinced abolitionist; secondly, he stands, as I understand it, roughly at the centre of the political spectrum.
I am optimistic that a compromise can be found which will serve the cause of justice, which will largely pacify public opinion, and which—in view of the fact that it has been canvassed before both in 1965 and earlier, winning much support at the time—might, one hopes, get even more support now, in both the abolitionist and retentionist camps. My optimism is based on the firm belief that what the public really want is not so much capital punishment for the worst murderers as adequate punishment. They find it intolerable, and so do I, that a gunman who shoots a bank clerk dead may, conceivably, spend less time in prison than another gunman who shoots to wound, or a third gunman who fires his pistol in the air, or a train robber, or an arsonist, or an embezzler, or a forger. They are not at all sure that justice is being done and they certainly cannot see it being done. Those of your Lordships who have gone out and talked with people generally know that the average man's reaction to hearing of a sentence of "life imprisonment" is one of absolute derision. What really shakes people, what makes them whistle through their teeth, what makes them stop and think, are the sort of sentences imposed on Blake, the Train Robbers, Lonsdale and the Krogers: sentences of 42, 30, 25 and 20 years, respectively.
I submit therefore that what the mass of the public would be happy to hear from Parliament is something like this: "We intend to abolish capital punishment permanently. However, before we do so, we intend also to abolish the farce of so-called 'life' imprisonment for murder. In its place we shall provide judges with the power to impose determinate sentences, ranging from perhaps five years in the case of the genuine 'crime passionnel', to up to 30 to 40 years for ruthless armed bandits who kill, and for the killers of policemen and prison warders and so on. As far as release is concerned, there will no longer be any question of releasing them, albeit on licence, as soon as they are considered 1236 no longer a danger to the public: on the contrary, like a prisoner sentenced for any other offence, the maximum remission for good behaviour will be one-third. Additionally, if our penal system changes within the next few years so that prisoners are able to work full time and earn a proper wage, financial restitution paid to their victims' families may procure for them a slightly earlier release on parole; but that will be the limit of possible remission."
My Lords, I submit that such a course of action would not be a mere sop to public opinion, but sound common sense. If any of us were faced, which Heaven forbid! with the choice between a 30-year sentence and a life sentence, which one of us would not opt for the latter, in the hope that by displays of contrition and remorse, whether feigned or genuine, by good behaviour, or alternatively by hints of a mental breakdown, we should be able to persuade the tender-hearted authorities to release us within a very few years? An[...] that sort of hope must surely spring eternal in the breast of even the most calculating criminal.
I foresee two objections to this. The first concerns the fact that a life prisoner remains out on licence and is subject in certain circumstances to recall. As a layman I have never understood the logic of that, and I suspect that it is essentially a genuine sop to public opinion. After all, a man who shoots and kills is no more intrinsically dangerous than the man who shoots and wounds, or the man who shoots and misses—given that they all do so with murderous intent. Indeed, the latter, as a bad shot, is probably far more dangerous to innocent bystanders than the first man; yet there is no question of supervision after he leaves prison. However, if there really are good reasons for the licence system, there is absolutely no reason why it should not be linked in some way with the imposition of determinate sentences.
The second objection might be that power already exists under the 1965 Act for the court to suggest a minimum period of imprisonment within the "life sentence" framework. The trouble with this provision, both from the practical [...]nd—if you like—from the public relations point of view, is first, that the judge's recommendation can be entirely 1237 disregarded, and, secondly, that the clause requires judges to recommend the period of imprisonment in "net of remission" terms, to use financial parlance, instead of the nominal pre-remission terms to which most people are accustomed when they weigh one sentence against another. This requirement is a grave psychological bunder. Finally, there will be those who object that such a sentencing policy will require some prisoners to spend so long in prison that their "personality deteriorates", to use the common phrase when speaking of this.
Had I more time I could give many examples of men who had spent up to 33 years in prison, and who none the less emerged virtually unscathed in body and mind. It may be that a few long-term murderers, under a policy of long determinate sentences, would not be able to come through so unscathed. But bearing in mind the lives of innocent people that might otherwise be lost, I would suggest that this is the lesser of two evils. Indeed, such eminent penal reformers as Mr. Roy Jenkins have said, referring to "ruthless and savage killers":these dangerous men can have no expectation of release after a time like nine years. There may be some who are likely always to be a menace to society and whom it may never be possible to release.Mr. Louis Blom-Cooper has written that:The public is entitled to a guarantee that a life sentence never becomes an empty formula.and Mr. Giles Playfair has taken much the same line. I am heartened, too, by the support given by so many eminent legal figures, both in your Lordships' House and, more especially, in another place, to the idea of determinate sentences for murder, at the time when the 1965 Bill was being debated.
I hope that I may have been able to convince your Lordships that this is an issue where expediency and justice, instinct and reason, retribution and deterrence are, for once, all in alignment, pointing together towards the total desirability of substituting a determinate sentence for the sentence of life imprisonment. For that reason I tend to support the Amendment of the noble and learned Viscount, Lord Dilhorne, given that it will give Parliament more time both to 1238 consider the statistics of the last few years since the passing of the 1965 Act and any alternative sentencing policy that we may wish to debate and decide on. If, on the other hand, the Amendment of the noble Lord, Lord Brooke of Cumnor, is passed, and if by chance no decision is reached before July 31, 1970, the 1957 Act will once again become operative—I do see that—but I suggest that in such an instance the obvious course would be for the Home Secretary automatically to commute all death sentences to life imprisonment, pending Parliament's detailed consideration of whatever proposals may be put before it.
Another point must be made. It is not the case that if the Motion before the House to-day is passed unamended the "shadow of the gallows will be abolished from this land", as the Minister of State at the Home Office said in another place on Monday. I hope it is not making a petty point, but it is the case that the death penalty will remain on the Statute Book for the offences of arson in a Royal dockyard, treason, and for one or two other offences. Surely, if the death penalty is totally immoral, and is no deterrent, Parliament should be given the opportunity to make a proper job of it, by means of one all-embracing Bill to abolish [...]he death penalty for all offences for which it can now be imposed. This is surely one more reason why we should hesitate before passing this Motion unamended.
§ 9.45 p.m.
My Lords, as we have heard the debate progress this afternoon it has become increasingly obvious that, although there may be some, there can be few people in your Lordships' House who have not a fairly clear idea of whether they are in favour of or against the principle of capital punishment. Where the spectrum becomes less clear is when we start to discuss statistics and the significance of them, and when we start to discuss the alternatives to the complete and permanent abolition of the death penalty.
We have heard a great deal about figures to-day, and quite rightly, but however important the crime figures are—and they are very important—one will prove nothing with statistics. So long as this debate goes on within the Palace of 1239 Westminster and in the country at large, so long will statistics be produced. They are useful; they provide information; they can point trends; they can show what has happened; but they will prove nothing. Each side can produce statistics to fortify its own case, and each side, in turn, will believe that their statistics are an irrefutable argument for the support of their own point of view. Equally, each side is completely unimpressed by the figures which are produced in support of the opposing point of view. Or, to be a little more precise, even if people were impressed by the statistics of the opposing side, such statistics would only on very few occasions be responsible for making people change their views unless they were so striking as to make only one interpretation of them possible, which they are not.
My Lords, of course one accepts such information as is evidenced by these statistics for what it is worth, and for help in discussion, but they do not, and never will, provide the full answer. If one would dare to precipitate the issues surrounding such a complex situation as capital punishment, one might say that the whole nub of the question rests on whether this method of punishment is a deterrent or not. If it were proven beyond dispute that it was no deterrent at all, many people who advocate its retention would be prepared to see it, and willingly, dropped. But however hard either side tries, this will never be proven because statistics can only show how many crimes have taken place and, there-fore, when capital punishment as a deterrent has failed. They can never show how often the existence of capital punishment has successfully deterred a potential criminal from committing a murder, or, equally important, how often it has encouraged a potential criminal to leave his gun behind.
Therefore, in the end, a person's view or decision upon capital punishment is made up in his own mind with all the facts and the evidence that he can muster—statistical, moral, legal, theological, and even common sense. And in this computer and figure-conscious age a little bit of personal judgment is no bad thing! But such a decision, involving life and death—the principles and 1240 sanctity of it; the moral, religious and social aspects of it—is in the end a personal decision, and something which each person has to make for himself; and in this there is on either side and on any side no monopoly, I would suggest, of virtue, humanity, morality, compassion or understanding. These are shared, in differing proportions, by all. For my part, I am entirely satisfied that the existence of capital punishment deters at least some people from murder and from carrying the weapons of murder, and that it therefore has its own special and particular contribution to make towards the protection of society and towards the maintenance of law and order, both from the point of view of protection against murder and also against crimes of violence, such as shooting, which do not necessarily end in murder but which are becoming an ever-increasing and shaming spectacle of our society.
So also I am aware that others may and do take a totally opposing point of view. Such decisions though, my Lords, and the considerations which are involved to enable the individual to come to them, require people to delve deeply into their beliefs and attitudes and interpretations of the meanings and the questions of life and death and the significance of their own and others personal religious convictions. It is for this reason that I was immensely sorry that the Government should produce a Motion of this nature and should require, and indeed demand, Parliament to take a decision of this magnitude, and on this emotional and tender issue, within the very brief period of ten days.
There are few who do not know the sincere opinions of the noble and learned Lord who sits upon the Woolsack, and fewer still who would not respect him for them. Equally, there are few who do not know the opinions of the present Home Secretary on this matter, and who, even if they disagree with him, do not respect the sincerity with which he holds those views. But there are many who can have little respect for the manner in which the Home Secretary has rushed Parliament and the nation into accepting this measure in unnecessary and, I would respectfully suggest, undignified haste. By so doing he has given the appearance of disregarding those who 1241 hold views which do not accord with his. He appears to have shown a disregard for public opinion, if public [...]pinion polls are anything to go by, and I would be the first to say that Government should not be dictated to by public opinion polls although there would be few who would deny that they should be taken into account.
Public opinion may be only a factor, but Parliament disregards it, my Lords, at its peril, and the Home Secretary has shown a sense of urgency out of all proportion to the magnitude and delicacy of the subject; and it was not impressive to have last year's figures hurried out yesterday by the Home Office on the day the vote took place in another place. It gives but slight semblance of respect for the spirit of the present Act which was brought in for a trial period of five years. I have never held much brief for the view which said, "Let us have a trial period of five years without capital punishment and see what the crime figures then say", as if by some divine inspiration their tellings would be succinct and obvious. But I realise that there are some who feel that this was a reasonable thing to do, and it is clear that this is what Parliament intended.
For the reasons which I have given, I never expected that the statistics would give us a clear-cut answer, and that is all the more reason why Parliament and the nation should be able to consider and contemplate the full impact of their implications without undue haste. Nothing need have been done until next July. The Government decided to act seven months early but, worse than this, they demanded a decision within ten days. There would seem to be only one reason for this, and that is to get this electorally unattractive subject out of the light before the General Election; and I accept and appreciate the reasons for this. It is well known that according to the polls 84 per cent. of the general public want to retain some form of capital punishment, and that if the Government were to pursue this measure next July and to pass it then, even if it were on a free vote, it would be cast in the minds of the general public, rightly or wrongly, that it was the present Labour Government who did away with capital punishment. So to avoid this disadvantageous situation the Government have presented this 1242 measure to Parliament with all the authority of a Government measure a few days before Christmas.
§ LORD SORENSEN
My Lords, if that be so, would the noble Earl not agree that to secure a postponement of this matter until July might have some political advantage to his own side?
My Lords, I would not go the whole hog with the noble Lord on that. What I said was that I appreciated the reasons why there might be some who took the view that it would be desirable to get it out of the light before the General Election.
Whatever the rights and wrongs of the arguments on capital punishment, the tactics employed in the introduction of this measure will earn little respect in the country. I will support my noble friend's Amendment to-morrow because I believe that the existence of capital punishment deters people from committing murder. I believe that its removal has resulted, and will result, in those who commit or who are about to commit crimes being more likely to carry weapons. And if weapons are carried, it is more likely that they will be used, whether this ends in murder or not. I believe that it is imperative that society should have—indeed, it is doing its best to say that it wants—more protection for the law-abiding citizen and more respect for law and order.
For these reasons, my Lords, I am not in favour of the permanent abolition of the death penalty. But above all I shall support my noble friend because I do not think that Parliament has been accorded the respect and facilities due to it on such an important issue as this because of the haste with which approval for this measure has been sought and invited.
§ 9.57 p.m.
§ LORD CHORLEY
My Lords, I found myself not a little in agreement with the noble Earl, Lord Ferrers, during the earlier part of his speech. When he had written that part, he evidently said to himself, "My boy, you must remember that you are a Party politician and you must put in a good dose of pepper at this point." Then undoubtedly he proceeded on those lines during the later part of his speech. But, when he came to blame the Home Secretary for producing 1243 the 1969 statistics in the way he did, I thought the noble Earl carried his Party political bit too far. Every Tory paper in the country and all the leaders of the Tory Party have been bringing tremendous criticism to bear on the Home Secretary, and demanding that he should produce these statistics, because they thought they were going to make some capital out of it. When the figures came out, they saw that they blew up their case; and now the noble Lord blames the Home Secretary for producing those statistics at the last moment. That shows how far people are prepared to go in pushing their Party objectives in a debate of this kind. They ought to be kept out of it altogether. One can only come to a proper objective view of the matter on that sort of basis.
My Lords, will the noble Lord do me the courtesy of allowing me to explain one thing which I think he has got wrong? I was not blaming the Home Secretary for producing the figures but blaming him for producing the Motion in advance of the figures.
§ LORD CHORLEY
My Lords the noble Earl certainly gave the impression that he was castigating the Home Secretary for producing these figures at the last moment.
My Lords, I felt that I should like to take part in this debate because I have been very much engaged in the campaign for the abolition of capital punishment; and I do not for a moment pretend that I am not emotionally involved in this matter as quite a number of noble Lords who obviously were very much emotionally involved have been trying to persuade us that they were not. I have been involved ever since the 1920s, and in this House ever since the famous Criminal Justice Act of 1948. I felt therefore that I should like to take part, and indeed ought to take part, in this discussion today. I hope that this will prove to be the last battle in this long campaign because if the Motion of the noble and learned Lord on the Woolsack is carried tomorrow, then, as my noble friend Lady Birk said, in one of the refreshing and thoughtful speeches to which she often treats us, that will be the end of all this miserable business, 1244 and we shall be able to get down to the job of really trying to clear up the criminal position.
I hope not to take up too much of your Lordships' time. I will deal only with two or three matters in as quick a way as I can manage. First, I should like to say a word or two on the historical side. The noble and learned Lord gave us a good deal of the historical background of this matter, and on the occasion when the 1955 Bill was before your Lordships I devoted part of my speech to mentioning some of the earlier history. I referred particularly to the great work done by Mr. Roy Calvert in the years between the wars, and that remarkable book, Capital Punishment in the 20th Century, which I think more than anything else helped to build up informed opinion on this subject during that period. It undoubtedly led up to the [...]great effort by the late Mr. Sydney Silverman and his colleagues in the other place to get a clause abolishing, or rather suspending, capital punishment inserted into the Criminal Justice Bill while that measure was going through the other place.
I should like your Lordships to pay attention to this fact because it was in your Lordships' House—I remember the occasion only too well—that the noble and learned Lord who sat on the Woolsack at that time, the late Lord Jowitt, left to me the job of defending the clause under which capital punishment was suspended for five years; and I was unable to persuade more than a very small number of noble Lords to come into the Division Lobby with me at that time. I think that was a very unwise decision on the part of Members of your Lordships' House, because that would have been a particularly good time to make this experiment. In the years immediately following the passage of the 1948 Act the wave of violence which had immediately followed the war was ebbing. It ebbed for several years, and we were all very optimistic. Then, quite suddenly, the flow commenced again. Obviously, that would have been a much better time to judge the efficacy of the suspension of the death sentence than this last period of years during which there has been an increasing flow of crimes of violence which has made it extraordinarily difficult to judge the 1245 statistics in connection with murder, as has been apparent continuously during the debate this afternoon.
The clause in the 1948 Bill was largely the work of Mr. Sydney Silverman, whose name has not been much mentioned this afternoon. I should like on this occasion to pay tribute to his memory. In the whole of the legislative side of this great movement nobody did more than Sydney Silverman. Unfortunately, only within the last year or two, he passed away. I am sure that he passed away in the knowledge that probably his work in this connection had been successfully accomplished, and I hope that the result of your Lordships' Vote tomorrow will bear out that view. Certainly I shall have him in mind, because I was working closely with him, not only on this subject but on others also, and I came to have a very high opinion of his political sagacity and ability.
I mentioned some of these matters in my speech in 1956, and I do not want to go over too much of that ground tonight. I should, however, like to take up one or two points that have emerged during the course of the discussion, in particular to add a little to what was said by my noble friend Lady Wootton of Abinger on the subject of the permanence of the effect of a death sentence—permanent from both points of view: from the point of view of a well-known saying, "Death is so permanent", and from the point of view that if a mistake has been made (and my noble friend gave a number of instances where there is good reason to suppose that mistakes were made in the course of the trials of a number of men alleged to have committed murder) there is no way of putting it right. However terrible it may be to give a long period of imprisonment, if while the man is in prison new evidence turns up which shows that he is innocent, then redress is still possible; but if he has been "hanged by the neck until he is dead", in the words of the sentence under the old law, there is nothing more that can be done about it.
My noble friend mentioned one case of a murderer who had made good and had afterwards done a tremendous amount of valuable work in the world. That was in America, under a system where it is possible for him to be released. This is not by any means a unique case. 1246 When I was dealing with the Criminal Justice Bill in your Lordships' House in 1948 I mentioned a case in Belgium. Belgium in effect have had the suspended death sentence since about 1870. They still have a Statute under which the death penalty exists, but it has not been applied for a hundred years. After the First World War there were a number of bad murders which gave rise to attempts by a similar type of public opinion to bring pressure to bear on the Government to reactivate the old law. That was resisted by a great social democratic Minister, and eventually the public uproar died away and there was a return to normal.
All this was largely due to a number of murders—I am sure that the noble Lord Lord Molson would say that they were the sort of murders which called for the retributive punishment for which he asked. One of these cases concerned a young man who had killed more than one person in connection with a series of raids on farmhouses, mainly for the purpose of obtaining food during the time of famine after the war. I remember meeting one of the prison commissioners from Belgium who gave me the subsequent history of this young man, who became a model prisoner and was eventually allowed out on parole and became an outstanding citizen in his native town, the owner of a large garage. I am not sure, indeed, that he did not become mayor of the town and a philanthropist, much on the same lines as the man about whom my noble friend Lady Wootton of Abinger told us.
My Lords, one of the extraordinary things about murderers is that on the whole they are the best prisoners. Prison warders will tell you that the average murderer is a very good prisoner. No doubt a number of really bad ones are very bad indeed; but on the whole the murderer makes a good prisoner, and I think there is a great deal to be said for respiting his sentence fairly quickly when we are satisfied that he is a reformed character. But the difficulty about doing anything of this kind is that the Press immediately turn on it, and we see headlines such as, "Murderer released after only nine years". Then the Gallup pollsters get to work. It is difficult for an enlightened and humane policy to be carried out under this sort of pressure. And this is the sort of pressure which 1247 the Press, and Members of your Lordships' House this afternoon, have been trying to bring to bear upon us.
It started this afternoon with the speech of the noble Marquess, Lord Salisbury. I have always noticed that in this sort of case, where your Lordships are being asked to reverse some decision taken in the Commons, there is always some rather superior, overriding kind of sanctity of public opinion on which your Lordships can be asked to rely in a struggle with the Commons who, after all, are elected by the people. I think this is a dangerous doctrine, and I have said so before. I agree with what the noble Lord, Lord Goodman, said about this type of attempt to bring in public opinion on matters which are highly complicated and very difficult.
The noble Lord, Lord Goodman, referred to the Report of the Royal Commission. He might also have referred to a letter, signed by almost every well-known criminologist in England, which appeared in The Times two or three days ago. Yet we are asked to put against such a letter the sort of answers to questions which the Gallup pollster gets going around the countryside. It is quite absurd. And I deny that that sort of thing is democracy. It is a pseudo-democracy. Democracy is concerned with the broad issues of politics. This is a highly technical and complicated problem of penology. It is altogether wrong to ask, in the name of democracy, for public opinion to be allowed to sway decisions in this way. It always happens (and this will be my last thought in this evening's debate) when your Lordships are being asked to take this dangerous course of disagreeing with the other place. Last night, the other place decisively decided that the time had come when capital punishment in this country should be abolished, the Leaders of all the Parties going into the Division Lobby in support of that decision. Yet we here today are being asked to reverse it. I hope your Lordships will say that that ought not to be so, and on this occasion will take the path of wisdom.
§ 10.13 p.m.
§ LORD MACPHERSON OF DRUMOCHTER
My Lords, although most of the points that I wished to make have already been most eloquently 1248 expressed by previous speakers, I consider them to be of importance and I must repeat some of them, particularly those quietly given to us this evening by the noble Lord, Lord Molson. In 1965, Parliament in her wisdom suspended the 1957 Homicide Act for five years. During the debate on the Bill it was understood that figures and reports would be studied at the end of this period, and that a final decision would then be taken. What has happened suddenly to change the position? I can only assume (and I say this with regret) that the present Government wish to rush this important issue through Parliament in the hope that it will be half-forgotten and will not be a major Election issue.
Here I must with deference disagree with the noble Lord, Lord Chorley. Why should not this issue be raised and discussed by the people whom Parliament are supposed to represent? I do not believe that the majority of people in this country have not sufficient intelligence to formulate a sound opinion in this matter. Is Parliament saying, once again, "We know what is best for the country; the opinion of the electorate is of no consequence"? That to me is a very dangerous trend. I do not understand how that attitude can be maintained, despite the arguments of the noble Lord, Lord Goodman, and the noble Lord, Lord Chorley. I do not understand how we can maintain ourselves as a democracy. I am not suggesting government by referenda or opinion polls, as obviously the Government of the day cannot be expected to alter policies to follow fickle public opinion. But it is much more than this. We are nearing the end of the life of the present Parliament and a vast majority of people in the country is deeply concerned about this problem, and wants consideration given to the question of the reintroduction of capital punishment for certain cases, or at least for the whole issue to be discussed in the light of all the statistics and reports.
One point I have not heard made today is that most of us were expecting this subject to be discussed in six months' time and, therefore, had not seen all the papers that we intended to see. This snap decision, when most of us would have liked to develop certain arguments and examined certain possibilities, is an 1249 unreasonable one. There is, rightly, public alarm at the cases of robbery and thuggery, and I believe that there has been an increase in this category of murder since 1965. Only yesterday three police officers were held up by two men with sawn-off shot-guns, and had their patrol car stolen. At least we should consider some measure of protection for the police and prison officers who are risking their lives daily on our behalf. The police, who have to deal with these dreadful people, have made out a strong case for the retention of capital punishment, as have the prison officers, who also have to contend with these dangerous men. These are the people who know the problem from the practical side. Are we right to ignore their recommendations completely before we have had time to consider all the views and reports and. by far the most important point, before alternatives to the death penalty have been worked out and put forward?
§ 10.18 p.m.
§ LORD SORENSEN
My Lords, I am quite sure that at, for this House, this relatively late hour, those who are present, and who have been present during the day, have already made up their minds and will not be swayed one way or the other by what I might call, to avoid any vulgarity, an abdominal surfeit of statistics or, on the other hand, any further moral, emotional or theological pleas. Those of us who are speaking late at night are doing so, I suppose, merely to satisfy ourselves. That is certainly so in my case, because strangely enough I have never spoken on this issue in this House, in the other House or on the platform outside during the whole of my life, except maybe by way of implication. It is a matter which deeply concerns me and the whole outlook on life which I happen to possess.
I am indeed glad that the Motion has been put down by the noble and learned Lord the Lord Chancellor this evening so that we may deal with this serious matter rather than allow it to become a political diversion in the days to come. Reference was made earlier today by the noble Lord, Lord Brooke of Cumnor, and again by the noble Lord who spoke just now, insinuating that there had been rushing tactics on the part of the Government; that we have brought this matter forward now, instead of leaving it until 1250 July, in order to avoid possible political disadvantage. But I have already intervened by suggesting to the noble Earl, Lord Ferrers, that possibly it is not altogether absent from the minds of those who oppose this Motion that if only this issue could be delayed for a few more months, then there would be some advantage to the Conservative Party. For, obviously, when the Election comes it would be possible for Conservative candidates and others to say, "Well, certainly, some thirty or so of us in the House of Commons supported the Labour Government issue; but most of us abstained, or at least tried to delay the whole matter, so we are not as bad as the other side "—thus hoping to gain some political advantage thereby. I am not suggesting that that is the dominating motive in the minds of noble Lords who have spoken here tonight. I simply suggest that, if one is going to impute motives of the kind that the noble Earl and others have imputed to the Government, then it is just as possible to reverse the practice.
In any case, reference has been made many times today to the alleged 80 per cent. or more of the people of this country who support the return of capital punishment. I have no doubt that this is so—though what they mean by "the return of capital punishment" is by no means clear. I dare say that a proportion of the 80 per cent. who want a return of capital punishment would also be somewhat in favour of a return of public execution and of torture. At one time, that indeed was quite popular and well supported. There are many who are so seized with quite understandable vindictiveness against what, rightly, they judge to be a foul crime that they do not want merely to see an eye for an eye, but two eyes for one eye and two teeth, in fact all the dent ures, for one tooth. And they would favour not merely judicial judgment in these matters—hanging—but also some means of inflicting prolonged pain and suffering upon the person who has committed the crime. I understand this quite well because it is part of human nature. All of us are capable within ourselves of being extremely vindictive.
I certainly would not deny that, on occasion, I myself have been seized with a murderous impulse. Sometimes we express it; and in some circumstances it would be excusable—as when, for 1251 stance, we see some dreadful crime being enacted in which we are temporarily involved. The natural reaction on that occasion would be to use all the force at our command to try to destroy the other person, the culprit. That is altogether different from, on the other hand, judicially deciding that on a certain date a person's life shall be taken from him.
I can anticipate later remarks by saying this. Other Members of this House have considered these matters from various aspects, but I come back to a very simple principle. It is this. I have had to ask myself (and no doubt noble Lords elswhere have asked the same question of themselves): Supposing one of one's own family—one's wife or child, one of one's kinsfolk or a dear friend—was murdered. Would we really wish, in those circumstances, that the murderer himself should be destroyed? Some undoubtedly would. Many would desire it for a while, but on reflection they would say, "No". All I can say—and I assure noble Lords that I say it without any suggestion that I am morally superior to anyone else; it is simply the way I happen to be made—is that the cumulative effect of all my reflections on life, and my little reading of religion and morality, of history and philosophy, lead me to the conclusion that I would not wish for, or sanction, the execution of a person who murdered even my own wife.
This attitude is not exceptional. I remember talking to Otto Frank in the Tea-Room in this House some months ago. He is the father of Ann Frank, about whom no doubt we have all read in her very moving Diary. It tells the story of how she and her family for many months hid in the top part of a house in Amsterdam until betrayed, and then of course they were taken to concentration camps, including Otto Frank himself. He suffered grievously, and I said to him, "Otto, what did you feel about these brutish jailers?" He said, "At first I loathed them "—he was a Jew, by the way. He reflected, and he said, "I realised in the end that that would do no good to me and no good to them. The more I loathed them, the more loathesome they would become, and therefore I must try to think of some element in their nature of a different type 1252 than that which they displayed. In the end, I realised that one had wonderful teeth and another had very delicate hands, so every time I wanted to loathe them I thought of those qualities ". That is a simple story, but it enabled him to overcome his natural reaction to loathe and to hate these brutish people.
Surely, in some measure the same operation has gone on in this country through the years. As I have said, time was, as we all know, when we sanctioned public hanging; rejoiced in it, as they do still in some parts of the world. I was in that barbaric country, the Yemen, some few years ago. I have photographs of public executions that took place several times a week as a kind of appetiser for the then Imam. No wonder they told me that, because of these frequent executions and the amputations of hands and feet for theft, there was no crime. In large measure that was true, and I do not deny that in some circumstances that kind of punishment can be a deterrent. But it did not prevent three attempted assassinations on the Imam; it did not prevent what I discovered underneath the surface—subterranean fires waiting to burst out, as ultimately they did. It did not diminish the barbaric atmosphere of that country one whit. I use that as an analogy.
If we were to return to some of the methods which previously we sanctioned—methods of barbarism and torture—then indeed the whole of our lives would become degraded and would deteriorate. We should suffer certain moral abasement. As I see it, what we are trying to do by seeing that, once and for all, so far as we can make it, capital punishment becomes a relic of the past, is to register one small step in the development of the moral conscience of this country, in the hope that it will somehow influence the whole world.
I think all of us are heartened by the fact that in the course of time gradually we have more and more begun to restrain the natural impulses that can possess us. The fact, for instance, that we now discriminate between different kinds of capital crime is one indication, for there are some, I know, including at least one Member of the other House, who would not discriminate at all but would automatically destroy all murderers. We insist on discrimination. Not only that, but we insist that we cannot take the 1253 law into our own hands, as they do still in some parts of the world. Personal vendetta is illegal. We say, "No, you must allow this to be objectively decided by judicial representatives", which means restraint upon the impulses. Then of course it means that by the practice of rehabilitation, by more and more trying to find out how we can come to the causes of pathological disease of all kinds, we are thus again restraining in some measure the natural impulse to wipe out, to obliterate, those who offend us or society.
One has to ask oneself again and again, why is it that we want to retain this? Why, among the 80 per cent., do we still want capital punishment, either by hanging, electrocution, asphyxiation or any other method? I quite agree with the noble Lord, Lord Salter, that there are other methods besides hanging. I was in America some years ago and was taken over a large penitentiary, which I understand is Americanese for "gaol" and there, in the end, after talking to the inmates, the Governor (there called a "Warden") asked whether I would like to see the death cell. I went to the electrocution shed and I saw the electric chair. I saw a cat snoozing quietly on it, and all those who had been electrocuted had their photographs hanging all round. The Governor said to me, "I detest capital punishment. I do not believe in it, and I have a list of 19 still to do." We know that in America, State differs from State; in some States there is no capital punishment at all, in others electrocution, others asphyxiation, and I think one or two retain hanging. Why was it retained at all? It was retained for the same reason that some people in this country wish to retain it, because violence is in the air. Thank heavens our country is, relatively speaking, far less violent than America.
I am not attacking America; it has many great qualities. I have been there many times and I admire and appreciate its many fine qualities. But it is a violent community; the assassinations of eminent people demonstrate that. Because there is violence in the air, violence is still sanctioned for the punishment of criminals. Because we are less violent—and let us not preen ourselves self-righteously about that—we have con 1254 sidered this matter urbanely in the other place and we are considering it here tonight.
What I have said about my own personal decision will, I am quite sure, be in the end the personal decision of the great majority of people in this country. It is merely a question of time. Just as three or four hundred years ago much that we do today was looked on as sentimental nonsense, just as we have moved away from the simple principle of an and now recognise responsibility not merely to the victim but also to the culprit, just as more and more today we are realising that we must discriminate between different kinds of crime, so also in the course of time we shall realise in this country and take for granted that many things we have sanctioned heretofore are no longer compatible with a civilised society.
I know it is possible to think of alternative methods of capital punishment other than hanging. One could, so to speak, modernise the method, bring it up to date, make it nicer, more xsthetic. But still the principle remains: do we believe that in the long run our society in this country and in the end the whole of mankind, which we can influence and have influenced, is going to help society by retaining this relic of the past? Or do we believe, on the other hand, that a contribution to human maturity and dignity can be made by saying that although we must try to deter the criminal, although we must certainly not be soft and sentimental and ignore the heinousness of his crime, nevertheless this sort of method merely increases the violence in society? Because I believe it does, because I believe that we have reached a stage in British history when, after preliminaries, we can now say that we know, broadly speaking, the facts, we can therefore say that this shall be expunged from our society. Although we are still confronted with many problems and have to deal with them in a civilised way, nevertheless, because we have removed this form of legalised violence, we have contributed in some measure, not only to our own country's quality but to the quality of the human race.
§ 10.34 p.m.
§ LORD TAYLOR OF GRYFE
My Lords, I suppose it would be unwise at 1255 this late hour to assume that we should be able to convert any doubters, and any who are still searching for the truth, to a particular point of view. Probably the most we can hope to achieve is to testify as individuals to that which we believe to be right and to be good. It is difficult at this late hour to produce new evidence, new facts or new arguments, but in searching for the rightness of decision in this matter I was impressed and influenced by a letter which appeared in the Guardian on October 16 from the pen of Dr. Field, of the Metropolitan Hospital, whose professional work has for some years included the carrying out of detailed examinations of men who have killed fellow human beings. These examinations took place after conviction and sentence, and were not made on behalf of either the Crown or the defence.
The doctor outlined the numerous cases that he had to examine, and he said:One fact clearly emerges, namely, that in not one of the men examined could it be said with any certainty that the knowledge that they might hang would have influenced the act of killing. In no case has these been anything to suggest that at any time prior to the commission of the offence the foresight of the consequence of the action acted on the mind of the offender.This, in my view, is reasonable evidence against the proposition that the knowledge of the death penalty acts as a major deterrent to the potential criminal.
As I say, it is difficult to introduce new arguments, but listening to the debate this afternoon it occurred to me that there were five major headings which would lead reasonable people to support the continued abolition of the death penalty. The first, as has been mentioned by many speakers this afternoon, is that if an error turns out to have been made, the sentence cannot be reversed. Secondly, it often places on the conscience of public servants an unjust burden. Third, retribution is valueless. Fourth, there is in fact no evidence that capital punishment deters. Fifth, the implementation of a sentence of death is debasing to those who carry it out. It occurs to me that in the course of the debate today those five propositions have been established and are not capable of contradiction.
1256 I confess that this is a difficult decision, and the question whether to support abolition or delay is one about which all your Lordships have searched your consciences and tried to arrive at the truth. I personally have listened to the lively discussions and debates on television; I have read Hansard of yesterday; I have listened to a good part of the debate in your Lordships' House today, and I am encouraged by the fact that at this time, when there is so much violence over Biafra, Vietnam and so on, the British people are deeply concerned about doing right in this particular issue, which affects, in a sense, relatively few lives. It is to the credit of the British people that we have sensitivity in these moral issues. As I say. it is a difficult decision to make and, if I may say so, I am impressed and encouraged by the decision of the Leader of the Opposition in the House of Commons yesterday when he went into the Lobby to support the abolitionists. I hope that that courage, that sense of moral courage displayed by Mr. Heath, may be followed by many others on the other Benches in the House of Lords.
I have listened to the debates here and have tried to arrive at a reasoned, rational judgment. My searchings in this regard have not been confined to the television cameras, or to the debates in your Lordships' House and in the House of Commons. Last Sunday I attended a meeting for Christian worship, and it was borne in on me at that meeting that the whole of the Christian faith rested on the reverence for human life. I believe that that is fundamental and implicit in the Christian faith, and that we have no moral right to take life. I believe, in fact, that we imitate the crime we condemn if we assume such responsibility.
I think the noble Earl, Lord Longford, said this afternoon that the Christian faith rests on a belief that man may be redeemed. I believe that to be true, and that there is something of God in every man. I believe there is a divine spark in human beings—and it is this belief which encourages the Christian promise that evil can be overcome by good. To support capital punishment and the taking of life by the State, or to put the responsibility in the hands of the Home 1257 Secretary so to decide, would be at variance with my view of Christian righteousness. I do not consider that this is a sentimental view: I think it is a fundamental view. And it is this faith which makes the statistics argument and the timetable argument quite irrelevant. I believe that this House has to make a moral judgment in this matter to-morrow, and I sincerely hope that the moral judgment it makes will support the abolition of capital punishment.
EARL ST. ALDWYN
My Lords, on behalf of my noble friend Lord Jellicoe, I beg to move that the debate be now adjourned until to-morrow.
§ Moved, That the debate be adjourned until to-morrow.—(Earl St. Aldwyn.)
§ On Question, Motion agreed to, and debate adjourned accordingly.
§ House adjourned at eighteen minutes before eleven o'clock.