§ 2.18 p.m.
§ Debate resumed on the Motion moved yesterday by The Lord Chancellor (Lord Gardiner):
§ to which Amendments had been tabled by Lord Brooke of Cumnor:
§ "Leave out all words after '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.'"1265
§ and by Viscount Dilhorne:
§ "Leave out all words after 'expire' and insert 'until the thirty-first day of July 1973.'"
My Lords, in rising to resume our discussion on the Resolution before us, I should like first of all to join with my noble friend Lord Brooke of Cumnor and the noble and learned Viscount, Lord Dilhorne, in thanking the noble Lord the Leader of the House for the accommodation which he showed in ordering the procedural arrangements for this debate. Those arrangements have, I believe, facilitated an orderly discussion. They led, by design, to a long debate yesterday; equally they were designed to produce a short debate to-day and a relatively early decision one way or the other. It is not my intention to impair that design by making a long speech. Most of what can be said on the issues before us at the present time has already been said, and it has been stated, in my opinion, all the better for having been stated with a studied avoidance of emotional overtones. Nevertheless, I feel that I should, albeit briefly, state where I stand.
I recall that when the noble and learned Lord on the Woolsack spoke on the Second Reading of the 1965 Act he told us that the Government had left the matter to a free vote, while at the same time making it clear what their own view was. For my part, I should like to make it crystal clear from the outset that my noble friend Lord St. Aldwyn has left this matter, for our part, to a free vote, or perhaps I should say free votes, this evening. If ever there was a matter for individual judgment and individual conscience, this is it; and your Lordships will vote as your judgments and your consciences individually dictate. Nevertheless, I feel compelled to indicate where, for what it is worth, I personally stand.
My Lords, we have, as I see it, to exercise our judgment this afternoon on two rather different types of issue. The first is the basic issue: do we, at the end of the road, and after, on some of our parts, perhaps, much agonising, come down for or against abolition? The second is an issue primarily of method. How best do we arrive at our conclusion? It is to that issue, the issue of method, that 1266 the Amendments which stand in the names of my noble friend Lord Brooke and the noble and learned Viscount, Lord Dilhorne, are primarily addressed. I made my own position clear in our debate in July four years ago. I termed myself an abolitionist, and I voted in favour of the Second Reading of the Murder (Abolition of Death Penalty) Bill. I was an abolitionist in principle then, and I remain an abolitionist in principle now. I voted in favour then, and should we be asked to take a decision on the basic issue, yea or nay, this evening, I would again vote in favour.
My views—and these are my personal views—rest on four counts. They are (and I have mentioned this before) the reasons adduced by the late Lord Templewood in the evidence which he gave to a Royal Commission two decades or so ago. The four reasons for objecting to capital punishment stated by that former Home Secretary were, to quote his words, as follows:First, because it abandons the possibility of reforming the prisoner; second, because by being irrevocable, it gives no opportunity of reversing a wrong decision; third, because it places a hateful duty upon all who have to take part in an execution; and, fourth, because it lowers the moral standards of the whole community.My Lords, I cannot possibly state my own personal position on the basic issue, my instinctive position, better than the late Lord Templewood has done it for me. For me, as for many of us, the deliberate and dispassionate taking of human life by the State in cold blood and in peace time is deeply repugnant and deeply revolting.
In addition, I find myself—and I believe this is an opinion shared by almost every Member of your Lordships' House, if not by every Member of your Lordships' House; and it certainly could not have been stated with greater force than it was by my noble friend Lord Brooke in his notable speech yesterday —absolutely and unequivocally opposed to the pre-1965 position; the position in which, with the best of intentions, we landed ourselves with the Homicide Act 1957. Yesterday the noble and learned Lord on the Woolsack reminded us that in our debate four years ago the noble and learned Lord, Lord Parker, flatly stated that the judges were "quite disgusted" with the results and anomalies 1267 produced by the Homicide Act 1957; and whatever else we do, my Lords, I am sure that I am speaking for virtually everyone in your Lordships' House in making it plain that we would prefer almost anything to a return to the pre-1965 position. I would even hazard a guess that the vast majority of out-and-out retentionists would prefer abolition to that.
If, therefore, the only choice before us this afternoon were a clear-cut choice between a return to the Act of 1957 or abolition until such time as Parliament might otherwise determine—because Parliament is sovereign; if those were the sole options, I would have no doubt where my own vote would go. Of course, we have been urged these last few days to believe that that is the only choice before us. Many of us, for example, found a "round robin" awaiting us at home last weekend signed by a number of distinguished and respected Members of your Lordships' House, among whom happened to figure a number of close personal friends of mine. In that letter it was suggested that there were in fact only two options before Parliament and before us at present: either the return, the intolerable return, to the Homicide Act 1957 or final abolition. And, of course, it is not only in that letter that this suggestion has been made. The noble and learned Lord on the Woolsack has implied, and a number of noble Lords flatly asserted yesterday, that if your Lordships were either to pass the Brooke Amendment or the Dilhorne Amendment the consequence, willy nilly, would be a return to that Homicide Act, which none of us wants back.
My Lords, I hold that that implication and those assertions are simply not true. If your Lordships were to accept my noble friend Lord Brooke's Amendment, there would be ample time, as he pointed out in his speech yesterday, for your Lordships to consider in the early summer, well in advance of that fatal July 31 date line, a Resolution similar to that now before us. Moreover, again as my noble friend made clear, there is nothing in our rules of procedure to inhibit us from so doing. Alternatively, as the noble and learned Viscount, Lord Dilhorne, made clear, if your Lordships were to prefer and to accept his Amendment, the Government, if they were so 1268 minded, could regularise the position with ease and with despatch as between the two Houses, and in terms of that fatal deadline, by the passage of a very short and very simple little Bill. The fact of the matter, my Lords, is that between the two extremes (if I may so term them) of a return to 1957, which none desires, or absolute abolition, which many oppose, there lies a third option: further time for research and reflection, which many might well prefer. That is the option offered to us and to Parliament by the two Amendments now before us, and it is to those Amendments which I should now like to turn.
My Lords, I myself strongly hold that there is a great deal to be said for allowing ourselves, allowing Parliament as a whole, and indeed allowing public opinion, a further period for research and reflection on these grave issues. I stated just now that I am personally, in principle, an abolitionist, and so I am; but I stated in our debate four years ago that I was a moderate abolitionist, and so I am. By "moderate" in this sense I mean simply this. There are those who feel—and no figures can shake them, and I respect their sincerity—that for those who take life the ultimate penalty must be death. There are also those who feel—and no figures can shake them, and again I respect their sincerity —that for the State deliberately to take another man's life is such a grievous wrong that it can in no circumstances be contemplated. My whole predilection is against the death penalty; but, my Lords, were figures to show beyond a shadow of doubt that for some, perhaps in special cases, the shadow of the gallows is in fact the supreme deterrent to the taking of an innocent life, then I would feel compelled to rethink my position.
I have seen no statistics as yet which would cause me thus to change my position—and the message from cold statistics would have to be a very clear one indeed to make me do so. But I would not arrogate to myself the claim that no figures, no time, would cause me in any circumstances to shift. Moreover, there is one trend in our times which I, like others, find deeply disturbing—that surge within our society, a surge which we share, unhappily, with almost all other modern industrialised nations, that surge towards a swelling increase in violent crime. 1269 I was very struck by the speech of the right reverend Prelate, the Bishop of Durham, on this topic yesterday. He called, if I recall it, not only for more study of the roots of violent crime but also for more study of the penalties for crimes of violence. I echo his plea. I was glad to see the steps that were announced by the Home Secretary in another place and, parenthetically, I was very glad to see the well-deserved tribute that he paid in another place two days ago to my noble friend Lord Brooke and his tenure as Home Secretary. Nevertheless, when the right reverend Prelate was speaking I could not help ruefully reflecting that had not the Government wound up the Royal Commission under my noble friend Lord Amory, which was set up by my noble friend Lord Brooke when he was Mr. Henry Brooke, we might well be now provided with a deep study not only of the causes but also of the possible remedies and penalties for crimes of violence.
Be that as it may, there is only too little lack of doubt about the trend itself. We have all seen the Home Office statistics about the increase in violent crimes. Many of us recall that this increase is accompanied by an increase in the carrying of firearms by professional criminals. In his Report for 1968—and this was mentioned by my right honourable friend Mr. Hogg in the debate in another place two days ago—the Commissioner of the Metropolitan Police stated; and I quote:There was a rise of 17 per cent. in the number of indictable crimes in which firearms were used, but in the case of robberies or assaults with intent to rob the increase was 31 per cent.It is also worth noting in this context a pregnant sentence in the Blom-Cooper/ Morris Report which I quote:Only in one respect have homicidal offences followed the general crime pattern and that is in the matter of killings arising in course or furtherance of theft.I would straight away say that the causal link is far from clear to me; and to anybody who looks at them there is much here, as elsewhere in the statistics, which is unclear and maybe cannot be provable. But it is at least arguable, and abolitionists like me as well as retentionists should face this squarely, that the death penalty may be a deterrent for the rational professional criminal contemplating a crime which may involve 1270 violence. Here, if nowhere else, I would welcome a period for further research and study. I should personally be rather surprised to find this causal connection proved; and I should be only too glad if that causal connection were not proved. But if I, as an abolitionist, feel this, how much more so are the retentionists (who, after all, are, it would seem, the majority in our country to-day) likely to feel the same?
My Lords, the Brooke Amendment—if I may term it so for shorthand purposes —would win us, with some ease, some further months for further research and further study and further reflection. Personally, I found the arguments for that Amendment compelling. It is quite clear to me that it corresponds more closely to the intentions of Parliament four years ago than the Government's precipitate Resolution to-day. Clearly, Parliament was thinking in terms of a five-year trial period or something very close to it. Indeed, at our Committee stage four years ago the noble and learned Lord the Lord Chancellor kept referring to a five-year period. In any event, I feel it quite wrong, on a matter of such complexity and one which touches so many individuals so deeply, that any of us should, without good and compelling reason, be rushed to a decision. Furthermore, if we were to take this Resolution again, as my noble friend's Amendment implies, in the early summer, well ahead of the fatal July dateline, this would at least afford an opportunity for a further refinement of the crude 1969 statistics which we now have available.
Nevertheless, I sensed in our discussion yesterday that many of us who incline towards a pause before any irrevocable decision is taken feel that the period between now and early summer is too short a one. I also sense the view that a debate on a similar Resolution in early summer could in some circumstances become something of a rehash of the long discussion on which we have been engaged yesterday and to-day. My noble friend Lord Brooke tells me that in the light of the course of yesterday's debate he has come to the view that your Lordships might more appropriately wish to vote on the Amendment which stands in the name of the noble and learned Viscount, Lord Dilhorne. I must confess that if we really desire a pause for further reflection it might be wiser to opt 1271 for the longer period—until the end of July, 1973—envisaged in the Dilhorne Amendment.
There is, of course, respectable backing for this extended period, and by praying in aid other respectable witnesses I am in no wise casting any reflection on the respectability of the noble and learned Viscount. There was the support which the noble and learned Lord on the Woolsack himself gave to this view when at the Committee stage in July four years ago he said:I am not myself satisfied that a five-year period is really long enough to judge, and I should personally have preferred a ten-year period."—[OFFICIAL REPORT, 27/7/65; col. 1252.]There is, too, the clear judgment in the Blom-Cooper/Morris Report when they state:We are very conscious of the fact that this is too short a time upon which to draw any firm conclusions one way or the other.My Lords, the further period envisaged by the noble and learned Viscount might well throw up facts upon which, whatever our standpoint on the basic issue may be, we may all be able to base a more considered judgment—not least, and perhaps specially, upon whether the death penalty can be held a deterrent to violent crime and to the murder of innocent people in the course of violent crime by professional criminals. That is one consideration which inclines me to support the Amendment of the noble and learned Viscount. Another equally compelling consideration is public opinion. I share the view of others that it is the duty of Parliament to lead rather than to follow public opinion, and I readily grant that there are certain matters on which it may be easier for us, the unelected House, to lead rather than for those in another place who have to run the gauntlet of their constituents.
But although I hold this to be true, I feel at the same time that we must all be on our guard when the gulf between Parliament and general opinion becomes great. That is certainly true on this issue at the present time. I do plead with noble Lords, especially noble Lords who are abolitionists, to pause and at least consider whether abolition is not less likely to stick; and whether we are not likely to render Parliament and Parliamentarians more exposed to a backlash 1272 of public opinion if we at this stage entirely ignore the deep expression of opinion deeply and sincerely held in the country as a whole. All in all, I can see considerable advantage in the course implicit in my noble and learned friend's Amendment. I really cannot see any deep objection to it. In dealing with this matter in his very fair speech yesterday, the noble and learned Lord the Lord Chancellor read out a whole host of extracts from a whole host of Acts of Parliament designed to prove that the noble Lord's Amendment would not bite on the Act of 1965. I shall leave the legal arguments to the legal experts. Be that as it may, the Lord Chancellor's argument seemed entirely to miss the simple point that even if his legal contention were accepted, the position as between the Houses, and in the context of the 1965 Act, could be regularised by a simple and short Bill.
The Government may, of course, seek to argue that it would be difficult to fit such a Bill into their programme of legislation. My Lords, if they so argued, I would find that a difficult argument to accept. A Bill of the sort envisaged by my noble friend would take a minimum of Parliamentary time. I would grant that the Government's legislative shop window is so full of electoral "goodies" that it may be a bit crammed. But surely, pace the noble Lord, Lord Wilson of Langside, the short but important Bill which I envisage could possibly replace the Bill, important though it may be, to reform certain features of the feudal system of land tenure in Scotland.
In any event, my Lords, it would seem that a Bill of this sort should have an easy ride through Parliament. I would remind your Lordships that in his speech in another place two days ago, my right honourable friend Mr. Hogg explicitly assured the Government that they would have his complete support in proposing whatever measures they might wish to put forward in support of a proposal along these lines. I would remind noble Lords that the noble and learned Viscount, Lord Dilhorne, has also indicated his support for such a measure, and I should be glad to reiterate that such 1273 a Bill would receive the support and endorsement of the Opposition Front Bench.
My Lords, I hope that, at not too great length, I have made my personal standing as an abolitionist perfectly plain. Again I repeat that if we come to a vote on the basic issue, yea or nay, this evening, I shall vote for the Lord Chancellor's Resolution. That said, may I add that I sincerely believe that the course of prudence, and one of perfect propriety would have been for the Government, in the first place, to have sought to extend the five-year period in the way in which I have been suggesting. I strongly suggest that this would still be the course of prudence. It would be the safest and surest way for Parliament to make certain that, in so far as this issue is an electoral "time bomb", that bomb is defused. For those reasons, my Lords, should the noble and learned Viscount, Lord Dilhorne, press his Amendment to a division, I would support him in the Division Lobby.
§ 2.44 p.m.
§ THE LORD PRIVY SEAL (LORD SHACKLETON)
My Lords, I, too, was about to express my appreciation again to the noble and learned Viscount, Lord Dilhorne, and the noble Lord, Lord Brooke of Cumnor, for so conveniently not seeking to move their Amendments early in the debate. I now understand that the noble Lord, Lord Brooke, had a certain caution as to whether his Amendment was a runner. I must say that when the Government are accused, as they are sometimes, of springing things on the House it is a little strange (though I must acknowledge that the noble Earl, Lord Jellicoe, had given me a sort of gipsy's warning about the Amendment's not actually running) for those of us about to debate these crucial issues suddenly to find one of the pieces removed from the board entirely. It adds to the confusion already injected by the Amendment into what should be a straight debate on the issue of capital punishment.
There have been accusations that the Government have, somehow, indulged in sharp practice; and these accusations have overlain our discussion. I shall seek to deal with these, and I shall seek to explain why it was that the Govern- 1274 went had to pursue the course they did. As I say, these suggestions have tended to overlay the major issue of whether or not we should to-day take a decision on the future of capital punishment. In another place, they seem to have managed things rather better. They succeeded in bringing the issue straightforwardly before the House. They got their bit of rather unconvincing Party politics with the Vote of Censure.
Let me make clear to noble Lords opposite that I am not seeking to introduce Party politics into this debate. They went very heavily that way in the Commons, but I know that noble Lords are anxious to avoid that to-day. Nevertheless, I regret that we are confronted with a situation where, thanks to this Amendment, we shall not be able to come to a clear-cut decision, as they have done in another place. There, many honourable Members, including Mr. Heath and Mr. Macleod—indifferent, apparently, to the public opinion to which the noble Earl, Lord Jellicoe, attaches such importance—were prepared to go ahead and take a firm decision.
My Lords, I confess that I had not expected that in this House an Amendment would be moved officially on behalf of the Conservative Front Bench; and in a most curious way my expectation has in fact been fulfilled, although we have already debated the subject at length. I think I must clarify some of the issues that arise in regard to Lord Brooke's Amendment, because the root of all confusion is the Amendment that he, as Mr. Henry Brooke, moved in 1965.
I am sure that the noble Marquess, Lord Salisbury, will not mind my saying at this point that I thought it a pity that he attacked the good faith of the Government over the trial period. He said that it was never really intended by the Government to be a genuine test; that it was just a device for getting the Bill through. As I think he now knows, it was not the Government's device: it was Mr. Henry Brooke's device. The noble Marquess went on to say that the Government accepted Mr. Brooke's view; but the noble Marquess did not believe that the Government meant it. As my noble and learned friend the Lord Chancellor made clear, the Government did not accept it, because of all the difficulties and snags that we saw in it at 1275 the time. I mention this point not in order to embarrass the noble Marquess, for whom, whatever our differences, we all have a high regard, but as an example of the glaring misinformation that exists in your Lordships' House on some of these issues.
Unfortunately, my Lords (I have to refer to this because it is in relation to this that the noble and learned Viscount, Lord Dilhorne, seems to have got himself into so much trouble), the original Brooke Amendment which the noble Lord moved in 1965 was clearly defective and failed to achieve the purpose he had in mind. He did not go so far as to admit that; his main argument yesterday was, I thought, the one that what the Government were doing on this matter was, somehow, un-British. It has been clearly demonstrated, and I think the noble Lord will agree, that by no stretch of the imagination could one get five-year figures in any meaningful form before the five-year period was up. At the best, one could get four; and even if one waited until the last minute those four-year figures, and the last year of them, would still be open to further analysis.
My Lords, if we waited till the last minute—and I shall come to this later —we should be getting nearer every day to a return to the 1957 Homicide Act, and I shall deal in a moment with some of the arguments on the 1957 Act, which I think practically every noble Lord, even the noble Viscount, no longer pursues. The noble Viscount originally liked the Act, but his views have changed. He has a very flexible approach to life, as I shall seek to show later on in my speech. Incidentally, may I say to the noble and earned Viscount (I am not sure that the noble Lord, Lord Brooke of Cumnor, has not lost his right to speak again now that he is not going to move his Amendment), since he is not going to have an opportunity of speaking, that I will gladly give way if he wishes to correct me on any particular point.
§ VISCOUNT DILHORNE
My Lords, I shall I hope in due course at a convenient moment to have an opportunity of moving my Amendment formally. That is what I propose to do. But I gather that the noble Lord is trying to tempt 1276 me to say some words in addition. I shall try to refrain from falling for that temptation.
§ LORD SHACKLETON
My Lords, I am only trying to remove the temptation from the noble Viscount when he comes to move his Amendment and to be, I hope, fair to him. It is worth looking a little at the noble Lord's Amendment. I am not talking about Mr. Brooke's Amendment of 1965 but about Lord Brooke's Amendment of 1969. He seems to be unlucky in his Amendments. The Amendment, which he has not moved but which we have been debating, urges this House not to come to a decision until all available relevant statistics are obtained. Incidentally, it is useful if I continue repeating that the noble Lord is not going to move his Amendment because otherwise other noble Lords coming into the Chamber will still think that he is going to do so.
I found a great deal of ambiguity in the noble Lord's Amendment. He talks about "all available relevant statistics". Obviously he played this pretty cautiously, because he realised that whatever happened before the summer he was not going to get absolutely complete, fully-digested figures even then. This is really fundamental to the whole discussion, and I think that in effect this was conceded by the noble Earl, Lord Jellicoe. I do not think that one more year's figures would have made any difference. It would be possible, I suppose, for the more innocent to believe that statistics, for a shorter or longer period, are capable of providing us with a certainty that is only achieved by the hangman's noose. And it is conceivable that the figures, if they had gone the wrong way, could have been used as an argument. The crude figures have been published, and whatever else they show it is that nothing significant is going to come out of the 1969 figures other than that they will possibly be slightly better than the 1968 figures. Therefore I think—and the noble Lord has now accepted this—that there is no need to wait till July for the latest figures, and there is no reason why we should not come to a decision on this matter to-day. This is crucial to our argument, because it has been said in the debate many times that we should wait until later in the year, 1277 when certainty somehow could be achieved. But the noble Earl, Lord Jellicoe, thought this argument was a less promising runner. He stood there, poised not with a double-barrelled shot-gun but with a gun in each hand, pointing in rather opposite directions, waiting until he saw what the covey looked like before he actually pulled the trigger.
Let me deal now with the statistics. On one issue all the statisticians and sociologists to whom I have spoken are agreed; that is, that one year's figures cannot make a ha'porth of difference. I need not labour this point. All the arguments, and the letter in The Times on Monday from distinguished criminologists and sociologists, make this clear. But it is an interesting thing—and this bears on the noble Viscount's Amendment—that statistics, even over a very long period, judging by past experience, are also likely to fail to give the sort of evidence that some people desperately seek for in order to avoid facing the issue that is squarely before us to-day. I am sure that it is now acknowledged that five years is too short. Even a seven-year period is too short for giving us five years completely digested figures and in my view would still leave us exactly where we are to-day. So I regard the additional three years asked for in the noble Viscount's Amendment as just as futile as waiting one year.
The fact is, my Lords, that the experiment which the noble Lord, Lord Brooke of Cumnor, sought, though well-intentioned, was misconceived. But, after all, he had left the Home Office at that time and was without official advice. Let me say to the noble Lord—I do so in no patronising way—that it was always my personal opinion that he was greatly underrated in his performance as Home Secretary and was subjected to a lot of unfair obloquy; on the other hand, on this occasion he has it very wrong indeed. I hope therefore that the House, as well as the noble Lord, is now convinced that there was no merit in his Amendment.
§ LORD BROOKE OF CUMNOR
My Lords, my noble friend Lord Jellicoe said that I have come to the conclusion, in the light of yesterday's debate, that it would be more appropriate for me not to move my Amendment. If the noble Lord, Lord Shackleton, continues in this vein much longer, in the light of to-day's 1278 debate, I may decide that I shall exercise my right to do so.
§ LORD BYERS
My Lords, can the noble Lord the Leader of the House say definitely whether the Amendment is or is not on the agenda?
§ LORD SHACKLETON
My Lords, we should like some clear information. I understand that the noble Earl, Lord Jellicoe, has announced a firm decision. I am bound to say to the noble Lord, Lord Brooke of Cumnor, that he made his speech yesterday, and I am entitled to reply to it. None the less, I give him the credit for a very good riposte.
I ought now to come to the question of why the Government have invited both Houses to come to a clear decision. I say with absolute sincerity—and I hope that before noble Lords perhaps get exicted about what I am saying they will accept that this is my judgment—that on this issue the Government have not been playing Party politics. The Government take the view that it is right that the citizens of this country should be clear both as to what the law is and what the law will be on hanging. That is why we are trying to remove uncertainty, because we believe that uncertainty is even more intolerable than retention is for abolitionists or abolition is for retentionists. I think it is apparent to most of your Lordships that the Government, like the noble Earl, Lord Jellicoe, are overwhelmingly abolitionist in outlook. Honourable Members in another place have shown that they want to see the end of this macabre and unproven deterrent. What were the Government to do in the present situation? First of all, they could have followed previous precedents and shuffled off the responsibility by getting a private Member to put down the necessary Resolution provided for in the 1965 Act. Labour Members of Parliament, and indeed Liberal Members of Parliament, just as much as Conservative Members of Parliament, are at risk from constituents who are keen hangers. There were no votes for the Government in the decision they took, but they chose the more courageous line and decided to accept the responsibility, while at the same time making clear, as the Opposition have done, that it should be a completely free vote. 1279 When were the Government to put this matter before Parliament? Were they to wait until the last month, knowing full well that another year's figures were statistically unlikely to be significant? There was certainly no merit—and, if I may say so, there was some real danger —in leaving it to the last moment, as we are seeing in the course of this debate. What would happen if, despite the overwhelming majority of the House of Commons for complete abolition which we saw earlier this week, later in the summer the House of Lords once again baulked? This would have produced an intolerable dilemma. People are apt to say: "What would be the choice?" Back to the 1957 Act? We already know that there must be scarcely anybody in your Lordships' House who wants the 1957 Act to return. Do the Government introduce a Bill? I shall have something more to say about the introduction of this teeny, weeny, simple Bill that the noble Earl and others have talked about.
What happens if there is a General Election? Are we to face a situation so ridiculous—and I put this as a serious argument—that the actions of this House on a non-Party issue (and it is a non-Party issue) could affect the timing of a General Election? Noble Lords and honourable Members in another place belonging to the Conservative Party are bending all their efforts to bringing about what in their view is the desirable outcome of a General Election, and that is quite right and proper. But supposing there is a General Election between now and July—it could happen; I have no knowledge—does any noble Lord believe that this would be the right atmosphere in which to take a decision, in a feverish Party-political climate? Suppose an Election had already been announced at the moment that the Government were going to introduce this Resolution or the Bill. Some noble Lords may say that this is theoretical, but it is considerations of this sort that we, along with the Government, should properly take into account. Since it was clear to the Government that a delay of a few months would yield no more information, the Government decided to bring the matter forward now. The effective choice, in my view, was either before Christmas or early in January.
1280 I should like to deal with the suggestion that somehow the Government have jumped the gun on this question. It has long been known by anybody remotely interested in the subject that we were going to have to deal with this matter. The Home Office figures were produced some weeks ago. There were many rumours in the papers that the question might arise during the spill-over, and the Government had to come to a decision. At this point I would personally, as Leader of the House, express my regret to your Lordships that we did not have longer to study our particular requirements. I should like to explain how it came about. Noble Lords are aware that in another place, because they are a full-time House, they fix their business at relatively short notice. The question then was whether they were to choose a date before Christmas, and in their judgment—because there is a heavy programme coming along afterwards—they decided to do so. Were we to get out of step and take it in January? It is arguable that this could be done, but in my view it would be intolerable. Without revealing any secrets, having taken such soundings as I could in your Lordships' House, I became convinced that it was better to take it when they did.
If noble Lords feel in any way that they have had less notice than they would have liked, I would express to them my sorrow that we were unable to give a little more notice. But I am bound to say that the issue is, and has been for some time, clearly before us. In arriving at the decision to bring this matter in this way in your Lordships' House, I have had regard to the fact that your Lordships are not as reactionary as some people think, and that this House has recently had a good record in, and indeed is in the forefront of, social reform. Furthermore, this House is not subject to the constituency pressures which have been so bravely resisted in another place. Therefore I had little doubt that your Lordships would vote for a Resolution which would settle the matter and remove the threat of a return to the 1957 Act. But pressures have developed, and the issue has become confused.
I should now like to turn again to the 1965 Amendment of Mr. Henry Brooke (as he then was). It is clear to me—and 1281 I had every sympathy with him in this matter, because it meant exactly the same to me—that he believed, when he moved that Amendment, that it would be possible by a simple Resolution to extend its effectiveness. He actually used the word "prolong". I have already said that I think the mere extension of three to five years would not make a great deal of difference. But I take the same view as the noble Lord on this matter. Whatever noble Lords may argue as to whether it is possible to extend the Act —and it is open to doubt whether it would be possible—there would be uncertainty until a case was brought to trial, even if both Houses carried this Amendment.
It is the duty of Parliament to clarify the law; and, in any case, the decision that has been taken in another place rules out, so far as I can tell, the possibility of the noble Viscount's Amendment being effective. If the effect of the noble Viscount's Amendment were to extend the experimental period (although, again, I question whether doing so for three years is of any real significance, other than getting people off the hook) then there would be some justification for it. The noble Viscount said that in his view—and, as a former Law Officer well as a Lord of Appeal, we respect his view—the Act can be construed in the way that he suggests. He admitted that he might be wrong, but asked whether it would be wrong for there to be an expression of opinion by this House that the Act should extend for a further period: and he said that he believed that it would have force.
There are arguments on the question of ultra vires, but I will not go into them now. The House of Commons have taken their decision, and we are controlled by the Commons' decision. What is the point of passing the Amendment the only effect of which is to bring about, by another means, the effective rejection of the Resolution before your Lordships?
My Lords, I would suggest that this is not the most reputable way to proceed; that we should do better to vote straight on the Resolution and take a decision on merit. It is argued that the noble Viscount's Amendment will have the effect of compelling the Government to introduce a Bill. May I say that a vote on the Resolution would, if either would achieve the objective, be just as effective. I would 1282 urge your Lordships to follow the example of the Commons and vote on the straight issue and enable the noble Earl to show that he is still an abolitionist. To carry the noble Viscount's Amendment will, in my view, achieve nothing other than the effect of rejecting the Resolution, and I would draw that to the attention of the right reverend Prelate, the Bishop of Exeter, who was, I think, misled yesterday on this matter by the noble Viscount's Amendment.
May I again refer to what the noble and learned Viscount, Lord Dilhorne, said? fie said that it was a great pity that the House of Lords did not pass an Amendment in 1965 moved by the noble and learned Lord the Lord Chancellor, which would have had the effect of making the 1965 Act permanent unless both Houses passed Resolutions to the contrary. That would have provided a return to the 1957 Act. The noble and learned Viscount expressed his regret that the Amendment was not carried. I will not complain that he had forgotten how he voted on that occasion, although, in view of the rather tetchy exchanges between him and my noble and learned friend who sits on the Woolsack, I am surprised that he had forgotten that particular incident. Perhaps he remembered the exchange but not how, in the heat of the moment, he actually voted; but he did, of course, vote against that Amendment. It was defeated by four votes, and we now find ourselves in a position which the noble and learned Viscount regrets.
He actually went on to say that if that Amendment had been carried we should not be debating this issue to-day —that is, unless the retentionists (or perhaps we had better call them the restorers now because the death penalty is not in force) had put down a Motion for a return to capital punishment. The noble and learned Viscount knows that if that Amendment had been passed there was not the slightest chance of a Resolution being carried in the Commons, and I doubt very much whether one could have been carried in this House, for a return to the 1957 Act. If he really favours that course, surely, again, the right thing now would be to pass the Resolution and not the noble and learned Viscount's Amendment. 1283 What in fact he is really saying is that he and many other noble Lords would not have suffered the embarrassment which confronts the House of Lords to-day. My Lords, if we pass Lord Dilhorne's Amendment the effect, as I understand it, will be to force the Government, as they hope, to introduce a simple Bill.
Let me return to Mr. Henry Brooke, who once again uttered very wise remarks at the time he introduced his Amendment in 1965, believing, as he did, that it would be possible to prolong the effect of the trial period. He argued as follows:I know it is argued that Parliament can always legislate afresh in the light of experience and that, therefore, a clause such as this is not really needed. I believe that argument is theoretical. Let us look at the realities of it. A Government—whatever Government are in power—may not wish, or may not be able, to find time for legislation."—[OFFICIAL REPORT, Commons, 26/5/65.]The noble Lord showed prescience in this matter. The noble Earl talks about a nice, simple one-clause Bill. If ever in my political experience there is an illusion, it is "a nice, simple one-clause Bill" agreed between the Parties. How can one agree between the Parties on a matter which is not basically a Party political issue?
After yesterday's debate, does anybody believe that there is a possibility in the short run of producing a new Homicide Act? That is out. Very well; then a Bill to extend the period of the experiment. How long for—five years? Three years? The noble and learned Viscount wants three years. We all agree that three years is too short; some say five years is about right. What about the abolitionists? They are going to want 20 years; and the hangers, if there are any, are going to want one year. Do we rush it through Parliament? Do we do it now—in January—April—July? All the arguments against delay apply even more strongly on this point, and I believe that it would be the height of folly to assume that it would be possible for a one-clause Bill to be rushed through, possibly in an Election atmosphere, even if an abolitionist House of Commons was prepared to do it.
What, then, is the effect of the noble and learned Viscount's Amendment? 1284 Presumably he wishes the Government to introduce this simple one-clause Bill. He may hope that, after all, there will be some way of giving effect to his Amendment. I should have thought that that was out the question, or at least doubtful in the extreme. To my view it is intolerable for your Lordships' House to pass an Amendment which is legally, as well as presentationally, a nonsense. We have already faced some embarrassing situations in the last 18 months, and I do not particularly want to see the House of Lords having to eat their words again in some way. I hope that we shall face this issue and I have already expressed my regret that the debate has had to revolve around purely tactical questions instead of the real issue.
The basic difficulty that confronts us is that we all regard the death penalty as so horrible that as reasonable people we cannot believe that it is not a deterrent; but the fact is—and we can all go on quoting figures until the cows come home—that all the statistics show that there is no certainty at all in this matter, and certainly no conclusive evidence one way or another that the death penalty is an effective deterrent. Some striking figures have already been given. I shall not take up your Lordships' time, but a number of noble Lords, and I particularly remember some of the speeches made yesterday, have quoted from their own direct knowledge of the awfulness of an impending execution, the atmosphere in the prison, the mental torture inflicted on the condemned man, and, above all, the torture on the family.
It is not true to say that those of us who wish to abolish the death penalty are not concerned for the victims or their families. There is plenty of evidence of the action the Government have taken in this regard. There still remains the nagging doubt of a miscarriage of justice. We are horrified that innocent people are being murdered, but I confess that we should be even more horrified at the possibility that an innocent man should be judicially murdered by the State; and on this subject I would remind noble Lords of the speech of the noble and learned Lord, Lord Morris of Borth-y-Gest, whose authority in this matter no one will question. He said:Can we be sure that the utter and irrevocable certainty of the death penalty can always be matched by positive certainty of 1285 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."—[OFFICIAL REPORT, 17/12/69; col. 1168.]There is a positive argument for getting rid of the death penalty. Too long have we been obsessed by this issue. We should be concentrating—as the Home Secretary has repeatedly said he is going to do—on the problems of crime and violence. We need all the help of the sociologists and scientists, not to collect endless statistics on homicide to prove or disprove whether the death penalty is a deterrent, but to make use of the new scientific advances, whether they are the chromosome research which my noble friend Lady Birk mentioned, or all the other devices that this century is putting in the hands of the criminologist and sociologist.
Therefore, I hope that we shall come to a decision to-day. A number of noble Lords have called it irrevocable. It is not irrevocable. It is the end of a particular temporary experiment. I hope we shall never see the death penalty again, but if we want to continue this experiment for a long enough period to collect all the statistics to carry out the necessary studies, with perfect freedom for a future Government to introduce a different kind of homicide Act (and goodness knows what it can be!), this can in fact be done. It will still be within the possibilities of Parliament to do it. I hope, therefore, that your Lordships will to-day come to a decision and vote for the Government's Resolution.
§ 3.22 p.m.
§ LORD REID
My Lords, as I see it, the question, and the sole question, for our decision to-day is whether at this time we can safely abolish the death penalty without incurring grave risk of endangering the public safety. As it is my purpose to address your Lordships as shortly as I can on that subject, no doubt the noble Lord, Lord Shackleton, will forgive me if I do not follow his arguments.
Everyone, on whatever side he stands, finds the death penalty abhorrent. We inherited from our ancestors a number of disagreeable and abhorrent parts of our social structure. Technology has enabled us to get rid of most of them, and people are inclined to ask: "Why 1286 cannot this, perhaps the most abhorrent of all, go too?" My Lords, if we had made progress in this field it could go too. It is my purpose to suggest to your Lordships the reasons why we have not made that progress as yet, and why I hope that the three-year period will see the beginning of that progress. The three-year period, in my view, is not a mere device; it is a period during which one can see a transformation of the situation if the Government choose to take the necessary action, which they have not yet taken. I shall return to that matter later.
I do not address those who have moral objections to the death penalty. I have always been led to understand that, when we deal with questions of morality, right and wrong, good and evil, are the same to-day as they ever have been; and if it is wrong to-day from the moral point of view that the State should take life, it must have been equally wrong 100 or 200 years ago. In this, as in other spheres, I respect the views of conscientious objectors, and I would not say a word against them. I am unable to accept their view, and I am equally unable to say that all our predecessors— whether churchmen or laymen—were so obtuse to moral considerations that they failed to detect the moral obliquity of the death penalty—if in fact it is immoral. I shall, therefore, leave that topic.
Let me now say a word about the practical situation. If the Amendment of my noble and learned friend Lord Dilhorne is passed, or, for that matter, if the main Resolution is rejected, the result will be precisely the same from a practical point of view. It will not be possible to reach an accommodation, and therefore the present Act will come to an end. But the purpose of the Amendment as I see it is to be helpful in this way. It is to indicate to the Government, to the other House and to the public that in the view of this House the proper alternative to the Government Motion is not flat rejection, but a concrete and constructive suggestion that we should have three more years in which to make up our minds, and to review what I hope will be the improving situation, and thereby give a lead. Whereas if we merely rejected the Resolution everything would be left in confusion. 1287 There are two choices, and only two: because although I had considerable sympathy with my noble and learned friend's view that it would be legally effective if both Houses passed similar Resolutions containing the postponement for three years, it is clear that that will not be done. Therefore, as I say, there are only two choices. One is to let the 1957 Act come back, which nobody wants. The other is to pass another Bill. I cannot believe that there is going to be any difficulty whatever in passing that other Bill.
Observe where we stand. The abolitionists cannot have all they want if this Amendment is passed; something must be done. The retentionists cannot have all they want; they cannot get the death penalty back quickly. Surely all sensible men of good will must agree that the only thing to do is to continue the present situation until such time as it can be resolved; and that requires a Bill.
But, how long? The noble Lord made some play over this. One year will not do, because then you are getting very near to what may be the time of a General Election, and the last thing anybody wants is that this question should be mixed up in a General Election, not because this question is political—it is a political question but it is not a Party political question. Any question in which the strongly held views of a large section of the community—of the majority of the community—are involved is necessarily a political question. That is the meaning of the word, but it is not Party political. Therefore we have to see what we are going to do about it.
Let me say here that I think from this point of view we must pay attention to public opinion. The position, as I see it, is this. Unfortunately there is some reason to suppose that Parliamentary institutions are not held in quite such high regard to-day as they were some considerable time ago. It must be everybody's endeavour not to allow that deterioration to continue. One certain way of allowing it to continue is for Parliament to get seriously out of step with public opinion. Everybody must take his own view. If you feel that it is necessary to pass this Resolution, that it is necessary to-day to make a declaration of which public opinion does not approve, then you must take the risk 1288 of alienating the public to that extent and of impairing to that extent the regard which the public has for Parliament. But if you do not consider that necessary, then I submit that there is considerable weight to be attached to our not taking a step to-day which would undoubtedly produce public repercussions.
The next point that has been made is this: that we must show that capital punishment is a unique form of deterrent. I do not so regard the problem, for this reason. We must again look at the practical alternatives. What is the practical alternative to capital punishment at present, unless reforms are made? The alternative is nine years' imprisonment. I am perfectly well aware that the Home Secretary occasionally, when it is necessary, keeps people in gaol for more than nine years. But everybody has now come to expect that nine years is the normal period, and it is on that normal period that this problem will be broadly judged. I go as far as this. I am not a convinced retentionist by any means. I say that if you could double the period in which we could safely keep a man out of circulation, that would go a very long way to satisfy me, and satisfy the public, that the death penalty was no longer necessary, because that would indeed be a very severe deterrent.
I think that the main object of putting a man in prison is to keep him out of circulation; it is not to punish him. I cannot for the life of me see why reform has not yet been initiated to enable the prisons to keep a man for more than nine years without destroying him as a man. It surely is the most frightful indictment of our present prison system that it is unable to keep a man in prison without having that awful effect on him. If I saw any real endeavour to reform the prison system, it would go a good long way to removing my objection to the abolition of capital punishment. But I see no such trend at present. I hope I may see something within the next three years; and that is another reason for the three year period.
The question of murder is most closely related with the question of criminal violence. We have seen, unchecked, a rapid increase of deliberate brutal criminal violence. Other people of European stock are very much the same sort of people as we are, but I do not know 1289 of any country, in either hemisphere, where among people of European stock (I speak not of the others because I have no knowledge) a high rate of violence is not accompanied by a high rate of murder. And why should we be different?
I was quite astonished to see an argument of the Home Secretary the other night. He said this:I have asked my officials what they can tell us about murder statistics overseas. As far as they can tell, there is a great deal less murder in this country than in most advanced countries. I think it true to say that Britain is still a relative oasis in a violent world.So it is; but how long will it remain so if nothing is done to check the flood of violence? I could understand that opinion if one held the old-fashioned view—what one might call the robust Victorian view —that the British people are in some way morally superior to others; but of course nobody says that, and how could it be that anybody can expect this oasis to continue if we become just as violent, as we are rapidly doing, in our criminal habits as other countries? I think that that is an argument which really has no force in it at all.
These changes take place slowly. I never expected that the figures within one year—and I had little expectation that the figures within live—would show any definite trends after either the Homicide Act or the Act which we are now considering. These things do not happen so quickly. But what happens is this—and I do not think it requires any Committee to tell us. Most men do not act on a nice calculation of the odds; they act because they have a general trend of mind. They get that general habit of mind largely from the climate of opinion, or, perhaps I should say, from the micro-climate of opinion, that prevails at the time among their immediate associates and their immediate friends. It takes quite a long time before legislative changes first of all affect the climate of opinion, then filter down to the microclimate, and then affect the man's habit of mind. But, slow though it is, the process goes on and one cannot alter it.
Up to date what has happened has been this. In certain criminal circles—I think not as yet all, but some—the old abhorrence of brutal violence has gone. A man is no longer shunned because he has been guilty of brutal violence. How long is it going to be before the abhor- 1290 rence, which I agree still subsists, of murder in these circles is also dulled and perhaps disappears? Not, I am afraid, very long—unless we do something in the interval to stop the rot. We can do it. If we were to abolish capital punishment now, what would happen? Those circles would say (and one could not altogether blame them), "They"—that is to say, the distant authorities—"seem to be weakening". Unless we can accompany the abolition of capital punishment by some really significant measure which shows that we are determined to stamp out violence and are going to do it, the effect will be appalling.
How can we do it? It is not, I venture to think, very difficult to point to the method. The worst feature in the present situation is the low rate of detection and conviction of violent criminals. Criminals, as has been said in this debate, are optimists; and at present, of course, they think—and they are very often right—that they will not be caught. But supposing we could double the rate of detection and conviction. A very different climate of opinion would arise. They would then begin to see that the game was not worth the candle. And that is by no means impossible. If we take the cases where the police can really concentrate their efforts—murder, the train robbery, and that kind of case—the rate of detection is astonishingly high, and the rate of conviction is astonishingly high, and it is simply because the police do not have the necessary resources to treat a great many other crimes in the same way that we have this highly unsatisfactory state of affairs. Therefore, very much the best thing that any Government could do would be to ensure a massive increase in the powers, in the strength and in the efficiency—although the efficiency is already very great—of the police force so that they could concentrate on a very much larger number of crimes in the same way as they now concentrate on a few crimes.
There is always pressure to increase expenditure on the social services—on the other social services—but very little pressure to increase expenditure on the fundamental social service of protecting the public from violence. I do not want to say that that is the reason why the Government have appeared to be rather lethargic in this. I am not blaming 1291 this Government in particular; I think it has applied for the last 15 years—all Governments have appeared rather lethargic in their efforts to deal with this mounting wave of crime. If that can be reversed—and I think it can—then I am willing to consider what has to be done.
All that the Home Secretary has been willing to say to date is that he is going to have another inquiry. Inquiries are very good things, and if we are dealing with methods of treating criminals then I agree that an inquiry may be helpful; but with regard to the fundamental basic steps which we have to take, they have been obvious for years and no inquiry will help in that at all. It requires finance and determination, but not inquiry.
To conclude, my Lords, if to-day I could see something really effective being done to combat the wave of crime, to reverse the present trend, to get into the heads of the criminal classes that crime really does not pay, then I would not be speaking here this afternoon. But in the present circumstances I can see nothing which is going to prove to the criminal that we are really in earnest in our determination to stop violence and to forestall the growth of murder, which will undoubtedly happen if the present wave of violence goes on. Therefore, in the present circumstances I feel that I must vote for my noble and learned friend's Amendment, and I have given my reasons for holding that the period of three years has really some sense behind it.
§ BARONESS BIRK
My Lords, I did not want to interrupt the noble and learned Lord during his speech, but may I put this point to him? Since the factors making for violent crime are so complex, surely the noble and learned Lord would agree that a far more constructive approach would be to tackle the causes and motivations of violence rather than fall back on the wretched, unproved and defeatist apparatus of capital punishment. To do this, surely he must agree that one first starts with an inquiry and then afterwards acts on the results of that inquiry.
§ LORD SHACKLETON
My Lords, may I ask the noble and learned Lord whether postponing a decision to restore capital punishment for three years is acting immediately?
§ 3.45 p.m.
§ LORD BYERS
My Lords, I would not disagree with the noble and learned Lord that action ought to be taken immediately, but I think it comes oddly from the noble and learned Lord, after the speech we have just heard, which was full of such expressions as, "It is not safe to do this; let us wait a little longer". It is the usual stuff: it is the speech that will be made in 1973 and has been made many times before. The noble and learned Lord and I were in the House of Commons together; he was one of the best Parliamentary in-fighters, as a Conservative M.P., that I have ever known. He has been making this speech from time to time, and it is never the right time. In 1973 I hope the noble and learned Lord will be here to make that speech again, and in 1980 perhaps we might both be here, too.
My Lords, I do not propose to repeat what are, to me, the cogent reasons for abolishing capital punishment. May I say to the noble and learned Lord, Lord Reid, that he seemed to be under the impression that what we are discussing here is the abolition of capital punishment. We are doing nothing of the sort. There has not been capital punishment since 1965 but I do not think he has really appreciated that point. I have fought this battle since 1945, inside and outside the House of Commons and inside and outside the House of Lords. My position is quite clear. I personally cannot reconcile the killing of a human being, even by the State, with my own belief in the sanctity of human life. On the purely practical side I have been very much reinforced by the views of those who the more they studied the pros and cons 1293 of the argument, the more they came down on the side of total abolition.
I want to address myself to-day, as the noble Lord the Leader of the House did, to the situation which is facing us in the next hour or so. I had hoped that after our experience of the appalling Homicide Act we might at least be allowed to continue with the abolition of capital punishment by passing an Order in each House before the end of the five-year period, without much controversy about it. The House of Commons has done this, and it has done it quite decisively, but in this House we are asked to accept two Amendments to the Order which, if passed, will have the effect of delaying a decision, in one case until the middle of next year—and the noble Lord, Lord Brooke of Cumnor, has threatened that he may move this Amendment—and in the other (what we might call the "Dilhorne Amendment") until 1973.
The first thing I want to say about this matter is that on this question of abolition, one of the noteworthy features of the debates over the years—and I do not wish this to be taken in any way as a personal criticism, but I must say it —has been the singularly misleading advice which has been given to Parliament by the movers of these two Amendments. That is not a personal criticism but it is very germane indeed to this issue. Both the noble Lords on other matters have the highest possible and well deserved reputation, but there can surely be few people who would be prepared to support a return to the Homicide Act 1957, with its glaring anomalies, its injustices and so on. We have the authority of the noble and learned Lord the Lord Chief Justice on this point. Then there is the inevitable failure of any approach by way of classifying murder into different categories, which was clearly stated by the Royal Commission. Nevertheless, despite all that evidence we had this Homicide Act, which did exactly what the Royal Commission suggested it should not do.
We know that the noble Lord, Lord Brooke, when he was Home Secretary sent for a study of the working of the Homicide Act. He was quite appalled by what he found. He came to the conclusion that the Act could not be amended and that it would be better 1294 to go straight for abolition. As we know, one of the main sponsors of the 1957 Act was the then Attorney General, and he commended that Bill to the House as follows:… honourable Members who have read the Bill realise that it is a good Bill and in conformity … with what the country wants at present.—[OFFICIAL REPORT, Commons, 15/11/56; col. 1250.]He then went on to say:We are seeking to restrict, and restricting, the death sentence to those cases for which it is not only a particularly necessary but also a particularly effective deterrent."—[OFFICIAL REPORT, Commons, 15/11/56; col. 1255.]Those were the words of the then Attorney General, Sir Reginald Manningham-Buller. As the Act proceeded and people discovered the anomalies, it was referred to in the corridors of power as the "Regicide Act" —and there is the author. I am not complaining because the noble Viscount was wrong; no one is infallible, and he admitted in the debate that he had already changed his mind. But I claim that advice from that source on this matter, in the light of experience of the Homicide Act, should at least be treated with the greatest possible reservation. In fact I think it is quite incredible that anyone could assert so categorically that the death penalty was a particularly effective deterrent for certain types of murder after the Report of the Royal Commission.
That brings me to the Amendment of the noble Lord, Lord Brooke, to delay this decision until all the relevant statistics are available. He was the author of the clause which turned the Murder (Abolition of Death Penalty) Bill from being a permanent measure into one which had to be reaffirmed within five years if it were to continue. He now admits that he should have realised that if he wanted a full five years' experience and statistics, he should have drafted the clause to include a longer period of experimentation in order to give time for the figures to be adjusted. But instead, he made the period five years, and then he complains that he has not got five years' figures. Indeed, the advice he tendered to us yesterday on his own Amendment, saying it was his intention to persuade us to pass this Amendment, apparently by to-day is no longer valid; it has gone by the board, unless the 1295 noble Lord is going to move the Amendment on the Order Paper.
The fact is that every time we refuse to make a clear-cut decision on this matter we create fresh difficulties for ourselves. Parliament shied away from the decision to abolish capital punishment for good in the face of the Report of the Royal Commission, and the result was that we got that appalling Homicide Act. Parliament shied away from full abolition in 1965 and made it conditional. Now we have the likelihood of the Lords deciding to amend this Motion after the Commons have approved it. The result may well be to force us back to the Homicide Act. The least it is going to do is to force us into a state of confusion and uncertainty. That is what happens every time we have had advice from the noble Lords, and it is predictable that now there will be a complete mess-up if this advice is taken.
The noble Lord, Lord Brooke, and the noble and learned Viscount, Lord Dilhorne, if they will forgive my saying so, are acting like the type of company chairman we see too often in this country, the man who cannot bring himself to make a decision. Instead, he continually calls for more information, he asks somebody to prepare a paper—that is a jolly good thing to do—he suggests that his colleagues may not have had enough time to read some supporting document and so he proposes to defer the matter to the next meeting. We all know him. In time the business inevitably starts to slide, the chairman finds himself the recipient of the customary silver salver and, if he is lucky, a very small golden handshake. This is a practice not to be emulated, and certainly not in a matter of this seriousness.
We have to grasp this nettle and make a clear decision to continue the 1965 Act which abolishes hanging. I ask the noble Lord: what more evidence do we need? What are the statistics we are waiting for? What is it we are unable to decide to-day that we shall clearly be able to decide in June or July of next year or in 1973? We know that one of the characteristics of the crime figures is that over the ages you get major changes, quite inexplicable, in odd years. Therefore, I ask, what score is needed next year in the murder rate to change the mind of 1296 anyone? Can we be certain that if the 1969 or 1970 figures suddenly double. we would have to rush back into capital punishment? We have seen tremendous changes year by year. I should like to put this to the noble Lord, Lord Brooke, and I will give way willingly: if the corrected figures for murder in 1969 do not exceed the 1968 figures, will he vote for this Motion before the Act expires?
§ LORD BROOKE OF CUMNOR
My Lords, if neither of these Amendments is carried, I shall vote for the Motion, because it will to my mind be a choice of second or third best. I would prefer the second best to the third best, and I would prefer the noble and learned Viscount's Amendment best of all.
§ LORD BYERS
My Lords, the noble Lord says that if the 1969 figures are lower than those for 1968, he will vote for the Motion.
§ LORD BROOKE OF CUMNOR
My Lords, I said nothing of the kind. We have not yet got the corrected 1969 figures. What the Government are seeking to do is to force us to a decision before any further information is available.
§ LORD BYERS
My Lords, this is the point. What figure must we achieve, up or down, to satisfy the noble Lord? After all, the figure of 1966 shown in the pamphlet Murder is 187; in 1967, 211; in 1968, 205. The corrected figure is going to be possibly lower than that. What must we do to satisfy the noble Lord? If the figure goes up to 250, do we get hanging back?
§ LORD BROOKE OF CUMNOR
My Lords, so far as I can see, what we are seeking to do is to reach a decision to-day, and we have got to reach it on the information available to-day. That is what the Government want and that is what the Government are seeking to force us to do.
§ LORD BYERS
My Lords, I quite appreciate that, but I am asking the noble Lord, who keeps asking for more time: what is the criterion he requires? If the murder rate goes up to 250 on the corrected figures, is the noble Lord going to say that we must go back to hanging?
§ LORD BROOKE OF CUMNOR
My Lords, the only way I can answer this 1297 repetition of questions is by saying that if I were a member of a jury and the evidence had not all been heard, I should wish to wait until all the evidence had been heard before I said guilty or not guilty.
§ LORD BYERS
My Lords, I think that proves my point, that the noble Lord can never come to a decision. We have had so much evidence on this matter. But I will leave that. We have to ask ourselves whether we really can return to hanging. Has it any place in a civilised society? Capital punishment, as we know, admits of no error, and a free pardon is cold comfort to the innocent person.
What I feel is that we are, by this constant procrastination, this preoccupation with debating the death penalty at fairly regular intervals, really drawing a curtain over the things that really matter. What we ought to be doing is to take a clear-cut decision, instead of diverting attention from the far more serious and pressing problems; and these are displayed in all the figures both in the Blom-Cooper Report and the Murder Report, where we can see the way in which crimes of violence are going up at an alarming rate. Instead of dealing with that question we are cloaking the whole issue with this constant preoccupation with the death penalty and the murder rate.
I was absolutely appalled to see from the Blom-Cooper Report that the malicious wounding figures had gone up from about 5,000 in the 1950–54 period, to about 24,000 in 1968. This is what we should be desperately concerned about, crimes of violence in general, including murder. From the reports that I have seen on the Milton Eisenhower National Commission on Violence in the States, there is no reference to capital punishment; all the references are to social injustice, to the need for better housing, to the need for eliminating poverty and for dealing with the haphazard urbanisation problems and problems of that sort. I want to say this. I feel that every time we put this off we are forced to have this debate, and we take our eye off the main issue, which is crimes of violence in general.
A good deal has been said about making this an election issue. In my 1298 view, there is no question of the Government or anyone else trying to avoid this becoming an Election issue. Every candidate will be asked this question; every candidate will have to reply. This has been an issue at every Election I have ever fought, and I can speak from experience. I lost my seat by 97 votes in 1950, and one of the factors that caused that result was the fact that I voted for the abolition of capital punishment. I have no regrets; it was an issue, and my constituents were perfectly entitled to know where I stood on it.
If this Motion is passed, which is the sensible constitutional thing to do, there is nothing to prevent the noble and learned Viscount, Lord Dilhorne, in 1973, or earlier if he likes, or indeed a Conservative Government, from introducing a Bill, in the light of all the information that they then have, to restore the death penalty. There is nothing to stop them, and they can bring in a limited Bill. They can bring in a Bill to restore the death penalty for the murder of a policeman or a prison officer, and if they pass this Motion to-night there is nothing to prevent them doing that. There is nothing final about legislation, but I repeat that if we keep on putting off a decision on this measure, we retain it as a regular subject of debate which diverts attention from the real causes of violence.
Finally, I want to deal with the argument of the right reverend Prelate the Bishop of Exeter—I hope he has not got stuck in Swindon. Last night he put forward the argument that the gap is too big between Parliament and the people to declare at this time that capital punishment is ended for ever. Therefore, he asked us to defer this decision, not for more information but for a new reason; namely, the one about public opinion not being ready for it. I would ask: what happens if we do that? The Commons, on a free vote, with all three Party political leaders in the same lobby, have overwhelmingly pronounced in favour of this Motion, and they are people responsible to the electorate. They have had the courage to take a decision in which their own Parliamentary seats are at stake; they have taken it against a hostile public opinion. That, surely, is the answer to the noble and learned Lord, Lord Reid, who said Parliament must not be out of step 1299 with public opinion. But the House of Commons knows it is out of step with public opinion. Mr. Heath has had the courage to come out and make this declaration, and more power to him.
What is the position now if we disagree with the Commons? We risk going back to the Homicide Act. The supporters of the Amendment of the noble and learned Viscount, Lord Dilhorne, say, "But only for a short time, because the Government will work fast and they will introduce a short Bill to extend the life of the 1965 Act until 1973". It is going to be a one clause Bill, a very simple measure. My Lords, one clause Bills which are simple measures invite amendment right the way through. There will be amendment after amendment; the Parliamentary time which will be used will be considerable. This is a risk that this House should not ask the other House to take. It is not a Party matter; the other House has made a clear decision, and it was not an easy decision to make. I see no reason why they should be asked to accommodate us because we cannot make up our minds to make a clear-cut decision.
There is nothing magic about 1973. By supporting this Motion we merely continue the abolition of the death penalty until Parliament decides otherwise. The statistics will be kept, and the research work of the noble Earl, Lord Jellicoe, will certainly go on. The data will be processed and, as I say, if at any time the country or the House comes to the conclusion that the death penalty should be restored, we are free to do so. But by passing the Amendment of the noble and learned Viscount, Lord Dilhorne, we are merely going to confuse the vital issue, and risk returning to the 1957 Homicide Act. We got into the Homicide Act as a result of taking no notice of the Royal Commission's Report; we got into the present predicament through a bad clause added at the last minute to the 1965 Act. I would say, let us for heavens sake! make a clear-cut decision on this matter, and then turn our minds to the real problem of dealing with violence itself.
§ 4.4 p.m.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, when this House makes its decision, the decision will turn upon several questions. I ad 1300 dress myself to one of those questions. It is this: how far will abolitionists, including those who voted for abolition in previous debates in this House—or would have so voted had they been here—vote finally this time for abolition? Or how far will they be moved by the pleas for a longer delay before the final decision is made? That is the question to which I am giving my mind. There is no need, therefore, for me to re-state the abolitionist case, which in this debate has been re-stated very cogently by the noble Baroness, Lady Wootton of Abinger, by the right reverend Prelate the Bishop of Durham, and by the noble Earl, Lord Jellicoe, who quoted memorable words used in 1956 by the late Lord Templewood. I do not re-state the case which those noble Lords have at one time or another put powerfully, but I ask the question: how far is this case now related to the pleas for further collection of data before those who hitherto have been abolitionists vote for a final decision on the main issue?
I recall a great debate here in July, 1965, on the Second Reading of the 1965 Act. Throughout that debate there was on the part of those who voted in the majority a belief that sufficient data for a judgment really were available: data in the form of arguments for and against, marshalled over and over again, from this country and from other countries; data about statistics concerning the deterrent effect of capital punishment; data also concerning the great limitations on what such statistics can achieve. I recall especially the moving speech made on that occasion by the noble Earl, Lord Jellicoe, because I have read it several times since for my own fortification as it was so powerful a statement of the abolitionist case. The noble Earl then described himself, as he described himself to-day, as a moderate abolitionist. I think that I would so describe myself. In that speech he mentioned a number of grave anxieties, a number of counter-arguments that had to be weighed in the balance of decision. But I do not recall through-out that speech, nor do I find in rereading it, any hint that there was an insufficiency of data for the making of a judgment to come down on one side of the fence or the other side of the fence.
True, there was in the Bill, when it came to us from another place, the clause 1301 about Resolutions which could be moved before the end of five years to make the provision permanent. But although that clause was there I do not recall that it in any way dominated the decision-making processes of those who were in the majority in that discussion. I do not recall that those of us who secured the passing of the Motion then were saying, in effect, "We are not quite sure, so we are initiating a five-year course of research before committing ourselves, after that five-year course of research, to being quite sure." That, I am quite certain, in recollection, was not the tenor of our argument or decision-making process. Rather was the tenor something like this: that we have discussed this subject many, many times; masses of data are now available, and it is time that we really made up our minds, but made up our minds in such a way that we could, before five years are up—not after, but before five years are up—either reaffirm the decision or decide not to reaffirm it.
At that time we were aware of heartrending facts which moved us greatly; and I was, and I still am, a more than moderate abolitionist, if that means being deeply sensitive to facts that are felt by so many people. At the time of that discussion we knew that there was an alarming increase in crimes of violence. We know it to-day. We knew at that time that opinion among the police was strongly in favour of a certain retention of capital punishment. We know that their view on the issue is the same to-day. The only difference in this case is that the great admiration we all have for the police has been growing and growing every year, and is likely to go on growing in years to come.
We knew then that a big volume of public opinion was in favour of retaining capital punishment. We know that it is so to-day. I am asking myself: have we to-day less material for the forming of a judgment on the issue which the noble and learned Lord the Lord Chancellor put to us so very lucidly at the beginning of our debate, or is it really true that such material as may be available, or such changes as may happen within three years or so, will enable us to make a more wise decision than we shall make to-day if we vote in favour of the main Resolution?
1302 My Lords, I think about the various pleas which have been made. First, there is the plea that there should be a delay of some months—less than twelve months, but at any rate some months. Personally, I would much rather that we were not debating this subject to-day but were debating it a few months hence—and I think that purely for psychological reasons. There are psychological reasons whereby for many noble Lords—perhaps for all of us—it would have been easier had the matter been on the agenda a little longer; and there are a number of other considerations. But I do not think that those psychological reasons add up to reasons of material consequence why it would be wrong to take a main decision to-day.
Then there is the plea that to wait longer, perhaps three or more years, for a greater, longer collection of statistics will enable a wiser judgment. I believe that the noble and learned Lord the Lord Chancellor and the noble Baroness, Lady Wootton, dealt with this argument as cogently as it can be dealt with. The statistics show a picture as follows: 1966, down somewhat; 1967 and 1968, up somewhat; 1969, so far, on incomplete evidence, an indication of a figure down. A few more years of what is really "a nicely calculated less or more" will not, I think, enable a decision with greater knowledge or wisdom about the main issue than is possible to-day.
There is the further plea that delay is called for on account of the state of public opinion; the suggestion that perhaps three years hence public opinion may be more ready to accept changes which it will not accept to-day. That plea weighs strongly with the right reverend Prelate the Bishop of Exeter, who, having made as powerful an abolitionist speech as I have heard from these or perhaps any Benches, said he thought that abolition would go through more easily three years hence. I believe that that is a very naïve speculation on the part of the right reverend Prelate, because I do not think he took into account the kind of political forces, for instance, that may be on the scene in that period. I think it possible that if the right reverend Prelate's view prevails he will not find after three years that his great aim of abolition is nearer, but he may find his 1303 own neck caught in a noose of political complications which he had not foreseen.
Then, my Lords, there is the plea that with delay the public can be the more assured that violent crime is being grappled with far more effectively. We all want to see violent crime grappled with far more effectively. This debate has already thrown up some very significant suggestions, not least the suggestion that the carrying of any weapons, great or small, by any person in the course of committing any crime, great or small, should be in itself a special category of crime to be severely punished. But there is, I believe, this point: that the spectre of a desire to have capital punishment back again has a rather inhibiting effect upon the progress of a really new, more scientific penology. If the issue is put in the form, "Crime is getting so bad that perhaps we had better bring back either flogging or hanging", I believe that such a plea so cuts across the issue as to stand in the way, as I think it has in the past stood in the way, of a far more rational concentration on the tackling of crime in the more radical ways that have been suggested in this debate.
My last words will be on the difficult question of one's decision having relation to public opinion. I think that any public man has from time to time agonies of decision about this question of having relation to public opinion. Public men exist to lead opinion, and not just to follow it. On the other hand, they must not get themselves hopelessly out of touch with public opinion. That means, on the one hand, having a great respect for the moral perceptions of the public when those perceptions are based upon clear knowledge; and at the same time it involves a readiness not to be ruled by what may be currents of sentiment rather than thought-out judgments. I believe that every public man finds this extraordinarily difficult, as I do myself; and, no doubt, collectively, that is a great problem of judgment and conscience for a House like this.
In great perplexity as to how to clarify my own thought on this subject, I found last evening the utmost help in some words used by the noble Lord, Lord Gore-Booth, out of great experience; and as it was in a far from full Chamber that he 1304 used these words, I am sure he will forgive me if I now quote them. The noble Lord said that we should have a "broad historical perspective" on this question, and he went on to say—and I quote from columns 1189–1190 of yesterday's OFFICIAL REPORT: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 sometimes 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 ".My Lords, that statement puts my own thoughts into words far better than I could attempt to put them myself. That is why I am going to follow the noble and learned Lord the Lord Chancellor into the Lobby.
§ 4.20 p.m.
§ VISCOUNT ECCLES
My Lords, a great debate is now moving to a close. If I have interpreted correctly the full, very fair, extremely well-informed speeches of your Lordships, we have reached this position: that the majority of those who have been in the House want abolition to be a permament part of the law of the land, either now or later. But some of us believe that it would be unwise to rush the decision this evening. If I am right in that, it is a very good thing; it means that on this great issue we are not as bitterly divided as we might have been some years ago.
I ought perhaps to explain my own position. I came to believe in abolition very slowly. When I was young I accepted hanging as a matter of course. Then, as I began to take more interest in other people, and particularly in the children in the schools, I came to see that in each boy or girl there is a something, a divine spark, a hope beyond our reckoning, which it is utterly wrong ever to extinguish by an act of judicial retribution. I am not much moved by statistics or by the learned arguments of criminologists or experts. Other people may find these convincing. My view about 1305 abolition is founded on what I must call a religious attitude to the meaning of human life. Having come to that conviction very slowly over the years, I feel for all those who are still in doubt; and it is about them that I wish to say a word this afternoon.
My Lords, I do not think there is a single one of your Lordships who would wish this reform to be brought in in a manner which stoked up the fires of controversy in the constituencies. Are you sure that we should not be putting at risk the permanent abolition of the death penalty by taking the decision a little too early, rather too hurriedly, and over the heads of the people who, quite unlike the experts, feel that they have not had enough time or information to come to a balanced judgment? In other words, how much does it matter if the decision is taken this evening before Christmas, or later? I think that that is the question which really divides the House.
I grant that there are two classes of persons to whom the earlier date must be a matter of congratulation. They are the passionate abolitionists—very finely represented yesterday in a speech by the noble Baroness, Lady Wootton of Abinger—who are impatient with the shilly-shallying of inferior minds. I respect their enthusiasm. But I hope to show them that their haste could do great harm to their cause—and it is my cause, too. Then there are those who thinkfirst—and, my Lords, there is nothing wrong with that—of electoral considerations. They, too, may find that their manœuvre to get this decision out of the way before Christmas will turn against them.
Looking back to the year 1965, why did my noble friend Lord Brooke and those abolitionists who supported him write into the Act the trial period? I do not take quite the same view as the most reverend Primate on this. I distinctly remember that that clause made all the difference to the Bill, not only to myself but to a great many of my honourable and right honourable friends in another place. Surely, we did that out of respect for all those members of the public who still had doubts about getting rid of the death penalty? We were undertaking to try to convert them, to allay the doubts of some, to change the retentionist views of others, by fair and open 1306 methods. That was our undertaking, as we saw it and as the public came to see it. To-day we are being asked to go back on that undertaking, to a certain extent. We are being asked to hurry through this decision before the expected trial period is over. The one question to ask after that is: what will the public reaction be? In my judgment, we shall be handing to Mr. Duncan Sandys and his friends a marvellous bonus with which to cap their arguments between now and the Election and, of course, during the Election itself.
There is no more certain way to rouse British audiences—and we have to think of four-fifths of the electorate who are deeply worried about the increase in crimes of violence. They are not looking at the statistics of murder from one year to another; they are looking at the crimes of violence and are worried whether they are soon going to be followed by an increase in murder. There is no more certain way of rousing British audiences than to be able to show them that they have been unfairly treated. Imagine how easy it will be on platform after platform for the retentionists to turn the thoughts of a political meeting from the basic issue to the unfair manner in which the decision was taken! We must expect that public reaction to this treatment to go further than this issue itself. A great many intelligent people will construe a premature decision on abolition as one more proof that the Government do not care how they are thinking. I submit to your Lordships that in 1969 it is neither right nor clever to treat public opinion in this way.
My Lords, I need hardly remind the House that the British people are becoming more widely educated than they used to be. Each year more children are staying on at school beyond the statutory age; each year more are going on to some form of higher education; each year a larger proportion of the population is not only capable of making up their minds but are demanding to be listened to on issues which formerly were only within the grasp of a tiny privileged minority. We are not still living in the eighteenth century when Edmund Burke wrote his famous letter to his constituents at Bristol. The structure of society has radically changed and is still radically changing in the direction of 1307 greater educational equality—and a very good thing, too. Of course, Members of Parliament must always insist on voting according to their consciences. But they must now take the greatest care to treat the public as adults—or the public will soon refuse to respect them; and then our Parliamentary institutions will be in grave danger. I press this point because the public believe—all those that I have talked to on this subject —that they were offered a period of trial while the death penalty was suspended and that now they may be going to find that this period is to be truncated for reasons of political convenience.
My Lords, no good reason has been given to us for choosing a date either just before or just after Christmas in preference to a date, say, in the late spring. We know from the speeches made by right honourable gentleman in another place that this early date suits both their conscience and their book.
I fail to understand how the abolitionists can imagine that the electorate will not resent the Home Secretary's manœuvre. It is not as though he was trying to by-pass a small body of dissident opinion. The right honourable gentleman knows very well that he is dealing with more than half the electorate. It is not brave to flout opinion on that scale; rather it is extremely foolish when the object we all want (I do and I think that the majority of noble Lords wish to attain it) in the end is a permanent and willingly accepted abolition clause in our criminal law. I do not want any political Party to collect votes out of this issue of life and death, but I can tell noble Lords that unless we accept the Amendment of my noble and learned friend to extend the period, one political Party will do so and I shall be very sorry. I agree entirely with the noble Lord, Lord Shackleton, that the Labour Party were not trying to get votes. In point of fact abolition is probably damaging to their cause. For that I salute them. But they have done it, or they are attempting to do it tonight, in a manner which is not right and not fair and will therefore achieve precisely what we do not want to happen —that is, stoke up the fires of controversy in the constituencies.
What are we to do? I agree very much with the right reverend Prelate the Bishop 1308 of Exeter. I agree very much with those who say that time is on the side of abolition. One noble Lord said that the younger people are nearly all for abolition. So they are, so far as I know them. And as they are growing up and becoming the voters, we know, from that point of view alone, that time is on the side of abolition. But the time is not yet quite ripe.
I now pray in aid the noble and learned Lord the Lord Chancellor. As has already been mentioned in the debate, he stated on July 27 1965:I am not myself satisfied that a five-year period is really long enough to judge, and I should personally prefer a ten-year period."—[OFFICIAL REPORT, 27/7/65, col. 1252.]That was very good advice in 1965 and it is good advice now; and I think that we ought to help the noble and learned Lord who has not changed his mind, judging by the speech which he made yesterday. Obviously he is a political prisoner and we can set him free and get him back on the right course. My Lords, we can do that by voting for the Amendment of my noble and learned friend which alone will take us—for me this is the important point—well clear of the Election. The way in which this has been introduced means that it is going to be an issue in the Election, and I do not want it to be. There is no practical way of getting it clear of the Election, of allowing time to rally the younger people to the abolitionist side, except we vote for my noble and learned friend's Amendment. This would be a suitable and well-deserved Christmas present for the noble and learned Lord who sits on the Woolsack and whose courteous leadership of this House we very much appreciate.
§ 4.35 p.m.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, it has been a very good debate, if I may say so, and I think the arrangements made have been very convenient. But perhaps in one way the other place had an advantage, because, as your Lordships know, on the first day they all attacked the Government for raising the question too soon, or not giving them enough time to read the documents. It was a real ordinary political Party matter with the Whips on, and everybody had a very good time. Then, having got over that, on the second day they discussed capital punishment. 1309 There was, I think, some convenience in that arrangement. They were, of course, discussing the subject on a free vote.
When people say that there has not been time to think about the arguments, I must, of course, believe them; but I am surprised. Perhaps I am peculiar in having read all the debates on capital punishment in both Houses since 1810 and having sat in the Gallery for most of them during the 1920s and since. But the argument, certainly the retentionist argument, has always been exactly the same, starting from 1810 with the first Bill to abolish capital punishment for shoplifting, which was thrown out by the Lords; to 1811, when the same Bill was thrown out by the Lords; to 1813, when the same Bill was thrown out by the Lords; to 1816, when the same Bill was thrown out by the Lords; to 1818, when the same Bill was thrown out by the Lords; to 1820, when it was again thrown out.
I have always been fascinated to read what my noble and learned predecessors on the Woolsack have said. In 1820, when the House of Commons passed a Bill to abolish capital punishment for cutting down a tree, the noble and learned Lord, Lord Eldon, got up from the Woolsack and said:It does undoubtedly seem a hardship that so heavy a punishment as that of death should be affixed to the cutting down of a single tree, or the killing or wounding of a cow. But if the Bill passes in its present state a person might root up or cut down whole acres of plantations or destroy the whole of the stock or cattle of a farmer without being subject to capital punishment.Well, my Lords, you see the argument never changes.
The real retentionist's argument is a perfectly reasonable one. He says, "I do not like statistics. I am not impressed by what happens abroad, because they are foreigners and we are English. I am convinced. You can say anything you like, but I am honestly convinced that capital punishment must be a bigger deterrent than any other kind of punishment, and therefore, if you abolish it for this crime, this crime will increase." There is no reason why anyone should not think that. It is not at all unnatural. Of course, the retentionists will vote against the Government Motion to-night. And if we have another two days' debate 1310 in March they will vote against abolition again. And if we have some more clays' debate in July they will vote against abolition again, because they do not believe in it; and they are quite entitled not to.
I always think that the shortest statement of the retentionist position arose in 1748, when William York was convicted of murder at Durham Assizes. It was in that short period in our legal history when the trial judge had the right himself to respite the death sentence. The then trial judge, who was, in fact, the Chief Justice, was in very great doubt, so he asked all the other judges—few, of course, in those days. They had a meeting and sent him a short memorandum, which is how we know what they said. They said:He is a proper subject for the capital punishment and ought to suffer it. Though the taking away of the life of a boy of ten years old may savour of cruelty yet as the example of this boy's punishment may be a means of deterring other children from the like offences, and as the sparing of this boy, merely on account of his age, will probably have a quite contrary tendency, in justice to the public the law ought to take its course.My Lords, we have had so much Parliamentary history in this sphere, we have had so many debates, and the arguments in all the debates have almost always been the same. I agree as to public opinion. One ought to take public opinion into account, and indeed in. the other House they fail to do so at their peril. But I remember the Attorney General in 1948 saying:We ought to distinguish between informed opinion and uninformed opinion.I have discussed this subject with many people who just do not know the answer, because naturally they have not studied the matter. They have not studied what has been happening in this sphere. Starting from the days in the last century when capital punishment was abolished, we find that the number of crimes committed in the three years after abolition was actually less than the number of crimes committed in the three years before abolition. People do not realise that nearly every Christian Western democracy has abolished capital punishment. They know nothing of the Select Committee or of the Royal Commission. They do not know that there 1311 is not a single country in the world where the abolition of capital punishment has resulted in an increase of murder.
When I attend debates on this question, in village halls, I always ask the organisers to have a vote at the beginning as well as at the end, and the results have always been about the same. At the beginning there are two-thirds for capital punishment and one-third against. At the end of the argument two-thirds are in favour of abolition and one-third in favour of retention. That is the difference between informed and uninformed opinion.
So far as Members of Parliament are concerned, what constituents like is to have somebody who is sincere and says what he thinks. I remember speaking for Mr. Sidney Silverman at an election in which a candidate was standing on the capital punishment platform. The only result was that Mr. Silverman increased his majority, because the capital punishment candidate took away more Conservative votes than Labour. So I think that everybody has had the sort of information they need.
May I now come to Part II—capital punishment. I would say at once, as did the noble Earl, Lord Jellicoe, that the House must decide this question on a free vote. I am not asking any supporter of the Government to vote because it is a Government Motion or otherwise than as he thinks right. I am certain that capital punishment is not a greater deterrent than other kinds of punishment. All the evidence everywhere and every inquiry that has ever been made shows this. Fortunately, you can live with some mistakes for about half a century. For a number of years capital punishment was abolished in Queensland while New Zealand next door had it, though I think that they have abolished it since. The same is true of adjoining states in America, with the same kind of industrial and social level—Maine and New Hampshire, Rhode Island and Massachusetts. Looking back over half a century at what has happened in these states, we find that the murder rate sometimes goes up and sometimes down, but if it goes up in the abolitionist state it also goes up in the state which retains capital punishment. I am absolutely 1312 satisfied that every inquiry that has taken place shows that capital punishment is not a greater deterrent than other forms of punishment.
I would say to the noble and learned Lord, Lord Reid, that for generations we have heard this argument that, on the average, those imprisoned for murder are released at the end of nine years. It is not true. I remember the late Lord Jowitt saying in 1948 that when he was looking at this average of nine years he sent for the files from the Home Office. The first file he looked at showed that the man had been let out after a year. The man in the second file was still in prison after 19 years. My noble friend added, "They say the average is nine; what on earth does it mean?"
The argument on the state of crime is always put both ways. If crime is increasing, the retentionists say that with all this increase in serious crime this is a fatal time to adopt abolition. If crime is decreasing, they say that that shows how well the present deterrent is operating and it would be a pity to water it down. The record for that sort of argument was made in the 1948 debate, when two noble and learned Lords put the same point both ways round at the same time. The first said (I am quoting from the OFFICIAL REPORT Vol. 155, column 430):Is this the time in which to introduce this change in the law? The statistics which wore given in the other place by the Home Secretary showed a great increase in crime.The other noble and learned Lord said, at column 532:The number of crimes of murder in this country is very small … I ask your Lordships to take the view that, when things are going so well as regards the number of murders, this is not the time to make this great alteration."Heads I win, tails you lose", is always fun, but it does not occupy a high place in the scheme of logical argument.
I think that capital punishment is wrong. I am not going to say any more on that. I think that human beings who are not infallible ought not to choose a form of punishment which is irreparable. No legal system can exist in which a mistake cannot be made, particularly, perhaps, on questions of identity, and if we make a mistake in that sphere, then, by our choice of punishment, we have deprived ourselves of the opportunity to put it right. Moreover, I do not think 1313 it is right to expect other people to do a thing which we would not do ourselves. It was a former governor of Pentonville Prison who said to the Select Committee:I never can help asking myself why it is that whenever I am called upon to superintend an execution I should be affected by such an acute sense of personal shame. There must be something very wrong with a law which lowers the self-respect of those whose duty it is to carry it out.Lastly, this is a sphere in which I think that the State should set a good example. I said that the retentionist arguments have not changed. The abolitionist arguments have changed only to this extent: that when Samuel Romilly started this, he could not point to any country where capital punishment had been abolished and there had been no increase in crime, because no country had abolished it. He really had only two arguments. The first was used by the noble Lord, Lord Goodman, yesterday: that the chief deterrent to crime is not severity of punishment but certainty of conviction. He said that we are now finding people to whose whole way of life capital punishment does not accord. They think it is wrong and therefore there are acquittals, and it would be much better to abolish capital punishment and get convictions. The second argument is that it is for the State to set a good example, and we all underrate the effect of the example of the State. He was really saying what John Bright said a long time ago:A deep reverence for human life is worth more than a thousand executions and it is the great security of human life. The law of capital punishment, while pretending to support this, in fact tends to destroy it".As to the form of the Resolution and with regard to the Amendments, I will not say anything about the Amendment of the noble Lord, Lord Brooke of Cumnor, but I must address myself to the right reverend Prelate the Lord Bishop of Exeter on the form of the noble Viscount's Amendment, because I think that he was not here at the opening of the debate and he made it clear in what he said that he thought that the Amendment meant what it said and would effect what it said.
THE LORD BISHOP OF EXETER
My Lords, I was here and did hear. I was trying to say that there seemed to me to be no insuperable difficulty in the Government bring in a one-clause Bill, which would give effect to the noble 1314 Viscount's Amendment, if it were passed in this House.
§ THE LORD CHANCELLOR
My Lords, I am much obliged. May I remind noble Lords who may not have been here and heard, first, that if an Amendment of this kind were passed by both Houses, the Government have always been advised that it would have no effect in law, the reason being the simple one that we cannot alter the law by a Resolution unless there is a pre-existing Act which says that we can alter the law in that way. The words which the noble Lord, Lord Brooke of Cumnor, put in does not do that. I am certainly not going to refer to it again, but I did read, and I am afraid wearied the House by reading, at the opening of the debate a number of Acts in which Parliament had provided for extensions by Affirmative Resolutions, saying that by Affirmative Resolution something should not expire, but should continue for a further period of two years, and some of them provided for more than one extension of time. But this section in this Act does not do that. It says:… shall then expire unless Parliament by affirmative resolutions in both Houses otherwise determines …that is, that it shall not expire. In consequence, the Government have always been advised that an Amendment in this form would be quite ineffective in law. The noble and learned Viscount does not really disagree with that, because he said: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 rnine."—(OFFICIAL REPORT, 17/12/69; col. 1137.)
§ VISCOUNT DILHORNE
I have not had an opportunity of correcting Hansard, if Hansard reports that. I said that I was quite prepared to recognise that my view might be wrong, and that the Lord Chancellor's view might be wrong. But my present view is that there are powerful arguments indeed for saying that "otherwise to determine" includes "determining that the Act shall continue for a period of time".
§ THE LORD CHANCELLOR
I took the precaution of saying that, although that was the Government's advice, and I agreed with it, lawyers notoriously differ on questions of construction, and I was 1315 not prepared to say that some lawyers might not take a different view. Putting it at its lowest, if both Houses had passed the Resolution in this amended form, it would have been very doubtful whether we got capital punishment in England or not. If the Government's advice is right, we should have. We should have to wait until somebody committed a murder in August, and then the court would decide, either initially, or it might go to the Court of Appeal and then to this House. Further, the noble and learned Viscount does not dispute the proposition that this Resolution, if his Amendment is accepted, can of itself have no effect at all. He said —and again I read from his speech: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."—[OFFICIAL REPORT, 17/12/69, col. 1136.]All the Amendment will do is to create a nonsense. It will be of no effect of any kind. The effect of voting for the noble and learned Viscount's Amendment is exactly the same as the effect of voting against the Government's Resolution. In both cases it means that there will be a conflict between the two Houses. At one time there was an answer to that: "Well, we can always carry the Government's Resolution without such an Amendment at a later date, say in July." As to that, all I can say is that I am advised by the proper quarter that the probability is that we could not, because this would offend against the rule that you cannot have two Motions dealing with the same thing in the same Session. Then it is said: "Well, we could have a one-clause Bill." Anybody can start a one-clause Bill in this House; but, as your Lordships know, when it gets to the other House, it only needs one Member to say "I object". So far as the other House is concerned—because Bills on capital punishment have always been Private Members' Bills—all the places in the ballot have been drawn and allotted, and I understand that all the Motion days are taken up, too.
The Government are not going to introduce a Bill. If there is a conflict, 1316 there is a conflict, and it will be for those who created the conflict to get out of it. It is no good the Government trying to get something through on a free vote, because it would not be a Government Bill; there would be no Whips on. This has always been, and so rightly, a non-Party political question. The noble Lord, Lord Ferrier, spoke about that yesterday. I can only assure him that all my life I have fought with everything I could against the Labour Party or any Party adopting a capital punishment platform. The reason for that is simple. I do not think it is right. Look at New Zealand. The Labour Party put it in its manifesto, and when it was returned it abolished capital punishment. The Conservatives —or the Liberals, as they are called there—had said at the time that they liked capital punishment; that they thought it was essential, and if the Labour Government abolished it, they would bring it back. So at the next General Election, when they got in, they brought it back. At the next General Election Labour got in with a majority of one seat. They had one or two retentionists, so they did nothing for a time. But a Bill was introduced, and it was carried because the Shadow Minister of Justice and six of his colleagues crossed the Floor of the House, because they were abolitionists. But it cannot be right that two men and a woman in condemned cells should be hanged or not according to the result of a by-election.
§ LORD FERRIER
My Lords, the noble and learned Lord will recall what I said yesterday as a vehicle for the suggestion which had been made by the noble Marquess, Lord Salisbury, for a Referendum, which, taken along with a General Election might take the whole issue out of the Party arena.
§ THE LORD CHANCELLOR
I was agreeing with the noble Lord that it should not be a matter of Party politics. That being so, what is this talk about a one-clause Bill? There are 343 determined abolitionists in the Commons. They have already expressed their view, by a fairly massive majority, that they think the time to abolish capital punishment is now. I pity whoever has to handle some Bill on capital punishment, with all the possible Amendments, in face of that opposition. 1317 Of course, it is never the right time to abolish capital punishment. I ask your Lordships to take the view that the three Leaders of the Parties in the other place were right in thinking that the time has come now. If what your Lordships want is that the Home Office should go on keeping the figures, and that we can look at this matter again at some other time, the only way to arrive at that is to vote against the Amendment and for the Resolution, because that is what would happen. The Home Office will certainly go on with the figures and their analyses, and at any time it will be open to anybody, since no Act of Parliament is permanent in that sense, to try to bring back capital punishment. Therefore, I would suggest that the three Party Leaders were right in saying that now is the time, and I hope that your Lordships will say so.
§ 4.49 p.m.
§ VISCOUNT DILHORNE
My Lords, I rise formally to move the Amendment that stands in my name. I should have had the right to make a speech in moving the Amendment, and again at the end of the discussion. There are just three sentences that I should like to say, merely in reply to matters which the noble and
§ learned Lord the Lord Chancellor has raised dealing with my Amendment at the end of the debate. I will not refer to his observations at the beginning about abolition and restoration of capital punishment, because that is not the issue which is to be determined to-night. Whichever way this vote goes, capital punishment does not come back. The noble and learned Lord referred to the legal arguments. I do not propose to pursue that matter now but I venture to differ from him in his observations about a one-clause Bill and a Private Bill. A Private Bill is not killed by one person saying, "I object". A tightly drawn Bill cannot easily be amended. There are many precedents for the Government giving time for a Private Member's Bill, and no Government would allow the 1957 Act back into operation. I beg to move.
§ Amendment moved—
§ To leave out all words after ("expire") and insert ("until the thirty-first day of July 1973").—(Viscount Dilhorne.)
§ 5.1 p.m.
§ On Question, Whether the said Amendment shall be agreed to?
§ Their Lordships divided: Contents, 174; Not-Contents, 220.1319
|Aberdare, L.||Chelmer, L.||Geddes, L.|
|Abergavenny, M.||Clwyd, L.||Gisborough, L.|
|Ailwyn, L.||Colville of Culross, V.||Glendevon, L.|
|Airlie, E.||Conesford, L.||Glendyne, L.|
|Albemarle, E.||Cornwallis, L.||Goschen, V.|
|Aldenham, L.||Cottesloe, L.||Greenway, L.|
|Allerton, L.||Craigavon, V.||Grenfell, L.|
|Alport, L.||Cranbrook, E.||Gridley, L.|
|Amory, V.||Crawshaw, L.||Grimston of Westbury, L.|
|Ampthill, L.||Cromartie, E.||Grimthorpe, L.|
|Ashbourne, L.||Cromer, E.||Hacking, L.|
|Auckland, L.||Daventry, V.||Hankey, L.|
|Baillieu, L.||Denham, L.||Harrowby, E.|
|Baldwin of Bewdley, E.||Deramore, L.||Hawke, L.|
|Balerno, L.||Devonport, V.||Headfort, M.|
|Balfour of Inchrye, L.||Digby, L.||Howe, E.|
|Beauchamp, E.||Dilhorne, V. [Teller.]||Hylton-Foster, Bs.|
|Beaumont, Bs.||Drumalbyn, L.||Inchyra, L.|
|Belhaven and Stenton, L.||Dundee, E.||Inglewood, L.|
|Belstead, L.||Dundonald, E.||Ironside, L.|
|Berkeley, Bs.||Eccles, V.||Jellicoe, E.|
|Bledisloe, V.||Effingham, E.||Kemsley, V.|
|Boston, L.||Ellenborough, L.||Killearn, L.|
|Bourne, L.||Erroll of Hale, L.||Kilmany, L.|
|Braye, L.||Essex, E.||Kinnoull, E.|
|Bridgeman, V.||Exeter, L. Bp. [Teller.]||Knutsford, V.|
|Brock, L.||Exeter, M.||Lambert, V.|
|Brooke of Cumnor, L.||Falkland, V.||Lansdowne, M.|
|Brooke of Ystradfellte, Bs.||Ferrers, E.||Latymer, L.|
|Burton, L.||Ferrier, L.||Lauderdale, E.|
|Caccia, L.||Fortescue, E.||Leicester, E.|
|Camrose, V.||Gage, V.||Liverpool, E.|
|Lloyd-George of Dwyfor, E.||Oakshott, L.||Stonehaven, V.|
|Long, V.||Penrhyn, L.||Stradbroke, E.|
|Lothian, M.||Perth, E.||Strathcarron, L.|
|Loudoun, L.||Poltimore, L.||Strathclyde, L.|
|Loudoun, C.||Polwarth, L.||Stuart of Findhorn, V.|
|Lovat, L.||Redmayne, L.||Swansea, L.|
|Lucas of Chilworth, L.||Reid, L.||Swaythling, L.|
|Luke, L.||Roberthall, L.||Swinton, E.|
|MacAndrew, L.||Rockley, L.||Terrington, L.|
|McCorquodale of Newton, L.||Rowallan, L.||Teviot, L.|
|Macpherson of Drumochter, L.||Sackville, L.||Thomson of Fleet, L.|
|Mar, E.||St. Aldwyn, E.||Tollemache, L.|
|Massereene and Ferrard, V.||St. Helens, L.||Trefgarne, L.|
|Mersey, V.||St. Oswald, L.||Trevelyan, L.|
|Mills, V.||Salisbury, M.||Tweedsmuir, L.|
|Milner of Leeds, L.||Salter, L.||Verulam, E.|
|Milverton, L.||Saltoun, L.||Vivian, L.|
|Molson, L.||Sandford, L.||Wedgwood, L.|
|Monck, V.||Sandys, L.||Weir, V.|
|Monk Bretton, L.||Savile, L.||Wellington, D.|
|Monson, L.||Selkirk, E.||Westminster, D.|
|Montevans, L.||Sempill, Ly.||Willingdon, M.|
|Mowbray and Stourton, L.||Shaftesbury, E.||Wolverton, L.|
|Napier and Ettrick, L.||Sherfield, L.||Woolley, L.|
|Netherthorpe, L.||Simonds, V.||Yarborough, E.|
|Northchurch, Bs.||Sinclair of Cleeve, L.|
|Nugent of Guildford, L.||Stamp, L.|
|Abinger, L.||Coventry, L. Bp.||Hertford, M.|
|Addison, V.||Craigmyle, L.||Hilton of Upton, L|
|Airedale, L.||Croft, L.||Hirshfield, L.|
|Amherst, E.||Crook, L.||Hives, L.|
|Amulree, L.||Crowther, L.||Holford, L.|
|Annan, L.||Cullen of Ashbourne, L.||Howard of Glossop, L.|
|Archibald, L.||Darwen, L.||Hughes, L.|
|Arwyn, L.||Delacourt-Smith, L.||Hunt, L.|
|Aylestone, L.||Denning, L.||Huntingdon, E.|
|Balogh, L.||Dinevor, L.||Hurcomb, L.|
|Barnard, L.||Donaldson of Kingsbridge, L.||Ilford, L.|
|Beaumont of Whitley, L.||Douglas of Barloch, L.||Inman, L.|
|Bernstein, L.||Douglass of Cleveland, L.||Jackson of Burnley, L.|
|Bessborough, E.||Durham, L. Bp.||James of Rusholme, L.|
|Beswick, L. [Teller.]||Elliot of Harwood, Bs.||Jessel, L.|
|Birdwood, L.||Emmet of Amberley, Bs.||Kahn, L.|
|Birk, Bs.||Energlyn, L.||Kennet, L.|
|Blackburn, L. Bp.||Esher, V.||Kilbracken, L.|
|Blackett, L.||Evans of Hungershall, L.||Kirkwood, L.|
|Blackford, L.||Faringdon, L.||Leatherland, L.|
|Boothby, L.||Fiske, L.||Lichfield, L. Bp.|
|Bowden, L.||Foot, L.||Limerick, E.|
|Bowles, L. [Teller.]||Fulton, L.||Lincoln, L. Bp.|
|Bristol, L. Bp.||Furness, V.||Lindgren, L.|
|Brockway, L.||Gaitskell, Bs.||Lindsey and Abingdon, E|
|Brown, L.||Gardiner, L. (L. Chancellor.)||Listowel, E.|
|Buckinghamshire, E.||Garnsworthy, L.||Llewelyn-Davies of Hastoe, Bs.|
|Burden, L.||Gifford, L.||Lloyd of Hampstead, L|
|Burton of Coventry, Bs.||Gladwyn, L.||London, L. Bp.|
|Byers, L.||Goodman, L.||Longford, E.|
|Campbell of Eskan, L.||Gore-Booth, L.||Lyle of Westhourne, L.|
|Canterbury, L. Abp.||Gowrie, E.||Lytton, E.|
|Carnock, L.||Grantchester, L.||McLeavy, L.|
|Cawley, L.||Granville of Eye, L||MacLeod of Fuinary, L.|
|Chalfont, L.||Gray, L.||Maelor, L.|
|Champion, L||Haig, E.||Manchester, L. Bp.|
|Chester, L. Bp.||Hailes, L.||Mancroft, L.|
|Chichester, L. Bp.||Hall, V.||Marks of Broughton, L.|
|Chorley, L.||Hanworth, V.||Melchett, L.|
|Citrine, L.||Harewood, L.||Merthyr, L.|
|Collison, L.||Harmsworth, L.||Meston, L.|
|Combermere, V.||Harvey of Tasburgh, L.||Milford Haven, M.|
|Cooper of Stockton Heath, L.||Hater, L.||Mitchison, L.|
|Cork and Orrery, E.||Hende[...]son, L.||Monckton of Brenchley, V.|
|Courtown, E.||Henley, L.||Monsell, V.|
|Montagu of Beaulieu, L.||Redcliffe-Maud, L.||Strabolgi, L.|
|Morris of Borth-y-Gest, L.||Redesdale, L.||Strang, L.|
|Morris of Grasmere, L.||Rhodes, L.||Strange of Knokin, Bs.|
|Morrison, L.||Ripon, L. Bp.||Strathcona and Mount Royal,|
|Mottistone, L.||Ritchie-Calder, L.||L.|
|Moyle, L.||Ritchie of Dundee, L.||Summerskill, Bs.|
|Nathan, L.||Rochdale, V.||Swanborough, Bs.|
|Newcastle, L. Bp.||Rochester, L. Bp.||Tangley, L.|
|Norwich, V.||Rochester, L.||Taylor of Gryfe, L.|
|Nunburnholme, L.||Rothes, E.||Taylor of Mansfield, L.|
|Ogmore, L.||Royle, L.||Tayside, L.|
|O'Hagan, L.||Runciman of Doxford, V.||Todd, L.|
|Oxford, L. Bp.||Rusholme, L.||Truro, L. Bp.|
|Pargiter, L.||Ruthven of Freeland, Ly.||Wade, L.|
|Peddie, L.||Sainsbury, L.||Waldegrave, E.|
|Pender, L.||St. Davids, V.||Walston, L.|
|Phillips, Bs.||Segal, L.||Ward of Witley, V.|
|Platt, L.||Serota, Bs.||Waverley, V.|
|Plummer, Bs.||Shackleton, L. (L. Privy Seal)||Wells-Pestell, L.|
|Ponson[...]by of Shulbrede, L.||Sharp, B.||Wigg, L.|
|Poole, L.||Shepherd, L.||Wilberforce, L.|
|Popplewell, L.||Silkin, L.||Willis, L.|
|Portsmouth, L. Bp.||Snow, L.||Wilson of Langside, L.|
|Raglan, L.||Soper, L.||Winterbottom, L.|
|Rankeillour, L.||Sorensen, L.||Wise, L.|
|Rathcreedan, L.||Southwark, L. Bp.||Wootton of Abinger, Bs.|
|Ravensdale, L.||Stokes, L.||Worcester, L. Bp.|
|Rea, L.||Stonham, L.||Wright of Ashton under Lyne, L.|
|Reay, L.||Stow Hill, L.|
On Question, Motion agreed to.