HL Deb 24 July 1991 vol 531 cc784-90

3.17 p.m.

The Parliamentary Under-Secretary of State, Minister of Defence (The Earl of Arran)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Earl of Arran.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clauses 1 to 16 agreed to.

Lord Graham of Edmonton moved Amendment No. 1:

After Clause 16, insert the following new clause:

("Abolition of the death penalty

.—(1) In each of the 1955 Acts—

  1. (a) in subsection (3) of section 24 (misconduct in action), subsection (2) of section 25 (assisting the enemy), and subsection (3) of section 26 (obstructing operations etc), paragraph (a) and the words "(b) in any other case," shall be deleted;
  2. (b) in subsection (I) of section 31 (mutiny) the word "death" shall be deleted and the word "imprisonment" inserted; and
  3. (c) in section 32 (failure to suppress mutiny) sub-paragraph (i) and the words "(ii) in any other case," shall be deleted.

(2) In the 1957 Act—

  1. (a) in subsection (3) of section 2 (misconduct in action), subsection (2) of section 3 (assisting the enemy), and subsection (3) of section 4 (obstructing operations etc), paragraph (a) and the words "(b) in any other case," shall be deleted;
  2. (b) in subsection (1) of section 9 (offences of mutiny) the word "death" shall be deleted and the word "imprisonment" inserted; and
  3. (c) in section 10 (failure to suppress mutiny), the word "death" shall be deleted and the word imprisonment" inserted in its place, and the words "and in any other case, to imprisonment or any less punishment so authorised" shall be deleted.").

The noble Lord said: Those who followed these matters both in another place and at Second Reading —but especially those who have read the report of the Select Committee on the Armed Forces Bill—will be well aware of the issue that I intend to raise. For the benefit of the Committee and those who are in possession of the report, paragraphs 34 and 35, headed "Racial Harassment" are the matters being dealt with by the amendment.

The Minister will recall that at Second Reading I readily acknowledged the first words of paragraph 34, which state, In general we would commend the Armed Forces for the determination with which the problem of bullying has been tackled".

From my experience and from correspondence that I have received, that conclusion is reinforced. However, there is a body of evidence which clearly indicates that we need to do a little more.

The Earl of Arran

I apologise for interrupting the noble Lord, Lord Graham of Edmonton. I wonder whether he is referring to the correct amendment. My understanding is that we are debating Amendment No. 1, which concerns the death penalty.

Lord Graham of Edmonton

I have just died the death in the light of what has been said. The Minister is right. I picked up the amendments before today without the annotation on them. I apologise to the Committee for that error.

The issue of the death penalty is one to which I drew the attention of noble Lords at Second Reading. The Minister will recognise that this matter is dealt with in paragraph 21 of the report. In that paragraph the subject is not only given an airing but attention is also drawn to the fact that the Select Committee recommended to the House that the death penalty for certain offences which now exist in military law should be abolished. On a Division the matter was resolved in another place so the situation has not changed. In other words, for certain offences the death penalty stands in time of war.

There are a great many countries which are members of NATO, and others, which shared our stand on this matter for many years but which have subsequently changed their attitudes to the question. For example, the French—with whose forces many of the British forces fought in the recent war in the Gulf —have recently taken steps to abolish the death penalty in time of war for offences such as treason and so on. In recent years, Denmark, Norway, Australia and New Zealand have all revoked the death penalty for what I would call "military offences".

I want the Committee to acknowledge and the Minister to appreciate that I am not putting forward a one-off attitude as regards those in Britain who share my views; it is part of an international trend. I know that the Minister follows these matters closely and that he will accept that statement. The main argument which is sometimes put forward as to why we should not adopt the amendment is that there is a deterrent present as the law and regulations now stand. However, as we have seen in many instances, the argument that a deterrent has been sufficiently strong to deter a likely killer, murderer or transgressor, does not have the weight that it did in the past.

The death penalty being applied in wartime, by the very nature of the circumstances, clearly indicates that there is a great deal of political weight as opposed to judicial weight when such circumstances arise. The burden of the amendment is to give the Minister the opportunity to defend the position in 1991. A great many of the allies with whom we work have recognised, as we have done, that in 1991 matters have changed considerably over the years. Without any detriment to their civil code and the comparison between civilians and the armed forces, they have seen no objection and have taken positive steps to change their policy.

I remind the noble Earl that it is less than 30 years since the death penalty was abolished in civilian life. I am pleading on behalf of those who may very well transgress in wartime when they are in the forces. They should not have the death penalty visited on them. I beg to move.

Lord Mayhew

This is not a party matter. I have no doubt that most, if not all of my noble friends, agree with me, but I am expressing my own opinion. I do not find this an easy question to answer. At Second Reading we all agreed on the principle of bringing military law into line with civil law. I recall that the noble Earl objected. In civil law the death penalty can still be imposed for treason. If we pass the amendment we shall be separating military law from civil law. However, for those who believe that in both cases the death penalty should not be imposed, there is no logical difficulty here.

There are reasonable grounds for maintaining the death penalty in military law. Apparently, that is the view of the armed forces themselves. That is an argument of the greatest importance which we should always bear in mind. The penalty is hedged about with innumerable conditions nowadays. The death penalty can only be imposed in the most extraordinary circumstances. Mere cowardice and a refusal to obey orders is no longer punishable by death. But times have changed since A.E. Housman wrote about a victim of a firing squad: He could not look on death, which being known, Men led him to it Blindfold and alone". Nowadays a capital offence has to be committed with intent to assist the enemy so that A.E. Housman's victim would be let off. It would also let out a dispatch rider I remember who refused to take a message during a battle. The fact is that times have changed a great deal. For today's armed services the death penalty appears to be an anomaly and an anachronism. As I have said, the death penalty is hedged about with so many qualifications that it can be imposed only in circumstances that are so extraordinary that they will never arise.

In practice, how likely are we to be presented in our voluntary and professional armed forces with a mutiny of a kind in which we would deem it appropriate to punish by shooting or hanging the culprits? That is inconceivable today. Perhaps in the past such a scenario carried some weight, but it has no credibility at all today. It can only have credibility in the future if our society changed for the worse and beyond recognition. My view is that we are here to legislate for today. We do not need to legislate for a hypothetical, disastrous future. I support the amendment.

Lord Boyd-Carpenter

I hope that the Committee will not accept the amendment although I am sure that it is put forward in all sincerity and with good intentions. In considering the matter the Committee should recall the peculiar and difficult situation which faces members of the armed forces in war. The tension, strain and the danger are all very serious factors indeed. It has always been thought necessary that in order to make sure that the discipline of the services is preserved under stress and in difficult and dangerous circumstances there should be, if necessary, the death penalty for mutiny or failure to comply with proper orders.

To abolish that sentence now would seem to be very unwise. To abolish it is a matter for very careful consideration. We are dealing with what has been the law for a very long time. The death penalty has always been accepted by the armed forces as being a necessary part of the law. If we withdraw that penalty from this area it would seem to many people that we were beginning to treat a failure to carry out orders or disobedience in the face of the enemy as less serious than: they have been treated before. Despite the good intentions which have been expressed and the fact, as the noble Lord, Lord Mayhew, said, that it is not a penalty which will need to be invoked very often, as the ultimate deterrent it is absolutely vital that it should remain. I commend to the Committee, and in particular to the mover and seconder of the amendment, the words of the prayer of Sir Robert Hutchinson: From inability to let well alone From too much zeal for the new and Contempt for what is old … Good Lord deliver us".

3.30 p.m.

Lord Milverton

I feel that I am ready to accept this amendment. I have to ask myself whether it is right that a soldier, sailor or airman who commits one of these offences should face the death penalty. I can only make a decision on this matter according to how I know I would feel. I have a connection with the armed services through my brother and I know that those men and women have courage; but they also have fear, do they not? They may appear to be men and women full of courage and with no fear, but underneath they will tell you that they do have fear, even though they have taken up a profession where they know the dangers and what they will meet in the terribleness of war. We have come to the time when I do not know that it is right for us to say to a serviceman or woman that, although the chance is remote, there is the possibility they will face the death penalty. We do not know what is going on in the mind of anyone who has committed one of these offences, or the reasons or fears that made them do it. They are still men and women who have a great love for their country but they have been unable to face up to an ultimate situation.

I thank God that I have not had to face war as a serviceman. It so happened that when any of the wars broke out I was not the right age. I know dashed well that however much support I may have, in the circumstances of war I would be as frightened as hell and may well do something that would result in the death penalty. I think the penalty is wrong. Surely anyone who finds himself in that position would be dismissed from the service; and all that that involves would surely, in a sense, be as much a sentence of death. I do not think the death penalty is right. Perhaps offending servicemen and women need better help than to be told they have to face the death sentence.

The Earl of Arran

My Lords, I respect the sincerely held belief of the noble Lords, Lord Graham and Lord Mayhew, and others in this Chamber that the death penalty under service law should be abolished, which is what Amendment No. 1 seeks to do. This is a matter of the utmost seriousness—that the state currently gives service courts the power to pass the death sentence on one of its citizens.

Perhaps I can discuss the matter of servicemen and women as citizens. When they join the armed forces of this country men and women do not cease to be citizens with the rights and privileges of citizenship but they subject themselves also to a body of law which is designed to provide for the effectiveness of the services as a fighting force through its disciplinary system. In this way, those who serve in the armed forces are set apart from civilians.

We have heard much about the need for service law and civil law to be in line with each other. I accept that, unless there is good reason to the contrary, that should be the case. That is why much of the present Bill, like its predecessors, is concerned with bringing service law closer into line with civil law. Nevertheless, there are, of course, many instances where it is not possible or sensible for service law to be identical to civil law. Service law has to be framed to respond to the circumstances of service life in this country, in communities overseas and during armed operations against an enemy. If it does not, it will not be respected or upheld. We think it is right, therefore, that we have sought the views of the services on the matter. They are firmly of the view that the death penalty should be retained for the five service offences for which it remains a sentencing option.

We should consider this subject against the fundamental principle that the first duty of government is to defend the state and its people. In the final analysis it is the armed forces that carry out this task on our behalf. We must therefore examine with the utmost care any proposal which could be viewed as putting those forces at greater risk than they may already face in operations against our enemies.

The obvious reason for retaining the death penalty is that it is a deterrent. I cannot prove this to the Committee any more than those of a contrary view can prove that it is not. Some will argue that the number of murders in this country did not rise dramatically following the abolition of the death penalty for murder; hence the death penalty was not a deterrent for murder. Yet would one have necessarily expected a dramatic rise? In well over 70 per cent. of murders the victim and the murderer are known to each other. Some 62 per cent. of all female victims are related to or are the lover of their murderer. Many of those victims die as a result of sudden uncontrolled anger by their killers. In those circumstances, we contend, the existence of the death penalty is unlikely to be a deterrent.

I accept that equally in this country we have abolished the death penalty for heinous crimes such as planting bombs calculated to cause a substantial number of deaths and physical damage. But we are talking about abolishing the death penalty for crimes of which only those subject to service law can be accused: crimes of treachery with far reaching implications which service personnel having access to information and equipment are in a unique position to perpetrate; crimes committed with the deliberate intent to assist the enemy in achieving his objectives; and crimes potentially of such seriousness as to threaten the viability of the armed forces and thus, ultimately, the existence of the state. We are talking about calculated actions in time of operations against an enemy, effectively in time of war, and I believe that there is a distinction.

I want to be clear that I do not see the death penalty as retribution as a significant factor in this matter. One of our duties is to protect the lives of servicemen and women who are already facing death at the hands of the enemy in whatever ways seem appropriate. It casts no slur on the professionalism and dedication of those forces that we seek to retain the death penalty. Servicemen or women who may be betrayed by the deliberate treachery of a colleague may well question why, in those circumstances, the colleague faces no more than a period (albeit a long one) in prison but in safety while they remain in danger at the front. Our servicemen and women are prepared, and in extremis may be expected, to make the ultimate sacrifice for their country. Should they not have the reassurance that if a fellow serviceman deliberately betrays them, putting them at even greater risk, that he should, if convicted, face the possibility of paying the ultimate penalty? That point was made by my noble friend Lord Boyd-Carpenter.

Finally, I must make it absolutely clear that the death penalty for service offences is not a mandatory sentence as it still is for the civil offence of treason. The offences which attract the death penalty under service law potentially have such far reaching implications for the continued existence of the state that they can be viewed as akin to treason. Even more, they carry with them the prospect of mass destruction of human life largely, perhaps, among those who are already risking their lives in the course of duty. Until such time as Parliament agrees any change to the law relating to treason it would surely be premature to remove the death penalty for the five service offences to which it applies.

It is with those very serious considerations that I urge the Committee not to accept the amendment.

Lord Graham of Edmonton

I am grateful to the Minister and to all those who have contributed to the debate. Their contributions have been helpful. Members of the Committee have referred to the five categories of crime that are currently capable of attracting the death penalty. No one has actually spelt out the five categories. I shall tell the Committee what they are: misconduct in action, assisting the enemy, obstructing operations, mutiny and failure to suppress a mutiny.

The reasons why the death penalty is no longer appropriate in 1991 for those offences in wartime are the same as those which were accepted by the House and the country for abolishing it in civilian life. Perhaps I may remind the Committee that people who were convicted 20 years ago on irrefutable evidence are now walking free because in latter years it has been proved that the conviction was suspect or faulty. Who is to say that every penalty of death in war for alleged crimes is correct? Mistakes happen. People like myself were repelled by the prospect that an innocent person might be found guilty of a murder in civilian life and then be hanged. The same thing could happen in wartime. Juries in wartime are no less fallible than juries in peacetime. That is one of the arguments.

I respect what the noble Lord, Lord Boyd-Carpenter, said. In effect he said that the death penalty has served the nation well in the past, is appropriate now and should continue to be available. The countries that I have mentioned which shared those views in the past have changed their minds in the light of considerations of humanity and changes in civil liberties. We are saying that those in the forces who are alleged to have committed these crimes ought not to be put to death because of them.

I remind the Minister that in December 1989 the United Nations General Assembly voted to adopt a second optional protocol to the International Covenant on Civil and Political Rights, which provides for abolition of the death penalty for all offences. The United Nations voted for the adoption of the optional protocol in the United Nations General Assembly.

I respect what the Minister said. I certainly respect what the armed forces have said. I believe that the Minister, the Government and the armed forces are wrong to maintain that attitude in 1991. However, I see no useful purpose in testing the will of the Committee on this issue. It was well aired and debated in another place. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Strathmore and Kinghorne

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.