COMMONS AMENDMENT (Hansard, 29 October 1998)

§ Lord Williams of Mostyn
My Lords, I beg to move that the House do agree with the Commons in their Amendment No.1. I shall speak also to Amendments Nos. 46, 54, 55, 57, and 59.
Amendment No. 1 adds two substantive articles of the sixth protocol to the convention rights. This refers to the abolition of the death penalty, except for acts committed in time of war or imminent threat of war.
The other place added Articles 1 and 2 of the protocol in response to amendments tabled by my honourable friend Mr. McNamara. It was explained in another place that that would make it impossible for Parliament to reintroduce the death penalty in future, except for acts committed in time of war or imminent threat of war, without denouncing the convention itself. It was also explained that if those articles were added to the Bill, when we had not signed or ratified the sixth protocol, there would be a certain degree of lack of kilter with our international obligations.
Another place voted by a very large majority (294 to 136) on a free vote to go ahead with the amendments. Your Lordships may recall that we said at that stage that we would respect the will of another place and would initiate the signing and ratification of the sixth protocol.
Three other amendments in this group come from a decision announced in another place on 24th July by my honourable friend the Minister for the Armed Forces. He said that there had been a review of the law in this area and that following that review the Government 2085 intended to abolish the death penalty for military offences in all circumstances, whether in peace or war. Therefore, Amendment No. 54 inserts a new subsection into Clause 21 which provides that any liability to the death penalty under the service discipline Acts is to be treated as a liability to life imprisonment or some lesser penalty. This general statement will be supplemented by detailed amendments to the service discipline Acts when the next legislation to consolidate those Acts is announced.
Amendment No. 55 provides that the new subsection inserted by Amendment No. 54 comes into force when the Human Rights Bill receives Royal Assent. I hope that your Lordships will agree that that is consistent with our intention to proceed without delay to sign and ratify the sixth protocol.
Amendment No. 57 provides that the new subsection inserted by Amendment No. 54 has effect in any place in which the service discipline Acts have effect. This is needed because the Acts, unlike the Human Rights Bill, are not limited in their territorial extent to the United Kingdom. It is consistent with our intention, subject to their agreement, to extend the ratification of the sixth protocol to the Channel Islands and the Isle of Man. I can tell the House that Jersey and the Isle of Man have already agreed and that Guernsey is this week debating a recommendation from the appropriate committee to do so as well. I commend the amendment to the House.

§ Lord Henley
My Lords, my party does not object to the Commons amendments. We shall not oppose them. I wish, however, to ask the Minister one question by way of elucidation. Before I do so, perhaps I may thank him for the helpful and quite lengthy letters he sent to myself and other noble Lords setting out what the various Commons amendments do. To receive such information when one is dealing with a Bill of this complexity makes the life of Peers in all parts of the House much easier.
The only question I wish to ask relates to the possible resurrection, if that is not the wrong word, of the death penalty as regards the Armed Forces. I am not sure that the noble Lord made that quite clear in his remarks and I may have misunderstood. Am I right in saying that it will be possible for Parliament to reintroduce the death penalty for acts committed in time of war or imminent threat of war without being in breach of the convention itself but only in those circumstances?

§ Lord Coleraine
My Lords, it will become apparent that I am not altogether in agreement with the views of my party, as so clearly expressed by my noble friend Lord Henley. I doubt whether I am really exceptional in finding considerable difficulty with the amendment. I have been an abolitionist for as long as I can remember. Indeed, I cannot recall a time when I was not opposed to capital punishment; nor do I remember now what made me an abolitionist. I suspect that it may have been 2086 the case of Craig and Bentley. What I do remember is that in my Oxford college hall there was a portrait—it may still be there—of Lord Goddard. I still feel a certain sense of unease upon recalling the sight of the former Lord Chief Justice above us in his frame.
At the same time I cannot accept that it is constitutionally proper or reasonable to end, against the apparent wishes of the Government and in a hole and corner way, the convention which has existed for so many years that Parliament, its Members voting according to conscience and on a free vote, decides whether and on what terms the death penalty may be restored.
The objection to the death penalty, I accept, is its irreversibility and, to a lesser extent, what many people may call its obscenity. But the irreversibility and obscenity of the death penalty pale into insignificance when compared to the irreversibility and obscenity of the death of innocent civilians in war or of innocent bystanders in civil disturbance, at the hands of public authorities, which we have to accept. The right not to be hanged for a crime is important to me, but that does not make it an absolute human right, philosophically valid in all circumstances. I suggest that in human rights terms it is not even on a par with the right to a fair trial or with the other rights given effect to by the convention.
I do not believe that these views will necessarily be all that far distant from those expressed by the Minister, the noble Lord, Lord Williams of Mostyn, in Committee. The noble Lord said then that the Government's view was that the issue of the death penalty was a matter of judgment and conscience to be decided by Members of Parliament as they saw fit, and he believed that this was common currency among all the political parties. How wrong he was. He said that he believed that all political parties had taken a view on this particular aspect which was different from other human civil rights. He pointed out that the ratification of the sixth protocol would mean that we could not reintroduce the death penalty for murder, short of renouncing the convention. Six months later, almost to the day, the overwhelming majority of his party in another place voted against that advice and that of the Government by adding the sixth protocol to the Bill. Even before the vote was taken, Mike O'Brien, the junior Minister entrusted with the Bill, had said, when pressed, that the Government would take a yes vote as an instruction of the House and would proceed to ratify the protocol, notwithstanding the views which he and the Home Secretary had expressed. There was nothing in the amendment itself to show that it contained any such instruction. How many of those who supported the amendment actually heard the debate and knew that that was how the Government viewed it? On entering the Lobbies, how many were told that it was a vote against capital punishment?
Questions should be asked of the Government. Why the volte-face? The Minister has not made that clear, except by quoting the size of the majority in favour of the amendment. One possible reason strikes me 2087 forcefully. It could have occurred to the Government, at some time between the support of the noble Lord, Lord Williams, in November of the massive logic of the White Paper and the vote in May, that there was a political disaster of the dimensions of Niagara Falls lying in wait for them. The Government must have come to the conclusion that one unavoidable result of tinkering with the constitution like a cabinet of dysfunctional canons would be a referendum on the death penalty unless something was done to stop it. Clearly, the Government will have realised that such a referendum could not be fudged in the way the Welsh referendum was fudged and that the only safe way out of this constitutional impasse was to put the question of the death penalty into the hands of the Council of Europe. Only in that way might they escape the inevitable logic of their penchant for referendums.
The Minister may like to comment on the point of order which my honourable friend Mr. Grieve attempted to make during the Division in the other place. He claimed that after Mr. O'Brien had stated there would be a free vote, the Government Whips outside the Chamber were directing Labour Members to vote against the ostensible position of the Government and in favour of the amendment. Were the Government blowing hot and cold at the same time? Had they a hidden agenda? I believe they had.
The amendment we have received from the other place is an intolerant assault on the rights of Parliament. It demeans parliamentary democracy itself. We are all diminished by the Government's volte-face and their abandonment of principle. We have witnessed a trahison des clercs which does credit to no one.

§ Lord Lester of Herne Hill
My Lords, I take a rather different view to that of the noble Lord, Lord Coleraine. We support these amendments and pay tribute to the efforts of those in this House and the other place to carry them. Perhaps I may recall one or two background facts in view of the speech which the noble Lord has just made.
As I recall the position, the noble and learned Lord, Lord Archer of Sandwell, moved amendments in this House to abolish the death penalty for military offences. There was a debate on them. When a vote was called there were insufficient Tellers on the Conservative side. A very small minority had spoken against the proposition. So there was no vote.
So far as the undemocratic upper House was concerned, the matter was carried without even a Division. However, I was one of those who said that because we were the undemocratic, unelected upper House it was right that the democratic other place should speak. It did overwhelmingly by 294 votes to 136 to extend the incorporation of the convention to include the as yet unratified sixth protocol to abolish the death penalty in peacetime and then to deal with the situation as regards military offences.
The protocol has been ratified by all the European Union states with the exception of the United Kingdom. It has also been ratified by 28 of the 40 Council of 2088 Europe states. So far as I am aware, the death penalty has been abolished from Ireland in the west to Turkey in the east in 40 member states. I understand the strongly held opinions to the contrary, although not recently expressed, even in the tabloid media, which is remarkable. But it seems to me that no one can say that what we are doing has not been carefully considered by both Houses or is out of line with general standards across the European system which includes a variety of legal and cultural traditions.
We pay tribute in particular to the efforts of the noble and learned Lord, Lord Archer of Sandwell. We are very glad to hear that the position in the Channel Islands is to be brought into line because we attach great importance to the implementation of the international human rights obligations to all parts of the United Kingdom and to the Channel Islands. We have made that clear in the past.

§ Earl Russell
My Lords, perhaps I may add one sentence. If I heard him aright, the noble Lord, Lord Coleraine, described the amendment as an intolerable assault on the rights of Parliament. I do not understand how a sovereign Parliament can do such a thing. To put it no higher, is this not a most ingenious paradox?

§ Lord Williams of Mostyn
My Lords, I am grateful for the remarks which the noble Lord, Lord Henley, made about the letter which was sent to him. It is a tribute to the quality of the work which officials in the Home Office have demonstrated throughout the quite lengthy and difficult passage of this Bill. I shall certainly pass on his gratitude and thanks to them.
The noble Lord's specific question was: is it still possible to reintroduce the death penalty for acts in times of war or imminent threat of war? The answer to that is yes, because of Section 2 of the sixth protocol. That would not involve a denunciation of the convention.
The noble Lord, Lord Coleraine, asked for a number of matters to be attended to. I understand his points. They were fully explained to another place and it chose to come to its conclusion, on a free vote, 294 to 136, as I have already indicated. I do not think that this is a demeaning of parliamentary democracy. The noble Lord spoke of an intolerable assault on parliamentary democracy, or an intolerable insult, as did the noble Earl, Lord Russell, a moment ago. Quite a lot of us in both Houses think that the death penalty is an intolerable insult to human rights. It is not for me to comment on unsubstantiated hearsay about who said what in another place.