House of Commons Hansard Debates for 17 Jun 1991

Mr. Merlyn Rees (Morley and Leeds, South) : Does the Minister agree that no such penalty could be imposed in relation to Northern Ireland?

Mr. Hamilton : We are quite clear that what is happening in Northern Ireland will not be included in any definition of wartime. We do not regard the activities of the Army in Northern Ireland as wartime activities.

Mr. Denzil Davies : Surely the legislation does not say that. Northern Ireland is covered by the legislation, in which armed conflict is defined as taking place in wartime.

Mr. Hamilton : I give the right hon. Gentleman the undertaking that if the death penalty were passed for an offence committed in Northern Ireland the Secretary of State would use his discretion and would not allow the sentence to be carried out.

Mr. Higgins : I am sorry for persisting but I should like further clarification. My right hon. Friend says that the Secretary of State would overrule a death sentence passed in peacetime. If that will always be the case, why not legislate to the effect that such a sentence will not be imposed in peacetime?

Mr. Hamilton : At such a time we would not expect a court martial to impose that sentence. I suppose that it is open to the court martial to pass such a sentence, although strong advice would be given to it not to do so. In peacetime such a sentence would be overruled by the Secretary of State. Mr. Simon Burns (Chelmsford): Am I right in saying that there was no declaration of war before the Falklands conflict although we were clearly at war with Argentina? Under this legislation, what would have happened at that time if any offences had occurred?

Mr. Hamilton : I do not think that a declaration of war is necessary to trigger the legislation. It is a matter of being in armed conflict and therefore the Gulf war, over which we did not declare war either, and the Falklands conflict, would apply.

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Mr. Julian Brazier (Canterbury) : Perhaps I can assist the Committee. The key issue is that many hon. Members, including some Opposition Members, accept that it is necessary for the sanction to remain in time of war. The legislation must be left vague because it is impossible to produce a clear definition of what is meant by being at war. Most of the major conflicts in which we have been involved since the second world war were not declared to be war. That is why the matter must be left to ministerial discretion.

Mr. Hamilton : My hon. Friend is exactly right to say that there is a great problem about defining war. We are clear about peace and peacetime activity, and in this case that includes Northern Ireland.

Mr. Menzies Campbell (Fife, North-East) : The Minister is extremely generous in giving way on this important matter. The legislation is not vague ; it is quite specific. However, the extent of the discretion that the Secretary of State would seek to exercise is vague. Am I right in deriving from what the Minister said that the Secretary of State's discretion would extend to determining whether what had occurred had happened in conditions which could legitimately be described as conflict, and thereafter would extend to determining whether the death penalty should be carried out? The discretion would be two-legged. First, it would be necessary to determine whether it was appropriate to exercise the discretion against the death penalty and, secondly, it would be necessary to determine whether in the particular case the death penalty should be carried out.

Mr. Hamilton : The hon. Gentleman is right. There is also the discretion of the court martial. As it is not mandatory on it to pass the death sentence, the court martial could decide that the offence did not merit the death sentence even though it took place at a time of war.

Dr. Godman : Will the Minister confirm that no member of the services serving in the Gulf conflict, given that he or she was a member of the United Nations force, could have been sentenced to death if found guilty of one of the charges?

Mr. Hamilton : We were not acting as a United Nations force, although we were acting under a United Nations resolution--the two are slightly different. Therefore, if somebody had committed one of the offences in the Gulf war, he could have been court martialled and the court martial could have passed the death sentence.

I am aware that some states, such as France, Germany, Denmark and Portugal, have abolished the death penalty for services offences. That is for them to decide. Others of our NATO allies, including the United States, Canada, Belgium and Italy, retain the death penalty. Therefore, there is no question of our being out of step with our allies on this matter. The retention of the death penalty has been given the most careful consideration within the services, and they are firmly of the view, which we support, that the death penalty should be available as a deterrent in a situation that involves armed operations, when acts of treachery could have serious implications for the outcome of an operation or war. Therefore, I must ask the Committee to oppose the clause.

Mr. Menzies Campbell : This is a difficult and anxious topic. Like some others, I start with a moral objection to

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capital punishment. I have always believed that it was wrong to take the life of another and that it was as wrong for the state to do that as it was for an individual. However, I acknowledge that one has to examine whether the particular circumstances which obtain in the services would justify a departure from what, for me, is a matter of principle.

I listened to the Minister with interest. I believe that I do him no disservice if I conclude from what he said that, in his judgment, the continued existence of the death penalty is for its deterrent effect. I did not understand him to argue for retribution or any similar, outmoded justifications for punishment. Therefore, one has to ask oneself whether, in the context of a conflict, the existence of the death penalty would be a deterrent to someone who was contemplating embarking on an activity that might result in a court martial and a sentence of death. I am not satisfied --this is as much a matter of belief as anything because I doubt whether either side of the argument could obtain evidence in such clear and unequivocal terms as to satisfy the other--with the notion of deterrence. I do not seek to detract from the importance and significance of the offences to which the death penalty still applies but I am by no means convinced, by what the Minister has said or by my experience in civilian law, that the death penalty has ever been, or is ever likely to act as, a deterrent. For that reason, I will vote for the clause. If we are engaged, as the report sets out as a matter of principle, in endeavouring to equate civilian with military law, then in this area we could, without any fear, cause the penalty both in civilian life and service life to be exactly and precisely the same. I cannot conceive that any prejudice to good order, discipline or anything else of that kind might be created were this clause not to stand part of the Bill.

Sir Anthony Grant (Cambridgeshire, South-West) : There is, as I hope that the hon. and learned Gentleman will recognise, a difference between offences such as those that we are debating and civil offences. It is possible that, without this sanction, members of the services could take the law into their own hands. There are examples of that having happened in previous conflicts. I hope that the hon. and learned Gentleman and the House will bear in mind that, in the heat of battle--something that some hon. Members have

experienced--troops or others might exercise capital punishment without trial.

5.45 pm

Mr. Campbell : That is a possibility, but we put weapons in the hands of troops on the basis that they are properly trained and led and that they will be responsible for their actions. I find it difficult to accept the idea that the absence of the death penalty might provoke troops to take the law into their own hands in repect of a comrade whom they felt had fallen below the high standards to which they were aspiring or which they had achieved.

We got some flavour of the difficulties that the law causes in application when the Minister dealt with the differences between peacetime and what he began by describing as wartime but went on--quite rightly because wartime implies a formal declaration of war--to describe as conflict. We know that nothing in the Bill distinguishes between one situation and the other. We know only that the penalty is available. As the Minister and I know, because of my intervention in his speech, the court martial has a discretion as to whether to impose the penalty. If it

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does, the Secretary of State then has a discretion to determine whether the background against which the offence was committed constitutes peace or conflict. He then has a further discretion as to whether, in the circumstances of the case, the sentence should be confirmed and the execution take place.

All that imposes far too much discretion, first on the court martial and secondly on the Secretary of State. I believe that not because I do not think that Secretaries of State will not do their best to exercise that discretion in the most fair and judicial way possible but because I think that some cases will be very hard to decide, and that will make the exercise of the discretion extremely difficult. Like all discretions of this kind, as part of the Secretary of State's administrative responsibilities, it would be subject to no challenge.

The Bill, far from being useful in the way described in the report of the Select Committee, can lead to confusion. There is about it a lack of certainty that is inimical to the proper notion of a judicial system.

An issue such as this is necessarily one upon which people should exercise their own consciences. There will be a free vote for Liberal Democrats. I gather from the Minister's nodding head that the same is to apply to Government Back Benchers. I welcome that because it would be unfortunate if an issue such as this were to be determined not on the free and independent judgment of hon. Members, but on the notion that the contents of the Bill had to be either preserved or not. It is difficult to achieve consistency in these matters, but it is an objective that the criminal law, whether based in civilian or in service life, should endeavour to achieve. It would be less than consistent if the House were not to accept that the clause should remain part of the Bill.

Dr. Reid : The Minister began his speech at 5.29 pm and, with five minutes of giving way, finished it 11 minutes later. The debate tonight will probably take an hour or one and a half hours. Last Monday, we discussed the vexed problem of whether we should execute dogs. The House sat until 3 am, and we had speech after speech from Ministers and from Back -Bench Members. Tonight, we are discussing whether we should execute British service men and women. That is a sad reflection not only on the Government, but on the House.

Sir Anthony Grant : Anglo-Saxon attitudes.

Dr. Reid : It may, as the hon. Gentleman says, be a reflection of the Anglo-Saxon race. As a Celt, I do not want to comment on that. The hon. Member for Newbury (Sir M. McNair- Wilson) asked earlier how sentences were carried out. How sentences are carried out makes little difference. There is no glorious, moral and majestic way in which to execute anyone--far less anyone who has been prepared to offer his life for his country. However, as a matter of interest, the last execution arising out of the second world war, which was carried out on 4 January 1946 some months after even VJ day, was, according to the death certificate which I have, by the breaking of the vertebrae, which I take to mean hanging. There was not even the dignity of a field execution.

The question has raised some interest outside the House. On reflection, that is both understandable and

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curious. It is understandable because we are dealing with a matter of life and death ; it is curious because the Government have argued all along that the death penalty has not been handed down for any of the five capital military offences contained in the services Acts since the second world war. In other words, for almost half a century, we have not used the death penalty for a purely military offence. Furthermore, as the Minister told us at some length, it has been and remains the express policy of the Ministry of Defence that the five offences should not carry the death penalty during peacetime. The Government have never explained adequately to me--or to other hon. Members, I presume--why the distinction is made and how it is supposed to operate. I welcome the distinction because I welcome the fact that the Government say that they will not use the death penalty in peacetime. I welcome that on humanitarian grounds, but I am slightly suspicious that the distinction is based on humanitarian grounds by the Government because on other issues they have not been renowned for being the most humanitarian of Governments.

I am confused by the Government's logic because they have never adequately explained the distinction between war and peace in the use of the death penalty, or the definition. The distinction cannot be a matter of deterrence, which was mentioned by the hon. and learned Member for Fife, North-East (Mr. Campbell), as there is no logical reason why the death penalty should be a more effective deterrent in wartime than in peacetime. Indeed, the opposite is true, as has been illustrated by history and as was mentioned by the hon. and learned Gentleman.

The distinction cannot be a matter of justice, as wartime military courts cannot be assumed to be any less fallible than peacetime military courts. Indeed, given the conditions of war, the opposite is almost bound to be the case and it is almost inevitable that innocent individuals would stand more chance of being among those executed in war than among those executed in peacetime.

The distinction cannot be on the ground of equity. Those who argue that different standards must apply during wartime, as has been argued this evening, are, by virtue of their own argument, arguing that the sentence of execution should be related to the political circumstances in which the offence takes place and not to the offence itself.

Above all, the distinction cannot be on the ground of clarity. It has been amply illustrated in questions to and answers from the Minister, even at this early stage in the debate, that the precise difference between wartime and peacetime is completely unclear and it is completely unclear how the difference is to be defined and, just as importantly, by whom.

The Minister floundered to an extent. Without being light-hearted and without implying malevolence, I must say that he has given us a promise that is not worth the paper on which it is not written. Nothing has been defined on paper. His offer to us tonight is a bit like a cross between an offer from Don Corleone and an offer from Sir Keith Joseph. He is making us an offer that is difficult to refuse, but no one can understand it. That is not the basis on which to make life and death decisions.

The Minister's arguments in his short contribution should not be allowed to obscure the importance of the issue. There is no overpowering logic or rationale behind which supporters of the Minister's position can hide.

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There is no self-evident case to put. The supporters of the Minister's position are duty bound out of obligation to the House, to themselves and to the armed services to explain and argue their case rather than just to walk into the Lobby on the assumption that the status quo is a self-evident argument. They must make up their own minds on the issue as a matter of individual conscience.

I am glad that the Minister nodded in response to an earlier question. I have been told that there will be a free vote tonight. If so, it will be a free vote on a three-line Whip. I am not sure of the distinction. I understand that there is a three-line Whip on hon. Members to turn up, but that they will then be free to vote as they see fit--unless, presumably, they are members of the Government, as the Government--[H on. Members :- - "No."] I take it that it will be a free vote. It will be up to the individual. That is certainly the case for the Opposition and I am glad to be reassured that it is the case for Conservative Members.

The simple fact on which every mind should be concentrated this evening is that there are still five offences, as outlined by the Minister, that carry the death penalty.

Mr. David Winnick (Walsall, North) : The question of a free vote is of great importance. Labour Members know that they have a free vote and the Liberal Democrat spokesperson has said that his colleagues have a free vote. Has the Minister confirmed that Conservative Members will have a free vote? We have heard rumours, but we cannot know what Whip they are on. I understand that they are on a two-line Whip on the clause. Will the Minister confirm that Conservative Members have a completely free vote?

Dr. Reid : I think that my hon. Friend is wrong and that Conservative Members are on a three-line Whip. However, I think that the Minister has assured me that the Government have found a formula for having a three-line Whip and a free vote. I will accept his reassurance on the matter and he may wish to explain the position.

Mr. Archie Hamilton : I am more than happy to clarify the position for the benefit of Opposition Members. The hon. Gentleman asked about our whipping arrangements this evening. The Chief Whip has demanded of us that we should attend the House, but when it comes to the vote on the death penalty there will be a free vote affecting all Conservative Members.

6 pm

Dr. Reid : I am grateful to the Minister for that assurance. I think that I understand the distinction between voting for the Bill as a whole and voting for the clause.

As I was saying, the simple fact on which every one of those free-voting minds should concentrate is that there are still five offences that carry the death penalty under military law. These have been outlined, and comprise serious misconduct in action, obstructing operations, mutiny or incitement to mutiny, failure to suppress a mutiny and assisting the enemy. As the Minister said, all of those, with the exception of mutiny or incitement to mutiny, require the intention to assist the enemy.

After considering the issue, the Committee voted by a majority to abolish the death penalty, which is why the clause is incorporated in the Bill before us tonight. I agree with that decision. In discussing the issue, I do not want to enter into a full debate about the relative merits of capital

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punishment as a means of deterring crime or misdemeanour. That debate has been held twice during this Parliament alone, most recently on 17 December last, and on both occasions the House has made its view known by a convincing margin. I may say in passing that, during the debate on the merits or otherwise of the death penalty in civilian life, the argument has commonly been employed by those supporting the death penalty that one reason why Parliament should accept it is that there is overwhelming public support for it in civilian life. Despite that, Parliament has rejected the death penalty, and I would merely observe that that is one argument that cannot be employed tonight, because I do not believe that there is any such public demand for the death sentence as it applies to British service men and women.

It is as well to make it absolutely plain that there is no suggestion from anyone that the five offences outlined already should go unpunished-- obviously not. They are serious offences and will continue to be treated as such, qualifying, even if the clause remains in the Bill, for sentences of long periods of

imprisonment--possibly life imprisonment.

Dr. Godman : Will my hon. Friend confirm that there is a minimum age as regards the death penalty? I ask that because a number of Scots service men taking part in the Gulf conflict were aged under 18 years. I seek confirmation of the fact that, when the Committee debated the clause, there was some discussion of the minimum age.

Dr. Reid : The Committee spent some time considering the general question of the age at which young service men and women should be allowed to go into active service overseas. Recommendations are made in the report- -although clearly they do not form part of our proceedings this evening. Nevertheless, problems could arise. There have been a number of relevant cases--particularly one famous case in civilian life. I cannot remember the names of the two young gentlemen involved, but one of them was certainly below the minimum age for execution--[ Hon. Members-- : "Craig and Bentley."] Yes, indeed. Unfortunately, the young gentleman was executed and, as hon. Members will know, there was considerable doubt surrounding the verdicts. The sort of problem to which my hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman) referred could, therefore, arise. The point that I was making was that, even if the death penalty were abolished, as the clause now incorporated in the Bill suggests it should be, misdemeanours, crimes and breaches of discipline would still merit very serious punishment indeed. The most pressing issue that we must consider, however, is not whether they merit punishment if proven, because that is clear. Nor are we talking about the principle of capital punishment, as the House has already reached a view about that on a number of occasions. The question is whether it is necessary and justifiable to continue to apply different standards for our service men and women on one hand and for civilians on the other. It is my view--and it was the expressed view of the Committee--that that is not justifiable.

Following the Committee's decision, the Minister said that the Government were mildly embarrassed. The right hon. Gentleman looks puzzled. Perhaps I should have said that he was quoted in the press as saying that the Government were mildly embarrassed. That does not surprise me. Having lost the vote in Committee, the

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Government have attempted to save face by claiming that it has all been a terrible mistake which can easily be corrected at the appropriate moment. I do not believe, however, that that should be the main source of the Government's embarrassment. The fact of the matter is plain : the Government have come here to tell the House that they must reimpose the death penalty in respect of these purely military offences in order to keep discipline in the armed forces at precisely the moment when we are welcoming our service men and women back as heroes from the Gulf.

Moreover, the Government must explain to the House--as the Minister failed to explain in his opening remarks--why we require the death penalty to ensure good order and discipline when seven of our NATO allies, including the French, who fought beside us in the Gulf, decided years ago that the death penalty should be abolished in military law. Why is the death penalty required for the British armed forces when it is not required in France, Denmark, Norway, Germany, Portugal, the Netherlands and Luxembourg?

Mr. John P. Smith (Vale of Glamorgan) : Does my hon. Friend agree that there is a distinction to be drawn between the NATO countries to which he referred and Britain, to the extent that Britain is the only one that has a professional and volunteer force, whose members should not be expected to behave in an exemplary manner, as they did in the Gulf, with the threat of capital punishment over them?

Dr. Reid : My hon. Friend makes a good point, to which I shall come in a moment. Most of the countries--indeed, all the countries--that I mentioned have a conscript army. One would think that those countries would have more justification for keeping the deterrent of the death penalty than countries with a volunteer army, such as the British Army. But they do not do so. We must ask why that is. What is different about us? Why do we require the death penalty to maintain good order and discipline in the British armed forces when that is not necessary in France, Norway, Denmark, Germany, Portugal, the Netherlands and Luxembourg? Lest anyone on the Conservative Benches should attempt to give us a neolithic racist analysis by saying that it is in the Anglo-Saxon character, I should point out that Australia and New Zealand, whose people presumably come mainly from the same stock as ours, have also recently revoked the death penalty--although that may of course be the result of the infusion of Celtic blood and good sense, particularly in New Zealand.

On a matter of life and death such as this, the Government have a duty to explain exactly why we differ. Are they saying that we need the death penalty because of the lack of leadership among our commanding officers? If they are, they will have a hard time defending their assertion following the officers' performance in the Gulf. Certainly, that is not my view, or that of my hon. Friends, nor is it the view of many Conservative Members. Are the Government justifying the distinction--the necessity to retain the death penalty here in contrast to seven of our allies--on the grounds that our service men and women are any less loyal, courageous or committed than those of our allies? Or are the Government really trying to tell the

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British people that following the courage and determination shown by our young men and women not only in the Gulf but on many previous occasions on which they have defended their country?

The Government have a duty to be absolutely clear and specific in their argument and I do not think that the Minister was clear and specific in his opening remarks. It is no use telling us, as we have been told--not this evening, but in the past--that there is a law commission which might report or might not report, sooner rather than later, at some time in the indefinite future. Notwithstanding that fact, there is absolutely no argument against ensuring that, by the time the commission reports, the House has expressed its view on the matter. I cannot see why it is worse to have as the status quo at the time of the report no death penalty than it is to have as the status quo at the time of the report retention of the death penalty. What are the Government trying to tell us by seeking to reintroduce the death penalty in military law? That is what they will be doing if they vote against clause stand part. Are they telling us that it is necessary to maintain discipline in the Army, Navy and Royal Air Force? Are they saying that, in the Gulf, our service men and women needed the threat of death hanging over their heads to prevent them from assisting the enemy or taking part in mutinous activity, but that the French did not? If that is what the Government are saying, it is a disgraceful slur on the reputation, integrity, courage and conviction of our forces. I do not believe for a minute that the Government and particularly the Minister of State, who is an ex-guardsman, consciously believe that, but that is the only logical and objective conclusion that can be drawn from the requirement that the death penalty should be reintroduced in our discipline Acts. Since the end of world war two, British service men and women have been called upon to risk their lives in more than 10 conflicts. In not one of those conflicts has it been necessary to use the death penalty. It was not necessary to use it in Malaysia, Aden, Korea, Kenya, Cyprus, Suez, Oman, Thailand, the Falklands or in the Gulf. It has not been necessary to use it throughout the long and sorry history of the hostilities in Northern Ireland. In all those conflicts, the disciplinary record of the British armed forces has been quite outstanding despite their being in numerous situations where they were under enormous pressure or subjected to extreme provocation.

The Government will say that the reason for the absence of that lack of discipline is the presence of the death penalty. They claim that it is a deterrent. That is a marvellous circular argument. If the death penalty were used every week, the Government would say that that showed us how necessary the death penalty was to instil discipline and good order. If the death penalty is not used, they say that that shows that the death penalty is an effective deterrent. That is a completely circular argument.

Many Conservative and Opposition Members prefer to believe that our services have such an outstanding disciplinary record because of the professionalism, courage and, above all, devotion to duty displayed by our service men and women over the decades. Even if the Government remain unconvinced of that self-evident truth, they must conceive that our forces, through their outstanding service to this country, have earned the benefit of the doubt.

Some hon. Members have argued that the death penalty should be retained to ensure that it is available in the most

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extreme cases, for example, where a maverick soldier collaborates with an enemy and in so doing severely harms Britain's interests or causes the death of many colleagues. However, to act in that case would not require the use of provisions under the services Acts. Ample provision for such a case is already contained in civilian law, as I read it, where the capital offence of treason includes within its definition being "adherent, to the Crown's enemies", a definition which satisfactorily covers an act of gross disloyalty envisaged by some hon. Members tonight.

Surely our service men and women deserve equal treatment under the law with civilians. I would go further : I believe that our service men and women already put their lives at risk by volunteering for the armed services and by joining up to defend their country. They risk their lives in war. Service men and women have shown a sense of patriotism which intrinsically deserves respect and which demands at least equality before the law in respect of subjects as important as the death penalty.

Mr. Archie Hamilton : The hon. Gentleman said that service men should enjoy equal treatment with civilians. I remind him that there is a mandatory death sentence for treason for civilians. In those circumstances, and because we are not discussing a mandatory death sentence, there would be less than equal treatment in quite a different direction from that which the hon. Gentleman suggests.

Dr. Reid : I accept the discretionary element. The Minister is saying that the risk may be wider in the armed forces, but it is not quite as deep for the most extreme cases. Several hon. Members and I have already explained that the element of discretion involved by the lack of definition is very worrying. That applies not only at the level of the courts martial, but to the incredible discretion that apparently lies with the Secretary of State with regard to the definition of the difference between war and peace and, in the last instance, in respect of whether a death sentence passed by a court martial should be commuted.

Our service men and women should have the benefits of the extension of the protection that has already been afforded under civilian law by the House in its opposition to the death penalty. In the most extreme cases, there is already adequate provision under civilian law to cope with cases for which the death penalty may well be adequate. However, soldiers, sailors, air men and women would be treated on an equal footing with their civilian counterparts.

Mr. Norman Miscampbell (Blackpool, North) : In all fairness, we all voted against the death penalty for treason. It is not a proper argument to claim that it is available in this case. I will vote beside those who wish to abolish it in the Army. However, I believe that the hon. Member for Motherwell, North (Dr. Reid) accompanied me through the Lobby when we voted against the death penalty for treason.

6.15 pm

Dr. Reid : I am talking about the will of Parliament, not the will of individual Members. The will of Parliament has been expressed on those issues and it is that the law should still include a capital offence for treason. According to my interpretation of the subject, the civilian definition is wide enough to include the most extreme examples given by hon. Members to justify a much wider application of the death sentence for the armed forces.

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As the hon. and learned Member for Blackpool, North (Mr. Miscampbell) hinted, I believe that the threat of execution is an anachronism. It is a cruel and barbarous throwback. It has its roots in the era of forced conscription and in the philosophy of the press gang. I do not believe that it has a place in a volunteer army or volunteer forces that operate within and on behalf of a civilian society in which capital punishment has been abolished for the civilians.

I want to draw the attention of the House to a tragic and horrifying anomaly which illustrates the inequality and injustice facing our service men and women and which the reintroduction of the death penalty in military law would reproduce. Let us consider a British soldier in Northern Ireland who is reaching the end of a long term of duty. He has been subjected to physical and psychological pressures the like of which we cannot imagine. Indeed, we could consider a soldier in any hostility or war that could be defined as war at the Minister's discretion.

Let us imagine a not unlikely scenario in which details of that soldier's patrol are betrayed by a British civilian and the patrol is ambushed by terrorists and a number of his colleagues and civilians are murdered by the terrorists. During that attack, after his long and gruelling period in the armed services, that soldier commits an act which could be defined as misconduct in action. Perhaps he panics and abandons his post. Perhaps he uses words that are likely to cause despondency or unnecessary alarm.

Under military law at the moment, that solider could be executed. However, the agent who betrayed him and the terrorists who wrought murder and mayhem on his colleagues and the civilian population could not face the same fate. They would be afforded the protection of a civilised code of penalties freely passed and backed by this Parliament. That is a protection which the Government seek to remove from our service men and women by removing clause 17 from the Bill. Where in God's name is the justice behind that? Is not it time that we ended such a tragic anomaly? Is not it time that we paid a compliment to our services' professionalism and dedication by ending that relic of conscription and the press gang? Is not it time that we extended to our forces, who bear the burden of protecting our freedom, values and rules of civilised life the benefit and protection of those same freedoms, values and standards of civilised life? I and many hon. Members believe that that is the very least that we owe our service men and women.

Mr. John Wilkinson (Ruislip-Northwood) : I support my now doubly honourable and gallant Friend the Minister of State for the Armed Forces in his determination to ensure that the clause is removed from the Bill. I pay tribute to my right hon. Friend's elevation to the Privy Council and to the very helpful way in which he always conducted himself throughout the long and detailed proceedings of the Special Standing Committee.

I greatly appreciated the sincerity of the hon. Member for Motherwell, North (Dr. Reid) both in Committee and this evening. However, my right hon. Friend is right. I regret that Her Majesty's Government have not imposed a three-line Whip on the issue, because it is of paramount importance for the armed forces, of crucial significance to the community as a whole and important

constitutionally.

The great merit of the Special Standing Committee procedure is that members of the Committee have two

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bites of the cherry. They can summon witnesses and examine the merits or otherwise of the principles of the proposed legislation and the issues that it raises. They then have the chance of operating as a Standing Committee, and considering the legislation line by line and clause by clause.

Let us consider the first process first. The outcome of that deliberation and of the cross-examination of the expert witnesses from the Ministry of Defence was that, on balance, it was useful to retain the option of the death penalty for five service offences and of course--we were bound to do this--that it should remain obligatory for the offence of treason. I urge hon. Members to read paragraph 21 of our recommendations. The paragraph was very carefully drafted. I urge hon. Members also to read paragraphs 411 to 421 of the evidence session which took place on 13 February. If they do so, they will see a clear exposition of the arguments.

To summarise those arguments, the service offences are potentially of such a heinous nature that, if committed in certain circumstances, they could cause the deaths of thousands and thousands of people. They could also cause the failure of operations, the failure of campaigns and, in certain instances, they could even cause the failure of Her Majesty's forces to win a war, with all the constitutional implications that that would have for the defence and freedom of this country.

The sanctions are discretionary, except in the case of treason, and they are ultimate sanctions that would be involved only in exceptional cases. That this is so is made clear by the very fact that they have not been invoked since the second world war. Some people such as the hon. Member for Motherwell, North have argued that it is difficult to distinguish between declared war and peace or hostilities and conflict. Since the second world war, declared conflicts have been very rare, but states of hostility have been all too frequent for our armed forces. However, in peacetime, too, there can be certain circumstances in which the ultimate sanction of the death penalty could be appropriate.

I refer, for example, to mutiny or failure to suppress mutiny. We should bear in mind that not only does power come from the barrel of a gun but that our armed forces have at their disposal fearsome weapons of mass destruction, even including nuclear weapons. If members of Her Majesty's forces are not to be dissuaded or deterred from mutiny to the most effective extent possible, at least theoretically there is a greater chance that the weapons that they have at their disposal could be misused by mutineers. We know what the ultimate constitutional consequences of this could be. The very fact that we still retain a civil law of treason which has the same force in service law shows that we regard that threat as serious. The first step towards an act of treachery and treason could be an act of mutiny in peacetime.

It is not only difficult to make an effective distinction between peace and war, which was borne out in our Committee hearings, but it is legislatively clearer and less ambiguous for the law to be uniform as between peace and war, and there are very good rational reasons for so doing.

The next part of my argument reflects the arithmetical accident of the second part of our Committee proceedings to which I alluded. We had decided, in our deliberative

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phase on the Chairman's report, that we should draft it, as we did, retaining the death penalty as a useful ultimate sanction for members of the armed forces for the offences to which we have alluded. However, in the so-called Standing Committee procedure, by an accident--as Chairman, I was a spectator in the process--one member was in hospital, another was in China, and another was temporarily absent. The Parliamentary Private Secretary was looking for the temporarily absent colleague. As a consequence, the clause was inserted in the legislation. That had certainly not been the intention of the Committee when it deliberated the issue in a previous discussion of the Special Standing Committee report--it was an arithmetical aberration. Let us be generous-- however it was perhaps fortunate. As a consequence, we have this important debate tonight. I argue most strongly that it would be wholly inappropriate for the Committee to do anything other than reject clause 17. I wish only that Her Majesty's Government had imposed a three-line Whip to that effect.

Mr. Denzil Davies : Before I criticise the Minister of State, I congratulate him on his appointment to the Privy Council. Now that he has arrived at that august and, by its name, highly secret body, I am sorry that he is not standing up to his civil servants on the issue and recognising that it is an anachronism to retain the death penalty for such offences. I am sorry to say that the Minister of State tonight and in Committee found himself in a dreadful tangle about peace and war and about when the legislation is to be applied. As the hon. and learned Member for Fife, North-East (Mr. Campbell) suggested, under the 1955 armed forces legislation, the key trigger point is the enemy. An enemy is defined as somebody who is engaged in armed operations against any of Her Majesty's forces. I should have thought that, under that definition, there is little doubt that the IRA is an enemy. It is engaged in armed operations against Her Majesty's forces. I hope that the Minister of State will clear up that point. If a British service man commits an act within the sections of the armed forces Acts in Northern Ireland, would he be sent to a court martial? Would that court martial be able to pass the discretionary sentence of the death penalty? On the other hand, is the Minister saying, "No, all this happens in peacetime and because of that we will not charge the unfortunate service man"? If so, he will find himself in a tangle about what is or is not peacetime. There is certainly not peace in Northern Ireland. If service men fall foul of the legislation, I do not want to see them being sent to a court martial and then sentenced to death.

The Minister should also make clear where that statement originated. I have spent a couple of hours in the Library thumbing my way through the "Manual of Military Law". I last looked at it years ago when I was at a warrant officer cadet school. It has changed a bit since then ; it has got longer and more voluminous. I might not have been very diligent, but I could not find that statement of policy in the manual. The first I heard of it was in Committee, but perhaps other hon. Members have read it or seen it. When the Inland Revenue issues various exemptions or discretionary exemptions from legislation, it publishes them so that everybody can look them up. Where is this policy or law in the "Manual of Military Law"? I hope that the Minister will tell us because these are important matters. Some of us believe that the rule of

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law should apply and that we should not have to rely simply on policy statements, even from a worthy and honourable Minister. I make no criticism of the right hon. Gentleman, but we should not have to rely on such so-called "policy statements".

6.30 pm

I turn now to the issue of whether we should maintain, repeal or change the clause. As the hon. and learned Member for Fife, North-East said, this is an argument about the death penalty. The House has debated the matter time and time again and many arguments have been made against the death penalty. I turn first to the argument about morality. In moral terms, I believe that it does not make any difference whether the offence is civil or military because it is immoral for the state to take a life even in the circumstances that have been described. Although I recognise that others will disagree, I believe that the House accepted the argument about morality when it decided to repeal the death penalty for civil offences.

We must also consider the theories about punishment. When I was a student in the 1950s--the House does not contain many students from the fifties these days--I remember reading an article by a gentleman called Mabbott, who was a philosophy don at St. John's college, Oxford. No doubt he got them from somewhere else, but he summarised the three theories of punishment as reform, deterrence and retribution. Those theories may fit most forms of punishment, but not capital punishment. That certainly applies to the theory about reform.

I do not know whether military law that can invoke the death penalty is a deterrent. The death penalty would probably not be a deterrent in civil law for most of the crimes and murders that are committed in Britain in the latter part of the twentieth century, and I do not believe that it is a deterrent in military law. If the unfortunate Argentinian conscripts who did not acquit themselves as they should have at the end of the Falklands war were going home to face such legislation, it did not deter them from failing to do what they should have done. Let us also consider the poor Iraqi farmers who were conscripted into Saddam Hussein's army and who gave themselves up in droves. If such legislation had been in operation for them, they would no doubt have broken every clause of it--and Saddam's legislation is no doubt even worse and more draconian. Those conscripts were not deterred by the thought that they would face the ultimate penalty at home. If such things happen, the army collapses, but a few sentences in a manual on military law or in legislation will not be a deterrent.

The third theory of punishment is retribution, which is a good old- fashioned word that means revenge. I do not say that society does not have a right to exact some form of collective revenge, as part of punishment, for heinous crimes, of which rape is a classic case. However, even revenge must have its bounds in a civilised society, and the death penalty goes too far. There is a danger that revenge itself will go too far in the heated mood of war when the realm is threatened and when the security of the state is being attacked. When the House debated capital punishment in respect of civilian crimes, one of the powerful arguments used against it was that a jury can make mistakes. I would imagine that a court martial could also make mistakes. The courts martial that are called rapidly during a war are

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certainly likely to make mistakes. However, we should consider not only the possibility of mistakes, but the pressure that falls on the courts. Unfortunately, British courts have recently been under the pressure of terrorism. I do not criticise anybody for making a mistake, but we must recognise the military pressure that will exist when the realm is under attack and national security is being endangered. A time of war is not the best time to decide matters that could lead irrevocably not only to conviction but to the death of a service man or woman.

There have been many references to the law of treason. Returning again to my student days of the 1950s and 1960s, I remember reading the case of Roger Casement. F. E. Smith always used to say that Casement was hanged because of the absence or presence--I cannot remember which--of a comma in the Treason Act 1351. The argument in the Casement case centred on whether there should or should not be a comma in the legislation which, being so old, did not contain commas. Casement was hanged.

I also remember reading the case of Joyce v. Director of Public Prosecutions. I am sorry to say that I am referring to Lord Haw Haw. Even to a student, Lord Jowitt's judgment seemed to owe more to revenge and retribution than to the canons and principles of jurisprudence. In the emotive circumstances of a war or its aftermath, deciding such matters is extremely difficult, especially when they involve a person's life.

It appears that the draftsmen of the 1955 Acts, or the persons who instructed the draftsmen, may have recognised that dilemma to a certain extent because, as the Minister pointed out, the sanction is not mandatory ; it is discretionary. We are talking about complicated offences--not about the simple offence of doing or not doing something. The legislation contains many words, with many subordinate clauses and commas. Intent has to be proved. Perhaps those who drafted the legislation, which goes back a long way, thought that the death penalty should not be mandatory because of the many different nuances. But that does not solve the problem ; it simply creates a further dilemma. It is not necessarily an advantage to say that the penalty is discretionary because the court must exercise that discretion to determine a man's life or death. How does the court or the court martial decide that? A splendid plea in mitigation might result in a life sentence while a poor plea in mitigation could lead to the death penalty.

Mr. Archie Hamilton : Cannot the right hon. Gentleman accept that there would be degrees of severity in any charges coming before a court martial, which would then make a judgment on the sentence depending on the severity of the crime committed?

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