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Mr. Davies : Yes, I accept that, but once we start talking about different degrees of severity, we get into great difficulties with the death penalty. I can also remember reading the Homicide Act 1957, which abolished the death penalty except for murder in the course or furtherance of a theft. The courts encountered all sorts of difficulties with that. The case of Craig and Bentley was mentioned earlier from a sedentary position, but we must also remember the case of poor old Gipsy Smith. A policeman jumped on the bumper of his car when he had been stealing scaffolding clips. In both cases, the Home Secretary had to decide whether to extend the prerogative of mercy. Courts martial
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will be in a similar position and will almost have to assume the Home Secretary's role when deciding whether a person is guilty. It is all very well for the Minister to talk about degrees of severity but if someone is found guilty of an offence under a particular section of a piece of legislation, sentence has to be pronounced. How does the court decide? The court martial is in an invidious position. I would not like to sit on such a court martial.Mr. Brazier : I have been listening carefully to the right hon. Gentleman's case. Surely the last sentence that he uttered goes to the heart of the matter : he would not like to serve on a court martial. With respect, as he is not a member of the armed forces, he never would serve on a court martial. The point about this category of offence is that we are dealing with matters which are not for legal judgment but which occur in the special circumstances of a war and on which military judgments are necessary, albeit with the ultimate appeal to the Secretary of State.
Mr. Davies : The hon. Gentleman is wrong. He does not do service to the members of the court martial. They exercise a legal judgment. It is a legal court--if that is not a statement of the obvious. The military judgment is about the facts and whether the defendent comes within the legislation or not. The legal judgment is not only whether that person should be convicted but whether he should be sentenced to the death penalty. It is not fair to impose on a court martial the power which countless Home Secretaries said that they did not like to exercise when there was a royal prerogative in respect of the death penalty in civilian law.
The more that one examines the matter, the more of a dilemma it appears. I understand that the Ministry of Defence has said that in times of peace it would not invoke the death penalty. The Ministry of Defence does not want to see British service men sentenced to death. The Ministry of Defence is not a villain in this matter, but it is locked into the dilemma of the legislation. The more that one examines it and the more amendments one seeks to make, whether on policy grounds or otherwise, the more difficult the dilemma becomes. It is not good for the Minister to say that the Secretary of State would not do this or that, or that the court would be told in no uncertain terms what was expected. Who are Ministers to tell the court what to do, even if they are Ministers at the Ministry of Defence and the court is a court martial? That is not the basis of the rule of law in this country. That is not a principle that we will die for and defend and for which our service men will fight. It is not a satisfactory case to make to the House.
Without any disrespect to the Minister, there is no way out of the dilemma. The only solution is to maintain the clause and accept the logic that the death penalty must go. I do not believe that that will affect service discipline or affect the excellence of our armed forces one bit one way or the other. The Ministry of Defence should accept that at last, and accept the clause.
Sir John Stokes (Halesowen and Stourbridge) : We are debating a most serious matter, one which gives us all a great deal to think about. Perhaps I could first make a practical point. In a fairly long experience with members of Her Majesty's forces in all three services, with officers, non- commissioned officers and men, I have never once
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heard the subject of the death penalty raised. That is during a period which stretches back 50 years. Therefore, the excitement and intensity of the opposition to the death penalty expressed in the House will come new to most people in Her Majesty's forces. We heard from the hon. Member for Motherwell, North (Dr. Reid) a most able and carefully argued speech. He was clearly a most useful member of the Committee, the report of which I read with the greatest interest. However, the tone of the hon. Gentleman's speech seemed flawed in one sense. He suggested that to make these dire penalties available in the desperate circumstances to which he referred was in some way a slur on the vast mass of our forces. That is wrong. No member of Her Majesty's forces would mind in the least if the law remained as it was or feel in any way that it cast a slur on them. As someone who loves his country most deeply, as we all do here, I believe that we are discussing the most terrible potential happenings. They are quite unlike the ordinary type of crime that we come across in civilian life. We are discussing not, as some Opposition Members suggest, some theoretical debating point, but surely the essential defence of the nation in battle, often in dire circumstances. The offences with which we are dealing are serious and, as some people correctly say, treasonable. The very life and existence of the nation might be at stake. To avoid those terrible crimes being committed, the supreme penalty of the death sentence must be available to the military courts.Mrs. Maria Fyfe (Glasgow, Maryhill) : Will the hon. Gentleman give way?
Sir John Stokes : I wish to progress a little further. I have only just started. I am trying to make a short speech because I am aware that many hon. Members wish to speak. If the hon. Lady will forgive me, I shall not give way.
The death penalty for the armed forces was discussed by the Defence Select Committee. The view of the Ministry of Defence and of the services was made clear. They did not wish to change the present position on the death penalty. Surely this House, some Members of which have not served in the armed services, must pay some regard to that important point. We cannot and should not let down our fighting troops by any sign of weakness or any theoretical, liberal, pacifist or other argument. We are here to defend the nation and support our troops. We should maintain the penalties as they are and leave the position wholly unchanged.
6.45 pm
Mr. Rees : When I listened to the speech of my right hon. Friend the Member for Llanelli (Mr. Davies), I reached the pitch where I decided not to speak. He expressed cogently and with the benefit of a legal background many of the points that I had wanted to make. However, the hon. Member for Halesowen and Stourbridge (Sir J. Stokes) provoked me, in the best parliamentary sense of the term, when he mentioned pacifism.
I oppose the Government's view, but not because I am a pacifist. I spent five years at war, as my father did before me in the first world war. He was a founder member of the Labour party in a small way. Pacifism does not arise in this matter but I shall not rehearse the arguments. My right
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hon. Friend the Member for Llanelli and the hon. and learned Member for Fife, North-East (Mr. Campbell) dealt with the point that there is little difference between the argument about capital punishment in the armed services and the argument about capital punishment generally. I simply wish to mention that, when we debate whether to bring back capital punishment, terrorism is always raised. I have more reason than most to detest terrorism, but I do not approve of capital punishment even for terrorists. I hold that view for very good reasons, quite apart from the moral argument. I understand that if a "terrorist" is involved in a shoot-out with the Army, people get killed. Those who live by the sword die by the sword. But whether the state should become involved in capital punishment is a different argument.I wish to have one point made clear by the Minister before I rehearse several other points. The Minister will not be surprised to know that I am interested in Northern Ireland. With the acceptance of the Irish Government, the British Government never talk about a state of war. All Governments have done the same. The IRA obtains only 2 per cent. of the vote in Northern Ireland. It is not a national freedom army. There is not a state of war in Northern Ireland. I am concerned for the soldiers in Northern Ireland. They are there at our behest. We are passing legislation which, at least according to the definition of peace and war, does not apply to them. In response to the points made by my right hon. Friend the Member for Llanelli, I hope that the Minister will clear that point up.
I am affected by not the general argument, but two other arguments. In 1942 I was stationed with the RAF at Uxbridge, which was a good place to be. Although we thought that nothing ever happened there, my young eyes were opened because in one unit--I do not recall its number--a fair number of young men suffered from LMF, which stood for lack of moral fibre. My right hon. Friend the Member for Chesterfield (Mr. Benn) also served in the RAF. He will recall that term. A fair number--I do not know the exact number--of young men refused to fly. They were afraid. Some people--although not those who flew--called them cowards.
Sixty-odd thousand very brave young men died in Bomber Command and some--I gather mainly from Bomber Command--refused to fly. I never felt that those who refused to fly deserved capital punishment even in time of war. Those involved knew that. The only people who may think that they deserved to die are those who have never heard a shot fired in anger. That is the difference between the two points of view. Many of the equally brave American 8th Air Force, which flew over Germany in daytime and suffered enormous casualties, peeled off and landed in Norway and Switzerland. I do not know what the Americans did about that. I am sorry that it happened, but nothing will ever bring me round to believing that those pilots should have been shot or sentenced to death. Some who take that view--I do not include the hon. Member for Halesowen and Stourbridge--have never heard a shot fired in anger.
It is easy to say, "Execute them". My father told me what happened during the first world war. People who were afraid of going over the top were executed. We should not consider doing that type of thing because I do not believe that it is part of maintaining the discipline of the Army, the Royal Air Force or the Royal Navy.
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Brave young men, and these days young women, will always fight for their country and they do not need the death penalty to maintain their courage. That is a mistake and the Government are dealing with the problem in the wrong way. The death penalty is not needed in Germany or France and I, among other hon. Members, have great respect for German soldiers. They fought with great bravery during the second world war. If they do not need the death penalty, why should our soldiers, airmen and sailors need it?It is the trouble of older men to talk of being a student, but, unlike my right hon. Friend the Member for Llanelli, I was a student not in the 1950s but in the 1930s. I was then at Salerno in an RAF commando unit and I saw the bravery of the Army at the time. It was not generalled very well, but that is another matter. A small bridgehead was formed and a number of soldiers mutinied. The case is famous and it is still being referred to by my hon. Friends. I do not know the details of the case, but it was a small area and I learnt of what was going on and, whatever else, those who mutinied did not deserve to die and they did not. I believe that my former right hon. and learned Friend, the one-time Lord Chancellor and Attorney- General, and the Member for what was West Ham, South, Lord Elwyn-Jones, served on the court martial and the question arose as to whether the mutineers should be executed. Given the questions that are asked in the House from time to time, it is just as well that they were not and they certainly did not deserve to be.
The Government are going about the matter in the wrong way. I understand the views of many people, especially in the Army. I have no concept of what it is like to be in the front line, but I respect the bravery of our armed forces and I have never had any doubt about that. However, I also know that sometimes people are afraid and that the only people who are afraid are those on the front line. People who say that they are not afraid are not telling the truth. In that respect, I hope that the Government will not try to overturn the clause.
Mr. Michael Shersby (Uxbridge) : First, I apologise to my right hon. Friend the Minister of State for not being here at the beginning of the debate as I was unavoidably detained. I also offer him my warmest congratulations. I am pleased to follow the right hon. Member for Morley and Leeds, South (Mr. Rees) who spent an interesting part of his service career in my constituency.
On 17 December 1990, the House decided for the 17th time to reject the reintroduction of capital punishment for murder. In that debate, I argued that the death penalty should be reintroduced for the murder of police officers because the police and I believe it is a unique deterrent, which would protect them as they go about their difficult and dangerous job. The House listened to the debate and decided not to reintroduce the death penalty for murder.
Tonight the House is considering the different, but closely related, question whether the death penalty should be retained for very serious offences committed in wartime. That was detailed in the evidence which the Select Committee considered. It seems to me that we have a curious state of affairs. The Government overwhelmingly voted for the abolition of capital punishment for murder on a traditional free vote, and they were not prepared to retain that sanction for the murder of a police officer.
That vote has been very much in my mind in the past few hours. I am reminded of the action of my right hon.
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Friend the Home Secretary in releasing one of the persons convicted of the murder of three Metropolitan police officers in 1966, the first year after capital punishment was abolished. The three persons concerned have spent over 25 years in prison. One is about to be released and he did not fire the weapon.We are in danger of having double standards. If Parliament decides that we should not have capital punishment to protect the thin blue line who protect every man and woman in this country against armed criminals and terrorists, I shall find it difficult to support the retention of capital punishment for offences committed by young soldiers, sailors or airmen, who, as the right hon. Member for Morley and Leeds, South pointed out, may have been terrified during what he--or these days she--may have had to face in the heat of battle. The House must make up its mind and decide where it stands. If we are not to have capital punishment for the murder of a civilian or a police officer, we should abolish it altogether. For the first time, I shall vote against the retention of capital punishment, because I believe that we should be consistent.
On 17 December 1990, my right hon. Friend the Home Secretary urged the House not to abolish capital punishment for the crime of treason. When I was preparing for that debate, I looked up the reason why capital punishment existed for that crime. I discovered that it was introduced as an act of mercy and as an alternative to being burnt at the stake or being hung, drawn and quartered. We are still waiting for the results of consultations with the Law Commission on whether that penalty for treason should be removed from the statute book once and for all.
If we are to abolish capital punishment for the murder of a policeman, let us get rid of it for the offences referred to in the report and for treason as well. Then, we and every police officer in the country will know where we stand.
Mr. Peter Archer (Warley, West) : The House will appreciate the hon. Gentleman's courageous speech. Is he aware that, although we were told in December that the Law Commission was reconsidering the crime of treason, my information is that it is doing no such thing and that it has still not considered it?
Mr. Shersby : I am interested in what the right hon. and learned Gentleman has to say. Recently, my pen has hovered over a question paper several times with the thought that I would ask my right hon. Friend the Home Secretary what progress was being made. I desisted because, with such an illustrious body as the Law Commission, such matters are not decided overnight. However, like the right hon. and learned Gentleman, I am interested in when the Law Commission will deliberate and decide. Frankly, I think that it should do that, so that if Parliament should ever again consider the question of capital punishment, it will be able to do so with a clean slate. We would then have no capital punishment for the murder of a civilian, a police officer, a member of the armed services or for treason.
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7 pmMr. Wilkinson : I am grateful to my hon. Friend for giving way, especially as I was unable to do so at the conclusion of my speech. He adduces the argument that we are considering the example of a poor frightened soldier who, in the heat of battle, is unwise enough to commit one of the service offences. He has argued that, therefore, we should not retain the possibility of a discretionary death sentence being invoked against him. But what about someone who takes careful, calculated, premeditated action, perhaps by inciting others to mutiny and planning it for some time or who assists the enemy in a way that could be catastrophic to his friends and colleagues, perhaps by allowing terrorists to place a bomb in a crucial installation in Northern Ireland? We should not be carried away by the emotive example of the poor soldier in battle, with whom we sympathise greatly, because we should look at the wider issues, which are crucial.
Mr. Shersby : I believe that I can reply to my hon. Friend briefly. In 1966 three armed men set about, deliberately, an act of armed robbery. They were stopped by three brave Metropolitan police officers, Detective Sergeant Christopher Head, Constable Geoffrey Fox and Detective Constable David Wombwell. Those three Metropolitan officers were shot dead by the three armed men. One of those men is still in prison, one died 10 years ago and the other is about to be released. If the death penalty is not to be available to prevent more police officers from being shot dead in cold blood--hon. Members will be aware of one or two other cases in the past three years--I do not believe that we can apply different standards in war. A war is going on in the streets of the country and our policemen and policewomen act to prevent that and to protect us.
My hon. Friend the Member for Ruislip-Northwood (Mr. Wilkinson) represents a neighbouring constituency to mine and, although I deeply respect his remarks, I do not believe that we can apply double standards. We must either reintroduce the death penalty for the murder of a police officer or get rid of it for certain military offences.
Mrs. Fyfe : I welcome the sentiments that the hon. Gentleman has expressed. An offence may be committed by someone who is frightened and unable to face the heat of battle, but what about someone who by a deliberate and cold-blooded act chooses to put this colleagues and perhaps his country in danger? No one is seeking to argue that that person should get away with it, but he should not necessarily suffer the death penalty as a result of a court martial. He could be put on trial and given a heavy prison sentence. Where is the need for the death sentence? No one who opposes the clause has explained why a person in such circumstances should meet his end by being hanged or at the hands of a firing squad.
Mr. Shersby : The hon. Lady has made her point well and I do not believe that I can add to it.
I have made my case and I have nothing more to say except that I believe that we should have consistent standards on what is the ultimate deterrent and penalty. The House made a decision in December and I suspect that it will make a similar one tonight.
Mr. Peter Viggers (Gosport) : On several occasions during his speech the hon. Member for Motherwell, North (Dr. Reid) referred to the reintroduction of the death
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penalty or, as he said, putting the death penalty back into the law. I am sure that, on reflection, the hon. Gentleman would agree that the clause relates to whether we should remove a penalty that now exists which can be used against individuals who are guilty of serious service offences. Such offences are committed not in peacetime but at a time of war or armed conflict and amount to hazarding the lives of comrades or putting the security of the country at risk. We are considering whether to change the law, but I believe that the law should stay unchanged.My hon. Friend the Member for Ruislip-Northwood (Mr. Wilkinson), who was Chairman of the Select Committee on the Armed Forces Bill, outlined the circumstances in which the Select Committee came to its conclusion. He said that the Committee was minded that the law should remain as it was.
I was the Chairman of the Select Committee on the Armed Forces Bill that was considered five years ago. We considered the retention of the death penalty and took evidence from the Ministry of Defence. Five years ago the Committee decided that the penalty should remain part of the law. It would be unwise of the House today to fail to take cognisance of the evidence put before the Select Committee this year and five years ago from the Ministry of Defence which, having considered the matter with all the seriousness it deserves, recommended that the death penalty for certain offences should remain,
The hon. Member for Motherwell, North made a good, skilful speech, as my hon. Friend the Member for Halesowen and Stourbridge (Sir J. Stokes) has already said. The hon. Gentleman almost had the Committee believing that any hon. Member who wanted the law to remain was almost guilty of criticising our armed forces.
Gosport has more armed forces personnel than any other constituency. The good people of Gosport considered the selection and election of a Member of Parliament and they were broad-minded enough to elect someone who had served in the Royal Air Force and the Territorial Army. I believe that members of the armed forces, of whom I represent so many and with whom I am proud to maintain contact, want the death penalty to be retained for extreme cases where an individual or a group has hazarded the lives of comrades, put them at peril, and hazarded the security of the country. I believe that the law should remain as it is, and that the death penalty should remain for a limited range of cases.
Mr. Brazier : All hon. Members who have spoken today have shown enormous concern for the welfare of the armed forces. I hope that the House will accept that I, too, have shown concern for the armed forces in the short time I have been here. Unlike the right hon. Member for Morley and Leeds, South (Mr. Rees) and my hon. Friend the Member for Halesowen and Stourbridge (Sir J. Stokes), I have never seen action in war, although both my father and grandfather were wounded in action.
The speech of the hon. Member for Motherwell, North (Dr. Reed) was interesting and sincere. This debate is not about impugning the honour of our armed forces--far from it. It is about keeping faith with our armed forces, the vast majority of whom have gone to war and would go again in the future with the best possible spirit. I should like to recount an incident that did not reach the pages of history, except in an account of one lance-corporal. In the battle up the spine of the Appennines, a small village was held by a much depleted
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company of a unit which was part of a regiment with which I was associated some years ago in the Territorial Army. The unit was cut off for about 24 hours by a German force. During that time one of the unit's members who had deserted on two previous occasions and who had been recaptured was held down below in a cellar.It is some years since I read the lance-corporal's account of the incident, but, if I remember rightly, as the Germans closed in on the unit the man in the cellar called out, "You stupid idiots. In a few hours' time you will all be dead and I'll be eating sauerkraut". The position was not captured by the Germans as the unit was reinforced after a counter attack by other British soldiers. If that man had gone beyond abuse and had used a firearm to kill his commander or other crucial personnel to assist the enemy, would it be right that the Army should not have the sanction, even in principle, of the death penalty? I firmly believe that it should have that sanction.
We have had a long debate on this matter and I do not want to detain the House, but I must deal with the red herring which has been raised about treason. Several hon. Members voted in favour of abolishing that civil offence. It is being examined in the wider context of constitutional arrangements anyway. I firmly believe that, whatever the considerations on that, it is right that the armed forces should have the right to enforce the death penalty, subject always to the discretion of the Secretary of State.
I sympathise strongly with what has been said on the subject of discretion. Plainly, it is not possible to determine in the common sense concept of war when armed forces are legally at war. We have hardly ever declared war. In only a small number of the incidents in which our armed forces have been in action this century has there been a formal declaration of war. That is why it must be left to the discretion of the Government whether or not the powers are enforced. We are not discussing a sanction which has been used in the past 40 years. Nor are we discussing whether we trust our armed forces : of course, we do. It is clear from all the speeches that the House is united in its admiration for our armed forces. We are discussing whether in exceptional circumstances the ultimate sanction should be available in cases such as the one that I described. I urge the Committee to reject clause 17.
Mr. Higgins : I join with hon. Members on both sides who have congratulated my right hon. Friend the Minister on his election to the Privy Council and I wish him well in his office.
I assure Labour Front-Bench Members that we on this side of the Committee are on a free vote. That being so, it seemed appropriate to come to listen to the arguments. I had no intention whatever of making a speech, but I have been provoked to do so not least by my right hon. Friend. Several points need to be clarified.
It is fortunate that we are having this debate following the Select Committee report which went into the matter in considerable detail. I read some of the arguments with interest. Some people take a moral line on the argument about capital punishment, but the crux is whether the deterrent effect is sufficient to outweigh the risk of mistakes. That argument remains the central point in this debate. Therefore, let us first consider whether mistakes are likely to be made.
Some witnesses expressed the view that there was less likely to be a mistake in a case involving capital
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punishment in military operations than in civilian ones. I find that surprising. In the heat of battle, the witnesses themselves are involved in highly emotional circumstances, so it is far more likely that they will be genuinely mistaken than the witness of a murder who is in a sense a bystander. Therefore, mistakes are more likely to be made at a court martial than in a civilian case.The Chairman of the Select Committee asked :
"Is there a precise definition for what constitutes misconduct in action?"
Several examples were given. Then the witness added :
"There is one other thing, to be complete, if I may Mr. Chairman, and it is, if he fails to use the utmost exertions to carry the lawful orders of his superior officers into execution."
My goodness, the appraisal by someone else in action of whether someone was using his "utmost exertions" must be open to doubt. At the very least, mistakes are as likely to be made in this area as in civilian cases. We already know of a large number of civilian cases in which, if we had not abolished capital punishment some years ago, innocent people would have been hanged. The issue is, to say the least, finely balanced.
The next question is whether the penalty constitutes a deterrent. It is a greater deterrent if the penalty is certain. The less certain the penalty, the less likely it is to deter. What provoked me to intervene was my right hon. Friend's speech. As I understand it, he said that the penalty would not be applied in peacetime, but that we could not be certain whether we were in time of peace or war. We were further told that, moreover, in peacetime the Secretary of State would be obliged to overrule any decision by a court martial to impose the death penalty. I hope that my right hon. Friend will correct me if I am wrong. In other words, neither we nor anybody who might be deterred by the death penalty knows whether the Secretary of State would be so obliged because we would not know whether we were in time of war.
Again, if I understand correctly, the situation was uncertain during the Falklands war. We do not know whether the death penalty might have been imposed at that time, whether or not it was time of war or whether or not the Secretary of State would have been obliged to overrule any decision of a court martial.
My right hon. Friend was unsure what form such a death penalty might take-- whether by firing squad or hanging. He thought that it would be by firing squad, although the last execution was by hanging. It is absolutely clear that, however the House votes tonight--I do not know how it will vote--the present uncertainties must be cleared up. We cannot leave the matter as it is tonight. The House should be a great deal clearer about the law than my right hon. Friend suggested in his opening remarks.
Mr. Tony Benn (Chesterfield) : I have been moved to speak by the debate, but I shall be brief.
While listening to the arguments about the uncertain definition of times of peace or war, my mind went back to 1956 when I served in the House during the Suez war. I asked Sir Anthony Eden whether we were at war. We were not. We never declared war against Egypt. The following day I had a letter from an RAF pilot in Cyprus. He believed that he would be sent into action against Egypt but that it would be an act of aggression, and he asked what he should do. He knew that I had served in the air force. I replied, as I am bound to do, that he must make
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his decision on the ground of conscience. As I understand it, it is possible that that man would have been liable for the penalty although he had a conscientious objection to bombing a country with which we were not at war. Such are the real matters which the Minister must address.Many cases involve, not cowardice or a lack of moral fibre, which was the phrase tossed about during the war, but a conscientious objection. William Douglas-Home, the brother of a former Prime Minister, was court martialled for refusing to bomb Caen during the war because he had a moral objection to bombing civilian targets. Those matters cannot conceivably be left to the discretion of the Secretary of State, whether or not it is peacetime and whether or not the death penalty is used.
Mr. Tony Banks (Newham, North-West) : I had a conversation with a Conservative Member who also served as an officer at the time of Suez. He told me that, because he felt that what was going on was morally unacceptable, as far as he could guarantee it he wanted to make damned sure that none of his troops was caught up in it. That might also fall within the definition that we are discussing. It is a further example from the same period which affected an hon. Member.
Mr. Benn : Many examples could be given, but it is clear that it is not a straightforward question of defiance of orders in time of war. It is a very complicated matter. The Minister is asking the House to overturn a decision of the Committee and make it possible in moments of great uncertainty, when motives may be very different, to court-martial and execute a member of the armed forces. I do not believe that to be right.
Dr. Reid : I am mindful of the time, so I shall sum up as briefly as possible the case that I put earlier and respond to some of the points that have been made.
First, may I offer my belated congratulations to the Minister on joining the Privy Council. It was not because of pique that I did not do so earlier --we all get there some time. I am sure that he deserves it. Whether the Privy Council deserves him is an open question, and I would allow a free vote on that, as we are to have tonight on the death penalty.
I have suggested that the death penalty, as applicable in the armed services, is an anachronism. We are told that it is not used in peacetime on principle. It has not been used for almost 50 years during hostilities in which British forces have been involved. The terms "peacetime" and "war" are ill defined at the very least ; that has been illustrated by the Minister tonight.
The discretion that the court martial and the Minister are allowed to make a decision under the terms of those definitions is equally ill defined. The death penalty is not applicable even to terrorists, or to those whose acts against our service men and women may result in the loss of their lives. It is not needed by many of our allies, including members of NATO. Even in countries other than our allies where the death penalty is retained--for example, Iraq--it does not achieve a deterrent effect.
It was argued earlier that the death penalty should be retained in principle. That is the most incredible argument. A person is not executed in principle ; he is executed in practice. The theory of deterrence, whether in this example or in others, depends on the belief that the deterrent is not there only in principle. A deterrent is a deterrent only if its
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use in practice is credible. To argue for its retention in principle is a departure from not only the armed services discipline Acts, but the general rule of deterrence.We are in danger of operating double standards, because we are arguing for the retention of the death penalty, which the House has consistently rejected for acts of terrorism or for the murder of policemen. I shall give just one piece of advice to the civilians in the Chamber tonight who are prepared to vote on this matter--that applies to 90 per cent. of hon. Members : do unto others as you would have done unto yourself. The House has consistently made clear, and enshrined in law, the belief that the death penalty should not apply to civilians. It would be a double standard if civilian hon. Members voted for the death penalty to apply to non- civilians in the armed forces.
I ascribe no malevolent intentions--no wish to attack or cast slurs on the armed forces--to hon. Members who vote tonight to retain the death penalty. However, whatever subjective motivations hon. Members may have, the only logical conclusion to be drawn from a vote for the retention of the death penalty for members of the British armed forces when it is not required by many of our allies is that our troops can be expected to exercise discipline and good order only when the threat of death hangs over their heads. Whether or not it is meant as a slur, I believe that it is a criticism of our armed forces--perhaps subconscious, but nevertherless undeserved. I believe that the death penalty is an anachronism and a barbaric instrument. Rather than countenancing the burial of one more of our service men, we would do better to bury the death penalty for the armed forces.
Mr. Archie Hamilton : May I begin by saying how grateful I am to hon. Members for their kind references to my entry in the honours list on Saturday. Acquaintances and members of my family have asked me what it means. I understand that it involves an advisory role to Her Majesty the Queen. With no disrespect to Her Majesty, I have likened it to a long- service and good-conduct medal given to members of the armed forces. I have occasionally presented such medals, and I have asked the person what he has done to deserve it. I invariably receive the same reply--years of undetected crimes. I am grateful to you, Miss Boothroyd, for allowing me to digress. That is clearly not the subject that we are discussing this evening.
Safeguards were referred to earlier. My right hon. Friend the Member for Worthing (Mr. Higgins) raised the question of mistakes. Any sentence has to go through a number of stages. First, a court martial cannot accept a plea of guilty to an offence that carries the death penalty. Secondly, the court must reach a unanimous decision. Thirdly, if the death sentence is passed-- it is an optional, not a mandatory, sentence--it is subject to confirmation by a senior officer, which in this case means a major-general or above. After that, the sentence is subject to review by the defence council. The death penalty cannot be carried out until that procedure has been complied with. I accept the point made by my right hon. Friend the Member for Worthing. Mistakes can still be made, but much is done to provide as many safeguards as possible.
The hon. and learned Member for Fife, North-East (Mr. Campbell) questioned whether the death penalty was an effective deterrent, as did other hon. Members. The death sentence is like an insurance policy. Hon. Members who argue for the retention of the clause must ask
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themselves whether we can afford to run the risk of removing that deterrent. If the effect of such offences were small, we probably could. However, the offences involved could have a major effect on the operation concerned, such as the outcome of a war and, thus, the safety of the state. We cannot be sure of the degree of deterrence or how any individual mind might be affected. The Government believe that it is right to maintain the possibility of the death penalty as the ultimate sanction for service offences.The right hon. Member for Morley and Leeds, South (Mr. Rees) raised the question of the IRA and the position in Northern Ireland. It can be argued that the IRA falls within the definition of "the enemy" under the defence discipline Acts. It is true that service men in Northern Ireland could, theoretically, be prosecuted for the offences that attract the death penalty. I am absolutely clear that, in the exceptionally unlikely event of the death sentence being passed in the hypothetical case in Northern Ireland to which the right hon. Gentleman referred, it would certainly be commuted by the Secretary of State for Defence.
The right hon. Gentleman also raised the question of the person who simply could not face up to the idea of fighting. Taking no action would not fall into the group of five service offences ; however, an action likely to imperil the success of an operation would. Again, the death sentence is only one option that is open to the court martial. Those who "chickened out", or refused to "go over the top", would not be committing one of the five offences.
My hon. Friend the Member for Uxbridge (Mr. Shersby) mentioned double standards. As I understood it, his argument was that, if we were not prepared to agree to the death penalty for the killing of policemen, we should abolish it altogether. That strikes me as a strange argument. If he holds that view, surely my hon. Friend should hold out for the day when the House may change its mind about the death penalty for the killing of policemen. Abolishing the death penalty altogether would, as far as I can see, remove any chance of its being reintroduced for the killing of policemen. It is not beyond possibility that, at some time in the future, after a spate of police killings, the House might change its mind. If at that stage no death penalty existed for any offence, it would be very difficult for it to be reintroduced at all.
7.30 pm
The hon. Member for Motherwell, North (Dr. Reid) asked why a distinction should be made between war and peace. The offences concerned may attract the death penalty only when there is an intention to assist the enemy. By their very nature, such offences are likely to be committed only in wartime. I agree with my hon. Friend the Member for Canterbury (Mr. Brazier) that it would be extremely difficult to draft legislation that applied only in wartime. It is very difficult to define wartime--the comments of my right hon. Friend the Member for Worthing are also relevant here. It is hard to be precise about when a state of war exists.
The Government have concluded that it is necessary to retain a degree of flexibility, because it is impossible to provide for every situation that might arise, relying on the safeguards provided by the use of this extreme penalty. My right hon. Friend the Member for Worthing was also worried about the definition of a state of hostilities. Surely we know when a state of hostilities exists, even if war has
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not been declared : that is reasonably straightforward. The right hon. Member for Chesterfield (Mr. Benn) raised the question of the declaration of war. It has happened rarely in the recent past. There was no declaration of war over the Falklands or the Gulf, but the existence of a state of hostilities is pretty clear and understandable to most people.Mr. Tony Banks : On a point of order, Miss Boothroyd. I think that you know what it is. It is very difficult to hear what the Minister is saying because of the number of people who are standing beyond the Bar talking.
The Second Deputy Chairman of Ways and Means (Miss Betty Boothroyd) : I was so enthralled by what the Minister was saying that I did not notice, but, if that is the case, hon. Members standing below the Bar who do not intend to sit down should continue their conversations quietly, so that the rest of us can listen to this important winding-up speech.
Mr. Hamilton : You flatter me, Miss Boothroyd.
As has been said by the hon. Member for Motherwell, North, this is no time to re-run the arguments about capital punishment. It is worth reminding ourselves, however, that in December the House voted to retain the mandatory death sentence for the crime of treason, and the crimes that we are now considering are very closely related to treason. There will be a free vote tonight, and there is no question of the payroll vote or anyone else being whipped to support the clause.
I hope that, when hon. Members on both sides of the Committee exercise their consciences, they will ask themselves whether it is sensible, if we are to change our whole attitude to capital punishment for treason-related offences, to start with the Armed Forces Bill. If it is right to remove the death sentence for treason--and that is debatable--it must surely be right to remove it initially for civilian offences, and then to review the position of the armed forces.
The hon. Member for Motherwell, North referred to our heroes returning from the Gulf--and they were heroes indeed. It goes without saying that none of those men has been charged with any of these offences, but they were doubtless reassured to know that, if any of their colleagues had transgressed--given the enormity of the result that might have followed, namely, the death of a large number of them through enemy action--the penalty was in place and provided them with protection. As my hon. Friend the Member for Canterbury said, this is a question of keeping faith with our service men. I am sure that they do not want any change in the law.
Question put, That the clause stand part of the Bill : The Committee divided : Ayes 124, Noes 228.
Division No. 175] [7.35 pm
AYES
Abbott, Ms Diane
Alton, David
Amos, Alan
Anderson, Donald
Archer, Rt Hon Peter
Armstrong, Hilary
Ashby, David
Banks, Tony (Newham NW)
Barnes, Mrs Rosie (Greenwich)
Barron, Kevin
Beckett, Margaret
Benn, Rt Hon Tony
Bennett, A. F. (D'nt'n & R'dish)
Bermingham, Gerald
Blunkett, David
Boateng, Paul
Body, Sir Richard
Brown, Nicholas (Newcastle E)
Buck, Sir Antony
Caborn, Richard
Campbell, Menzies (Fife NE)
Campbell-Savours, D. N.
Cartwright, John
Clarke, Tom (Monklands W)
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