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Lord Campbell of Alloway: My Lords, I am about to introduce a somewhat discordant note. I find difficulty with this amendment. Perhaps noble Lords will allow me briefly to explain the difficulty. I have no problem whatever about the repeal of the expectant mothers Act under subsection (5). This is a Bill to

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reform our domestic criminal law and it is wholly appropriate that this particular enactment should be repealed.

My noble friend Lord Windlesham has done the House a signal service by deploying the international perspective of this affair which goes beyond the ordinary confines of a domestic criminal reform Bill. It was a most useful and objective exposition, and I say so with respect to my noble friend.

I have problems with subsection (4). Piracy, in public international law, is an offence. It is not just a matter of domestic law. The subsection provides:

    "punishment of piracy when murder is attempted ... and being convicted thereof shall suffer death".

My Lords, why not? That is the form generally in international affairs. What is wrong with it? Noble Lords will say no doubt, "This is wrong with that proposition; that is wrong with the proposition. What you are saying about international law is all nonsense. It is not that at all". So be it, but is this the time, is this the place, to entertain a discussion of that order? I respectfully suggest that it is not, and that this is not the Bill in which it should be dealt with.

Lord Archer of Sandwell: My Lords, perhaps the noble Lord will forgive me--I am most grateful to him. I trust that he appreciates that there is no intention in this amendment to change international law. This is to change our domestic law about what happens to someone who falls within the jurisdiction of the English and Scottish courts.

Lord Campbell of Alloway: My Lords, I am most grateful to the noble and learned Lord. I fully understand what I am talking about; but I am grateful to him, nonetheless. I did not intend so to imply. I just want to deal with treason. I do not know, but I think that the last person who was hanged in the Tower was a stool pigeon at Colditz. That was for treason. I am not going to mention his name. What he did was treason. Those of us who were there were delighted to hear the result.

What happens in war? What happens in a prison camp? What is treason? How should it be dealt with? Is that a matter that we should start to discuss here? There are many ways in which this can be dealt with, but there is the international concept of treason. How is treason dealt with generally throughout the world? Usually by the death penalty. To me the death penalty is abhorrent. I spent a lot of useless time in your Lordships' House seeking to oppose the mandatory sentence for murder which was in exchange for the death penalty for murder. I oppose generally in our domestic law any form of re-imposition of the death penalty for murder, but I sincerely suggest that this amendment is not the way to deal with treason or piracy.

Lord Thomas of Gresford: My Lords, it always grieves me to disagree with the noble Lord, Lord Campbell of Alloway, and I am grieving rather a lot, I am afraid. He said that this is the form in international affairs. That is something that strikes me deeply. One may be conscious, as I am, of the executions that take place publicly in China, where

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the family is charged for the price of the bullet. Those executions are carried out for offences which do not necessarily involve murder. They may involve all sorts of different types of commercial offences. When that is the standard of international affairs that is put before us, I cannot accept it.

Just before Christmas I received a letter from someone whose address was "c/o Death Row" in a prison in Jamaica. I am happy to say that I have received a subsequent letter with the address, "c/o Local Remand Centre", because the appeal was successful. That brings it home that when we are looking at the international dimension, as the noble Lord, Lord Windlesham, said, far too many executions are carried out. Human life is taken on the flimsiest of evidence.

I come to our domestic legislation. Surely we must all have at the forefront of our minds the principle of respect for human life. We must bear in mind at all times that today, with the advances that we have had in scientific knowledge, it is not possible to be as confident as people appeared to be in the past of the guilt of a particular defendant. People who have been executed within our own jurisdiction in the past, may very well have been wrongly executed.

If that is the principle, what is the practicality? The practicality is that we are dealing with historic offences, historic punishments, which, as the noble Lord said, have no relevance to the circumstances of today. If therefore these provisions have no practicality, then the principle has to remain. I do not know what the Minister's attitude on this amendment will be, but I hope that we do not have to face a whipped vote on a matter of this sort in relation to this amendment.

Lord Ponsonby of Shulbrede: My Lords, I wish to remind your Lordships that we are members of the Council of Europe. As members of the Council of Europe, we signed Resolution 10/97 which calls upon all parliaments in the world, which have not yet done so, to abolish the death penalty for all crimes before the end of this Millennium. That resolution was passed in 1996.

The noble Lords, Lord Thomas and Lord Windlesham, spoke forcefully about the increase in capital punishment in America. The Council of Europe now has 40 member countries. To be a member of the Council of Europe one has to abolish the death penalty. That is a force for good. Every noble Lord who has spoken has referred to the irrelevance of these provisions for the death penalty.

During the last plenary session of the Council of Europe, which I attended, that had some relevance in an obscure way. A resolution was moved by a British Member of Parliament which called for the expulsion of the Ukraine from the Council of Europe because it was continuing to execute people. I was not alone in being ribbed by other members of the Council of Europe about the vestiges of the death penalty that we still have on our statute book. It undermined the argument that we were deploying to have the Ukraine expelled from the

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Council of Europe. I support the amendment moved by my noble and learned friend. I shall support it if he chooses to press it to a Division.

Lord Milverton: My Lords, I have been thinking about the death penalty for many years. I have been going back and forth over it. I have finally come to the conclusion that it is wrong. Let us ensure that when a person is convicted of murder, vile or not so vile, horrible or not so horrible--most murder is vile and horrible, no matter how it is done, by a man or woman--he realises the wrongness of his deed by knowing that he will be in prison not just for a little twinkle time but for a reasonably long time. We must ensure that we have a Prison Service which can provide constructive and positive creative activity. One cannot force that upon a person, but we must ensure that it exists so that he will be unable to say, "While I was in prison I had nothing to do".

I know that it is horrible for someone to have to impose the death penalty. I recall that my father often had to do so during his different governorships. He was known to be a strong man, but there was a soft side to him and it was shown at such times. The family knew that when my father had to carry out the ghastly act of signing a death warrant it hurt him. He hated having to do it, but it was the law of the land. I know that deep down he wished he need not.

Let us ensure that those who commit such vile crimes do not believe that they can afterwards say, "It's all right, society does not really bother about it. People are just sorry for us and a feeble excuse will be made about why we did it". We must provide such people with the opportunity for creative activity while in prison so that they have no chance of saying, "We were not helped to return to normal, or as normal as anybody can be". I am pleased that I have at last reached that decision.

5.30 p.m.

Earl Russell: My Lords, people at meetings sometimes ask unexpected questions. I remember when I was an undergraduate the late Hugh Dalton, addressing a meeting, being asked what was the best degree for politics. He replied, "A second, because the first-class mind is too conscious of the possibility of error". I make no comment on what is the best degree for politics, but I should like my judicial system to be run, as I believe it is, by first-class minds. The possibility of error is the centre of the whole argument against the death penalty. I will not run through the possibility of error in cases of murder--it is not relevant to the amendment--but in cases of treason, as the noble and learned Lord, Lord Archer, pointed out, it is redoubled because the law is such a mess.

The noble and learned Lord made only one comment with which I disagree. Do not denigrate the 1352 statute--or the 1351 statute, as it is in lawyers' dating. Every attempt to improve upon it has made confusion worse confounded. The trouble with treason is that it is a charge used to say, "I am very angry". People are often angry about issues of doubtful value. Therefore, the death penalty for treason is more likely to lead to error even than the death penalty for murder. The noble

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Lord, Lord Campbell of Alloway, asked why it should be considered in this House. I say that because of all the places in which it has been debated over the centuries more sense has been spoken about it in this House than in almost all the rest put together.

I have one other point which is of particular relevance to the Opposition Front Bench. I have heard Members of it say many times in this Chamber that murder is literally the most heinous crime. Whether one accepts that argument or not, if one believes that, then it makes only sense that no crime should have a more severe punishment. If one believes that, there is some incongruity about punishing either treason or piracy more severely than murder.

Finally, one must consider the effect of any punishment on those who inflict it as well as on those upon whom it is inflicted. When I was an undergraduate, the piece of information which finally converted me to supporting abolition of the death penalty came from the late Gerald Gardiner. I learnt that the number of people who applied for the post of public hangman was 500 a week. That is really conclusive.

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