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Page 24, line 5, leave out subsection (1) and insert--
("(1) When high treason is committed in time of war by any citizen of, or person resident in, the United Kingdom against Her Majesty by assaulting or threatening to assault her, or by giving aid to the enemy in the realm or elsewhere, the sentence for such high treason shall be that laid down in Section 1 of the Treason Act 1814 (form of sentence in case of high treason), namely that "such person shall be hanged by the neck until such person be dead".
(1A) Any person found guilty of high treason in circumstances other than those set out in subsection (1) shall be liable to imprisonment for life.").

The noble Lord said: My Lords, the purpose of this amendment is to provide an alternative to subsection (1) of Clause 30 as it stands. The effect of the amendment would be to retain the death penalty in time of war-- I stress "only in time of war"--for two particular types of high treason. The first is assault or attempted assault upon the Queen or whoever is the reigning monarch. The other is aiding the enemy.

At the Committee stage the noble Lord, Lord Goodhart, from the Liberal Democrat Benches said that he would retain the death penalty for acts of treason in time of war. At the Report stage the noble and learned Lord, Lord Archer of Sandwell, for whom I have always had a very high regard both as a parliamentarian and as a colleague at the Bar, in moving what is now Clause 30, said:

that is, his new clause, which is now Clause 30--

    "is to remove finally from the statute book the last remnants of capital punishment in time of peace, that is, for certain types of piracy and treason".--[Official Report, 19/3/98; col. 841.]

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However, subsection (1) as it stands abolishes capital punishment for any high treason, in time of war as well as in peacetime. As I said just now on the other amendment, I, like most other noble Lords, wish to get rid of the death penalty in peacetime for every offence. Now I must mention that in a conversation I had with the noble and learned Lord, Lord Archer, this afternoon--he agreed that I should mention it--he told me that he did not intend that the death penalty should be retained even in time of war. However, I suggest that, technically speaking, subsection (1) as it stands does not fulfil the purpose which he had in mind. That is one reason why I have put forward Amendment No. 12 to replace subsection (1) of Clause 30.

However, my main reason for moving the amendment is that when members of our Armed Forces in time of war are sacrificing their lives it would be disgraceful if anyone in this country who assassinated the Queen, or perhaps her successor, or who aided the enemy, perhaps by giving vital information which reveals, for example, a necessary code used by the Armed Forces and on which so much can depend, or by blowing up a factory in this country where armaments are made, were merely sent to prison. That would not be enough to protect our sovereign and to protect our country. Anyone who behaves so treacherously when the future of our nation may be at stake and when our soldiers, sailors and airmen are risking their lives deserves to die. Furthermore, I suggest that they should be deterred. In most cases the death penalty would be a deterrent. I agree that there are cases where people are not deterred by the death penalty. That is common knowledge and stands to reason.

I must confess that the drafting of my amendment has been difficult. It has been difficult because of the confusion in the ancient law. I have had to use phrases which not only achieve the purpose I had in mind but which dovetail with the ancient statutes. Perhaps I may refer to my amendment. The phrase "in time of war" does not mean historically that war has had to be declared. Indeed in many of the wars of our history, including the recent war in the Falklands and the Gulf War, I understand, although I did not know about it until my noble friend mentioned it to me this morning, we made no declaration of war. But there was a war and we were involved.

We then come to the words,

    "any citizen of, or person resident in, the United Kingdom".
It would be absurd if a citizen of the United Kingdom could be convicted of treason in these circumstances but someone we had allowed to settle here--perhaps as a refugee--who had turned treacherously against us got off scot-free.

The Earl of Onslow: My Lords, I thank my noble friend for giving way. There is a judgment by Lord Justice Coke in the early 17th century which assumes that the moment someone comes to this country he owes a duty of loyalty to the Crown and is therefore capable of committing high treason; and people have been executed. That is set out in an Answer given

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several years ago to a Question I raised on treason with the then Lord Chancellor, the noble and learned Lord, Lord Hailsham.

Lord Renton: My Lords, perhaps I may express my gratitude to my noble friend, a layman. He has reminded me of something which I learnt years ago but had not remembered. I am grateful to him. He has strengthened my argument.

I should mention the words,

    "assaulting or threatening to assault",
Her Majesty. I confess that those are my words. They are my simple attempt in modern English to summarise the vast amount of verbiage that there is when the previous treason Acts have referred to acts against the person of the sovereign. "Assaulting or threatening to assault" is a fair way of putting it. If the attempt were a trivial matter the sovereign would have the power to grant mercy, so no problem would arise with that. However, a really serious attempt should carry the death penalty.

I should mention subsection (1A), because there I have come to express in effect what the noble and learned Lord, Lord Archer, really intended by the present subsection (1), which goes much further. I shall attempt to answer any questions on the drafting when I reply to the debate.

In conclusion, I share the widely held view that the use of the death penalty in peacetime in civilised countries today is undesirable but I hope that noble Lords will agree with me that the need to protect our sovereign and our country in time of war is paramount. I beg to move.

Lord Archer of Sandwell: My Lords, I am most grateful to the noble Lord, Lord Renton, who, with his customary courtesy, pointed out to me yesterday that he had set down this amendment and he very kindly discussed it with me. The words which he attributed to me at Report stage are accurately reported. I did say that the purpose was,

    "to remove finally from the statute book the last remnants of capital punishment in time of peace".--[Official Report, 19/3/98; col. 841.]
The reason for that was because it does not purport to remove the last remnants of capital punishment in time of war. As I believe I explained at Report stage, we have limited the amendment by excluding from it offences against military law in time of war. If I remember accurately, the noble Lord, Lord Renton, was delayed in coming into the Chamber in that debate. I believe that he missed what I said so that may be the explanation. What your Lordships approved of was precisely what I had intended.

I excluded offences against military law not because I believe that our country is any safer for shooting soldiers for cowardice, but for two quite different reasons. First, because this is a Bill about civil law; and, secondly, because I accept that the arguments are different. I wanted to keep the debate as simple as possible. For those reasons my intention was to exempt offences against military law in time of war, and I said that we were not removing the last remnants except in

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time of peace. In fact, as I understand it, it is now reported that the authorities are considering whether the death penalty should be retained even for offences against military law, but that is not a matter with which we are concerned today.

I also said at Report stage that I thought that we could dispense with the death penalty for civilians even in time of war because I do not believe that that is how civilians are best motivated. I say at once that if I believed that Her Majesty's personal safety depended on retaining the Treason Act 1814 in its present form, together with the death penalty, I would certainly reconsider. But I do not believe that anyone who offered violence to Her Majesty today would be prosecuted for treason; there are better provisions on the statute book. Neither do I believe that we are best protected against spies and saboteurs by the fear of hanging. When arson in Royal dockyards was abolished as an offence, followed by capital punishment, in 1977, and almost unnoticed, there was no epidemic of incendiarism in dockyards.

I proposed, and your Lordships agreed, to clear the statute book of something which the noble Earl and I agree was a relic of a darker age, if only so that when my right honourable friend the Foreign Secretary speaks on our behalf to other countries in favour of civilised behaviour, he will do so with greater authority because this country will no longer be open to the reply, "But on your own statute book you have retained hanging". I wonder what history would say of us if in 1998 we almost abolished the death penalty, which for these offences has not been used for 50 years, but we did not quite do so.

I do not propose to develop further the differences between the noble Lord and myself. Some noble Lords may wish to do that. I believe that they are well known. Noble Lords will make up their own minds. I hold the noble Lord, Lord Renton, in as high regard as he very kindly said that he holds me. On this occasion I have the misfortune to differ from him.

7.15 p.m.

Lord Thomas of Gresford: My Lords, there are many reasons for wanting to see the end of the death penalty. One of them is that if a person is wrongly convicted there is nothing that can be done about it. I believe that has been one of the motivations for the abolition of the death penalty in this country and which has persuaded many people that it is a barbaric institution which must go.

The noble Lord, Lord Renton, has done great service, as he always does, in bringing forward this amendment. I deeply appreciate the strong feelings that are held by those who took an active part during wartime and saw events at first hand. The difficulty with drafting lends weight to the point that I was making earlier that treason should be looked at again. It also highlights a particular issue.

It is curious that on the definition of high treason in the noble Lord's amendment, the last person to be hanged in this country for that crime--namely, William Joyce--would not have been guilty of that offence. The

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curious thing about his case is that he was born in America; that he came to this country, pretended that he had been born in Galway, which was then part of the United Kingdom, and then obtained a British passport. His offences of giving aid to the enemy did not occur in this country. He did not spy in this country. The aid that he gave to the enemy was in Germany through the broadcasts he made during the war. Therefore, he was not a citizen of the United Kingdom nor was he resident here. He was not giving aid to the enemy in the realm. He was certainly giving it elsewhere, but not within the realm itself. William Joyce would not have been caught by this provision.

Your Lordships will remember that it was a case that eventually went to appeal to the Judicial Committee of your Lordships' House. The case gave rise to great controversy at the time. Had the trial not been held in the immediate aftermath of war when no doubt emotions were greatly involved, it is very likely that the decision could have gone a different way. It seems curious that a person is guilty of high treason simply because he has fraudulently obtained a British passport. It is with great regret that I must oppose this amendment.

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