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Lord Waddington: My Lords, I shall speak very briefly in support of my noble friend Lord Renton. I do not expect for one moment that my oratory will carry the day, but I am sure that I am not alone in feeling very strongly about these matters. In time of war people are expected to die for their country. In World War II people who had no wish at all to serve in the Armed Forces were required to do so and were expected to die for their country. In such a war traitors can make it more likely that those soldiers, sailors and airmen serving in the Armed Forces, but not wishing to serve and doing their duty to their country, suffer the ultimate penalty and die.

It is quite wrong that such traitors should be treated more favourably than those members of the Armed Forces, the lives of whom traitors are prepared to see snuffed out. If another war were to occur in the course of which a traitor was arrested, tried, convicted and then merely sentenced to imprisonment, the situation would be treated with disdain and contempt by the members of our Armed Forces who at that time were risking death every day during which they continued to serve their country. It is an understatement--it is almost absurd--to say that that would be damaging to morale.

The noble and learned Lord, Lord Archer of Sandwell, said that the death penalty is not the best way to protect a country against spies and saboteurs. I am not suggesting for one moment that this amendment ought to be carried in order to give the necessary protection against spies and saboteurs. I am saying that it is a case of simple justice and common sense that in wartime, when people are facing death every day, they should know that if somebody commits acts which makes death more likely for them, that person will suffer the ultimate penalty himself.

Although I listened with great attention to the interesting speech of the noble Lord, Lord Thomas of Gresford, and to his argument that William Joyce would

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not suffer the death penalty if he were to act now as he did at that time, I must point out that it is not only people in the situation of William Joyce who do, and can, commit treason in time of war. With the greatest respect, I do not think that the noble Lord's argument impinged on this argument. I feel in my bones that it is not right in time of war to treat a traitor better than the soldiers whose lives he has imperilled.

Lord Grenfell: My Lords, I rise to oppose the amendment and to support the arguments which have been so eloquently made by my noble and learned friend Lord Archer and the noble Lord, Lord Thomas of Gresford. The national campaign for the abolition of capital punishment was the first national campaign in which I participated. I was a young undergraduate then and I do not regret participating in it for a moment. Either you are in favour of capital punishment or you are against it. I do not believe that you can be for it in some instances and against it in others. In my book, you are either for it or against it--and I am against it.

I should like to make one point about deterrence in relation to this clause. I recall reading that during the war a number of spies and saboteurs who were captured were offered the choice of either becoming spies for our side--that is, double agents--or being hanged. It is surprising how many (for reasons which only they can know) preferred to die rather than to change sides. That seems to indicate that the death penalty does not have quite the deterrence that is sometimes imputed to it.

I should like to refer to a point that was made by the noble Lords, Lord Renton and Lord Waddington, that it is simply unfair to fighting troops that they should die and that people who may be jeopardising their lives should be spared. That is a rather extreme argument. Soldiers die for many reasons, not least because there may be a failure of equipment or poor command. Soldiers die for many reasons other than the fact of being killed by the enemy. I find that a weak argument.

The greatest argument that I can marshal against the amendment--I declare an interest as a delegate to the Council of Europe--is that I find it very difficult as a British delegate at the Council of Europe to have to admit that we have not yet removed capital punishment from the statutes. It is high time that we did. Barring the fact that we still have the proviso at the moment for the retention of capital punishment under military law, I believe that in relation to civilian law it is high time that we got rid of the provision once and for all and completely.

Lord Monson: My Lords, I cannot agree that either one is in favour of capital punishment or one is against it. It is possible to be against it for the most part but in favour of it in rare instances. I had not intended to intervene, but surely the prospect of a long term of imprisonment is no deterrent to a civilian spy or saboteur in time of war because, even if he is caught, he will be expecting the enemy to win, upon which he will expect to be released and even rewarded. It is for that reason that I support the amendment.

Lord Lester of Herne Hill: My Lords, the issue before the House is whether it makes a crucial

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difference to the penalty of death if the crime is committed in time of peace or in time of war. Speaking for myself, I do not understand any principled basis on which we can make that distinction as law-makers.

The noble Lord, Lord Renton, for whom I have the same affection as the noble and learned Lord, Lord Archer of Sandwell, and the same respect, suggested that there were two tests. One is whether someone deserves to die and the other is whether the penalty will be a deterrent. If we are considering who deserves to die, most of us might think, leaving aside our objections to the death penalty, that George Blake, the traitor who was responsible for the deaths of 42 members of our secret service and got 42 years' imprisonment, deserved to die for that offence in peacetime. Most of us might think that those who murdered Airey Neave, MP--an act of cowardly terrorist murder--deserved to die. That was an act committed in peacetime. If we are talking about those who deserve to die, most of us might think that those who commit the crime of genocide, wiping out a whole people because of their racial origins, deserve to die. All of those offences committed in peacetime are subject to mandatory life imprisonment. Parliament enacted the Genocide Act in 1969 providing that as a penalty.

I happen to be against the death penalty on principle, like the noble Lord, Lord Grenfell, and others who have spoken. However, whether one is or is not against it in principle, we would have to have a sensible, rational basis for preserving the death penalty for any offences. I suggest that the vague offence of,

    "giving aid to the enemy",
would not be a sufficient basis for distinguishing an offence punishable by capital punishment by hanging,

    "by the neck until ... dead",
from the other heinous crimes to which I have referred. Therefore, I am strongly opposed to the amendment which I think would disfigure the statute book. I am in favour of what is happening across the Council of Europe from Ireland in the West to Turkey in the East, which is wiping out the death penalty.

The Earl of Onslow: My Lords, it is awfully difficult to argue against my noble friend Lord Renton, who has been a real and genuine friend for a very long time. I come from a family who had, for want of a better phrase, "good wars" in both World War I and World War II. My grandfather walked round Eaton Square with Leo Amery on the night that John Amery was hanged. John Foster was a friend of my parents-in-law. He was the solicitor who defended Joyce.

I oppose the amendment in the name of my noble friend Lord Renton because I think that this decision ought to be made not, funnily enough, by those who knew the war, who remember it, who were deeply scarred by it, who fought in it, who risked their lives so that we can continue to bang on here, and who fought for our freedom, but by those who stood back and can take a judgment which is perhaps much more detached.

I end with another little family story. I had a forebear who was shooting partridges in Oxfordshire. Across the field came some drunken Irish agricultural labourers.

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My forebear said, "Where have you been"? They said, "We have been to the hanging". He said, "Good God, I've got the man's reprieve in my pocket". I see that the noble Lord, Lord Williams of Mostyn, is laughing. That happened in 1840, so one is entitled to a small grin now. However, as the noble Lord on the Liberal Benches said, such an error is something with which our consciences cannot be allowed to live. Therefore, with very much regret, I must oppose my noble friend's amendment.

7.30 p.m.

Lord Henley: My Lords, in speaking from this Dispatch Box, I remind the House that on these Benches and, I imagine, in all parts of the House, this is a matter best left to our consciences without the guidance of the Whips. In other words, this is a matter on which there should be a free vote. I also make clear, as I did at Report stage when the noble and learned Lord, Lord Archer, last moved his amendment, that I am opposed to all forms of capital punishment. They are impractical and increase the difficulty of obtaining convictions when one makes use of trial by jury and they are inhumane in a civilised society.

Nevertheless, the noble and learned Lord, Lord Archer, in moving his amendment on that occasion made it clear that he was doing so to remove the last vestiges of capital punishment in time of peace. It is right therefore that my noble friend Lord Renton should table his amendment on this occasion to allow the House an opportunity to put the case for retaining capital punishment in certain circumstances.

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