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After Clause 27, insert the following new clause--

("Abolition of death penalty
Abolition of death penalty for treason and piracy, etc

.--(1) In section 1 of the Treason Act 1814 (form of sentence in case of high treason), for the words "such person shall be hanged by the neck until such person be dead", there shall be substituted the words "such person shall be liable to imprisonment for life".
(2) In section I of the Treason Act (Ireland) 1703, the words "pains of death, and" shall cease to have effect.
(3) The Treason Act 1790 and the Treason Act 1795 are hereby repealed.
(4) In section 2 of the Piracy Act 1837 (punishment of piracy when murder is attempted), for the words "and being convicted thereof shall suffer death" there shall be substituted the words "and being convicted thereof shall be liable to imprisonment for life".
(5) The Sentence of Death (Expectant Mothers) Act 1931 is hereby repealed.").

The noble and learned Lord said: My Lords, some of your Lordships may recollect that an amendment in terms similar to this one was debated in Committee. I am deeply grateful to those of your Lordships who have encouraged and supported me both inside and outside the Chamber. Your Lordships may be relieved to learn that I do not propose to repeat today all that I said in Committee. But lest some few of your Lordships were not present on that occasion, or have not had an opportunity of reading the report, may I indicate briefly what the amendment seeks and does not seek to do.

What it seeks to do is to remove finally from the statute book the last remnants of capital punishment in time of peace, that is, for certain offences of piracy and treason. I hope that I have now rectified the omissions in the draft which I presented in Committee. I am deeply grateful to all those who have assisted with the research,

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particularly to Amnesty International and to the officials of the Public Bill Office. We have trawled through the statutes in force and I think we have reached all the parts which my former researches did not reach. Even if there is some provision lurking unsuspected and undiscovered, I hope that your Lordships will not think that that precludes the House from taking a clear decision of principle today.

I turn now to what the amendment does not seek to do. First, it does not seek to revolutionise our customary way of life. The last execution for piracy was in 1830, and capital punishment for treason was last executed in 1947. So we have subdued piracy and frustrated treason for 50 years without resorting to the gallows. As some of your Lordships pointed out in Committee, capital punishment for arson in a royal dockyard was abolished unnoticed and unlamented in 1971 and was not followed by a spate of incendiarism in naval dockyards. The last execution in this country was for murder, and that provision was abolished in 1965, so I do not claim that the amendment will prevent the tumbrels from rolling.

My reasons for the proposal are twofold. First, I believe that it is a criterion by which history will judge our civilisation. As we perceive the ending of the blood feud and of whipping through the streets, so I believe will future generations perceive the ending of capital punishment in this country and its replacement by more civilised and more effective methods of law enforcement. Indeed, the Treason Act 1814, one of the provisions which it is proposed to repeal, was itself a civilising measure: it substituted hanging for disembowelling.

My second reason for moving the amendment is that I believe that it will encourage those countries which still retain capital punishment to think again and it will add credibility to our own Government's endeavours to bring that about. Knowing that the Government have reservations about ratifying the sixth protocol to the European Convention on Human Rights and the protocol to the International Convenant on Civil and Political Rights, I propose to leave that debate for another occasion. It is no part of this amendment and I do not propose to pursue it today although I give no undertakings as to my future conduct. My dispute with the Government on that issue is not because they are less than enthusiastic to see the death penalty abolished everywhere. They have played a leading role and strongly supported the final declaration of the summit of the Council of Europe last year which called for its universal abolition.

The amendment does not seek to amend the substantive law. Certainly, the law of treason is in need of revision; much of it still rests on the Treason Act 1351. In consequence, it would be treason to slay my noble and learned friend the Lord Chancellor but only if he is in his place executing his office. Anyone who imagines the need to slay him need only wait until he is going to the theatre when they need have no concern for the law of treason. Happily, as we all know, my noble and learned friend's safety does not rest on the Treason Act 1351. The Law Commission published a paper on

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the subject in 1977 but owing to what I believe were more the vicissitudes of parliamentary time than the merits of the argument the matter was never pursued.

None of that is relevant to the amendment. I mention it only because when I introduced a similar amendment in another place on 17th December 1990, I was met with the argument that the Law Commission was reviewing the whole law of treason and that it would be better to await the outcome. When next morning I telephoned the chairman of the Law Commission, he said that it was the first he had heard of it. Lest it be suggested that realistic amendment of the penalty should await a review of the substantive law, I merely observe that if it were to be suggested that because the law of treason is a complete muddle anyone convicted under it should for that reason be hanged, I would find the argument difficult to follow.

When the proposal in the amendment is made there are sometimes those who say that we should not act precipitately and that the matter requires more thought. Presumably, that is a way of saying that although no one can think of an argument against it, perhaps if we leave it long enough someone may come up with one. We have been reflecting on this since 1990.

The amendment does not seek to abolish the death penalty for certain offences against military law in time of war. That is not because I believe that our national safety depends upon shooting soldiers for cowardice, but because I recognise that the arguments are different. In Committee, the noble Lord, Lord Goodhart, suggested that it might be arguable that we should exempt from the amendment treason (even by civilians) in time of war. As the noble Lord would expect, I naturally reflected carefully on that. I finally decided against it because I believe that although it is arguable that in wartime troops in battle should be more afraid of their officers than they are of the enemy, I am not sure that civilians are best motivated in that way. I hope that the noble Lord will not press me on that.

Perhaps I may be permitted one final explanation. It may be wondered why I propose to substitute for the death penalty a mandatory life sentence since I have never concealed my support for those among your Lordships who argue for the abolition of that form of sentence. I do so only because that was the alternative to the death penalty that was adopted in the case of murder and it would avoid the charge of inconsistency. I simply say that I reserve that subject for a future debate.

This is one of those suggestions which are scarcely still controversial but for which there is never an appropriate moment to lay them to rest. I submit that there will be no better time than now. I beg to move.

Lord Windlesham: My Lords, in Committee, the noble and learned Lord, Lord Archer, and the noble Lord, Lord Thomas of Gresford, gave full and at times entertaining accounts of the historical origins of the statutes on piracy and treason. They had no difficulty in persuading the Committee that the death penalty

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provisions were wholly obsolete and should be repealed. We heard a resume of the argument from the noble and learned Lord just now.

My only reason for intervening today, having heard the previous debate but not spoken in it, is that I sensed in Committee an assumption, particularly noticeable in the latter part of the debate, that with the spread internationally of more civilised standards, if one can use that expression, the death penalty was in decline. As a convinced abolitionist, I wish that it were so, but, unhappily, much of the evidence points in the opposite direction.

The statistics compiled annually by Amnesty International, the most reliable source, show that in recent years, although there has been a welcome reduction in the total number of countries in which people are sentenced to death, the use made of capital punishment is on the increase and in some instances, such as the years 1995-96, sharply so. In 1995 at least 4,165 prisoners were sentenced to death, and 2,931 were executed. In 1996 7,107 prisoners were sentenced to death, and 5,139 were executed. It is true that some of the increases arose in countries with which we would not care to compare ourselves, but others are closer to home. In the United States of America, after a 10-year moratorium which ended in 1976, a substantial majority of states have reinstated capital punishment in state law, even states like New York and New Jersey which are regarded by some as traditional homes of civil liberties. In federal law there is now a long list of offences, some 40 or 50, punishable by the death penalty. In a number of cases the liability applies even where no victim has died as a result of the criminal act.

Because of the long drawn-out procedures for appeal against conviction and post-conviction review prisoners who are sentenced to death can spend anything up to 10 years on death row, and in a few cases even longer. As a result, at the moment there are over 3,000 prisoners on death row in the United States. In the state of California alone the number is between 400 and 500. There is an incoming tide from America.

Why do I raise that this afternoon in relation to this particular amendment which is so much narrower in scope? I raise it because in recent years so many ideas about penal policy--in my opinion, not all of them beneficent--have crossed the Atlantic in an easterly direction. For an example we need look no further than the introduction last year of mandatory sentences of imprisonment in the Crime (Sentences) Act.

The motivation for the use of the death penalty in the United States is now primarily retributive. It is the anger, fear and popular resentment caused by the extent of violent crime that has led to the re-emergence of what is fundamentally vengeance in penal policy. This is an ominous development of profound significance. Protective walls need to be built up in this country and elsewhere in Europe to make sure that there is no erosion of the principle that capital punishment has no place in the laws of a truly civilised country.

I return to the amendment. I hope that noble Lords will forgive me for going somewhat wider than the amendment which would effect a very modest change.

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We would be doing away with no more than historical relics of no practical significance. That would enable us to concentrate on strengthening what matters: our contemporary system of criminal justice, without resorting to the inhuman practices of the past.

5.15 p.m.

Lord Randall of St. Budeaux: My Lords, I make a very brief contribution to the debate on Amendment No. 82. I register my support for it rather than enter into the intricacies of the argument. My noble and learned friend Lord Archer has moved the amendment in such an eloquent fashion that I cannot match it. Therefore, I have decided to say very little.

I believe that the case is very simple. The principle is whether the state should be empowered to take the life of an individual and to do so irrespective of the seriousness of the crime. I do not believe that the state should ever have that power, and that is why I want the residual powers that exist in English law to be repealed. Existing science demonstrates that the death penalty is not the deterrent that has been used in political arguments for so many years. In the other place on numerous occasions attempts have been made to reintroduce capital punishment and those attempts have been defeated. I believe that that underlines the principle that capital punishment does not work in practice. The principle is itself so significant that a civilised country should not have recourse to such behaviour. The role of the state is to ensure that a convicted criminal is not in a position to harm individuals. I believe that there is here a "harm" test. Therefore, it is the responsibility of the state to take the appropriate action, which means imprisonment. Imprisonment in that way works. One can thereby ensure that the public is not harmed in any way.

My noble and learned friend Lord Archer went into the detail. It is not appropriate for me to go into the new clause and the way in which it deals with such matters as piracy and treason. The present law is utterly irrelevant. The failure of the courts to invoke it demonstrates that legislation introduced in the nineteenth century is not relevant to modern British society.

Before I sit down I should like to make one other point. I do not speak as a Catholic or as someone who has supported the anti-abortion campaign. This amendment would repeal The Sentence of Death (Expectant Mothers) Act 1931. I am pleased that it does so because I am repelled by the idea that a baby in the womb, which may be well developed, can be put to death by the state against the will of the mother for a crime committed by her. I find that quite unacceptable. I hope that this afternoon there is no division on this amendment and that it will be carried.

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