HC Deb 22 May 1940 vol 361 cc185-95

Order for Second Reading read.

5.25 p.m.

The Secretary of State for the Home Department (Sir John Anderson)

I beg to move, "That the Bill be now read-a Second time."

The main provision in this Bill is contained in Clause 1, which provides that the extreme penalty of death may be exacted in certain grave cases of espionage and sabotage. Under this Clause, it is an offence for any person, with intent to help the enemy, to do or attempt or conspire with any other person to do any act which is designed or likely to give assistance to the naval, military or air operations of the enemy, to impede such operations of His Majesty, or to endanger life… In each case, be it noted, the act must have been done with intent to help the enemy. It must, as the Title of the Bill implies, have been an act of treachery. Acts containing this element of treachery would, of course, be treason. They would involve, in the language of the Treason Acts, adhering to the King's enemies, giving them aid and comfort. It is probably safe to say that, so far as concerns the acts themselves, nothing is made an offence by Clause 1 of this Bill which would not already be an offence under the Treason Acts. Under the ordinary law, therefore, the type of action specified in this Bill is already an offence, and an offence for which very heavy penalties are provided by the Treason Acts.

Why then, it may be asked, is this Bill necessary? During the last war, power was taken, under the Defence of the Realm Acts passed in 1914 and 1915, to enable, not only courts-martial, but also civil courts sitting with a jury, to impose the extreme penalty of death on persons convicted of offences against any of the Defence of the Realm Regulations if it was proved that the offences had been committed with the intention of assisting the enemy. In the course of the last war 10 persons—all, I think, aliens—were dealt with by court-martial under the Regulations made in accordance with these provisions. I cannot find any record, however, of the death penalty having been imposed under the Regulations by a civil court. Hon. Members will recollect that when proceedings were taken against Roger Casement he was put on trial for high treason before a civil court, and was sentenced to death under the Treason Acts.

When the Emergency Powers (Defence) Bill was introduced in Parliament at the outbreak of this war, it contained no provision for the death penalty to be imposed for acts done with intent to assist the enemy, as it was thought at that time that the most serious types of offence for which the death penalty would be appropriate could best be dealt with under the Treason Acts. As a result, however, of further consideration, the conclusion has been reached that the Treason Acts, although, as I have said, they probably cover all the actions made punishable by Clause 1 of the Bill, cannot safely be relied upon as extending to all the classes of persons by whom such offences might be committed. The Treason Acts apply to all British subjects, wherever they may be, and also—by reason of a doctrine known as the doctrine of local allegiance—to aliens resident within His Majesty's jurisdiction. I am advised, however, that this doctrine of local allegiance could not reasonably be held to apply to aliens who had come to this country in a clandestine way for a hostile purpose intending, whether by espionage or by committing acts of sabotage, to undermine our system of national defence. It is obviously desirable that all classes of aliens in this country, whether they are normally resident here or have come here solely for a hostile purpose, should be made equally liable to the death penalty, if they commit offences of this kind.

This then is the first reason why fresh legislation is thought necessary. It is not the only reason. The second reason is one of procedure. The procedure prescribed by the Treason Acts dates back to the fourteenth century; and in some respects it is out of harmony with the conditions in which we find ourselves at the present time. It seems to the Government desirable therefore that, if persons commit such grave acts of treachery as are contemplated in Clause 1 of this Bill, they should be tried in accordance with the ordinary procedure of the courts, without the special forms and dignities of a treason trial.

In the third place, legislation is necessary because it has been thought desirable to make provision enabling enemy aliens to be tried in suitable cases by court-martial. Section 1, Sub-section (5) of the Emergency Powers (Defence) Act provides that Defence Regulations shall not authorise the trial by courts-martial of persons who are not subject to the Naval Discipline Act, to military law or to the Air Force Act. It was the intention of Parliament, when that Act was passed, that all civilians charged with offences against Defence Regulations should be tried by civil courts. For the specially serious type of offence with which this Bill deals, it is thought appropriate that there should be power to direct, in suitable cases, that enemy aliens—and this provision is confined to enemy aliens—should be tried by courts-martial. In the type of case to which I have already referred, where an enemy alien has come to this country in a clandestine way for a hostile purpose, it might well be appropriate that, if he were apprehended, he should be dealt with summarily by court-martial rather than be committed for trial in a civil court. I should make it clear, however, that any British subject or neutral alien charged with an offence under this Bill will retain his right to trial by jury.

At a time like this I do not think it is necessary for me to bring forward arguments to justify the proposition that persons found guilty of grave acts of treachery towards the State should suffer the extreme penalty of death. There are, I know, hon. Members in this House who are opposed in principle to capital punishment, and in ordinary times they would no doubt feel bound to resist any proposal which they regarded as an extension of the limits within which capital punishment may be imposed. I hope I have shown, by what I have said already, that in as much as the treacherous actions specified in Clause 1 of the Bill are for the most part already offences under the law relating to treason, this Bill does not involve any serious extension of the offences for which the death penalty may be imposed. But in any event I would venture to suggest, with the greatest respect for the opinions of those to whom I have referred, that the circumstances of to-day are far more compelling than any arguments about capital punishment. This is a moment, if ever there was one, for swift and drastic action; and if any justification is needed for the proposals in Clause 1 of this Bill the grim realities of our present situation provide, in themselves, sufficient justification—without any arguments of mine.

Mr. Garro Jones

There is one very important point with which the right hon. Gentleman has not dealt, but if he thinks that the present moment is not an appropriate one I will defer the question. It is the question of enemy aliens in some cases perhaps arriving in uniform by novel methods as in the last few days, and will the right hon. Gentleman say what is the position?

Sir J. Anderson

Perhaps the hon. Gentleman will wait until I have finished my speech. I need not, I think, describe the Clauses of the Bill in detail. I have already dealt with the provision for the death penalty in Clause 1, and with the provision in Clause 2 (1) (b) for the trial of enemy aliens by court martial. I ought perhaps to draw the attention of the House to Clause 2 (1) (c), which provides that a person convicted by a civil court and sentenced to death for an offence under the Bill may, if he was a member of an armed force at the time when the offence was committed, be handed over to the appropriate military authority in order that the sentence of death may be carried out by shooting. Without such a provision, a sentence of death imposed by a civil court would have to be carried out by hanging; and the special provision to which I have just referred has been included because it is thought that in certain cases, where the offender happened to be a soldier, it would be more appropriate that the sentence should be carried out by the method normally used when a soldier is sentenced to death.

Before I sit down, I should like to make one final point. There may be some hon. Members who, thinking of the situation with which we should be faced if this country were invaded by the enemy, may feel that even the procedure prescribed in this Bill—and here I am dealing with the point just raised by the hon. Member for North Aberdeen (Mr. Garro Jones)—is too slow and formal and that there should be means even more summary of dealing with persons who commit these acts of treachery. I want, therefore, to make it clear that if this country were invaded by the enemy and the ordinary processes of law ceased, of necessity, to function in the area of active military operations, there would be available under common law or otherwise powers for dealing effectively with the acts of treachery covered by this Bill. The Measure which this House is being asked to pass to-day is not designed to make provision for such a situation.

With this explanation, I commend the Bill to the House. I believe it to be a necessary Measure, I feel sure that it will strengthen the hands of the authorities in dealing with those grave acts of treachery at which it aims, and I am confident that it will command support in all quarters of the House.

Miss Rathbone

May I ask one question? The Bill provides for no penalty excepting the death penalty. Will the right hon. Gentleman tell the House what would happen if the court were convinced of the guilt of a prisoner where the offence was not so serious and there might be hesitation to apply the death penalty and where another penalty was deserved? Would that mean that the prisoner would be acquitted as there would be no means of dealing with him with regard to the possibility of a lesser penalty?

Sir J. Anderson

I would first of all, in reply to the hon. Lady, point out that Clause 1 of the Bill is not cast in terms designed to cover all acts of treachery. An act of treachery can be made the subject of a charge under Clause 1 but the charge must be of a grievous description. It must be an act done with intent to help the enemy and it must be designed or likely to give assistance to the naval, military or air operations of the enemy, to impede such operations of His Majesty's Forces, or to endanger life. The last words are put in with reference to the case of sabotage, to make it quite clear that the Clause extends to grievous cases of sabotage. That is the first point. Next I would draw the attention of the House to the fact that under the Defence Regulations as they now stand there is provision—which it is not proposed to abrogate—in Regulations 2A and 2B for dealing with acts done with intent to assist the enemy and with acts of sabotage. Thirdly, Clause 3 of the Bill provides for what is called the joinder of charges and the framing of charges against a person who is thought to have been guilty of such offences as those we are now discussing. It will be possible to combine with a charge under this Bill a charge under the Regulations, and while it will be proper that the court, if it finds a charge under this Bill proved, to impose the penalty provided for by this Bill, it will be open to the court, if it comes to the conclusion that only a lesser case of treachery contemplated by the Regulations—Regulation 2A or Regulation 2B—has been brought home to the prisoner, to impose the penalty provided under those Regulations. The maximum penalty under Regulation 2A is imprisonment up to penal servitude for life, and, I think, also a fine, and under Regulation 2B—the sabotage provision—penal servitude for any term not exceeding 14 years or a fine not exceeding £500 or both such penal servitude and such fine. I therefore think I may say that the point which the hon. Lady had in mind is fully met.

Mr. Charles Brown (Mansfield)

Can the right hon. Gentleman tell the House the difference between treachery defined in this Bill and treason, and why this Bill is necessary?

Sir J. Anderson

I am afraid that the hon. Gentleman cannot have listened to the explanation that I gave.

Mr. Brown

I did not hear the first part of it.

Sir J. Anderson

May I repeat that the scope of Clause 1 of the Bill is substantially the same as the scope of the Treason Acts, but the Treason Acts might not be applicable to persons who are not normally resident within the King's jurisdiction; and moreover the Treason Acts are antiquated, excessively cumbrous and invested with a dignity and ceremonial that seems to us wholly inappropriate to the sort of case with which we are dealing here.

Mr. Silverman

Would not those persons who might not be within the scope of the present treason law and the illustration which the right hon. Gentleman has given in any case be spies and subject to the death penalty in any event? If an enemy alien arrives in this country not in uniform for a hostile purpose and carries it out, is there any difficulty under the present law in dealing with him?

Sir J. Anderson

Yes, there is a difficulty certainly and that is why we have introduced this Bill. We provided for such cases in the last war under the Defence of the Realm Regulations in very much the same way as we are proposing to do here, except that there were differences as regards procedure; and, as I have explained, 10 persons—aliens—were dealt with under those Regulations and sentenced to death. It is quite possible that without legislation we might have introduced a Regulation dealing with this question, but it was decided that it was much better to come to the House in such a grave matter for their express approval instead of relying on Regulations—the more so because in the last war there was a covering provision in the Defence of the Realm Act itself under which a Regulation imposing the death penalty was made. But if hon. Members are disposed to raise legal points I hope they will excuse me if I do not pursue them because my right hon. and learned Friend the Attorney-General is here and I am sure he will be glad to deal with any such questions.

5.46 p.m.

Mr. Clynes (Platting)

I have been asked to say a little in support of this Bill, and I have no doubt that my few words will receive the approval of a very large number of hon. Gentlemen behind me, although it may be that for reasons of principle some will take the view that this Bill ought not to be passed and ought not, indeed, to have been introduced. Those of us who listened to the speech of the right hon. Gentleman, short as it was, but the more commendable for that reason, felt that he gave in precise and most informed terms a weight of argument in support of the introduction of this Bill. It has but three operative Clauses and the right hon. Gentleman clearly explained to us that it was in the first two Clauses that the main purposes of the Bill were outlined. Why is it necessary to introduce such a Bill when already on the Statute Book there is a number of provisions designed to deal with this matter? Well, my view is that in the main this war is being fought with many new forms of weapons and that the country must take precautions against the use of these weapons. There are tendencies, conspiracies and movements totally unknown in the case of previous encounters between countries, and in order to frustrate and prevent them from reaching any harmful and effective development this Bill is, in my view, essential.

I regard an act of treachery against one's own country as perhaps one of the most abominable crimes any man can commit—as an enormity. It is such an odious thing to do, that for my part I am prepared to set aside principle on the general question of capital punishment and see imposed the extreme form of penalty for such a crime as this. I do so more readily because, like so many others, I have an appreciation of the fairness of British justice and the manner in which our courts deal with offenders. I believe those standards of British justice will be maintained in the administration of an Act of Parliament which will result from this Bill. I believe that such an Act may well prevent and deter intending offenders from committing any serious acts against our country, and I should be happy to find that even though the House of Commons will assent to this Bill our experience will show that there is no need to use it. It is hard indeed to take away the life of an individual, but what an awful thing it is to help to take away the life of a nation. But this Bill will not allow a suspected offender to be taken out and shot because of mere suspicion; facts of evidence will have to be adduced to satisfy the court that treachery was intended or employed. In peace-time we are moved, in cases of murder, to acts of clemency and mercy. I think that in the hearts of most men and women there is an inborn dislike of imposing the penalty of death. When we have to deal with such questions as passion, jealousy or provocation we take all these things into account in the final examination. Even though the law may be on one side our minds and mercies are on the other. But in war there rests on all of us a heavy obligation, and we ought not to shrink from it even though it may require the setting aside of certain principles which we formerly held deeply. I do not think it is necessary to say more. This Bill is essential, I believe, as a contribution to the maintenance of the life of a nation and the liberty of the people, and I hope it will receive the general approval of the House of Commons.

5.52 p.m.

Mr. Benson (Chesterfield)

I am sorry indeed that the Government have thought it necessary to introduce this Bill. The death penalty is morally repugnant to a very large number of people, of whom I am one, and I do not feel I can allow the Bill to go through without making a protest. I share the contempt and indignation which must be felt for the traitor. It may seem odd that at a time like the present, when we are faced with probably the gravest crisis this country has ever known and when the best blood of the nation is being poured out, I should appear to plead for the life of a few traitors. If anybody thinks I am pleading for their lives he is mistaken as to the attitude adopted by those who oppose the death penalty. I am not concerned with the fate of the individual but what I am passionately concerned with is the attitude of the community to him. I am not prepared to dispute that the traitor deserves death, because I do not quite know what the word "deserves" means. I do not know how to measure deserts because there is no criterion by which you can measure them. A century ago a man deserved death if he stole a sheep. Deserts are not something inherent either in the offender or in the offence; they are our own subjective judgments upon that offender. For that reason I am not in any way concerned to dispute either the heinousness of the offence of treachery or the contempt for the traitor himself. I think everybody knows Hamlet's question: Treat every man after his deserts, and who should escape a whipping? How many remember Hamlet's reply: Treat him not after his deserts but according to thane own honour and dignity. I feel passionately that the death penalty is beneath the honour and dignity of a great and civilised community, and it is for that reason, and that reason alone, that I oppose the Bill.

Sir Patrick Hannon (Birmingham, Moseley)

Suppose that the act of treachery endangered the lives of a large number of our fighting forces at the front, at sea or in the air, would you still take that point of view?

Mr. Benson

I have not in any way differentiated my attitude towards an act of treachery from the attitude expressed by the Home Secretary. I wish to make that perfectly clear. My difference with the Home Secretary is not on a question of treachery but how it should be treated. The right hon. Gentleman says that the death penalty is a necessity, and it is upon that point I join issue with him, not on the contemptibility of treachery or the need for punishment of treachery. I am not suggesting that traitors should be allowed to go free and wander alone up and down the country doing their damage. All I say is that the death penalty is repugnant to me and other people and I hope to show that it is not a necessity. The claim that the death penalty is necessary rests on an old fallacy which has been disproved innumerable times.

If you increase severity beyond a certain point that does not increase its deterrent effect. In the eighteenth century over 185 offences were punishable by death, but lawlessness flourished. England became a law-abiding country not because of the death penalty but because of the steadily increasing efficiency of the police system. For 75 years flogging has been held up to this country as the deterrent penalty par excellence. Then a Departmental Committee was appointed, the evidence of those 75 years was examined under a microscope and the committee came to the conclusion that there was not a shred of evidence to show that the severity of flogging had any more effect than ordinary imprisonment. Let me repeat, the whole of our history shows that the severity of punishment does not, beyond a certain point, increase the deterrent effect.

I am not at all certain that the introduction of this Bill is not a danger rather than a safeguard. To begin with, punishment after the offence has been committed is like shutting the door after the horse has gone. All history shows that if you want to put down crime you must have efficient detection and certainty of punishment rather than severity. Let me give a rather flippant example. Every Member of this House who is a motorist takes a risk if he drives at 40, 50 or 60 miles an hour when he gets the opportunity. At that speed he may easily have an accident which would kill him, but it does not deter him. I know it does not deter me, nor do I suppose it deters the right hon. Gentleman when he drives his car. But I ask, is there any Member of this House who ever overtakes a police car at more than 30 miles an hour in a restricted area? The penalty there is certain; the 7s. 6d. penalty keeps us at 30 miles an hour but the possible risk of death does not have the slightest effect. It is the certainty of punishment not the severity which is effective, and if we are going to rely upon the severity of the punishment we are going to rely on what all history has invariably proved to be a broken reed.

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