Sir Henry Brooke: Death penalty not up for debate

Retired Lord Justice of Appeal Sir Henry Brooke has argued against reintroducing capital punishment in the UK. The respected jurist and leading legal blogger's intervention comes as UKIP politicians place a public vote on the death penalty's return front and centre of their leadership campaigns.

Speaking to Sky News over the weekend, UKIP leadership frontrunner Paul Nuttall said he would be committed to restoring the death penalty for certain crimes 'if enough people' wanted it.

Appearing on the Murnaghan programme, the MEP said: 'I've been quite open that I believe in capital punishment for the killers of children, for Ian Huntley, Ian Brady, which is what the majority of the British people think.' The former deputy leader of the Eurosceptic party added that he was in favour of 'direct democracy' and would support more UK-wide referendums.

Meanwhile, John Rees-Evans, another UKIP leadership contender, has gone a step further by arguing at an LBC debate that the death penalty should be handed out 'for paedophiles and child killers' unless the victim 'looked 18'.

Now, in a wide-ranging interview with Solicitors Journal, Sir Henry Brooke, whose father and namesake was the last home secretary to authorise a death sentence in the UK, said the public should not be given a say on capital punishment and that plebiscites should not become the norm in British politics.

Speaking as a backbencher during a 1964 debate in the House of Commons on the Murder (Abolition of Death Penalty) Bill, the future Baron Brooke of Cumnor revealed how he had come to oppose capital punishment when he was acting as the final arbiter in death penalty cases. His speech to parliament, along with the support of four other former home secretaries, helped bring about the end of the death penalty in the UK.

'In the 1970s, 80s, and early 1990s, capital punishment was a top subject for debate, and they used to have at least one vote each parliament,' recalled Sir Henry. 'And parliament steadily voted against it by ever increasing majorities, even though they were conscious the people might want it back. Fortunately that debate has gone to sleep since we signed up to Protocol 6 to the European Convention on Human Rights.'

Public support for the death penalty appears to be falling. A 2014 survey by YouGov to mark 50 years since the last execution in Britain showed 45 per cent of the public supported a return of the death penalty, compared to 39 per cent who opposed it. A separate survey for the pollster, commissioned by the Evening Standard last year, showed 49 per cent of adults in London supported capital punishment for those responsible for terrorist attacks.

A 2015 study by the NatCen British Social Attitudes revealed that 48 per cent of people backed the punishment for 'some crimes', down from 54 per cent in 2013. UKIP voters were more likely to support the death penalty, with three in four in favour of its reintroduction.

Though not official party policy, many high-profile UKIP members support reinstatement of the ultimate judicial sentence. In 2014, UKIP MEP Louise Bours called for a public debate on the issue as 'an innocent child has more of a right to life than the monster that took their life'.

More recently, UKIP's Bill Etheridge, who until recently was also hoping to become leader of his party, clashed with journalist Piers Morgan during an interview on Good Morning Britain. The MEP and Dudley councillor said: 'This is democracy, give the people a say. For too long the politicians have kept things to themselves and not represented the people properly. Give the people a say and respect their views.'

Commenting on the recent calls for the return of capital punishment, Sir Henry remarked: 'The tabloids will always talk about the death penalty, and there will always be unhappy people who will have had a member of their family murdered and will want an eye for an eye, which is understandable. But I hope it won't come back.

'National plebiscites are not part of the British way of doing things,' he continued. 'The first was in 1975 and there have only been two since. I would like to think that after Brexit we will have fewer of them.'

Echoing comments recently made by former war crimes prosecutor Sir Geoffrey Nice QC, the former chairman of the Law Commission said being a part of the European Union and 'being able to look outwards' had been 'incredibly healthy' for the UK and the legal profession. 'One should continue to look outwards, even if you can't apply the law,' he added. 'Like human rights, the genie is out of the bottle and we won't be able to slam the door shut, whatever the politicians say.'

Speaking at the launch of a new Britain in Europe report last week, Dominic Grieve QC said he was 'optimistic' about a reduction in government attacks on human rights laws post-Brexit and following prime minister Theresa May's decision to drop withdrawal from the European Convention on Human Rights as part of her leadership bid.

However, Sir Henry fears the government may return to the issue in the not-too-distant future. 'It won't happen in this parliament,' he said, 'but it is certainly on the cards if the Conservatives are returned at the next election with a substantial majority. As an internationalist, my view is that it would be horrible if we pulled out of the Council of Europe.'

Since his retirement from the bench, Sir Henry has spent a significant amount of time travelling to Eastern Europe to 'encourage states to understand ECHR standards', a message, he said, that would become more difficult 'if we pull out of the Council of Europe and the convention'.

Despite debate over whether it will ever emerge from the political long grass, Sir Henry said that the fabled British Bill of Rights '“ seen by many on the political right as a panacea that will 'reverse the mission creep' of human rights law '“ is still 'a very real issue', adding that 'the Lord Chancellor says it is very much a part of her agenda even though it hasn't yet surfaced'.

'We still don't know what will come out of the first draft and consultation,' he continued. 'But whatever Mrs May wants, she is not going to get withdrawal from the convention through the present parliament. Politicians choose soft targets rather than hard ones.'

John van der Luit-Drummond is deputy editor at Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD