by Andrew Marr
The abolition of hanging, on a free vote in 1965 was led by the Labour backbencher Sydney Silverman. He was building on a rising tide of disquiet about judicial death in Britain. The 8 a.m. ritual carried out from condemned cells throughout the country, often using a portable gallows transported from Pentonville Prison in London, with its pinions, white hood, last glass of brandy and unmarked grave in prison grounds, had been followed with intense interest throughout modern times. By the mid-fifties many thought the practice uncivilized. Famous writers such as Arthur Koestler, scourge of the Stalinists who had faced death himself, and famous broadcasters such as Ludovic Kennedy, were gaining a public hearing against capital punishment. That might have remained an elite interest, had it not been for some hangings that caused more general queasiness.
In 1952 two teenagers were involved in the murder of a policeman during a robbery. The one who actually fired the shot, Christopher Craig, was sixteen at the time and therefore escaped the rope. But he was accompanied by Derek Bentley who at nineteen was old enough to be hanged. He was being held by police when the murder occurred and he had the mental age of a child, but was judged guilty. Despite a national campaign for clemency and a letter signed by more than 200 MPs, the hardline Tory Home Secretary Sir David Maxwell-Fyfe, one of the judges at Nuremberg, whom we met earlier busily persecuting homosexuals, ordered Bentley’s execution to go ahead. On 13 July 1955 a young mother, Ruth Ellis, was hanged for the murder of her faithless lover, the last woman to be executed in Britain. The following year the man who had killed her, Britain’s famous executioner Albert Pierrepoint, pub landlord and member of a family of public hangmen, resigned from his job. He had ended the lives of 433 men and seventeen women, ranging from frightened boys who had been in the wrong place, to some of the worst Nazi war criminals. Many believed he had retired out of a sense of disgust. This was far from the case. Pierrepoint had been having an argument about his last fee when he turned up one cold morning to find the prisoner had been granted clemency. Later he would revise his original view and support abolition.
Though there was still formidable public support for hanging, MPs were becoming increasingly unhappy about it. Silverman formed a national campaign to end the death penalty. In 1957 the Tory government radically slimmed down the offences which demanded capital punishment, to five forms of murder. The number of hangings fell from an average of fifteen a year in the first half of the fifties, to about four a year. The executions still however included some odd decisions, such as the putting to death of Hendryk Niemasz who appeared to have killed while he was sleepwalking. Against this background, the anti-hanging majority in the Commons, which had before been frustrated by the pro-hanging House of Lords, became steadily more assertive. In Silverman, a left-wing pacifist from a very poor Jewish family who had served time in Wormwood Scrubs for his views during the First World War, the anti-hanging movement had a persistent and eloquent leader, able to win over such notable non-liberals as the future Home Secretary and Prime Minister, Jim Callaghan. In two days in August 1964 three men were hanged for murder, a 21-year-old Scot who had killed a seaman, and who was executed in Aberdeen, an Englishman in Walton Prison in Liverpool, and a Welshman in Manchester’s Strangeways Prison. They were the last. Hanging was abolished for almost every offence – in practice, ended completely – in 1965. Initially the abolition was for a trial period of five years; it was then formally abolished. This did not make Britain strikingly liberal by Western standards, though executions went on in France, by guillotine, until 1977 and continue in the United States now.
The Sexual Offences Bill which ended the indictment of homosexuals, was led by another Labour backbencher, Leo Abse – also as it happens a Jewish left-winger, from a poor background and, like Silverman, a passionate lawyer, regarded with a mixture of admiration and suspicion by the Labour front bench. Here too, politicians were reacting to a changing mood, if not among the whole public, then at least among what would later be called with easy disparagement, the chattering classes. John Wolfenden, whose report in 1957 had called for the decriminalization of homosexual acts in private between consenting adults, was a public school headmaster. His committee included the whole card-deck of great and good professionals, from presbyterian clergy and a professor of moral theology to Tory MPs. After his conclusions were rejected by the Conservative government, the campaign spread, though it was a cliquish affair. It opened with a letter to the Spectator followed by another to The Times. Lord Attlee was a supporter, as was A.J. Ayer, the philosopher. When the Homosexual Law Reform Society was formed in May 1958, its founders included clergy, publishers, poets and MPs, few of them homosexual themselves; its first full-time worker was a married vicar, Andrew Hallidie Smith. Its first big public meeting at London’s Caxton Hall attracted a thousand people.
Harold Wilson’s government was privately divided about legalizing homosexuality; in general the more conventional working-class members of the cabinet were least enthusiastic and the liberal intellectuals, such as Crosland and Jenkins, were most supportive. If anything, the Conservative benches, packed with former public schoolboys, were privately more tolerant than the Labour ones. Wilson was judged to be privately hostile to reform. Yet as with hanging, the tacit support of the Home Office and its guarantee of enough parliamentary time to get the measure through, helped to win the day. And as with hanging, in Abse the measure had a hyperactive and persistent advocate. A factory worker and communist sympathiser before the war, who fought in the RAF before becoming a lawyer, Abse would go on to show time and again that backbenchers need not be lobby fodder but can affect real change. He was a curious, peacock character whose application of Freudian analysis to other politicians caused much mirth and offence later on: a whiff of his style can be had from the title of his book Fellatio, Masochism, Politics and Love, published in 2000. In time the Sexual Offences Act of 1967 would be criticized by gay activists for not going nearly far enough in giving equality before the law. The age of consent was higher and ‘privacy’ was judged very narrowly indeed, leading to a spate of indecency convictions after the law was passed. But it was a landmark nevertheless, building on the shifts in attitude that had begun in the fifties and perhaps even earlier, during the war.
If the anti-hanging movement can be traced to the executions of Bentley and Ellis, and the homosexual reform movement to revulsion against the purge of the fifties, the abortion law reform movement can be traced to two unrelated, horrible stories. The first was the rape of a fourteen-year-old girl by some guardsmen in a West London barracks shortly before the war. After one doctor refused to perform an abortion, on the grounds that since her life was not in danger he would be breaking the law, another doctor, Alick Bourne, stepped in. He performed the operation and was duly prosecuted. Bourne defended himself on the grounds that the girl’s fragile mental health meant that the abortion was, in practice, essential. He won and became an instant hero to the small female campaign which had been set up to reform the abortion law in 1936. (From their point of view, this was a mistake: Bourne would later recant, declaring that mass abortions would be ‘the greatest holocaust in history’ and in 1945 he would become a founding member of the anti-abortion group, the Society for the Protection of the Unborn Child, or Spuc.) The second event was much more widespread. It was the Thalidomide drug disaster of 1959-62. This alleged wonder drug, which helped sleeplessness, colds, flu and morning sickness, was responsible for huge numbers of badly deformed children being born, many missing all or some of their limbs. Opinion polls at the time showed large public majorities in favour of abortions when the foetus was deformed. This was far more influential than the actions of the Abortion Law Reform Association, which had just over 1,100 members at the time.
Abortion was also clearly a class issue. In the early sixties an estimated 10,000 private abortions were taking place in Harley Street and other West End clinics, where relevant paperwork had been obtained and plenty of cash had changed hands. At the other end of the social sc
ale, horrific back-street abortions with coat-hangers, chemicals and rubber pumps were causing injuries and some deaths. Around 35,000 women a year were being treated in National Health Service hospitals for botched abortions. Even if one takes a middle figure between the 100,000 and quarter of a million illegal abortions then taking place (vagueness about numbers is inevitable, given the hidden and private nature of the abortions) this suggests very large numbers of young women were exposing themselves to terrible risk. By the mid-sixties, botched abortions were the main cause of avoidable maternal death. It was a theme that would be crucial to the MP who took on this reform, the next in the series of backbench nation-changers.
David Steel, a Scottish Liberal who had just been elected to the Commons in a by-election, was still in his twenties and just two years out of law school. ‘The Boy David’ would go on to lead his party and be the first Presiding Officer of the Scottish Parliament, but his dogged battle to legalize abortion was the most controversial fight of his life. He had come third in the ballot for private members’ bills in 1966 and initially thought he would try to pilot through homosexual law reform, until he realized the level of hostility in Scotland (where the law would remain unchanged for years to come) meant it could only be an English and Welsh measure. A serious-minded young man, Steel had been much impressed by the Church of England’s recent report on abortion, arguing the Christian case for its moderate use, and attended an abortion for himself before deciding. But essentially, he was put up to it by Roy Jenkins. Like Silverman and Abse, he had much expert opinion on his side – not a Wolfenden Report or the passionate books of philosophers, but the World Health Organization, which had declared in 1946 that health meant ‘complete mental, physical and social well-being’. This implied that mental suffering to the woman could be grounds for abortion. It was written into the bill and today of the 180,000 abortions taking place each year in Britain, all but 2 per cent of them are on just such grounds.
Though these were the most famous, or infamous, moments of Roy Jenkins’s ‘liberal hour’ they were not the only ones. The old law on divorce, which generally required evidence that one party had committed adultery, and therefore the whole jig of private detectives, cameras, hotel rooms and often staged ‘in flagrante’ moments, would finally be ended in 1969 by the Divorce Reform Act. This was also part of the Jenkins agenda, and he had wanted to see it through two years earlier. The new law allowed divorce if a couple had lived apart for two years and both wanted it, or if they had lived apart for five years and one partner wanted divorce. This ‘irretrieveable breakdown’ clause, often oddly called ‘no-fault divorce’, was followed by a rocketing rate of divorces rising from around 7 per cent of marriages in the late fifties to close to 50 per cent now. The causes of this domestic revolution are many, and include greater publicity about sexual gratification, domestic violence and greater female financial independence. But the 1969 Act was a huge factor.
Then there was the Theatres Act of 1968, again taken through by a Labour backbencher, George Strauss, one of the founders of Tribune, which finally ended the Lord Chamberlain’s censorship role after a particularly controversial verdict against a play at the Royal Court, Saved by Edward Bond. The Lord Chamberlain of the time, Kim Cobbold, was privately grateful for the end of his role. Though shows like Hair and Oh, Calcutta! quickly exploited the new freedoms of the stage to the disgust of Middle England, there was hardly a tide of filth spewing across the stage. Over the next decade or two, the plays which were genuinely controversial would be rare enough to produce media cyclones; yet hardly anyone called for the return of the Lord High Censor and his blue pencil.
Jenkins turns out to be the single most influential politician of the sixties, though never Prime Minister himself. All of these measures were given vital help by him, following a personal agenda he had set out years earlier and vigorously pursued by exercising personal decision-making and persuasive powers in the cabinet and Commons. Most private members’ bills fail because they run out of time for debate (something controlled by the government). Jenkins ensured there was plenty of time. He helped pick and coach backbench leaders for reform. On numerous occasions he spoke for them. So why had he not led the charge himself? The simple answer is that Wilson’s cabinet was a lot less liberal than Jenkins was, with three or four ministers utterly opposed to each of these measures. Wilson was hostile, for instance, to the ending of stage censorship, partly because he was nervous about the forthcoming stage version of Private Eye’s satirical ‘Mrs Wilson’s Diary’. The Secretary of State for Scotland, Willie Ross, was hostile to almost all the reforms. And often, backbenchers who supported one liberalization would be against another. So Jenkins proposed what he called a ‘stratagem’ whereby he would give backbenchers time and freedom to attack first, while allowing himself the liberty to speak in their support. This allowed his cabinet critics to vote against the changes, which were carried after very long and highly emotional late-night debates.
All transpired just as Jenkins had hoped. He felt he was at the cutting edge of a war about what it meant to be civilized. Against him and the reformers were many clergy, including the Roman Catholic Church; millions of quietly conservative-minded citizens; and much of the political Establishment. When he arrived at the old ministerial rooms of the Home Secretary (long since gone) he found an air of gloom and some very suspicious officials. There was an indicator board in one corner of his office with the names of prisoners awaiting execution. Hanging was only suspended, as it were. Originally the board had shown the names moving steadily towards the date fixed for their hanging. Jenkins had it moved out and replaced with a fridge for white wine and soda.
After supporting the abolition of hanging, and after refusing to authorize the birching of a prisoner, he became a hate-figure among many ordinary policemen as well as for the grassroots of the Tory Party, something he seemed to regard as an honour. Yet he was not liberal on everything. He believed that crime would be cut more effectively by catching more criminals and getting more guilty verdicts, than by horrific punishments. One of his most important changes was to bring in majority verdicts for English juries (Scotland had always allowed them) rather than the old rule that they must be unanimous. Many of Jenkins’s critics on the right opposed this. As he noted with a certain smugness much later, seventy-four Conservatives voted against, ‘including Mrs Thatcher, who went into the lobby against the change which has contributed more to the conviction of professional and dangerous criminals than any measure which was introduced by her four Home Secretaries’.
The social changes were rarely argued through with clarity, or indeed honesty. Abse later described the arguments he used about homosexuality, accepting that it was a pitiable medical condition that required treatment, as ‘absolute crap’. Despite endless public debate, the abortion reformers entirely played down the significance of psychological health as a reason for a termination, passionately arguing that the bill was not a charter for abortion on demand – which it certainly became. The use of separation as ground for divorce, rather than proof of adultery, was said to be a measure which would strengthen marriage; if so, it was clearly a failure. It was argued and assumed that the end of hanging would not increase the rate of murder or violent crime. Both would soon rise sharply.
All these measures had the backing of small and dedicated campaigns, generally only a few thousand strong. Each depended on celebrity intellectuals of one kind or another, to finally slaughter legislation which went back to Victorian times – and in the case of hanging, far earlier. Whether it was the philosopher Bertrand Russell inveighing against the anti-homosexual laws, or Laurence Olivier giving evidence against theatre censorship, or the British Medical Association helping turn the mood on abortions, this was a social revolution led by eggheads and experts. It showed just how influential apparently marginal people could be in the Britain of the late fifties and mid-sixties. Liberals, though unimportant politically, indeed at their low point of the century, were particularly
influential – not only Steel on abortion and Ludovic Kennedy on the death penalty, but through the parliamentary enthusiasm of their leader Jo Grimond. The left-wingers and intellectuals around Tribune, who were being elbowed aside by Wilson, also had a real influence on these non-economic issues.
The model for egghead-led change had been the famous court case of October 1960, Regina v. Penguin Books Ltd at the Old Bailey, better known as the ‘Lady Chatterley’ trial. Again, Jenkins was there: he had been the only MP on the committee of liberalizers whose work eventually produced the Obscene Publications Act of the previous year, now about to be tested. Defending Penguin’s right to publish an unexpurgated text of Lawrence’s novel about the love affair between a lady and a gamekeeper, with its phallic romps through the undergrowth, its scenes of copulation and buggery and, not least, its use of the words fuck and cunt, had brought together a coalition of the permissive. From the Bishop of Woolwich to E.M. Forster, these were the people who might be expected to append their names to letters to The Times about the evils of colonialism, or turn up at a pro-homosexual rights meeting, or support CND – the people who would be satirized mercilessly by Michael Wharton of the Daily Telegraph in his Beachcomber column, and by the cartoonist Osbert Lancaster. The list of witnesses for the ‘Lady Chatterley’ defence included Oxbridge professors, clergymen, famous writers, a future Tory MP, and a poet laureate. It was a unique coming together of liberal and intellectual strands in British public life. Left-wing and liberal Christian thought had been in the ascendant in the Church of England during and after the war, as we have seen; the wartime Archbishop William Temple was still being quoted at the ‘Lady Chatterley’ trial. The big publishing houses were often in the hands of men of the high-minded liberal and centre-left, Sir Allen Lane himself or Victor Gollancz. The leftish newspapers such as the Observer, Manchester Guardian and News Chronicle, not to mention the resurgent Daily Mirror, were at the height of their influence. As with abortion or the divorce law, expert advice was used to intimidate and mock the self-appointed guardians of tradition; and to good effect.