Amendment 155
Moved by Lord Ramsbotham
155: After Clause 91, insert the following new Clause-
"Prisoner voting rights
Section 3 of the Representation of the People Act 1983 is omitted."
Lord Ramsbotham: I fully accept that the Bill that we are now discussing is but a shadow of the one that came before us yesterday afternoon. I am conscious of the hour and do not wish to detain your Lordships on a subject which many may deem peripheral. However, I submit that it is actually far from peripheral in the context in which we are conducting this wash-up-namely, the forthcoming general election-because it has to do with the way in which the Government have chosen to handle an issue that could endanger the whole process. Indeed, it could have been dealt with years ago. If this were a normal Committee stage, I would now set out my reasons in full, cataloguing what has happened in the nine years since the High Court rejected the case made by three serving prisoners, that all prisoners should be enfranchised in accordance with Protocol 1, Article 3 of the European Convention on Human Rights, which this Government caused to become part of the United Kingdom law in October 2001.
One of the three, John Hirst, appealed to the European Court of Human Rights, which in March 2004, unanimously ruled against the UK Government's blanket ban on sentenced prisoners voting, which had been set out in Section 3 of the Representation of the People
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Act 1983, but dated back to the Forfeiture Act 1870. The government appeal to the Grand Chamber of the European Court was dismissed in October 2005.
In logic, you would expect that a Government who pride themselves on acting within the law and who have introduced more legislation than any other in our recent history, would abide by the decision of the highest court to which it could appeal and take the necessary steps to implement what was laid down. But no, frightened of offending reactionary public opinion by appearing not to be tough on criminals-which is not the same as Mr Blair's unfulfilled pledge to be tough on crime and the causes of crime-the Government determined to prevaricate for as long as possible, going to absurd lengths, such as suggesting that prisoners had lost the moral authority to vote.
Civil and political rights determine who may vote, not moral authority and goodness knows who else the Government would have deemed to have lost the moral authority to do so, with the notable exception of Members of this House, if they decided to go down that route. The European Court was damning in its criticism of the Government's line, saying that it found no evidence to support the claim that disfranchisement deterred crime and that there was no evidence that the Government had ever sought to assess the proportionality of the ban as it affected convicted prisoners. The Grand Chamber went even further by stating that there was no place under the European convention where tolerance and broadmindedness are the acknowledged hallmarks of a democratic society for automatic disfranchisement based purely on what might offend public opinion.
The prevarications included the charade of two so-called consultations. The first, initiated in December 2006 and promising a legislative solution early in 2008, was farcical on two counts: first, it was based on the wrong question. The court having ruled that all convicted prisoners have the right to vote, the issue should have been who should not, rather than who should be allowed to do so. Secondly, there was no response until April 2009, over two years later, and a year after the promised solution. The second consultation, announced at the same time as the results of the first, was also farcical on two counts: first, it lasted for 20 weeks, ignoring the Government's published code of practice laying down a maximum of 12 weeks; and, secondly, because despite frequent questioning it was clear from the start that the Minister of Justice had no intention of doing anything before the election.
Comparisons are odious, but what makes that delay even more reprehensible is that, during that period, the Ministry of Justice was abusing the process in a completely different way, again for its own ends. On 15 March this year, the chairman of the Bar Council drew the attention of a Grand Committee of this House to the fact that the Minister of Justice, prevaricating over prisoner voting consultations, had rushed through a consultation on draft conditional fee agreements, stipulating that consultation should be limited to a mere four weeks, rejecting all pleas for extensions and publishing his response a mere two weeks later. He justified that deviation from the code of practice as being "in order to be in a position to implement the proposal as soon as possible". The Bar Council chairman
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commented that that wording made it sound as though there were not so much a predisposition to implement the proposal, as a predetermination. The same observation applies to the issue of prisoners voting with the addition of the word "not" before "to implement".
The Committee of Ministers at the Council of Europe has publicly expressed its condemnation of that prevarication three times in the past six months, most recently on 8 March, when it said that it was seriously concerned that a failure to implement the European Court's judgment has given rise to a significant risk that the next United Kingdom general election would be performed in a way that failed to comply with the European convention and requiring the Government to rapidly adopt measures of an interim nature to ensure the execution of the court's judgment before the forthcoming election. In other words, we are being accused of behaving like a recalcitrant third-world country, rather than the country which, until now, has had a proud record of setting examples for others to follow. Clearly, the possible threat to the general election is not regarded as requiring the same urgency as conditional fee agreements.
Much has been said today about the contempt in which the parliamentary process is being treated during this wash-up. I have sided not just with the noble Lord, Lord Rooker, but with all those who have called for time to be allowed for proper scrutiny of legislation and for Bills to deal with discrete issues, rather than the vast catch-alls that have marked criminal justice Bills in particular. I cannot imagine why the Government have not included this issue in all that legislation. Time and again, it has had to be raised whenever an opportunity arises, such as tonight. I hope that the issue will be put to bed very quickly by the next Government, because it is a disgrace that this has gone on for six years, which, as I have pointed out previously, is longer than the whole of World War II.
There is another reason why I want to put the issue on the record. The Government's prevarication amounts to nothing less than deliberate and inexcusable defiance of the rule of law as laid down by the courts. At the same time, they have gone to extreme length to punish those who do the same thing, as demonstrated by the record numbers in our prisons, the fact that we have more life-sentence prisoners than the rest of Europe added together, and that more than 3,000 new laws carrying prison sentences have been introduced.
At a time when the reputation of Parliament is at an all-time low, what respect can anyone have for a Government who so flagrantly fail to practise what they preach? What message does that attitude to the law send, not just to criminals but to young people who may be tempted to turn to crime?
Ghana was faced by exactly the same situation in November last year, when two lawyers took the Government to court for refusing to allow prisoners to vote. In sharp contrast to this country, the High Court found against the Government on 23 March-a mere four months later-contending that it found it extremely difficult to understand what constitutionally legitimate interest was served by the non-recognition of prisons as places of residence for the purpose of voter registration. The court commended the lawyers for advancing the
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frontiers of human rights in Ghana's justice system. I find it ironic to be proposing the amendment because of the refusal of the Secretary of State for Justice to advance the frontiers of human rights in the United Kingdom's justice system when he was the Minister responsible for the introduction of human rights into our law in the first place.
As the Minister knows, I have never called for all prisoners to be allowed to vote. Clearly, some have committed crimes that justify that right being removed, but that should be decided by the courts as part of the sentence. Had we been having a normal Committee, I would have been able to set that out in more detail but, in the mean time, I ask for the removal of a wholly unnecessary blot on our national escutcheon, which we share with very few countries in Europe, such as Albania and Bulgaria, by the omission of Section 3 of the Representation of the People Act 1983, thus allowing prisoners to execute their civil and political right to vote. I beg to move.
Lord Grenfell: I strongly support what the noble Lord, Lord Ramsbotham, has just said. The fact that he felt it necessary at this hour to take eight minutes to make a very important point demonstrates how we have lost so much in this House by not having had the time to have a proper debate on the Bill. I feel strongly that he made a very good point. It is awful that this House has to get through the Bill, arriving at 2.30 in the morning, when we should have had at least the chance to have a proper debate on it. As I said earlier, the whole Bill should have been held over until the next Parliament. It would have been so much better if we had had the chance to have a proper debate during the next Parliament. I have a feeling that whoever was in charge of the wash-up has put fast-forward on to spin-dry because we have not had a chance. This is typical of what we said earlier, but there are good points in the Bill. There are 42 pages of amendments, yet we have got through them in a very short time because we have not had a chance to debate them. They have been withdrawn one after the other. Many of them were making very good points. I re-emphasise that I hope that this will not happen again. It is a sad day for this House that we arrive at the end of our discussion of a constitutional reform Bill at this hour and have had to take so little time to debate the important issues that have just been raised by the noble Lord, Lord Ramsbotham.
Earl Ferrers: I agree with both the noble Lords who have just spoken that it is a terrible thing that all these important matters dealing with the constitution are being done in the course of a wash-up. It is not only the two noble Lords who have so complained but also the Select Committee on the Constitution. I remind noble Lords of what it said at paragraph 45:
"The House may take the view that the consequence of the Government tabling so many late amendments to the Bill is that the parliamentary consideration given in both Houses to the important aspects of constitutional reform which this Bill is likely to effect has been substantially curtailed".
It goes on:
"In any event, we consider it to be extraordinary that it could be contemplated that matters of such fundamental constitutional importance as, for example, placing the civil service on a statutory
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footing should be agreed in the 'wash-up' and be denied the full parliamentary deliberation which they deserve".
In paragraph 47, the report states:
"This is no way to undertake the task of constitutional reform".
Both noble Lords who have just spoken made that point, and many other noble Lords feel the same. Although we have done the best with the Bill that is in front of us, it is wrong to try to alter the constitution in such a hurried and undebated way.
Baroness Butler-Sloss: Returning to the issue of the votes of prisoners, I hope that whichever party comes into power after 6 May will make this matter a priority. It will be very sad if we continue for years to come to have my noble friend Lord Ramsbotham asking whichever Government are in power to get on with something that has become a disgrace.
Lord Elton: The reputation of the wash-up process is now in shreds and it is not necessary to go on about it. The point raised by the noble Lord, Lord Ramsbotham, is a serious issue. Your Lordships may not find it attractive at first glance because it deals with prisoners, but were we able to have a full-scale debate, I feel confident that we could convince your Lordships that this is something that needs to be done urgently for reasons quite separate from the need to abide by the law as established by the European courts. We do not have that opportunity. I add my support, without such a debate, to the amendment moved by the noble Lord, Lord Ramsbotham. If the Government say that they cannot accept it because it is now too late to carry out the duty that this would impose on them, that reflects a shameful light upon them.
Lord Norton of Louth: I will briefly piggyback on the amendment in the light of what the noble Lord, Lord Grenfell, and my noble friend Lord Ferrers have said. This will save some time because I will not need to move Amendment 161. I take my noble friend Lord Elton's point about the wash-up; I intend only to make a constructive suggestion. I have made the point that in the new Parliament the Constitution Committee of your Lordships' House should carry out an inquiry into wash-up, which would enable us to stand back, look at the whole issue and recommend how this ought to be addressed in the future. I think that that is the way forward.
Lord Lucas: My Lords, I totally support the amendment in the name of the noble Lord, Lord Ramsbotham. I merely note that, were it to be passed, we would be left in the company of murderers and rapists only. That may be disfranchisement and not really the place in which we want to find ourselves.
Lord Tyler: I record on behalf of my noble friends that we, too, support the noble Lord, Lord Ramsbotham, as we have consistently on a number of occasions. It is most unfortunate that this has come at this juncture, but that is scarcely his fault. It is entirely the fault of the Government, who have left it to this very late stage. It is extraordinary that the Government see fit to respond to the concerns of the Daily Mail rather than to obey the Court.
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Lord Bach: My Lords, I thank noble Lords who have spoken in this debate, which has been about two things: the addition to the Bill which the amendment proposes-it is not in the Bill, but is an amendment to it; and the Constitution Committee and the wash-up generally.
I heard the extensive criticisms of the Bill that were made at Second Reading and repeated again this morning, and obviously we have taken note of them. A number of items of constitutional importance have been dropped by the Government as a consequence of what has been said. Indeed, it is worth making the point that, ironically, we have been criticised for dropping some of the things that we have dropped, but lessons have no doubt been learnt. Once again, I repeat how grateful we are to noble Lords who had strong feelings about this Bill and who have taken part in discussions today so that, at the end of the day, we have a Bill to send back to the other place. I repeat again that we very much take on board what my noble friend Lord Rooker said about post-legislative scrutiny of this Bill in time to come.
Let me turn to the issue of the amendment. Everyone in the Committee is well aware of the expertise and high reputation of the noble Lord, Lord Ramsbotham, when he talks about these matters. He is attempting through the amendment to repeal Section 3 of the Representation of the People Act 1983, thereby removing the statutory prohibition on voting by convicted prisoners. It remains the Government's view that the right to vote goes to the essence of the offender's relationship with democratic society, and the removal of the right to vote in the case of some convicted prisoners can be a proportionate and proper response following conviction and imprisonment. Indeed, the noble Lord himself said just as he ended his address that he had never believed that all prisoners, whatever they had done, should be given the right to vote.
Our approach to implementing voting rights for prisoners aims to arrive at a solution that respects the judgment of the Court in Hirst while taking into account our own traditions. Indeed, the Committee knows that the European Court affords a wide margin of appreciation not just to the United Kingdom but to other countries when they pass their judgments. We have been consistently clear that we oppose enfranchising all prisoners irrespective of the seriousness of their crimes or the length of their sentence, which would be the actual effect of the amendment. We consider that the more serious the offence, the less an individual should have the right to retain the right to vote when sentenced to imprisonment. Tying the entitlement to vote to sentence length has the benefit of establishing a clear relationship between the seriousness of the offence or offences and the suspension of the right to vote.
Our proposed approach to the enfranchisement of prisoners is therefore based on the length of custodial sentence to which a prisoner has been sentenced. We have consulted on a range of options that would allow those receiving sentences of up to one year, two years or four years imprisonment to retain the right to vote. We are considering the responses to the consultation and will set out our next steps towards implementation
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once the responses have been analysed. However, even for those, this amendment would not deliver a satisfactory outcome-which is unlike the view of the noble Lord who tells us that he does not support the enfranchisement of all prisoners. While it would remove the current statutory bar by repealing Section 3 of the Representation of the People Act 1983, it puts nothing in its place regarding the necessary arrangements which would enable prisoners to exercise their right to register and to vote in practice.
Some people believe that once the statutory bar is removed, there would be few practical considerations of substance to be dealt with. We say that that would not be true. In contrast, I have to tell the Committee that extending the franchise to convicted prisoners to any degree would require obviously a considerable number of issues to be resolved and settled in electoral law, if nothing else, if it is to be done consistently and effectively. Let me mention just a few of those issues. Where should prisoners be entitled to be registered to vote-for example, in what constituency? How should prisoners be recorded on the register? How would prisoners cast their votes-by post, by proxy or a combination of the two? How would the security of the ballot be enforced? This amendment would provide for none of those things. It would risk creating inconsistencies in approach. Electoral administrations would not have clarity on how to implement the legislation, which could lead to anomalies in arrangements. A rushed implementation of prisoners' voting rights may also mean that it is not possible to ensure that the right systems are in place to prevent electoral fraud.
It is vital that Parliament has proper time to scrutinise, debate and amend proposals for enfranchising prisoners. [Laughter.] If noble Lords say, as they do, with some justification, that they should have had longer to review this Bill, they can hardly support this amendment. Supporting amendments to complex electoral legislation, given the lack of parliamentary time available, and seeking to implement Hirst 2 as an amendment to this Bill is not appropriate. I hope that the noble Lord will withdraw his amendment.
Lord Ramsbotham: My Lords, I thank the Minister for that reply. I have to admit that the wording of this amendment was suggested by the excellent Public Bill Office, which has been overworked on this Bill as much as on anything else. As I have made clear on the other occasions when I have tabled this amendment, I am not in favour of all prisoners voting. However, to go into all the details of that at this stage of this Bill would be utterly inappropriate.
As regards timing, the Government have now had six years since the ruling of the court, so to come at this at a rush now seems utterly inappropriate. The last part of what the Minister had to say was highly inappropriate in relation to the Bill that we are discussing and the stage at which we are discussing it. It seems paradoxical, given that we have been fussed about the rush with which things have been put to us, to be ending up talking about a delay during which something could have been brought forward.
However, not just in view of the hour but in view of the stage of this Bill, it is obviously highly inappropriate to take this forward. I hope that the points that noble
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Lords were good enough to make will be taken on board in relation to the wash-up process and the need to get on with this issue and avoid the shame of being criticised by Europe for the fact that we have failed to take action. I beg leave to withdraw the amendment.
Amendment 155 withdrawn.
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