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Backbench Business
[20th Allotted Day]
Voting by Prisoners
[Relevant document: The Fifth Report from the Political and Constitutional Reform Committee, Voting by convicted prisoners: summary of evidence, HC 776.]
Mr Speaker: I must inform the House that I have selected neither of the two amendments on the Order Paper.
12.21 pm
Mr David Davis (Haltemprice and Howden) (Con): I beg to move,
That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.
The motion stands in the names of the right hon. Member for Blackburn (Mr Straw), my hon. Friend the Member for Esher and Walton (Mr Raab), my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), my hon. Friends the Members for Kettering (Mr Hollobone) and for Basildon and Billericay (Mr Baron) and, of course, myself.
I thank the Backbench Business Committee for giving us the opportunity today to have this debate. There have been many important debates in this slot, but I lay claim to this one being unique, because it gives this House-not the Government-the right to assert its own right to make a decision on something of very great democratic importance, and to return that decision to itself.
The motion before the House about prisoner votes splits cleanly into two parts. First, is the requirement to give prisoners the vote sensible, just, right and proper? Secondly, who should decide? Should it be the European Court of Human Rights, or this House on behalf of the British people?
Let me start with the substantive question: should prisoners be given the vote? I yield to no one in my commitment to the defence of the ancient freedoms and rights of this country, and I hope the House accepts that, but there is an important point about not confusing the rights that are properly held by everybody who is a British citizen or who lives in our country with those much more circumscribed rights that are given to prisoners. Prisoners of course have rights-the right to be treated decently, not to be ill treated, to be fed, and to be kept warm, given shelter and clothing-but those rights do not extend to the same rights of a free British citizen.
When someone commits a crime that is sufficiently serious to put them in prison, they sacrifice many important rights: not only their liberty, of course, but their freedom of association, which is also guaranteed under the UN charter of human rights and the European convention on human rights, and their right to vote. The concept is simple and straightforward: "If you break the law, you cannot make the law."
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The European Court of Human Rights argues that that is a blanket rule-that is its rather pejorative term. But, actually, that is untrue, and the Court is ill informed in saying so, because three categories of prisoner are excluded from losing the right: remand prisoners, contempt of court prisoners and fine defaulters. None of those loses the vote, and for different reasons. The remand prisoner does not because they have not been convicted or sentenced, so it is inappropriate for them to lose it until they are sentenced. That is a logical exception. The other two do not lose it because their crimes are below the threshold of seriousness that we judge means that they lose the civic right to vote.
Mr Bernard Jenkin (Harwich and North Essex) (Con): I congratulate my right hon. Friend on obtaining the debate and on seizing upon the issue. I served on the Centre for Social Justice task force on prisons, chaired by our former friend Jonathan Aitken, and we discovered absolutely no demand from prisoners for that so-called right. Indeed, it was never an issue in the British prison system until the lawyers got hold of it through the European convention on human rights, and to that extent it is completely irrelevant to the real issues that face our prison system and the prisoners in it.
Mr Davis: I could not agree more with my hon. Friend. Indeed, if there were an argument that giving prisoners the vote would cut recidivism, cut re-offending rates and help the public in that way, I would consider the matter, but giving prisoners the vote would not stop one crime in this country, and that is after all the point of the justice system in the first place.
Let me return to the main text. Other prisoners do lose the vote, but we must understand that for someone to be sent to prison in this country in this day and age requires a very serious crime or series of crimes. There are convicted burglars and convicted violent criminals, who have never been to prison, walking the streets today, so there is a very serious threshold.
Naomi Long (Belfast East) (Alliance): Recently, in Northern Ireland, a young woman was given a custodial sentence for a first offence of stealing a pair of jeans worth £10. The case is being appealed, but it suggests that not every custodial sentence is given because of a very serious offence or string of serious offences.
Mr Davis: There is an old argument that hard cases make bad law, and it may well be-it sounds very likely-that that young lady's custodial sentence will not be upheld. The general point, however, is very clear: it takes a pretty serious crime to get someone sent to prison. As a result, that person has broken their contract with society to such a serious extent that they have lost all these rights: their liberty, their freedom of association and their right to vote.
The law is not unjust. Every citizen knows that the same level of crime that costs them their liberty costs them their vote. What the Court calls a blanket rule, I call uniform justice.
Dr Andrew Murrison (South West Wiltshire) (Con): Does my right hon. Friend think it reasonable for the European Court of Human Rights to insist on a right for individuals if those individuals have not bothered either to register to vote or, indeed, to vote when they have not been in custody?
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Mr Davis: My hon. Friend makes an interesting point. It would be quite interesting to see how many prisoners have ever voted, let alone how many voted at every election in the run-up to their incarceration.
The Court also argues that the penalty is not proportionate, but again that is plainly wrong. We are not one of those countries where, when someone is convicted of a criminal offence and sentenced to prison, they lose the right to vote for ever. Such places do exist. Indeed, in one state of the United States, people lose their right to vote de facto for ever, but we are not one of those places. When someone is in prison, they cannot vote; when they are released, all their civic rights are completely reinstated, meaning that that denial is an absolutely proportionate response to the seriousness of the crime. If the sentence reflects the crime, the denial of the vote also reflects the crime.
Let me be clear. In my view, convicted prisoners should not have the vote: robbery, rape, drug dealing-frankly, the crime does not matter, given its seriousness. But, despite what the Justice Secretary said the other day, violent criminals, sex offenders and drug dealers will get the vote if we accept the compromises that have been aired so far. The Government talk about a less than four-year rule, but 28,000 people convicted of serious violent crimes, sex crimes and crimes against children would be incorporated into that. Even a one-year rule would include thousands of people, many of whom will have committed serious crimes from which we would recoil.
Mr John Baron (Basildon and Billericay) (Con): I completely agree with my right hon. Friend. The right to vote underpins our democracy, but that right is a qualified right, not an absolute one. Does he agree that these qualifications should therefore be established by this Parliament, not by unelected European institutions that wish to bypass our established laws?
Mr Davis: My hon. Friend takes me ahead of myself. As he well knows, the simple truth is that these are politically appointed judges, many of whom do not have enormous experience in court. Indeed, some of them have no experience in court, even in their own countries, let alone ours.
Mr David Evennett (Bexleyheath and Crayford) (Con): I congratulate my right hon. Friend on obtaining this debate and on his excellent speech, which is developing a most interesting theme. Does he agree that giving votes to any prisoners is quite incomprehensible to our constituents, who sent us here to make the rules and the laws, not to have the European Court make them for us?
Mr Davis: Of course my hon. Friend is right. One of the points about laws in a democracy is that they exist, at the very least, with the acquiescence-the consent, we hope-of everybody in that democracy. Between 75% and 90% of the population cannot understand what we are doing in even considering this proposal.
Let me go back to the compromises that have been talked about. It is not my aim to put the Government into a difficult position from which they cannot escape; the issue is about whether those compromises would work. The proposals put up so far-four years, one year, six months-would not work. They would not escape the threat that we have had held over us of
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compensation or some other form of penalty against our taxpayers. In fact, one member of the Council of Europe, Austria, did give the vote to prisoners serving less than one year, and it then appeared in the Court and was found against.
Just how ridiculous this is became clear earlier this week, when the European Commissioner for Human Rights appeared on Radio 4. Because he had said that a blanket rule would not work, he was asked what the guideline was, and he said, "A breach of electoral law." That would put us in the ridiculous position whereby we denied the vote to somebody who broke electoral law, in however minor a way, yet gave it to the rapist and the murderer. It is so ridiculous that I cannot believe he really meant it.
Robert Halfon (Harlow) (Con): I congratulate my right hon. Friend on securing this important debate. Does he agree that it is rather strange that we are being forced to do this by the European Court of Human Rights, many of whose own judges come from authoritarian regimes? Is it not time to withdraw from its jurisdiction?
Mr Davis: I am now going to lose the House, because I do not agree with withdrawing from the regime. I will explain why in a moment.
Let me conclude this half of my speech-I am using up too much of my time giving way-by saying that it is clear to me that our current system is appropriate, just, proportionate, simple and well understood, and we should stick with it.
The second substantive issue before us is who should decide-the European Court or these Houses of Parliament? British courts themselves are clear on the matter. They rejected the claims of Mr Hirst, the axe killer, at every stage. The High Court said in terms that this was
"plainly a matter for Parliament, not the courts".
To those who say, "But we must obey the law", I say that the historical task of this Parliament is to correct bad law, no matter where it comes from.
George Hollingbery (Meon Valley) (Con): Will my right hon. Friend give way?
Mr Davis: For the last time.
George Hollingbery: The second half of my right hon. Friend's argument illustrates the difficulty in the motion, which seems to conflate two highly related, but different issues, one of which is the right of prisoners to vote and the other is the enforceability of the European convention on human rights. As a parliamentarian, I find myself split: it is very difficult to know how I am supposed to vote once on something that asks two questions.
Mr Davis: My hon. Friend faces this issue every time he votes on a Third Reading; if he has not noticed that yet, I am sorry for him. The truth is that there are two issues, both important, in my view, and both with enormous strength behind them. If he does not feel that he can vote on the motion, perhaps he should abstain.
The Court's authority rests solely on the European convention on human rights, which is both the source of its power and the limit of its power. When Britain
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signed up to the European convention on human rights, it was to help to prevent a repeat of the horrors of the second world war and of Nazism, and, indeed, the horrors of the growing Soviet empire at that point in time; it was to protect people from ill-treatment, and to protect their life, liberty, free speech, and right to a fair trial. Those are all very serious and fundamental issues. What we emphatically did not sign up for was giving prisoners the right to vote.
Mr Robert Buckland (South Swindon) (Con): Will my right hon. Friend give way?
Mr Davis: For the very last time.
Mr Buckland: Was not the convention called the charter of fundamental rights and freedoms at that time, and have we not lost the plot in terms of its development?
Mr Davis: My hon. Friend is right-he makes a very good point. The then Labour Government well understood this when they excluded from the text the words "universal suffrage". They did that because although we have a very wide and general suffrage and a very democratic state, we do not have universal suffrage. The Strasbourg Court has imposed judgments on Britain that are outside the original treaty. We have signed a contract; it has gone beyond that contract.
The Attorney-General (Mr Dominic Grieve): Will my right hon. Friend give way?
Mr Davis: If my right hon. and learned Friend insists, although I am very short of time.
The Attorney-General: I have one advantage over my right hon. Friend, which is to have been able to go and look at the archives on what happened in 1951. I think the reasons why we objected to the use of the words "universal suffrage" were twofold: first, there was some anxiety over the position in the colonies; and secondly, there was a concern over whether proportional representation would be imposed on us as a result. Once those issues were clarified and removed, the United Kingdom signed up.
Mr Davis: I am sure that my right hon. and learned Friend, who is a very close friend as well, checked the travail préparatoire in which one of his predecessors-Dowson, I think-said in terms that we had general suffrage but it could not be described as universal suffrage. That is what I was resting the point on.
Since about 1978, the European Court has adopted the view that the convention was what it termed "a living instrument". That meant that the Court could arrogate to itself the right to decide what its remit was. It did that without any mandate from this House or any other house of representatives of the member states of the Council of Europe. This has been picked up, not by some Tory or right-wing Eurosceptic, but by Lord Justice Hoffmann, an eminent judge with enormous civil liberties credentials, who said that the Strasbourg Court has
"been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on member states".
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Even the Court itself understands this. In the minority report, Judge Costa, the President of the Court, a man who believes in extending the powers of his own court, said that he
"accepted that the States have a wide margin of appreciation to decide on the aims of any restriction, limitation or even outright ban on the vote"
and pointed out that the judges were not legislators and should not overrule the legislatures of the Council of Europe.
I want the European Court to succeed at its main business, which is why I differed from my hon. Friend the Member for Harlow (Robert Halfon). However, I do not want it to try to interfere in the business of legislatures around the European continent.
Andrew Bridgen (North West Leicestershire) (Con) rose-
Sir Alan Beith (Berwick-upon-Tweed) (LD) rose -
Mr Davis: If colleagues will forgive me, I am almost out of time.
So where do we go from here? If Parliament decides by a strong majority today, the Government will have to go back to the Court and tell it to think again, because it cannot deliver a third of its rulings. If this House will not provide a change in the law, it cannot deliver a change in the law. That will lead the Court to have to decide how it deals with this sort of crisis in future. Lord Justice Judge and Lady Justice Arden, and others, have predicted this crisis and pointed out that we need to have the right of recall, the right of review and the right of challenge. That is what should come out of this motion.
As my right hon. and learned Friend the Attorney-General was kind enough to intervene on me, I thought I would remind him that today is almost the anniversary of the day when he said the following words:
"The Government must allow a parliamentary debate which gives MPs the opportunity to insist on retaining our existing practise that convicted prisoners can't vote."
I agreed with him then, and I agree with him now. The House should insist that this is our decision, and from this place we will not move.
12.39 pm
Mr Jack Straw (Blackburn) (Lab): I rise to support the motion in the names of the right hon. Member for Haltemprice and Howden (Mr Davis), the hon. Member for Esher and Walton (Mr Raab), other hon. Members and myself. I should perhaps explain that the hon. Member for Esher and Walton underwent an operation yesterday and is hoping to be present later today, such is his interest and, as a former Foreign Office lawyer, his expertise in this issue. I thank my hon. Friend the Member for North East Derbyshire (Natascha Engel) and the Backbench Business Committee for choosing our motion for today's debate.
At the heart of this debate is a conflict of principles, which sometimes have to be faced in politics and by Governments. On the one hand, there is the issue of whether convicted prisoners should be allowed to vote while serving their sentence. On the other, there is the question of how we meet out treaty obligations in
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respect of the Council of Europe, the European convention on human rights and the Court in Strasbourg. I will deal with those points in turn.
A ban on convicted prisoners voting while in jail has existed in this country at least since 1970. Post-war, the question has been considered under a Labour Administration in 1968, a Conservative Administration in 1983 and a Labour Administration in 1999-2000. On each occasion, the position was confirmed by an overwhelming cross-party consensus. On each occasion, amendments could easily have been moved in the House by those who supported an end to the ban, and voted on. On none of those occasions, and on no other occasion that I can recall, has this ever been a matter of active pursuit for Members of any party in this House. Significantly, and to echo the point made by the hon. Member for Harwich and North Essex (Mr Jenkin), neither I nor my staff can recall one letter, among the hundreds of complaints from prisoners with which I have dealt in my 32 years in this House, calling for the right to vote from prison.
I turn to the European convention on human rights and the Strasbourg Court's decisions. The convention was drafted principally by distinguished British jurists, including David Maxwell Fyfe, who was later Home Secretary and Lord Chancellor in Conservative Administrations. The convention is a fine statement of what we all understand to be fundamental human rights. As an instrument, it has stood the test of time, and I strongly support it. One key problem for many years after the convention was agreed in 1951 was that, in contrast to most signatory states, it was not incorporated into our domestic law. That meant that the United Kingdom was much less likely to be given the latitude offered to other countries-the so-called margin of appreciation-by the Strasbourg Court, because our courts were not able to adjudicate on the convention's articles.
Mr Edward Leigh (Gainsborough) (Con): With respect to the right hon. Gentleman, is the problem not that his Government got us into this mess by incorporating the convention into our law? There is no way out now for this Government. There is a queue a mile long of people on no win, no fee cases, waiting to sue the Government. What is he going to do about it?
Mr Straw: I spelled that out in The Times this morning, and I was just about to come on to that point. I am grateful for the cue from the hon. Gentleman.
The Human Rights Act 1998 is part of the solution to the problem; it was never part of the problem. I shall explain why. We have not been able to enjoy the margin of appreciation and our courts have not been able to adjudicate on the convention's articles. The first attempt to deal with that issue in the House was made in 1987 by the then Conservative Member of Parliament, the late Sir Edward Gardner, QC. His private Member's Bill failed after receiving considerable Back-Bench support from all parts of the House, but scepticism from the Government and Opposition Front Benches. Ten years later, I was privileged to do what Ted Gardner had begun with what became the Human Rights Act 1998. In the end, it gained all-party support, as proceedings on Third Reading show.
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Importantly for this debate, and to answer the hon. Member for Gainsborough (Mr Leigh), the White Paper preceding the Human Rights Act was entitled "Rights Brought Home". It was about repatriating British rights in the convention that we had provided for other countries in Europe, but that were not available to our own citizens.
Several hon. Members rose -
Mr Straw: I will give way in a couple of seconds, but I will just make some progress.
The retired Law Lord, to whom the right hon. Member for Haltemprice and Howden referred, has recently said that the Human Rights Act could be
"a perfectly serviceable British Bill of Rights".
That, in essence, is what it is. The Act was expertly drafted. It gave the courts the power to declare primary legislation incompatible with the convention, but no power to strike down that legislation.
Mr Jenkin rose-
Alan Johnson (Kingston upon Hull West and Hessle) (Lab): Will my right hon. Friend give way?
Mr Straw: Of course I will, and then I will give way to the hon. Member for Harwich and North Essex.
Alan Johnson: I support the motion in the name of my right hon. Friend and the right hon. Member for Haltemprice and Howden (Mr Davis). Does my right hon. Friend agree that the important issue is not the European convention on human rights, the European Courts, or the universal declaration of human rights, but the reason that the European Court gave for denying a margin of appreciation, which, among other things, was that this House had not debated the issue? That was wrong, but the service provided by this motion is that the House can now judge. People will take different views and put perfectly reasonable arguments, but the important point is that my right hon. Friend and the right hon. Member for Haltemprice and Howden have done us the service of allowing us to debate whether prisoners should have the vote.
Mr Straw: I agree entirely with my right hon. Friend, and I thank him for his support. Like any former Home Secretary, he knows how difficult but vital it is to balance rights, liberties, duties and obligations in that very high office.
Mr Jenkin rose-
Mr David Ruffley (Bury St Edmunds) (Con) rose-
Andrew Bridgen rose-
Mr Straw: I give way to the hon. Member for Harwich and North Essex.
Mr Jenkin: I am listening carefully to what the right hon. Gentleman is saying about the margin of appreciation. I think that we are in danger of overselling that as a solution, because the problems with our current relationship with the convention are about the drafting of the convention and how the Court interprets its words. Geoffrey Robertson, QC, who is no slouch on human rights and is currently representing Julian Assange, explained in the article, "Why We Need a British Bill of Rights":
"The European Convention also failed to include the rights Parliament won by the 'Glorious Revolution' in 1689".
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He went on to state:
"There is mounting evidence that the weasel words of the European Convention are damaging other basic British rights."
He also stated:
"The Convention is in some respects out of date."
Does the right hon. Gentleman agree with those words? How are we going to address those problems?
Mr Straw: The hon. Gentleman is taking us into wider territory. I happen to think that the problem is not the plain text of the convention, but the way in which it has been over-interpreted to extend the jurisdiction of the European Court. I will come on to that point in a moment. I do not, however, subscribe to the view that the 1951 convention is the last word on what should be in a Bill of Rights. I share Lord Hoffmann's view that it is a very good starting point. There is a wider issue-a rabbit hole I do not intend to go down if the hon. Gentleman will forgive me-about whether we should have a written statement of our key constitutional rights. I think that we should, and that the sovereignty of Parliament should be right at the top of it. However, that is a separate point.
Several hon. Members rose -
Mr Straw: I shall give way to the hon. Member for Bury St Edmunds (Mr Ruffley), but then I must make some progress.
Mr Ruffley: I am grateful to the right hon. Gentleman. Is not the essential problem that the European Court in Strasbourg became an appellate court for British cases in 1965-not in 1950-and that that was decided by a British Cabinet without any debate in this House?
Mr Straw: I was not in the House in 1965. [Hon. Members: "Are you sure?"] I was causing trouble at universities at the time, so I have an alibi-I was at the scene of some other crimes.
I do not quite subscribe to the hon. Gentleman's view about that piece of history. The signing of the protocol that gave the Court that power was very public. Anyway, where we are is where we are, and subsequent Administrations of either persuasion have not objected to the Court's having that power of what amounts to individual petition.
Our Human Rights Act was expertly drafted, giving our courts the power to declare primary legislation incompatible with the convention but no power to strike down that legislation. In that way, the sovereignty of Parliament is respected and indeed protected by the Act. Our senior judiciary, without question among the best in the world, have applied the Act with the sensitivity that one would expect. As the right hon. Member for Haltemprice and Howden said a moment ago, when the British courts first considered the Hirst case, prior to its going to Strasbourg, they found no breach of the convention whatever. In addition, they said that any change in the law was a matter for Parliament. For the avoidance of doubt, let me put it firmly on record that the tension and conflict that we have to resolve today can in no sense be laid at the door of the Human Rights Act or, in my judgment, at that of the plain text of the convention.
Andrew Bridgen rose-
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Charlie Elphicke (Dover) (Con) rose -
Sir Alan Beith rose-
Mr Straw: I need to make progress, but I will give way to the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) a bit later.
Rather, the problem has arisen because of the judicial activism of the Court in Strasbourg, which is widening its role not only beyond anything anticipated in the founding treaties but beyond anything anticipated by the subsequent active consent of all the state parties, including the UK.
In his major lecture two years ago, to which reference has already been made, Lord Hoffman spelled out in eloquent detail the difficulties that the situation was causing, including for the UK judiciary. He said that the Strasbourg Court
"lacked constitutional legitimacy"
in intervening in matters
"on which member states...have not surrendered their sovereign powers".
He added well-founded criticism of the highly variable quality of its judges and administration.
Where the Court has given judgment against the UK in respect of fundamental human rights, successive Home Secretaries and UK Governments have readily complied, whether on specific cases, such as terrorist deportations, or on matters such as the need for proper regulation of phone-tapping and the intelligence agencies-and so has this House, whether or not it agreed with what the Court was saying, because we have voluntarily and readily accepted its jurisdiction.
Sir Alan Beith: Various states will from time to time think that the Court has overstepped its limits and taken too broad a view of its powers. Are they all entitled at any stage to disregard its judgments, and what does that mean for the convention?
Mr Straw: No, they are not, and I will come on to that. The fundamental distinction to be drawn is this: all of us, as I have just spelled out, are required to respect and observe decisions of the Court on fundamental human rights, because it was in respect of those that we and other countries signed up.
Charlie Elphicke: Will the right hon. Gentleman give way?
Mr Straw: No, I have to make progress.
The issue before us today-here is the heart of the matter-is by no stretch of the imagination a breach of fundamental human rights. Rather, it is a matter of penal policy, which the minority of judges at Strasbourg-and very senior they were, too-said should be left to the UK Parliament. Through the decision in the Hirst case and some similar decisions, the Strasbourg Court is setting itself up as a supreme court for Europe, with an ever-widening remit. That is why the tension that I mentioned now threatens to become a collision.
Even in countries with supreme courts much more powerful than ours, there is a democratic override of their decisions. For example, in the United States or Germany, which have very strong courts that can strike
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down primary legislation, the courts' decisions can be overridden by, for instance, democratic amendment to their constitutions. There is no such democratic override available for decisions of the Strasbourg Court, so we are faced with a court judgment following which, without warrant from the treaties to which we signed up, we as elected MPs are expected to do the opposite of that in which we believe.
My predecessor as Lord Chancellor, Lord Falconer, and I wrestled for five years to find a way through the problem. Initially, Lord Falconer's view was that the requirement on us following the 2005 Hirst decision was simply
"to consider carefully the basis"
of our law. He went on that it could be the case
"that it is a proportionate conclusion that all people who are convicted and sent to prison cannot vote."
He began one consultation, and when that was inconclusive I launched a second. However, unless and until I found a way-if one existed-that could satisfy the Strasbourg Court, this House and the British people, there was no appetite throughout the House, or among our Whips, for me to bring forward legislative proposals.
The Attorney-General: I am grateful to the right hon. Gentleman for giving way and for how he is articulating his powerful case. Does he not agree that, with hindsight, it is rather unfortunate that such a debate did not take place? When we were first confronted with the problem we had only the Hirst judgment, but since then we have had a number of further judgments without the UK Parliament's having had an opportunity to influence how the Court's jurisprudence evolved. He may recall that I asked for such a debate when we were in opposition.
Mr Straw: I understand the right hon. and learned Gentleman's point, and hindsight is a wonderful thing. If I thought that the only thing preventing the Court from coming to a reasonable compromise was the fact that I had not organised an earlier debate, I would be happy to be taken to Strasbourg to make my apologies. He knows better than anybody than neither set of Whips was keen on such a debate, not least because it was clear that it would be impossible, particularly in the pre-election atmosphere, to have the sober debate that we are to have today.
Mr Denis MacShane (Rotherham) (Lab): Does my right hon. Friend agree that, if the matter was that important to the then Opposition, they could have had an Opposition day debate on it?
Mr Straw: That is true. I shall now move on.
Our motion has been carefully drafted. It is respectful of the Court and our treaty obligations, but is intended to answer one of the three objections that the majority of the Court in Strasbourg had to our so-called blanket ban-that there had not been any substantive debate on the matter in the light of modern penal policy and human rights standards. This debate is a response to that.
One cannot judge the fairness and effectiveness of penal policy with reference to just one aspect of it, such as the ban on prisoners voting. That judgment has to made in the round. Since the Strangeways riots of
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20 years ago and the Woolf report that followed it, there has been a quiet revolution in penal policy. As the chief inspectors of prisons have recognised, conditions for prisoners have been transformed. Every effort is rightly made to treat prisoners with dignity, and to prepare them better for the outside world. The overall environment of our prisons stands up to comparison with any in the world, and is far above that in many European countries.
However, the exact mix must be for domestic Parliaments to decide. They have the knowledge and legitimacy to make appropriate judgments, and we have supervision by our courts of our Executive's administration of our prisons. The ban on prisoner votes is part of the mix of our penal policy. It is the subject of wide consent among the public, and at least of acquiescence by the vast majority of prisoners, as the silence of our postbags makes clear. Our motion is intended as part of a process better to strengthen the hand of the UK Government in arguing in Strasbourg that the majority of members of the Court are seeking a change in UK legislation which, on the face of it, is difficult or impossible to deliver, and in inviting them to find a constructive way forward.
Two objections to our approach have been raised. One is about the example that we may set, and the other is about compensation. On the first, the argument is that if we fail fully to implement the Court's decision, we will be unable to put pressure on others who also have outstanding Court judgments against them. That argument does not take account of the reality of the situation. There are scores of as yet unenforced judgments against countries such as Russia-but not just Russia-for egregious breaches of human rights, and for presiding over standards so low as to lack any notion of fair trial.
If I thought that our acquiescence in the Court's decision in Hirst would be the instrument for a change in approach to those recalcitrant countries, I might be persuaded to drop my objections for the greater good. However, there is no evidence of that-indeed, I suggest the reverse. By extending its remit into areas way beyond any original conception of fundamental human rights, the Court in Strasbourg is undermining its own legitimacy and its potential effectiveness in respect of the purposes for which it was established. In other words, the Court and the Council of Europe would have greater success if they reined in their unnecessary excursions into members states' policy. In that way, we might see some of those judgments better enforced.
This is my last set of points and I shall be brief. On compensation, I simply say this: there are many predictions that the Court in Strasbourg will award compensation against the UK Government, but as yet there is no certainty. In 2005, the Strasbourg Court denied Hirst compensation. Unless the Court now sees the purpose of compensation as some kind of gratuitous fine on the elected British House of Commons, I fail to see by what algebra or alchemy any court could equate the absence of a vote for prisoners, which almost no prisoners of their own volition ever sought, and which still fewer would exercise, with some monetary amount.
I am strong supporter of the Human Rights Act 1998, the Council of Europe and the text of the convention. I seek no train wreck, but a solution-that is the purpose of our motion. In turn, I hope the Court pulls back from placing the supporters of those instruments in a near-impossible position.
Several hon. Members rose -
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Mr Deputy Speaker (Mr Lindsay Hoyle): Order. Everybody will be well aware that there is a five-minute limit. We have 39 speakers to get through, and my intention is to get everybody in. If we have fewer interventions and shorter speeches, we will enable that.
1.1 pm
Mr Gary Streeter (South West Devon) (Con): I support the motion. This matter is not really about whether prisoners in this country have the right to vote, but about whether this House has the right to make its own laws for its own people.
There are 85,000 prisoners in this country, about 12,000 of whom are foreign nationals who would have no right to vote in any event. The remaining 73,000 are spread over 650 constituencies, so even if they all voted, which as hon. Members know full well from the sort of people whom we have visited in prisons is most unlikely, just over 100 votes would be added in each constituency. On that scale, the rights of prisoners to vote is relatively unimportant. Nor is it the case that the removal of the right to vote acts as a deterrent. Few burglars in my constituency have ever, I suspect, hovered at the windowsill, jemmy in hand, and thought, "Oh no! I'd better not break in or I'll be unable to vote for that nice Mr Streeter."
The motion invites us to address a much more fundamental issue: whether or not we can pass our own laws. I completely understand the inclination of civil servants to advise Ministers to comply with the European Court of Human Rights judgment. I am sure that that advice is technically correct, and certain that that is how we have always done things, under Governments of all colours. In addition, I recognise the understandable reluctance of Ministers to go against that advice and to ignore a decision of the Court that we helped to create, especially if there could be financial implications in this time of austerity.
However, there comes a time when it is necessary to take a stand. I argue that right now, on this issue, it is right for this House, today, to assert its authority. The judgment of the ECHR in the Hirst case flies in the face of the original wording and purpose of the European convention on human rights, in which it was clearly intended that each signatory should have latitude in making decisions on the electoral franchise in that country.
Andrew Bridgen: Is it not clear from previous speakers that the Strasbourg Court is seeking to extend its power? Is it not the duty of hon. Members to resist that power grab?
Mr Streeter: I completely agree and I intend to address that point in a moment.
We decided in this country centuries ago that convicted criminals should not have the right to vote, and I support that decision. After all, the punitive element of incarceration is the denial for the time being of certain rights and privileges that our citizens enjoy. We decided long ago that in addition to surrendering their liberty, convicted criminals while in prison would also give up their right to vote. That was the case in 1953 when the treaty on human rights was signed, and it remains the case.
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What has changed since 1953? The answer is simply this: the European Court of Human Rights decided in 1978 that it could interpret the convention as a living document and effectively create law rather than purely reflect the provisions of the original convention.
Mr Leigh: There appears to be some sloppy thinking here. I oppose incorporation into our law, but the Supreme Court will always uphold prisoners' appeals because we cannot pick and choose between the judgments we like and those we dislike. I am afraid that that is the law.
Mr Streeter: If my hon. Friend exercises a little patience, I will give him the solution before my five minutes are up. I can assure him that there is no sloppy thinking down this end of the Chamber.
The rights taken on itself by the ECHR is the clearest case of mission creep that we will ever see. It is the ECHR's decision to award itself more power-much more power than the authors of the convention ever intended-that we must challenge today. That decision has led to a steady trickle of judgments and pronouncements over the past 30 years that have frequently left the British public baffled and extremely angry.
That is the real problem with the ECHR conducting itself in that way. Yet again, it has undermined the authority of this House, which leaves us wringing our hands hopelessly on the sidelines, and widens the gap between the electorate and their Parliament. If we, the people whom they send here on their behalf, cannot change things, what is the point of us being here, and therefore, what is the point of them voting?
Andrew Bridgen: Will my hon. Friend give way?
Mr Streeter: I will not give way, if my hon. Friend does not mind, because I have done so twice.
It is time to take a stand. I suggest three things-we are coming now to solutions. First, I suggest that we vote overwhelmingly today to reject the ECHR judgment and support the motion. In doing so, we will send a clear signal to our constituents that we understand and echo their desire not to put up with this nonsense any longer. We will also send a signal to ECHR judges that we do not appreciate, and will not accept, their attempts to legislate for us here in the United Kingdom. That is our job, not theirs.
Secondly, we need to start work immediately on amending, or at least on restricting or clarifying, the European convention on human rights. That will require the political will of the House and of the Government on this side of the channel, and political muscle and skill on the other side. Fortunately, machinery for that is in place-it is called the Council of Europe, which among other duties oversees the work of the European Court of Human Rights. I suggest that our Government, working with the British delegation of MPs to the Council, immediately set on a course to suggest to our friends across the channel amendments to the convention. They could suggest narrowing the rules governing the scope of the Court, or further protocols. We should use whatever the correct procedures are-I am sure that my right hon. and learned Friend the Attorney-General can advise us on those-to take this important but
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increasingly abused convention back to its original purpose; namely, to underpin basic human rights, and to prevent the excesses of torture, imprisonment without trial and persecution perpetrated on European people in the second world war from ever being visited upon us again. I say to my hon. Friend the Member for Gainsborough (Mr Leigh) that that will not be easy, but it is not impossible, and we should start that journey today.
Thirdly and finally, I know not whether Mr John Hirst, the axe murderer-nice man-fought his case on legal aid, but I am certain that he fought it either on legal aid or on a no win, no fee basis.
Anna Soubry (Broxtowe) (Con): It was legal aid.
Mr Streeter: My hon. Friend shouts in my ear that Hirst fought his case on legal aid. In any case, we should now make a further change to the consultation process on legal aid reform that is currently being conducted by the Ministry of Justice, and make it clear that legal aid will no longer-from today-be available to prisoners or former prisoners suing the Government because they have been denied a vote. We are in the process of reducing legal aid for all kinds of legal action, so why not expressly exclude those claims, which the whole country deprecates? We have the power to do so and we should exercise it.
I was never any good at physics at school, but I remember one law: for every action there is an equal and opposite reaction. Convicted criminals and their lawyers and the ECHR have conspired to create an action. Let this House today decide to put into place an equal and opposite reaction. I support the motion and hope that it receives an overwhelming majority.
1.9 pm
Mr Denis MacShane (Rotherham) (Lab): It is a pleasure to follow the hon. Member for South West Devon (Mr Streeter), although I was a bit worried by his suggestion that legal aid should be taken away from people, so that only the rich-the Max Mosleys-have the right to go to Strasbourg.
I am nervous of getting between my right hon. Friend the Member for Blackburn (Mr Straw), the former Foreign Secretary, and the former Deputy Prime Minister, whom we heard on the "Today" programme this morning. When these two Labour buffaloes lock horns, smaller beasts in the jungle are advised to stay away. However, I want to make the case to the House that we should not completely throw away the good and honourable tradition of British liberalism. I know that this will make me unpopular with the Daily Express, the Daily Mail, The Sun and The Daily Telegraph, which have constantly supported my political views over so many years, but surely we can still find a tiny space for classic, do-gooding, bleeding-heart British liberalism in contemporary politics. It is sad that there is no one left on the left to say that the right is not right, as we are told to bow to this atavistic tabloid hate against prisoners.
What are the facts? Different democracies in Europe take different approaches. In January, I was with Conservative colleagues at a meeting with Swiss parliamentarians, and in non-EU Switzerland, all prisoners have had the right to vote for 40 years. That is also the case in Conservative-governed Sweden, Denmark and
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other EU countries. Britain stands with Armenia, Azerbaijan, Moldova and-let us not forget-Russia in banning the right for prisoners to vote. Since WikiLeaks has told us that the mafia runs politics in Russia, it has been clear that criminals there get elected rather than end up in prison.
Ian Paisley (North Antrim) (DUP): Is it not the case that in the European Community, six other member states have an outright ban on prisoners voting, and 13 impose varying limits on the right to vote?
Mr MacShane: The hon. Gentleman takes me on to my next point. In other EU countries, prisoners can vote according to the sentence. In France, a judge adds a loss of civic rights to sentences for serious crimes, which is a compromise that satisfies the European Court of Human Rights and could easily be introduced here. However, sadly we are turning out backs today on more than a century and a half of prison reform. Retribution seems to be the order of the day for those who commit crimes. My view is that although someone may enter prison as a criminal, we should hope that they leave prison as a future citizen. Allowing people to take part in, think and read about, and ultimately-for non-serious cases-vote in elections would help the osmosis of turning criminals into future citizens.
Mr Jenkin rose -
Mr MacShane: I will not give way because of this five-minute limit.
Mr Ian Davidson (Glasgow South West) (Lab/Co-op): Speak up for Brussels!
Mr MacShane: The ECHR is not in Brussels, as my geographically slightly ignorant hon. Friend says from a sedentary position.
The ECHR has worried at this bone for years, just as it did over beating children at school. Who wants to bring that back?
Andrew Bridgen rose -
Mr MacShane: Ah! Some Government Members might want to bring back beating for children in school.
The ECHR outlawed domestic violence and upheld the right of British Cypriots not to be dispossessed of their homes in northern Cyprus. As has been rightly said, the European convention was written 60 years ago, mainly by British jurists. It does not mention prisoners voting, but nor does it mention gay rights, domestic violence or capital punishment. The European Court has handed down rulings-yes, like the US Supreme Court, it interprets old language. However, I believe that we are all the better for expanding liberal, democratic British values across Europe. Right now the ECHR is bogged down with 100,000-plus cases from Russia, but is that not a good thing? Russian citizens can now appeal against the neo-authoritarian concept of politically dictated justice in Russia. I am sure that there are comrade ex-Supreme Court justices in Russia who also think that the ECHR should keep its nose out of Russian business.
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This has nothing to do with the European Union. Like the Council of Europe, the ECHR was shaped by Britain under Winston Churchill after world war two. It quietly and steadily upholds the values of liberal democracy. Britain began decriminalising gay relationships and abolished hanging in the 1960s. The ECHR took this British example and used it to prod other nations to follow suit. Some 47 countries adhering to the treaty and convention of the Council of Europe are expected to follow its rulings. I believe that the peoples of other regions of the world-such as Africa, Asia and south America-would die to have an ECHR to tell their Governments what to do.
Several hon. Members rose -
Mr MacShane: I hope that hon. Members will forgive me, but we only have five minutes each, and I do not want to overrun.
Traditional social and political liberalism has now been replaced by a raw economic liberalism-or perhaps a Labourist punitionism-since May 2010. There are no Roy Jenkins, no Jo Grimonds, no Michael Foots and no leading Liberals such as the right hon. Member for Ross, Skye and Lochaber (Mr Kennedy) and the right hon. and learned Member for North East Fife (Sir Menzies Campbell) to stand up for unpopular or even lost causes. The press has only to indicate its displeasure at a proposal for giving prisoners serving short sentences the right to vote, and MPs of all parties queue up to join this illiberal campaign. Populist illiberalism is the new politics of much of the continent, and it is a shame to see it arrive in the Commons. I hope that my country does not tear up the treaty or quit the Council of Europe. However, the fact that we are having this debate shows how far we have moved from the promotion of human rights that Winston Churchill and his successors up to May 2010 always believed in.
Mr Davidson: Is not the right hon. Gentleman, who speaks on behalf of the people of Rotherham and Berlaymont Central, in fact reflecting his own desire to be a controversialist, rather than the opinions of his own constituents?
Mr MacShane: When the day comes that any right hon. or hon. Member cannot express his point of view in the House of Commons on the basis of sincere beliefs, frankly we have a real problem with this, our House of Commons.
1.16 pm
The Attorney-General (Mr Dominic Grieve): I congratulate my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and the right hon. Member for Blackburn (Mr Straw) on securing this debate. My right hon. Friend quoted my belief that this was a subject that needed debate. That was something I said in opposition, but it is a view that I continue to hold in government. I am therefore delighted that the House at last has an opportunity to have this debate. If I quipped the right hon. Gentleman, I am grateful to him for having facilitated it now that he is freed from the shackles of Government.
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If the House is to have the debate that I think can help to inform this tension between ourselves and the European Court of Human Rights, it is important that as many Members as possible participate. I note, therefore, that the Government Benches are well crowded; I am sorry, however, that, for reasons on which I cannot speculate, the Opposition Benches seem to be, with a number of notable and eminent exceptions, rather bare. That might be a problem later in terms of the impact that this debate may have. From that point of view, the contribution of the right hon. Member for Rotherham (Mr MacShane), even if many Members disagreed with it, was nevertheless very valuable.
My reason for speaking at this stage of the debate, with the leave of the proposers of the motion, was to try to provide some assistance to the House in explaining the legal considerations relating to this complex, difficult and extremely controversial issue. As the House is aware, there will be a free vote for Government Members, so that the Back Benchers can express their views. Ministers will abstain. The Government believe that the proper course of action will be to reflect on what has been said and think about what proposals to bring back to the House in the light of the debate. The Government are here to listen to the views of the House, which are central and critical to this debate, as was acknowledged in the Hirst case and as was the subject of the critique that I raised earlier about the fact that we have not had this debate before. I look forward to taking on board and considering all the points raised, and to doing my best, as far as I can, to join the debate and assist the House.
Mr Jenkin: I am sure that it will be useful to the House that my right hon. and learned Friend intervenes at this stage. However, when he says that the views of the House are critical, does he not mean that they are decisive? We are a sovereign House; we make the law and the courts interpret it. This is a matter of policy, not a question of legal technicalities. If we do not want prisoners to have the vote, Parliament can legislate for it and that will be final. Does he agree that that is the power of the House?
The Attorney-General: First, I would say this to my hon. Friend. I am very respectful of the powers of this House and, having been a Member of it for 13 years, consider it to be very important. As he will also be aware, it is Parliament that is sovereign. I hope that he will excuse my making that delicate point. The Queen in Parliament is sovereign, and that includes the ability of both Chambers to legislate and to enact primary legislation. We are dealing with an international treaty. That international treaty was signed by the United Kingdom Government under the royal prerogative and was laid before both Houses of Parliament for their consideration. The rule that has been long established in this country is that once a treaty has been ratified by the United Kingdom Government through that process, the Government and their Ministers consider themselves to be bound by its terms. Indeed, as the right hon. Member for Blackburn will know, the ministerial code specifically says that that is the case, and the new ministerial code says it in exactly the same way as the old one did. From that point of view, although my hon. Friend is absolutely right, that does not remove the necessity for the Government to be bound by their treaties and international obligations.
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Mr Jenkin: I am most grateful to my right hon. and learned Friend for giving way again. It has also been recognised that statute law overrides international law. It is statute law that should bind the courts of this land. Does he agree with that?
The Attorney-General: It is certainly true that our international legal obligations may alter by virtue of what Parliament has enacted, but the current position is that we have an international obligation that, if I understood correctly from what they said, is not one from which, in its principles, my right hon. Friend the Member for Haltemprice and Howden or the right hon. Member for Blackburn would wish to resile. We are bound by it as Ministers of the Crown. However, if my hon. Friend will bear with me, I will come to that in a moment.
I repeat the point that the Grand Chamber in the Hirst case commented on the lack of any substantive debate in Parliament. It must be the case, therefore, that the existence of a substantive debate-indeed, we may have to have more than one substantive debate on this issue-will be helpful to the process of finding a way through the problem that is exercising many Members of this House. However, although Members are fully entitled to express their disagreement with the judgment of the European Court-indeed, I have done so myself: I said that I consider the judgment in the Hirst case to be an unsatisfactory one, for precisely the reasons, which I will not repeat, that the right hon. Gentleman and my right hon. Friend articulated-the fact that we may be in disagreement does not in itself solve the problem.
In order for the views of this House to be helpful, we need to demonstrate that we are engaging with the concerns of the Court and that we are not just expressing our frustrations-although I have to say that on occasion I have felt very frustrated on this issue in the last few years, and actually rather angry. Through a dialogue about what the House considers to be proper and reasonable in respect of prisoner voting, we have to see whether we can bring our weight to bear as a legislature in the development of the jurisprudence of the Court. That will give us the best possible chance of winning the challenges that may arise thereafter. As we know, given the litigiousness of those who think that there is a gravy train on which they might be able to climb, we can guarantee that, whatever we do, there will be legal challenge to it that will go back to the European Court of Human Rights for determination.
Ian Paisley: I appreciate the Minister's helpful guidance. Will he address the point made by the right hon. Member for Blackburn (Mr Straw) when he quoted Lord Hoffmann, the former Law Lord, saying in a lecture that it cannot be right for a European supranational court
"to intervene in matters on which Member States of the Council of Europe have not surrendered their sovereign powers"?
Will the right hon. and learned Gentleman give us some guidance on that point?
The Attorney-General: The hon. Gentleman is right that there has been a great deal of commentary, including in some learned lectures by judges, such as Lady Justice Arden, Lord Hoffmann and others, who have expressed growing concern about the way in which the jurisprudence of the European Court of Human Rights is being
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developed and about the Court's tendency towards micro-management. That is the nature of the challenge. That said, for the reasons I gave a moment ago, the judgments of the Court constitute an international obligation, so far as we subscribe to the convention and to membership of the Council of Europe. That is the dilemma the Government face, as did the previous Government: how can we find a way to persuade the Court to respect the views that the legislature may express without having to withdraw from the convention or the Council of Europe entirely, which, I have to say, would not come without cost or consequence for this country?
Claire Perry (Devizes) (Con): Can the Attorney-General help the House understand by what mechanism the European Court's judgment and-rather more unpalatably -the award of compensation to a convicted axe murderer could be enforced in this country?
The Attorney-General: There is no mechanism to enforce-[Hon. Members: "Ah!] My hon. Friend must listen carefully. The truth is that enforcing something against a Government who do not wish to have it enforced against them is very difficult, because the Government retain Executive power. If a judge in our High Court said that the Government should do something and the Government said, "We won't do it," it would be very difficult to do. Equally, however, it is worth bearing it in mind that the Government would be in rather serious breach of the principles of the rule of law and would, in fact, be behaving tyrannically. One needs to be careful. The principles on which United Kingdom Governments have always operated is that if international obligations confer a power on a court and a court orders compensation, we will honour those international obligations as it is our duty to do so, because without that we diminish our own status, in terms of our respect for international law as much as domestic law. It is therefore a bit of a red herring to suggest that just because something cannot be enforced, that is a justification for ignoring it. It might be a justification for enacting other legislation or taking other steps, but it would be a fairly momentous change in UK practice if we ignored something to which we had indicated by international treaty we subscribe.
Mr Richard Shepherd (Aldridge-Brownhills) (Con): We of course have confidence, by and large, in our judicial system and our courts. I see this issue as a crisis in the question of whether we have confidence in the workings of another court system. That is the tension that underlines so much of what we are discussing today-whether we are talking about a credible court, with the extension of its remit as a living instrument, and so on. That is the criticism that is now coming from judges too. We respect one court; do we respect the European Court, and therefore the international obligation that my right hon. and learned Friend mentions?
The Attorney-General: There is no doubt that there has been criticism of the Court, just as I have at times heard views expressed in this House applauding judgments made in the European Court of Human Rights-the judgments on stop and search and on DNA databases come to mind. We therefore need to be careful about too much picking and choosing of what we might think is desirable or not. I recognise that there is a fundamental
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issue in this debate, which the right hon. Member for Blackburn and others touched on, about the extent to which the Court is turning into a micro-manager.
Kate Hoey (Vauxhall) (Lab): If compensation was awarded, would it not be appropriate for the Government to decide to take it from the legal aid budget of the civil lawyers who will have brought most such cases about?
The Attorney-General: That is an interesting proposal from the hon. Lady, but, if I may say so, I would not seek to answer that question at the Dispatch Box today. It raises a number of ethical and practical issues to which, on the whole, I would want to give further consideration.
Rehman Chishti (Gillingham and Rainham) (Con): Will my right hon. and learned Friend give way?
The Attorney-General: I must make progress; otherwise I will not be able to do what I principally came here to do.
I want to deal with the point about the Grand Chamber in the Hirst case. The Grand Chamber declined, properly, to provide any detailed guidance on how to make our current regime compatible with the convention. It also made it clear that special weight should be given to the role of the domestic policy maker. Despite the difficulties that the House might face, we have a real opportunity, through debate, to shape the dialogue with the Court if we focus on the key issues.
I will now deal with the main legal issues on prisoner voting. I will set out the main points raised by the main judgments, because it might make the debate more difficult if the House does not have them in mind. I shall first outline the key points in the Hirst judgment, which dates back to October 2005. The Court took the view that it was well established that article 3 of protocol 1 to the convention, to which we are signatories, guarantees individuals the right to vote and to stand for election. The Court considered that to be a right, not a privilege. It also considered that that principle was important in ensuring an effective and meaningful democracy governed by the rule of law. It therefore felt that departure from the principle of universal suffrage risked undermining the democratic validity of the elected legislature and the laws that it promulgates. That might not have exercised us very much here, but in the context of the many east European states that have joined the European convention it is probably right to say that those are really serious, material considerations.
In the view of the Court, prisoners continue to enjoy all the fundamental rights and freedoms guaranteed by the convention. I do not think that either my right hon. Friend the Member for Haltemprice and Howden or the right hon. Member for Blackburn disagree with that. The Court's reasoning, with which I appreciate many hon. Members disagree, is that, in view of the fact that the convention does not allow prisoners to be subjected to inhuman or degrading treatment or to have restrictions placed on their freedom of expression or freedom to practise their religion, a restriction on their right to vote should have the aim only of
"preventing crime by sanctioning the conduct of convicted prisoners, and enhancing civic responsibility and respect for the rule of law".
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The Court also recognised that the participating states had a wide margin of appreciation in deciding on such restrictions, but that that was not an unlimited discretion. It felt that the restriction should be proportionate and-this is the nub of the issue-that section 3 of the Representation of the People Act 1983 imposed a blanket ban, which was seen as being so indiscriminate as to fall outside the acceptable margin of appreciation.
Mr Baron: The central questions are whether the interpretation of the treaty that we signed has gone beyond what the original treaty contained, and who, thereafter, has the right to make a decision on the matter. Should it be this Parliament or an unelected European institution that makes such decisions? The clear evidence is that it should be this House, and that the interpretation has gone beyond the terms of the original treaty. That is what this vote is about today.
The Attorney-General: I appreciate that that is what my hon. Friend and many others believe the issue for debate to be. I recognise that it is going to be a major topic for debate this afternoon, but, if he will forgive me, I will suggest that hon. Members might also wish to focus on why they consider the current ban, or some variant of it, to be reasonable and proportionate in our own national context. It was the absence of debate on that issue that appeared to make the Court take the view that our ban was indiscriminate-
Chris Bryant (Rhondda) (Lab): Really?
The Attorney-General: Well, it was one of the reasons it took that view.
Mr Andrew Turner (Isle of Wight) (Con): Does my right hon. and learned Friend accept that we do not want a discriminatory rule on what we took a view on, but that they want an absolute rule?
The Attorney-General: I hope that I have understood my hon. Friend correctly. I do not think that the Court has suggested that there should be an absolute rule. In fact, it has made it quite clear in that and later judgments that there could be substantial flexibility for national legislatures to set their own criteria, which could be variable. For example, leaving a blanket prohibition to one side, it might be desired that a prohibition could be imposed after a particular period, so that someone could be banned from voting if sentenced to one, two, three or four years. The criteria could be different if the judiciary were given complete discretion over whether people should be banned and when such a ban should be applied. So there is a whole range of possible variants available to a legislature, if it were minded to consider them, that might well satisfy the Court's concerns.
I am mindful of the strong views held in the House on this matter. On the maintenance of a blanket prohibition on all sentenced prisoners, the House should note that the Hirst case was followed by two other cases. This was the cause of my criticism of Labour's dilatoriness on this matter. The first was Frodl v. Austria, in which the Court found that a ban on voting imposed on people sentenced to more than 12 months was wrong. The second case was Greens and MT, in which the Court appeared to make it clear that it wanted the United Kingdom to enact some form of legislation.
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Mr Leigh: It seems that everyone who has spoken so far is trying to have their cake and eat it. They all say that they want this incorporated into our law, but they do not like this particular judgment. They think that a debate will solve the problem. If the vote goes against us this afternoon, will the Attorney-General do the right thing and withdraw us from our incorporation in the convention?
The Attorney-General: My hon. Friend takes a very absolutist stance, although I have heard him utter such a view before. That is not Government policy, however.
Jeremy Corbyn (Islington North) (Lab): Is not the fundamental issue that the European convention on human rights applies to everyone, including those who are in prison, and that when people are convicted they do not lose their convention rights? They have to suffer a penalty following conviction, but losing their right to vote is outwith the terms of the convention.
The Attorney-General: The hon. Gentleman makes a perfectly reasonable point. Indeed, in some countries, the removal of the right to vote effectively forms part of the sentencing exercise. However, that has not been part of our national tradition in this country. I will be interested to hear hon. Members' reasoning in the debate. I assume that the underlying principle behind the ban-given that many people are convicted and not sent to prison-was that a person who was sent to prison had done something so antisocial towards the civil order that it was justified to remove their right to vote. Speaking personally, I have never thought that there was anything unreasonable about that approach, although I appreciate that some hold other views, including non-governmental organisations such as the Prison Reform Trust, which has argued powerfully in favour of giving prisoners the right to vote.
Mr David Nuttall (Bury North) (Con): In answer to the Court's concerns, may I point out that criminals in this country choose of their own free will to commit serious crimes, and they know that, if they are found guilty and sent to prison, they will lose their right to vote?
The Attorney-General: That is a very good argument, and it might be helpful to me if I ever have to stand up in front of the European Court of Human Rights to explain the reasoning of the United Kingdom Parliament.
I have pointed out that matters were made more difficult following the judgment in Frodl v. Austria, in which it was held that the disfranchisement of a person sentenced to more than one year in prison was a violation of article 3, and in the Greens and MT case, although the Court clearly stated at that time that judicial discretion was not a requirement. From that point of view, it is clearly open to the United Kingdom Government to put in place a system that would not involve judicial discretion. I have some hesitation, in any event, about whether the judiciary would wish to have that discretion inflicted on them. As hon. Members might be aware, however, the Government have made it plain that, even on minimal sentences, the power to remove the right to vote-in cases involving electoral fraud, for example-ought to be retained by the judges in any event.
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It is for the House to provide a response today. I hope that that response will be useful to the Government in representing the House's views in what I anticipate will be a rather drawn-out dialogue between ourselves and the Court.
Mrs Anne Main (St Albans) (Con): I concur that we have already set quite a high bar for getting behind bars in this country. Given that, why is it any more reasonable to pick an arbitrary figure of one, two, three or four years than to set the bar at the point when people pass through the prison gates?
The Attorney-General: My hon. Friend makes a very reasonable point. If she looks around other European countries, she will find a great deal of variety in approach. Some countries do not allow any convicted prisoners to vote, although they might well be in serious difficulty as a result of the Hirst judgment. The Irish Government, for example, changed the law and gave their prisoners the vote. Others lay down differential criteria, and it seems clear that the Court is influenced by the consideration of whether those convicted to very short terms of imprisonment should retain the right to vote and those with longer terms of imprisonment should lose it. Four years, for example, has usually been regarded in our judicial system as the benchmark that separates a long sentence from a medium or short sentence. That is one reason why such benchmarks might play a role, and used to play a role, in providing some definition.
Naomi Long: The Republic of Ireland provides an interesting case. Although the Government have allowed their prisoners to register to vote, they do not necessarily guarantee that they will be able to vote in the sense of attending a polling station to exercise their franchise. I suspect that this is an interesting example of sleight of hand.
The Attorney-General: I would have to check that position. My understanding was-it might be incorrect-that the Irish Government provided a postal voting system.
Chris Bryant: Is it not an irony that prisoners in Britain had the vote for a while, but were unable to register and therefore were unable to exercise their right to vote?
The Attorney-General: I have no doubt that at one time that was correct. Indeed, before 1870, large numbers of people did not have the right to vote in any case, which adds another complicating issue. I think we should look at the here and now.
Ben Gummer (Ipswich) (Con): I am slightly worried by what my right hon. and learned Friend said earlier about the purpose of this debate. Surely the purpose of this Chamber hitherto has been to form statute law. He suggests that we should now take on the function of influencing the jurisprudential evolution of the European Court of Human Rights. Would it not be helpful to him if this debate also engaged with the realm of the relationship between this House and the European Court?
The Attorney-General: I certainly do not want to prevent my hon. Friend from debating such an important issue. He must forgive me for perhaps being too much of a lawyer, but on the whole I tend to look at the terms of
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the motion, which are very specific and quite interesting. The motion first emphasises our respect for our international obligations, which I do not believe was included accidentally by the right hon. Member for Blackburn or my right hon. Friend the Member for Haltemprice and Howden. I assume that the motion thus encompasses our international obligations under the European convention on human rights. Secondly, the motion expresses what I take to be a view that we believe that our existing arrangements, which deny sentenced prisoners the right to vote, are fair, reasonable and proper and we wish to continue them. That seems to be the motion that we have to debate, and which we ought to debate, which is why I sought to answer the question in this way, although I accept that some wider issues could also be considered. At the end of the day, as I have also emphasised, the Government are bound by their international obligations. They have to think, sometimes laterally if not horizontally, about how to get themselves out of the conundrum of respecting the views expressed in this House while also wanting to see that the international obligations that this House wants to be respected are respected.
Rehman Chishti: On that very point of international obligations, Lord Hoffmann has said that
"with support of other European states"
that have also been at odds with the Court,
"we can repatriate our laws on human rights."
What steps are we taking to work with other European states that have also been badly treated to withdraw from the scope of the Human Rights Act 1998?
The Attorney-General: I am grateful to my hon. Friend, who is absolutely right; I have not had time to develop the point. Quite simply, negotiations have taken place concerning the difficulties facing the Court, in which the different countries making up the Council of Europe are, in many ways, expressing the common view that the Court is not functioning properly. Quite apart from anything else, there is a backlog of 120,000 cases. This matter is therefore not being ignored by the Government; we would like to make some progress to see whether reform can be achieved.
Mr Davidson rose-
The Attorney-General: If Mr Deputy Speaker does not stop me, I shall give way.
Mr Davidson: Does the Attorney-General accept that, in being a lawyer, he has the problem of over-complicating matters? [Laughter.] Is not the basic issue whether we in this country should decide our line on whether prisoners should be able to vote-or should it be decided by somebody else? Where do the Government stand on that question?
The Attorney-General: The object of lawyers is to take people's concepts and to try to navigate them to their correct destination, if at all possible. [Interruption.] In this case, there is no specific financial benefit, however pleasant it would be to be able to charge a special fee to my Government colleagues for appearing here this afternoon. I do not think that they would have condescended that to me.
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I hope that what I have said has been of assistance to the House. I look forward to hearing the rest of the debate and, above all, to helping the House further if I can during the course of it.
1.46 pm
Chris Bryant (Rhondda) (Lab): It is a delight to follow the Attorney-General, who puts me in mind of Peter the Great when he visited Britain and our Parliament. He commented to our monarch that there were an awful lot of lawyers in Parliament and that, so far as he was aware, there were only two lawyers in his kingdom, one of whom he was going to execute on his return.
I have three opening points. First, I believe that when someone breaks the law so seriously that the courts send them to prison, they should also be deprived of the right to vote. That is why it has never been Labour policy to give prisoners the vote and why we vigorously contested the Hirst case.
Tom Brake (Carshalton and Wallington) (LD): Will the hon. Gentleman give way?
Chris Bryant: If the hon. Gentleman will forgive me, I would like to make a bit of progress and give way later.
Secondly, it is not the role of the European Court of Human Rights to legislate on who gets to vote in the UK. As the President of the Court and others argued in their dissenting opinion on Hirst,
"it is essential to bear in mind that the Court is not a legislator and should be careful not to assume legislative functions."
That is why we argued in the Grand Chamber that the Court was acting ultra vires and why we believe it is for Parliament-and Parliament alone-to legislate on this for the UK.
Thirdly, the Government's proposals that prisoners sentenced to custodial sentences of less than four years should retain the vote-if indeed they still are their proposals; they might not be given what we have just heard-are far too generous and will not be acceptable to the vast majority of the British public. That is not to say that prisoners should be deprived of all their rights. Of course not-prisoners are humans. Torture and degrading treatment are repugnant. We abhor it when prisoners are treated as less than human in jails in Latin America, in Turkey or in Russia. In depriving someone of their liberty, however, the state should be able to decide that someone has also forfeited other freedoms. Prisoners retain a right to family life, as the European Court of Human Rights has rightly adjudged, but while in prison they cannot pick their children up from school or kiss them goodnight. They retain the right to freedom of expression and, for that matter, freedom of religion, but, by definition, they lose the right to freedom of assembly.
Ian Paisley (North Antrim) (DUP): The hon. Gentleman is absolutely right to say that choosing four years as the threshold is far too generous. I wonder whether Members have reflected on what that really means. It means 4,370 drug dealers getting the vote; it means almost 10,000 people involved in theft, burglary or robbery getting the vote; it means 1,753 rapists or people involved in serious sexual crimes achieving the vote; and it means 5,991 people involved in crimes against a person getting
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the vote. Does the hon. Gentleman accept that although we do not get a lot of letters from prisoners demanding the vote, we will get a heck of a lot of letters from victims and their families if we give those people the vote?
Chris Bryant: The hon. Gentleman has made his point extremely well, and I think that it has been taken by many Members.
Jeremy Corbyn: I am very puzzled by my friend's approach. If we as a country are signed up to the European convention on human rights, which we frequently use-all of us as Members of Parliament use it in representing our constituents-and if the Court makes a judgment on the question of prisoners' voting rights within that convention, we are bound by that judgment, by treaty and by law. Why on earth are we debating this issue unless the long-term agenda-and I suspect that it is the agenda of many Members-is complete withdrawal from the convention? Surely that is the real agenda of many people.
Chris Bryant: It is certainly not my agenda, and I hope that I shall be able to please my hon. Friend with some of the things that I am going to say. I would add, however, that politicians engage in pick and mix sometimes-indeed, virtually every day of their lives.
Tom Brake: The hon. Gentleman said that it was not his party's policy to give prisoners the right to vote. Is he advocating withdrawal of the right to vote that some prisoners already have?
Chris Bryant: No, and, if the hon. Gentleman does not mind my saying so, I think that that was a rather fatuous contribution.
I know that many of my close friends disagree with me on this issue-indeed, the Archbishop of Canterbury and the former Bishop of Worcester, both of whom were my spiritual directors, disagree with me-but I reiterate that I think it perfectly reasonable that if a person puts himself outside the law, he should lose his vote when he loses his liberty. I will not, however, be joining any wholesale attack on the European Court of Human Rights. I lived in Spain under Franco, and I saw friends of mine tortured in Chile under Pinochet without the benefit of any court to stand up for their human rights.
The Court has been a vital part of the infrastructure of freedom in Europe since its inception. When David Maxwell Fyfe, later a Conservative Home Secretary and Lord Chancellor, advocated its creation and drafted the original convention for the protection of human rights and fundamental freedoms, he rightly saw the Court, and the Council of Europe, as a bulwark against both the atrocities of the Nazi and fascist regimes of the 1930s and the brutality of the communist thugs who ruled eastern Europe.
It is true that Maxwell Fyfe was no human rights saint-he made sure that Derek Bentley hanged, and waged a ferocious anti-homosexual campaign throughout his time as Home Secretary-but Britain's instincts in seeking a European structure for freedom and signing up to the European convention on human rights were right, and are still right.
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Mr Shepherd: The hon. Gentleman speaks of Maxwell Fyfe, but it was, of course, a Labour Government who signed up to the convention. The hon. Gentleman will recall from his researches that Lord Jowett and the Cabinet had the greatest difficulty in reconciling that with the establishment of a court that would be outside the jurisdiction of this country. That is the issue that haunts what we are discussing today: that a court elsewhere reaches beyond our own competence.
Chris Bryant: People have claimed that either a Labour or a Conservative Government signed up to the convention, but in fact there was a cross-party agreement that we should move in that direction, just as we agreed on how we should prosecute throughout the Nuremberg trials. Hartley Shawcross was Attorney-General, but he none the less allowed Maxwell Fyfe to conduct the vast majority of the interrogation. Similarly, our approach to human rights was shared by both the main political parties throughout the period following the second world war.
Mr Shepherd rose-
Chris Bryant: I understand the other point that the hon. Gentleman made, and I hope to deal with it shortly.
Mrs Eleanor Laing (Epping Forest) (Con): Will the hon. Gentleman give way?
Chris Bryant: If the hon. Lady does not mind, I will make a little progress-oh, all right. The hon. Lady is very enticing.
Mrs Laing: I thank the hon. Gentleman. I seek, just once, to help him. I do not know whether he is aware that Winston Churchill, speaking at the Congress of Europe in The Hague in 1948, said:
"The Movement for European Unity must be a positive force, deriving its strength from our sense of common spiritual values... based upon moral conceptions and inspired by a sense of mission. In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law."
I hope that that helps the hon. Gentleman.
Chris Bryant: It does help me, and I think that it helps the House as well. What Britain was seeking to do was enshrine throughout the rest of Europe the freedoms that we had enjoyed for centuries in this country from the Bill of Rights onwards. That was Churchill's vision.
Even in Britain, rights have been won thanks to the Court. The Attorney-General cited a couple of instances in which he agreed with the Court and disagreed with the previous Labour Government. Successive Governments, for instance, held out against allowing gays in the military in this country. It was the European Court that insisted in 1999, and today I am not aware of a single Member of Parliament who thinks that someone should be sacked from the Army, the Navy or the RAF solely by virtue of his or her sexuality. Likewise, it was as a result of the Court's judgment in the case brought by Denise Matthews against the Labour Government that Gibraltarians were granted the right to vote in elections to the European Parliament in 2004. So Labour supports the European Court, but as a critical friend.
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We have heard several criticisms of the Court's operation today. Let me add a couple. The court has a backlog of many thousands of cases, which would take 47 years to complete. Its members are not all equally qualified. It has no effective triage system to filter out vexatious claims of little or no merit. There is no requirement for an appellant to seek leave to appeal to the Court from a national court in the first place, which is something that we might want to consider. Most important, some of its members believe that they are, or should be, a supreme court for all the contracting parties-to which I simply say that they are wrong.
Every high or supreme court in Europe has a democratic safety valve which allows its duly elected Assembly or Parliament to overrule the courts in certain circumstances. In the UK, that is our parliamentary sovereignty. We firmly contend that the 1688 Bill of Rights was right to assert that proceedings in Parliament cannot be
"impeached or questioned in any Court or Place".
Mr MacShane: Will my hon. Friend give way?
Chris Bryant: I hate the fact that there was a pause there. I give way to my right hon. Friend.
Mr MacShane: Would my hon. Friend advance the same argument in respect of the European Court of Justice?
Chris Bryant: To be honest, I think that that is a debate for another day. I am keen not to conflate discussions about the European Court with discussions about the European Union, and I think that in that respect my right hon. Friend would agree with me.
Mr Straw: Will my hon. Friend give way?
Chris Bryant: Of course I will give way to the former Justice Secretary.
Mr Straw: Perhaps my hon. Friend will allow me to provide the answer to the question asked by our right hon. Friend the Member for Rotherham (Mr MacShane). Even in the case of decisions by the European Court of Justice, there can be, and sometimes is, the equivalent of a democratic override through decisions made by the European Council of Ministers. They will often change a directive in order to correct some judgment of the Luxembourg Court. The fundamental difficulty with the Strasbourg Court is that there is absolutely no mechanism for achieving that.
Chris Bryant: Indeed. Perhaps consideration should also be given to the role of the Committee of Ministers. It has not thus far been able to play such a part, despite often applauding critical interventions by Ministers following Court decisions.
Lorely Burt (Solihull) (LD): Will the hon. Gentleman give way?
Chris Bryant: I will give way to the hon. Lady, but then I really must make progress.
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Lorely Burt: I am extremely grateful.
A moment ago the hon. Gentleman was advancing a compelling argument, supported by Members on both sides of the House, about the enlightened way in which the European Court of Human Rights has been able, through its legislation, to change people's idea of what is right and of morality. Does he not agree that if we pass the legislation that will give prisoners voting rights, in another 20 years that idea may prove just as unpalatable as some of the other measures introduced by the Court?
Chris Bryant: I have a problem with the position adopted by the Liberal Democrats since the general election. I should be happy to hear their arguments in favour of the substantive issue. Let them put the case, and put it convincingly, rather than hiding behind the process and the European Court. It would be quite nice to hear the Deputy Prime Minister say a single word on the subject.
Let me turn to the Court's decision in Hirst v. the United Kingdom that the blanket ban on prisoners from voting contravenes article 3 of protocol 1-a decision which, I should point out, was not unanimous, and was not supported by the then Swiss President of the Court, Professor Luzius Wildhaber. The problem is simple. As is stated in the report of the Political and Constitutional Reform Committee, published yesterday,
'however morally justifiable it might be, this current situation is illegal under international law founded on the UK's treaty obligations."
Clearly, as some have already suggested today, we could tear up our treaty obligations. I believe that would be wrong in principle and foolhardy in practice. For the UK to leave the Court would be fatally to undermine its authority. It would be to abandon much of Europe to precisely the same disregard of human rights as was evident when the Court was founded, and for British industry and British citizens living, working and doing business across the continent, that rule of law, enforced through the right to petition the Court, is vital. Alternatively, we could seek to reform the Court, steering it away from trying to be a form of supra-national supreme court and quasi-legislature.
It may be that today's motion could help in that process, as the Attorney-General has suggested. After all, the Court asserted that
"there is no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban".
It was wrong on that, although there have not been many debates on the matter, but I think that is because there was unanimity in the House rather than because Members did not have a view on it. Following today however, a robust vote from this House will make it impossible for the Grand Chamber to maintain that claim.
The third course of action open to us is to enforce the Court's judgment, and here there is another problem. While the Grand Chamber maintained that a blanket ban on all convicted prisoners was disproportionate, it also argued that
"Contracting States must be allowed a margin of appreciation in this sphere"
and that
"the margin in this area is wide."
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Subsequent judgments, not least those referred to by the Attorney-General of Frodl v. Austria, Py v. France-which he did not refer to-and Greens and M.T. v. the UK all point in different directions. In particular, Frodl v. Austria seems to suggest putting a new gloss on the Hirst interpretation, while Greens and M.T. v. the UK appears to be rather more lenient in its approach and allows a greater margin of appreciation.
The key question is: how wide is the margin, or how much wriggle room do we have? We know there are wide variations in European practice on prisoners' voting. In Belgium, four months is the length of time, whereas in some countries the ban on voting can continue after the imprisonment has ended. That is why I wholly agree with the dissenting opinion of Professor Wildhaber and others in the Hirst case when they say
"the legislation in the United Kingdom cannot be claimed to be in disharmony with a common European standard."
They said that because there is not a European standard, and it is therefore difficult to see how the courts could enforce in this direction. What is the absolute minimum the Government would have to do in order to appease the Court?
Claire Perry: Does the hon. Gentleman further agree that part of the problem in defining this on a pan-European basis is that we have completely different definitions of what constitutes a crime and what sentencing should be applied? Therefore, trying to apply a blanket ban on a cross-border basis is inane.
Chris Bryant: Indeed, the Court itself has made it clear in successive judgments that a whole series of matters would determine how a national legislature decided to approach the issue of voting. The proportional representation issue has been raised in the debate, but that is not a matter of particular concern to the Court. Matters of concern to it include the history, tradition and pattern of voting. The Court has always accepted that, which is why a lot of us are very keen to make sure that the wriggle room that is allowed-the margin of appreciation to use its term-is as extensive as possible.
Mr Davidson: Does my hon. Friend accept that the criteria we ought to adopt are not simply about votes for prisoners, but votes for the guilty? The guilty includes two categories: those who are sent to prison and are therefore prisoners, and those whom it has not been deemed appropriate to put in prison. This House and other institutions constantly review the question of who is to be sent to prison and who is not, so there is constant evolution on this matter.
Chris Bryant: My hon. Friend makes a remarkably subtle and nuanced point, which is unusual for him. [Interruption.] I think he knows that I mean that in the kindest way. Following on from his point, I would add that the Court has been wrong to assert that we have a blanket ban in the UK. As has already been said by several speakers, we do not ban those on remand, or those who are in prison by virtue of contempt of court or for fines. It is therefore not a blanket ban, and I think the Court should have taken that into consideration.
I want now to refer briefly to the Government's record, as they have hardly covered themselves in glory. [Interruption.] I was not going to make these points
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until the Attorney-General decided to attack the previous Labour Government; I had crossed these remarks out, but I have now decided to reinstate them.
In opposition, one Conservative right hon. and learned Member dismissed the idea of prisoners' votes as "ludicrous" and said that
"it will bring the law into disrepute and many people will see it as making a mockery of justice".
I think many people would agree. The right hon. and learned Member who said that was the current Attorney-General. He also said that
"there is no reason why our courts should be bound by Strasbourg Court jurisprudence"
and
"the obligation on the UK to respect Strasbourg Court adverse decisions, in a particular case to which it is a party, is an international treaty obligation and not a legally enforceable matter at all."
I do not think that is quite what he said this afternoon.
The Attorney-General: I thought I had made the position clear. First, this Parliament is entirely sovereign in both Houses in the enactment of primary legislation and can resolve what it wants. Secondly, the Executive are bound by the ministerial code to observe their international treaty obligations that have been ratified.
Chris Bryant: That is not quite how the right hon. and learned Gentleman expressed it on the radio before the general election, but I just want to check this: is it still the Attorney-General's legal advice that there is no need for Parliament to adhere to the treaty, the convention and the judgment of the Court? That seemed to be the point that he was making previously-I know the point that he is making about the Government's requirement.
The Attorney-General: If I may say so, I think the hon. Gentleman has taken my comments slightly out of context in the following sense. The debate that was taking place, and which has often been a problem, is about conflating EU law and the EU with the Council of Europe. EU law, by virtue of the treaty of accession-
Mr Straw: The '72 Act.
The Attorney-General: Yes, the European Communities Act 1972. I am grateful to the right hon. Gentleman for that. By virtue of the '72 Act, EU law has direct application in this country, whereas the Council of Europe and European convention on human rights do not, except in so far as we incorporate that in the Human Rights Act 1998. That is the distinction.
Chris Bryant: Fine; I am glad that the Attorney-General has clarified that. Can he clarify one other point, too? The one element on which he has not given us any advice today-and if he has any legal advice, I would be grateful if he published it-is his interpretation of the wriggle room or margin of appreciation that is genuinely available to us. He seems to have suggested today that one area that was insisted on in Frodl v. Austria-namely that judges should have to be able to make an individual decision on each person for that to be valid-is no longer necessary for us, although that was in the ministerial statement issued by the Parliamentary Secretary, Cabinet Office, on the day before we broke for Christmas.
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[Interruption.] The Attorney-General appears to be disagreeing with that, but it was in that ministerial statement.
I also want to know whether the Attorney-General has had legal advice on whether four years is necessary, or whether one could get away with less than that. Those of us who want to be able to do everything we can are keen to know the absolute minimum that the Government would have to do to comply.
The Attorney-General: The hon. Gentleman knows the conventions in government-one of which is that Law Officers' advice, and whether it has been sought and what they have advised, is not published. I can say two things, however. First, I have sought to explain something of the legal framework. As for the questions about Greens and M.T. and Frodl, read on its own the Frodl judgment would suggest that judicial discretion was required. Subsequently however, Greens and M.T. does not appear to insist on judicial discretion. Judicial discretion appears to have particularly exercised people in this country, because they do not think the judges should necessarily make such a determination. In those circumstances, although the House might wish to look at judicial discretion issues-and it has been suggested that that might be a way of dealing with those who fell below a benchmark for normally being allowed to retain the vote-that is not necessary.
Chris Bryant: Again, I am grateful to the Attorney-General, as I agree with him; my reading of the Greens and M.T. case is wholly consistent with his in relation to judicial oversight. That was one of the questions that we raised in the debate in January, and I received responses from the Minister who took part in that debate only at 8.31 pm yesterday.
I reiterate that the Government have made various statements over the past few months. The Lord Chancellor made one yesterday on the radio, the relevant Minister made one in the House of Lords and the Minister who responded to the Adjournment debate in Westminster Hall made one then. Those statements have not been consistent with each other, but they have adverted to legal advice. It is the tradition of this House that when one relies on evidence, that evidence is published.
So what is the Government's policy? What is the absolute minimum that they believe the UK has to deliver to meet its treaty obligations?
Mr Jenkin rose -
Chris Bryant: I hope that the hon. Gentleman does not mind if I do not give way, because others want to speak and I ought to be drawing my comments to a close.
Would it be sufficient for the Government to present proposals -[Interruption.] I would be grateful if the Attorney-General would listen, just briefly. Would it be sufficient for the Government to present proposals-introduce legislation-but for Parliament not to agree them? Would that, in some sense, satisfy the Court? What do the Government believe will happen if the House supports the motion this afternoon? How have the Government arrived at the compensation figure? Previously it has been said that £160 million-worth of
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compensation will be entailed, but I gather that last night the media were briefed that the compensation figure will be £143 million. I understand that that has been arrived at on the basis not of the Attorney-General's legal advice, but of advice given to the Government by others. Will that be published? Can he explain how the compensation would be enforced, given that all applications for compensation to the county court should surely be struck out by dint of section 6(2) of the Human Rights Act 1998, which reinforces parliamentary sovereignty? Indeed, is there not a claim in the High Court today from the Treasury solicitor to that effect?
The Attorney-General: All I will say on the issue of compensation is that it is very difficult to know how much compensation might or might not have to be paid. Let us suppose that there were two elections in which the entirety of the sentenced population in the prison system were deprived of the right to vote and they were all to bring a claim. On the basis of there being about 73,000 people in the prison system in that category and on the basis that about £1,000 to £1,500 of compensation and costs might have to be paid, the hon. Gentleman will be able to start to work out what sort of total cost might be involved. Of course, lots of prisoners might decide not to bring a claim, so I must accept that all the Government can do is provide a reasonable guide of the potential for the matter to be very costly. The hon. Gentleman will have no difficulty acknowledging that when he does the calculation.
Chris Bryant: I note that the Attorney-General was referring to general elections, but of course it was stated in evidence last week to the Select Committee that the Scottish and Welsh elections in the next few weeks present a real problem. I accept that there are problems, but I wonder how anybody conceives that compensation payments would be enforced.
The Attorney-General rose -
Chris Bryant: I will, of course, give way, but I am trying to end my speech.
The Attorney-General: I apologise for intervening, and the hon. Gentleman will appreciate that I had to bring my remarks to a close earlier as I did not want to take up too much time. He rightly says that arguments were placed before the Select Committee by lawyers saying that they thought that the matter applied also to voting in devolved legislatures. That is not the Government's view.
Chris Bryant: I am grateful to the Attorney-General for that. This is a Back-Bench debate and it provides an opportunity for the Government to take the temperature of the House without the intervention of a Whip. We believe that the Committee of Ministers, which is charged with ensuring the execution of the Court's judgments, should take proper cognisance of a clear, un-whipped majority in this House. The Court should step away from insisting on its most draconian interpretation of the margin of appreciation available, not just to this country, but to others, as there is no one European standard on this matter. Indeed, many countries maintain a complete ban. Finally, any British Court considering compensation or action based on the Hirst judgment should also think twice before "impeaching or questioning" this proceeding in Parliament.
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2.14 pm
Mr Robert Walter (North Dorset) (Con): I congratulate the right hon. and hon. Members who have succeeded in securing this debate, but may I start by busting one myth? We have heard the mantra, "These are unelected and unaccountable judges." I am not sure that I can recall any elected judges in this jurisdiction or in most other jurisdictions. Judges who are unelected are not that unusual. However, the judges in question are elected and I voted for one just two weeks ago. The new judge representing Portugal was elected by the Parliamentary Assembly of the Council of Europe, and 18 Members of this Parliament are mandated to vote for judges in the European Court of Human Rights. A number of them have been here for this debate, including my hon. Friends the Members for Gainsborough (Mr Leigh) and for Devizes (Claire Perry) and others who were in Strasbourg two weeks ago.
Dr Thérèse Coffey (Suffolk Coastal) (Con): Is there actually a choice of candidates or is there literally the same number of candidates as there are votes?
Mr Walter: I am delighted that my hon. Friend has raised that matter, because the next point that I was going to make was that a sub-committee vets the candidates. My hon. Friend the Member for Christchurch (Mr Chope) is one of the members of that sub-committee who successfully rejected a slate of three candidates put forward by Portugal four months ago, and Portugal had to go back to find some candidates who were acceptable to us. However, may I say that the candidates who come forward are not always of the highest calibre and the quality of judges in the Court has to be taken on board?
For more than 200 years, our criminal justice system has been guided by a simple and sound formula: if someone commits a serious crime, they forfeit the right to freedom. When someone breaches the contract with society they compromise their right to participate in civic processes. When someone breaks the laws of the land, they have no say in who makes those laws or governs this country. So it follows-I support this-that convicted prisoners automatically lose the right to vote. I believe that that is a proportionate and proper response following conviction and imprisonment.
Yet, today, we find ourselves debating whether prisoners should have the right to vote: whether a principle enshrined by our Parliament, endorsed by successive Governments and supported by the public, should be rescinded by this European Court ruling. I believe that the ruling by the European Court of Human Rights was wrong. I share many colleagues' unease at the potential sea change that it could bring about. The notion that those who knowingly place themselves outside the rule of law could have electoral sway equal to law-abiding citizens strikes me as illogical and unfair.
My constituency is home to Guys Marsh prison, which has 578 inmates. The prison lies within the Melbury Abbas and Cann parish council area, which has 614 electors. So if we take this measure to its logical conclusion and prisoners are allowed to vote where they reside, they could potentially overrun the parish council elections. If they were also entitled to stand for election and if they were elected, where might the parish council meet?
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Simon Hughes (Bermondsey and Old Southwark) (LD): Does the hon. Gentleman not accept that the logical position were there such a right to vote, as there is in some cases, is that the prisoner's home address would be the place where they would vote? That is how we work as MPs and how a voting system would work for prisoners.
Mr Walter: I thank the right hon. Gentleman for his intervention. What he describes would be a logical and proportionate way to proceed, but many prisoners had no fixed abode before they came into prison, so where would they then "reside" or have their vote registered?
Withdrawing from the convention would be counter-productive, if not dishonourable. I appreciate that the Hirst ruling has raised legitimate constitutional questions that go right to the heart of the Court's credibility and I also recognise that the Court is not perfect and is struggling to cope with a massive backlog of cases. It is in need of serious reform.
Ben Gummer: May I ask my hon. Friend a question as an expert on these matters? Would resiling from the 1965 agreement, under which petitioning to the ECHR would be allowed, constitute a withdrawal from the convention, or could we do that and remain a signatory to it?
Mr Walter: I am not a lawyer and would defer to the Attorney-General for a legal answer. As an hon. Member said earlier, "We are where we are"-I think we have to go from that particular point.
We need to put all this into perspective. Since the convention came into force, Russia has faced more than 1,000 adverse judgments; Turkey has had more than 2,000, 228 of which were in 2010 alone; Poland has had 761; Ukraine has had 709; and Romania has had just over 700. What if the UK defied the Court? Dissent is unacceptable, because we would be saying it was acceptable for countries that face thousands of charges, many on grave human rights abuses, to flout international law. That is clearly unacceptable.
How do we reconcile our opposition to the Court's judgment?
Mr Peter Lilley (Hitchin and Harpenden) (Con): Will my hon. Friend give way?
Mr Walter: Sadly, I have only 30 seconds left, so I shall not.
The reform process that several hon. Members have mentioned is under way. It refers to subsidiarity and is very clear. The Interlaken process, which was started in Interlaken last year, will be continued in Izmir and I hope that the Government will support that when they take over the chairmanship of the Committee of Ministers.
2.22 pm
Mr Michael McCann (East Kilbride, Strathaven and Lesmahagow) (Lab): I support the motion, particularly the part noting that this House should be the place where legislative decisions of this nature are made. There have been a number of contributions from learned Members, but I should like to take the debate in a different direction. I read with interest the report, "Voting
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by convicted prisoners: summary of evidence", of the Select Committee on Political and Constitutional Reform, which states at paragraph 4:
"We took the evidence summarised in this Report with a view to exploring the current legal position, not with a view to questioning whether extending the right to vote to convicted prisoners in certain circumstances would be philosophically, morally or politically justifiable."
Those words are important because those are exactly the kind of judgments that our constituents expect us to make and to use in the Chamber. However sophisticated or complicated the arguments get, this is about a basic belief system and whether giving prisoners the right to vote is right or wrong. I take the view that someone who has committed a serious crime or series of crimes and who has been incarcerated, apart from the exclusions that have been mentioned already, should lose that right.
I am not prepared to flinch from that position and I shall tell hon. Members why. The general public might not wish to discuss the details of the principle of proportionality put forward by Aidan O'Neill and they might not be too concerned about Lord Mackay's conclusion that the right to vote is not an absolute right, but they know instinctively when something is right or wrong. I believe that the public think it is wrong to give prisoners the vote.
Tom Brake (Carshalton and Wallington) (LD): Have you asked them?
Mr McCann: I am just about to go into that. I have asked them, because I wanted to test my beliefs and whether my view that it would be wrong to give prisoners the vote would be taken on board by the public who elected me. The reaction I got from people was very similar. After I explained the issue, there was a pregnant pause because people thought that I was about to give them the punch line to a joke, rather than tell them about an issue that we were going to debate in Parliament. Then a look of disbelief came across their face at the very thought of giving criminals the right to vote.
I was lucky enough to visit Sandhurst earlier this week along with other hon. Members as part of the armed forces parliamentary scheme. We saw young men and women being prepared to be the officers of the future. In about six months' time they will be serving in Afghanistan. I took that opportunity to ask those fine young men and women, as a litmus test, whether they believed it was right to give prisoners the vote. To an individual, they said no; it is very important to listen to them as well.
It is interesting to listen to the people who come to the debate from the other side. Liberty argues that denying prisoners the vote undermines the Human Rights Act, but I believe the reverse is true. The Howard League for Penal Reform suggests-ludicrously, in my opinion-that extending the right to vote to prisoners would be a natural progression of the ECHR. I disagree with that completely: it is an example of how risible an argument can become when it is over-egged.
What should we say to people who think we are over-hyping this issue when we say that rapists, paedophiles and murderers will get the vote? I looked up three
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examples of people who have been imprisoned for less than four years. Are we going to give the vote to Corey Smith, aged 19? He was sentenced to just under four years for threatening to stab commuters on the Central line in a three-week crime wave in December. Should we give the vote to the Mazambi family, three of whom were convicted for less than four years for stealing £500,000 from Comic Relief? That money should have gone to good causes. What about the motoring case of Jonathan Francis McGonagle, aged 23? He was sentenced to less than four years for killing a 25-year-old pedestrian while being drunk in charge of a car. Are they the type of people who should be given the vote?
Simon Hughes: If I make a speech today, I am not going to argue for a blanket right to vote for prisoners, but what does the hon. Gentleman say about the fact that in most other countries that subscribe to the Council of Europe the same view is not taken and the right to vote is given to some prisoners? What is the difference between the British culture and the rest of Europe that means that people just a few miles away have such very different views?
Mr McCann: Because we are different. Northern Europeans' view of life can be somewhat different to that of southern Europeans. They are entitled to their point of view, as are we; as Members of this House, we are entitled to take decisions on these matters. I dismiss the right hon. Gentleman's point because this is about interpreting the European convention on human rights and how it is incorporated into UK law.
I was mindful of the words of Louis D. Brandeis, who was an associate justice of the Supreme Court in the United States of America. That gentleman said:
"If we desire respect for the law, we must first make the law respectable."
That is an important point, which we should remember.
In my opinion, laws that command the support of Members of the House are being manipulated in unacceptable ways. It is perverse to argue that those who break our laws, and who have been incarcerated for doing so, should be given the right to vote, and there is a burden of responsibility for Members in this House to speak out. I have done so today and I will be backing the motion.
2.28 pm
Mrs Anne Main (St Albans) (Con): I am pleased to be able to say that I support the motion. I am disappointed that my amendment was not selected, because several hon. Members have raised the spectre of what this step will cost, and we cannot have that elephant in the room. We cannot grandstand today or make large speeches and not accept that someone, somewhere is looking at the detail of what is said and seeing whether they can bring us to heel with threats. Hanging over us is the fact that prisoners around the country will be studying what is said and queuing up to test the strength of our resolution.
Once somebody has been convicted of a crime so serious that they are jailed-not just any crime-they go to prison and their voting right is suspended. It is not removed; it is suspended until it is considered right for them to leave jail. If we pick an arbitrary figure of one,
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two or three years, or certain categories of prisoner, it is my absolute belief that people will test the reasonableness of that decision. That is a deeply unsettling thought. The litigation will not stop because we have decided to draw the line in the sand at that particular point just because some other countries have done so.
I absolutely concur with the hon. Member for East Kilbride, Strathaven and Lesmahagow (Mr McCann): what other countries choose to do is completely up to them. They have found the level of reasonableness that is acceptable to them and to their population, and to the constituents who voted for them to make those decisions. We are here to represent our constituents. I am not a lawyer; I do not know the legalese, but it depresses me profoundly when I hear that we, a sovereign Parliament, are looking for wriggle room. Why are we looking for wriggle room? We should be able to say that this House's view is that we do not believe that anyone who is convicted of a crime so serious that they are going to jail can then exercise the right to vote.
In case there is a question whether we should be making that decision, I would like to read a quote that appeared yesterday on the Prison Reform Trust website. Juliet Lyon advocates:
"Instead of listening to MPs...the coalition government should listen to the advice of experienced prison governors and officials, past and present bishops to prisons and chief inspectors, electoral commissioners, legal and constitutional experts and most other European governments."
I say no. The people whom the coalition Government should listen to are the elected Members of this House, who serve thousands and thousands of law-abiding citizens, most of whom-not all, because I believe Liberal Democrats would argue to the contrary-find it repugnant that the Mr Hirsts of this world can believe, as he says, that the decision is
"going to be a great leap forward once the prisoners get the vote. They will start voicing their opinion and they'll start getting changes that they deserve, whereas before they were getting kicked and they're last in the queue when things were being dished out. But now they'll be on an equal footing to everybody else because their vote counts."
No, they are not on an equal footing. They have lost many of their liberties as a result of being in jail, and this right is something that they should also lose.
Simon Hughes: I have listened to my constituents for 27 years. I am quite clear that the majority would be in favour of restoring the death penalty. I do not accept that view. We do not have to accept the view of the majority. There is a perfectly reasonable view that, actually, the minority are sometimes right.
Mrs Main: And I respect the right hon. Gentleman for his own judgment on that matter, but we are talking today not about getting rid of someone's life but about suspending their voting rights while they are incarcerated at Her Majesty's pleasure, because 12 good men and true-and women-decided that their crime was sufficiently bad, and the judge agreed with them, to send them to jail. Bringing the argument about the death penalty into this debate does not help us one jot.
We should be saying, as part of the motion, that if the crime is so serious that someone is sentenced to jail, that is the benchmark. Other countries may have set a benchmark of a year, two years or three years, but our benchmark is perfectly just and reasonable.
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If we leave this elephant in the room, leading to compensation, costs and judgments against us, costing our taxpayers money, we will be treading a path that most of our constituents would find incomprehensible; and if today we cannot debate that amendment because it was not selected, I propose that it be brought back as a motion before the House. I took comfort from the Attorney-General when he said he hoped there would be further debates on the subject, and I think that is a crucial debate. We should vote today in the certain knowledge that the will of House is that we do not extend voting rights to prisoners who are incarcerated, and in the next debate we must make it clear that we do not believe they should be compensated for that loss at all.
2.34 pm
Naomi Long (Belfast East) (Alliance): I apologise for the fact that immediately after my contribution I will have to leave the Chamber owing to circumstances beyond my control.
Before I begin, I am sure that hon. Members will wish to join me in expressing their condolences to the families of those who today lost their lives in a plane crash on a flight from my constituency in East Belfast to Cork. I know that hon. Members may have heard the news and will want to extend their condolences to the families affected and their best wishes to those who have survived that crash.
Mr Nigel Dodds (Belfast North) (DUP): I join the hon. Lady in those expressions of sympathy. It was a matter that I raised at business questions this morning, and Members from Northern Ireland sympathise with her and her constituents at this time. It has been a grievous loss which is felt deeply across the Province.
Naomi Long: I thank the right hon. Gentleman for his words of condolence, and I am sure that the people involved will appreciate them very much.
In the short time available, I want to touch briefly on two issues, namely the effect of the blanket ban and the Government's preferred option for change, which has been outlined. I share many of the concerns expressed about the idea of extending the right to vote to prisoners, which, I concede, is counter-intuitive. This debate has to be considered and balanced if it is to meet the requirements of the European Court of Human Rights, and, most importantly, to reach a just and reasonable position on the matter. Essentially we need to consider the rationale for removing the right to vote in a blanket ban and what purpose that serves. While gut instinct may tell us one thing, the rationale for it does not stand up to scrutiny.
Prison serves three purposes, the first and most important of which is to protect the public. Therefore, I agree with the right hon. Member for Haltemprice and Howden (Mr Davis) that it follows that those in prison ought to be those who have committed serious offences, although that is not always the case. It is also important that it is about punishment for the offence that has been committed. However, Members who have spoken in favour of retaining a blanket ban have themselves questioned whether it is effective, either as a punishment, given that few prisoners actually want to exercise the right to vote, or as a deterrent for future criminals.
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The third aspect of prison is to rehabilitate offenders so that they can effectively rejoin society at the end of their prison sentence and make a positive contribution. There is an argument that by re-engaging prisoners in civic responsibility in the latter parts of their sentences in particular, it is possible to establish more positive behaviours, which may then follow them into wider society on their release. Voting in certain circumstances may play a role in that. We have international treaty obligations, which have been outlined in some detail.
I would prefer any changes to UK law that introduce limited voting rights for prisoners to be based on length of sentence rather than left to the discretion of the individual judges and the courts. The Government proposal to allow voting for sentences of four years or less seems an overly generous response and not necessarily more proportionate and considered than a blanket ban. A preferable option, bearing in mind the rehabilitation argument, may be to limit the right of voting to prisoners serving sentences of one year or less, and to reintroduce the right to vote in the final year of a longer sentence as part of a wider programme of reintegration and rehabilitation. That may be seen as a more considered and more positive response.
Prisoner voting is a reserved matter. However, justice is devolved in Northern Ireland, so decisions taken in Westminster will have an impact on the devolved Administration, who will be responsible for implementing it directly. It is therefore critical that the Government consult fully with the devolved Administrations about their approach, and to listen to their concerns and their input as they take it forward.
It is important that we have had the opportunity to discuss the subject, and I hope that it will not lead simply to the removal of the blanket ban with nothing more considered being put in its place.
2.38 pm
Karen Bradley (Staffordshire Moorlands) (Con): I am grateful for the opportunity to contribute to this important debate. Before the hon. Member for Belfast East (Naomi Long) leaves the Chamber, may I add my sympathies to those already expressed to her and her constituents. I must also congratulate my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) on obtaining the debate, and the Backbench Business Committee on giving time for it. I will try to keep my comments short given how many hon. Members want to contribute, but the fact that so many do is indicative of the interest in the House and throughout the country on this matter.
I was elected to be the voice of my constituents in this place, and many of them have contacted me to express their concern about the matter. They are firmly, to a man and a woman, against any move to give votes to prisoners, and I am wholeheartedly in agreement with them.
Prison should fulfil three functions: protect the public, rehabilitate the prisoner and punish them. This debate is most concerned with its punishment function. Depriving someone of their liberty is in itself the strongest of punishments. There is the obvious physical restriction-the inability to move freely-but there is rightly another aspect to the punishment of a prison sentence: through the actions that have deserved such punishment, prisoners
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set themselves apart from civil society in an important way. The right to vote is an important part of a citizen's rights; it is not something to be taken lightly. In fact, it is an indication of full participation in society. Losing the right to choose a democratic representative is an important part of the punishment, but it is also recognition of the nature of the punishment, which is more than the inability to go where one pleases.
Damian Collins (Folkestone and Hythe) (Con): I am following my hon. Friend's argument closely and totally support it. Does she agree that a legal anomaly that should perhaps be considered in this debate is the fact that prisoners serving a year or less in prison have the right to stand for election to this House, even though they do not have the right to vote?
Karen Bradley: That is a good point, and I am sure that we will come back to it.
Removal of the right to vote does not mean that prisoners are not represented. Indeed, I am sure that every Member of this House has had reason to act for a constituent in prison, by ensuring that appropriate rehabilitative courses are available or that inappropriate conditions are addressed, for example. Therefore, it would be wrong to say that prisoners are not represented. They must be treated fairly, and they are represented here. However, representation is a separate issue from the right to choose the representative. As well as a mark of full participation in society, the right to vote is a hard-fought privilege.
Mr John Redwood (Wokingham) (Con): I agree with my hon. Friend. Does she agree that if it is the will of this House that prisoners should not gain the vote, there must be no question of any payments of compensation?
Karen Bradley: I agree wholeheartedly.
It is not only particularly difficult to accept that the will of Parliament should be challenged on this matter of all things in the way we find it challenged today, it is also a direct insult to those men and women who fought, both politically and physically, to extend the franchise; it is an insult to the principled men who fought for the right to vote in the 19th( )century to grant the right to vote to serious criminals; and it is a terrible insult to suffragettes, such as Emmeline Pankhurst and Emily Wilding Davison, the latter, as Members will know, having hid in this House to make her case.
Lorely Burt: I am following closely the hon. Lady's remarks about our foresisters, the suffragettes. They were imprisoned, so by the logic of her argument she obviously would not like them to have the vote while in prison either.
Karen Bradley: I am not sure that I agree with the hon. Lady's argument. The fact is that the suffragettes were fighting for women's right to vote, something of which she and I are welcome recipients. It would be a great insult to their memory to allow prisoners who have abused women to enjoy the same rights that they suffered to earn.
As Members of this House, we are privileged to represent our constituents and should recognise the value that the electorate place on that right. Giving the
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vote to prisoners who have committed serious offences equates them with the rest of society. Of all people, we should support the importance of the vote. It is no physical or psychological hardship, but a mature part of society's position. While a person is in prison, they should not have the right to vote.
2.43 pm
Yasmin Qureshi (Bolton South East) (Lab): The debate is about whether prisoners should have the right to vote, but it seems to have been turned into an opportunity to bash the European Court of Human Rights, the convention and the Human Rights Act. That is completely unfair, because over the past 30 or 40 years the European Court has been making judgments in cases where it is now accepted that the correct decision was made.
We have heard constant references to Lord Hoffman's opinion. When I was training to be a barrister, I was told that citing dissenting and minority opinions of judges is the last refuge of a desperate advocate. Let me tell the House a little about Lord Hoffman's background, and let us see whether, by the end of that, people still believe that he is the man by whom one should judge whether the European Court is right or wrong.
I shall start with the case of Peter Sutcliffe. His last victim's mother sued the police over the negligence of the investigation that led to her daughter's death, but the House of Lords decided that the police and local authorities could not be sued for negligence in any actions that they took. That principle existed in our courts for 10 years until, eventually, it was challenged, and, believe it or not, it was the European Court in Strasbourg that said, "No, local authorities and public bodies can be responsible and can be sued where there has been a dereliction of duty."
Cases of children who have been abused or not taken into care by local authorities-
Rehman Chishti: Will the hon. Lady give way?
Yasmin Qureshi: No, I will not. I want to finish my speech.
Ben Gummer: Will the hon. Lady give way?
Yasmin Qureshi: I will in a moment.
So, local authorities-
Sir Peter Bottomley (Worthing West) (Con): On a point of order, Mr Deputy Speaker. When I might have tried in the past to go through a history of a Member of the other place, I might have been called to order, so I wonder how much of this background we are going to get.
Yasmin Qureshi rose-
Mr Deputy Speaker (Mr Lindsay Hoyle): Order. I have to rule. Please, take your seat.
Sir Peter Bottomley has made a point of order and is absolutely correct. We should not mention another person in another place in that way, so I am sure that the hon. Lady does not need to continue down that line.
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Yasmin Qureshi: If I may just finish, I should say that nobody now would think that suing a local authority or a public body over the negligence of their actions was wrong. So, using one person to criticise and castigate the whole European convention is plainly not right.
On prisoners' right to vote, I know that some people say that, because the prisoner has committed the offence, all their rights should be taken away, but does that mean that we should go back 100 or 200 years when hard labour was considered to be the right punishment? I am sure that, in those days, when people said that our penal policies should be much more humane and liberal, just as many people said, "Oh no, these people have committed crimes and therefore should be punished to the hilt." As we did not adhere to those policies then, why are we reacting so strongly to this issue now?
I agree with several Members who have said that, in reality, the number of prisoners who exercise the right will probably be quite small. In my years before becoming a Member, I represented and prosecuted many defendants, and I met many people who became prisoners, so I can say, anecdotally, that most of them are unlikely to vote, but the question is one of principle: what do we as a society and as a nation stand for?
Many years ago, we abolished the death penalty, bar for two offences: high treason and burning Her Majesty's shipyard. A few years ago, a Labour Government abolished the death penalty even for those offences. Why did they do that? We had not issued the death penalty to anyone since the '60s, but we abolished it for those two offences because we felt that as a society in the 21(st) century that was the right thing to do. A point of principle was involved, and for me the issue of prisoners' rights is a point of principle, too.
The disfranchisement of sentenced prisoners dates back to the Forfeiture Act 1870, and the origins of the ban are rooted in the notion of civic death: a punishment entailing the withdrawal of citizenship rights. But Dr Selby, the former bishop of Her Majesty's prisons, and now the president of the National Council for Independent Monitoring Boards, states:
"Denying convicted prisoners the right to vote serves no purpose"-
Mr Deputy Speaker (Mr Lindsay Hoyle): Order. Time is up.
2.49 pm
Mr Philip Hollobone (Kettering) (Con): I am not a lawyer, which I think might be helpful in this debate. As we heard earlier, a lot of the lawyers in the Chamber and in Her Majesty's Government are over-complicating this issue, which I believe is quite straightforward. It is the settled view of the British people, through their elected representatives in the British Parliament, that prisoners should not have the right to vote, and it has been that way since 1870. Everyone understands and accepts that-it is one of those issues that, in modern parlance, has cut through. My role here, as an ordinary, humble Back Bencher, is to represent the views of my constituents. My constituents do not want sentenced prisoners to have the right to vote. If I walked down Kettering High street and asked shoppers whether that was a sensible policy, the overwhelming majority would say, "That is absolutely right, and Her Majesty's Government should not be trying to change the law."
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We were told by Her Majesty's Government not so long ago that they had to agree to the judgment of the Court and that the minimum they could do was to limit this right to prisoners sentenced to four years or less. The consequences of that are absolutely appalling. There are 28,770 prisoners serving sentences of less than four years: 5,900 for violence against the person, 1,753 for sexual offences, 2,500 for robbery, more than 4,000 for burglary, and almost 4,500 for drug offences. My constituents in Kettering do not want those people to have the right to vote.
Mr Dodds: The hon. Gentleman is absolutely right. Would not his constituents and mine be equally outraged at the prospect of all those people having the right to sue or receive compensation?
Mr Hollobone: The legal industry has reached a new low in touting for business among convicted felons whereby lawyers will try to get fees for themselves by prosecuting Her Majesty's Government. That is appalling, and it makes the whole issue even more sickening.
Jeremy Corbyn: What does the hon. Gentleman think are the implications of challenging a European Court of Human Rights decision for all the other human rights that we hold dear and wish to see enacted and enforced in all member countries of the Council of Europe?
Mr Hollobone: The hon. Gentleman takes a perfectly reasonable position. I totally disagree with him, but he is a principled man and he makes an important point. The bottom line for me is that there would be less shame in leaving the European convention on human rights than in giving prisoners the vote. He may disagree with that, but it is the line that I would take. What people do in other countries is up to them.
I would like to stay in the convention, but we are dealing with a court that has gone wrong. It is clearly not functioning properly. It has a backlog of tens of thousands of unresolved cases. Many of its so-called judges have no legal training at all; they are probably less qualified than me to make judgments on these things. How has it come about that we, in a sovereign Parliament, have let these decisions be taken by a kangaroo court in Strasbourg, the judgments of which do not enjoy the respect of our constituents?
Angie Bray (Ealing Central and Acton) (Con): Does my hon. Friend agree that it is extraordinary that we should allow judges in Strasbourg to tell us that voting is not a privilege but a right? Try telling the people who fought so long and hard to get the ability to vote in their Governments democratically that it is not a privilege. Privileges can be conferred on those of us who contribute to our communities as law-abiding citizens, but they can also be taken away.
Mr Hollobone: I am most grateful for that very helpful intervention. Those judges in the European Court should reflect on the fact that there would be no human rights in Europe today were it not for the fact that this country stood alone against a tyrannical regime in the second
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world war. It is only because this country was prepared to take on the might of Nazi Germany that there is a European Court.
We have to decide in the Chamber today whether we are going to draw this line across which the Court shall not pass, and we need from Government Front Benchers some guts and backbone to take it on. I have been very disappointed indeed by the stance of Her Majesty's Government since the general election. I know that they want European issues to go away and do not want to trouble the electorate with them, but frankly, the advice we have been given by Her Majesty's Government has not been good enough. There is no way in which they will get the four-year rule through this Chamber in legislation. In opposition, we were told by the Attorney-General:
"The Government must allow a parliamentary debate which gives MPs the opportunity to insist on retaining our existing practise that convicted prisoners can't vote."
In government, he has not delivered that. The only reason we are having this debate is that it was raised by the Backbench Business Committee. We want our Government to show leadership on this issue, to tell the European Court that it has lost its way, and to defend the settled will of the British people that we will not cave in to this kangaroo court and we will not give sentenced prisoners the vote in this country.
2.55 pm
Jeremy Corbyn (Islington North) (Lab): It is a bit strong to describe the European Court of Human Rights as a kangaroo court. That does not do any credit to the debate in this House or to the argument put by the Member who so described it. As a country, we signed up to the European convention on human rights because we wanted to ensure that basic standards of human rights were available to everyone across Europe. We did so because of the horrors of the second world war and the post-war period. It does no credit to anyone in this House to describe the Court in that way, as it is a derivative of a period in the world's history when we tried to develop a commonality of human rights conditions around the world.
Those who say that our House of Commons is a completely sovereign body and can do whatever it wishes are frankly wrong. Every time a country signs up to a treaty in any sphere of influence or activity, it removes some of its own sovereignty. That is the nature of international law and of signing up to treaties. Let us get real. We are part of the Council of Europe and the European convention on human rights, and that has made a big difference to the lives of an awful lot of people across Europe and in this country. We should approach this issue with a degree of rationality and sense about what is meant by human rights.
I remind the House that, in South Africa, prisoners have had the right to vote since the end of apartheid. It is worth thinking about the words of its constitutional court, because it is a country that has been through the most unbelievable turmoil and some of the worst abuses of human rights experienced in the world:
"The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts."
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That is an important element. I have no more truck with people who commit violent crime or other crime than any Member. However, is prisoners having the right to vote not part of a rehabilitative process? Does it not encourage them to reflect on what they have done? Is it not a fundamental right that is enshrined in the European convention on human rights? Perhaps we should consider it as a useful step forward for this country.
I have received various lobbying letters on this issue, as I am sure have other Members. I will quote from two sources that I think are valuable. The first is an article by Frances Crook, who has spent her whole life at the Howard League for Penal Reform. She has done a great deal of very good work, as has that organisation, in encouraging a better prison system and better rehabilitation of prisoners. Her article from The Guardian online states:
"Voting is one way that people exercise their citizenship and prisoners too are citizens. We infantilise prisoners, treating grown up men inside as if they were small children who are not allowed to decide what they wear, what they do or make any contribution to the running of their lives."
She makes, I think, a very strong case for treating prisoners in a more sophisticated way in order to improve them and their lives.
The other quotation is from Thomas Hammarberg, the Council of Europe human rights commissioner. When he came to speak in this building, many MPs came to listen to him and applauded what he said, the attitude he took to human rights and his determination to ensure that the European convention applied throughout Europe. He has said:
"Our forefathers accepted the principle that not only male persons, nobles, and those who owned property or paid taxes should have the right to vote, but everyone-irrespective of their status in society. We may now feel that some of these right-holders do not deserve this possibility, but to exclude them is to undermine a crucial dimension of the very concept of democracy-and human rights."
I urge the House to think carefully about the matter and not to walk away from an important step forward in international law and human rights. We would do so at our peril.
3 pm
Mr David Ruffley (Bury St Edmunds) (Con): The right to life; the right to freedom of expression; the right to assembly; the right not to be tortured; the right not to be treated inhumanely-all English rights for which generations have fought against both tyrants at home and foes abroad. No one in this country, past, present or, I trust, future, has ever voted for prisoners' right to vote. No one has ever voted for article 3 of protocol 1 of the European convention on human rights or the judgment in the Hirst case on giving prisoners that right.
If that so-called right is passed into English law, I believe it will have a profoundly damaging effect on public confidence in the English judicial system, which is meant to be in tune and in sympathy with the instincts of the British people, not an affront to those instincts. If the law is passed, the public will say that giving prisoners the right to vote is nonsense. They will say that the law is an ass, and an ass it is when it so flagrantly and brazenly violates the principles of rationality, decency, fairness and common sense.
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It is completely unacceptable to my constituents, and I am sure to the constituents of all Members here today, that a criminal who has violated law to such an extent that he or she is incarcerated and has their freedom withdrawn for a period of time should be given the right to vote in a democratic election. It would give the British public the impression that the system has more respect for the criminal than for the sensitivities and interests of the victim, which are far too often overlooked. That is what the public think, and it is what I think. It would also give the impression of a Parliament out of touch at best, and at worst the poodle of a European court. I do not consider that defensible.
My hon. Friend the Member for North Dorset (Mr Walter), who is no longer in his place, said that no one elects judges. That is true, but at least in the case of English judges, British public opinion can be, and often is, brought to bear on them when they take decisions that are completely out of tune with it. Take the case of Lord Denning, who in effect was told to resign and retire early when he made what were judged inappropriate comments. Pressure is brought to bear on British judges. [Interruption.] If the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) wants to intervene, he can do so. Is he saying that British public opinion does not weigh on British judges?
Simon Hughes: I cannot remember the exact details, but to my recollection, Lord Denning served as a judge in the highest courts of the land until he was over 80. He was one of the best-regarded judges of the last century, particularly because he was a judge in tune with the common person, not distant from him.
Mr Ruffley: The right hon. Gentleman really does not know his history. If he reads the Denning autobiography, he will discover that Lord Denning was forced out early because he said that the composition of jury trials in south London led to perverse judgments.
Simon Hughes indicated dissent .
Mr Ruffley: There is no point in the right hon. Gentleman shaking his head-he should read the history. I am sure the right hon. Member for Blackburn (Mr Straw) agrees with me.
The fact is that European judges have no accountability to the British public in the way that English judges do, and nor do Strasbourg judges have any accountability to the House. I suggest that the Strasbourg Court is the difficulty. Lord Hoffman-a liberal by any definition-said something very important on that. He said:
"In practice, the Court has not taken the doctrine of the margin of appreciation nearly far enough. It has been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe."
He concluded, and I agree:
"The problem is the Court; and the right of individual petition, which enables the Court to intervene in the details and nuances of the domestic laws of Member States."
In November, I asked the Justice Secretary about the possibility of withdrawing from the European convention on human rights, so that we do repeat these ridiculous exercises in which we are asked, for example, to consider
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whether prisoners should have the right to vote. He responded by saying that a proposal to withdraw was not in the coalition agreement-it was settled Conservative party policy for most of the previous Parliament to withdraw from the convention-but he also promised me that a commission would consider drawing up a Bill of Rights and the thorny question of the convention.
I should therefore like to ask the Attorney-General a specific question. Will he give an undertaking that the commission referred to in the coalition agreement will be set up by the end of this year? Will he consider reforms-if not full withdrawal from the convention-to the Court to improve its personnel and the competence of its judges, which is seriously in question? Will such reforms ensure that those judges are told to give wider discretion to English courts when decisions are made on matters affecting English people?
3.7 pm
Steve McCabe (Birmingham, Selly Oak) (Lab): May I first apologise for missing the start of the debate? I was serving on a Public Bill Committee upstairs.
I am not a lawyer. I am just a humble Back Bencher doing his best to represent his constituents in the place where, as I understood it, our laws are determined. I should say at the outset that I am not opposed the human rights agenda or against the Human Rights Act 1998, and I have no desire for us to withdraw from the European convention on human rights. However, I am not at all convinced that the Court in Strasbourg has the authority to intervene in the way that it is seeking to intervene in this matter. I doubt very much that that is what people intended, or thought we were signing up to, when we originally associated ourselves with the convention.
The convention was born as a result of terrible events in Europe in which real human rights issues came to the fore, and we were trying to create fundamental safeguards, such as the right to life, freedom from torture and the right to express one's opinions. Those are different rights than prisoners' right to vote, and it does the former a disservice to associate the two things and to talk about them as if they are the same.
Like one or two other hon. Members, I received a communication from the director of the Prison Reform Trust, who is quite rightly seeking to advance her view. She said in that communication that quite a lot of people who are in favour of rights for prisoners had contacted her, including a number of prison governors. Not a lot of people contacted me to argue for rights for prisoners, but I undertook a consultation in my constituency. Most of those who responded opposed the proposal to give prisoners such rights.
Mr Dodds rose-
Heather Wheeler (South Derbyshire) (Con) rose -
Steve McCabe: I am spoilt for choice. I give way to the hon. Lady.
Heather Wheeler: I am sure that in his many years in the House, the hon. Gentleman has visited prisons, so is he surprised to hear that when I visited a prison in South Derbyshire, I was asked by not one inmate whether I could please give them the vote?
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Steve McCabe: No, I am not surprised to hear that. I do not think that a prisoner has ever contacted me to ask for the right to vote. Like others have said, I think that prison should be there to safeguard the public, that those who go to prison should lose freedoms as a punishment, and that there should be an opportunity for reform.
I want to talk about the people who work in prisons. I do not know whether it is true that prison governors have been contacting the director of the Prison Reform Trust and urging this on her. However, we all need to recognise that there is a problem in our prisons. For me, the people who work in prisons would be better off concentrating on some of the basics. When they have the chance, they should do something about the number of prisoners who cannot read and write, and they should work with people who need help with personal and social skills, and those who could develop some training or work skills. Furthermore, it is utterly absurd that someone can enter prison and have easier access to drugs than on the outside. My advice to people who work in prisons is to associate themselves with those issues and get them right, and if, while doing that, they want to put in place citizenship courses that might include helping people to understand how to vote and participate, I would be in favour of that as well.
As the hon. Member for Bury St Edmunds (Mr Ruffley) indicated, the problem is that the public believe that people such as Mr Hirst are having a laugh at us, which is why they are opposed to this. I do not know where the evidence is-I have not seen any, although I am not saying that it exists-that these prisoners, when they were on the outside and had the opportunity to vote actually exercised that right. I am not clear, therefore, that in the majority of cases it is a right of which they are being deprived. I am one of those who struggle with the idea of police and crime commissioners being elected. I find that slightly absurd.
Someone said earlier that prisoners would be registered at their home addresses. That may be the case, and I hope that it is true, because I think that there is research showing that at least six seats in this Parliament could have changed hands if prisoners had been registered at a prison address. What would happen if they were not on the electoral register at their home address before they went into prison? Again, I have doubts about whether that is the right way forward.
Finally, I want to touch on the issue of compensation. I am sorry that we are not going to vote on the amendment of the hon. Member for St Albans (Mrs Main).
Mr Tom Harris (Glasgow South) (Lab): My hon. Friend might like to know about the revelation in this morning's papers that the odious individual referred to in the debate-Mr Hirst-has seen the light and become a member of the Liberal Democrats.
Steve McCabe: Well, it is Liberal Democrat policy to give votes to prisoners, so I suppose that that makes a certain sort of sense.
We have to make it clear that we are not prepared to allow compensation. However, if these people do manage, with the help of all these wonderful lawyers, to claim compensation, would it be beyond the wit of the House to help their victims and families to claim part of that new-found wealth as part of the compensation
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for the distress that they have suffered? That would be a much better use of our time, the courts' time and taxpayers' money.
3.14 pm
Tom Brake (Carshalton and Wallington) (LD): This afternoon, I feared cutting a rather lonely figure when standing up to argue that we should allow more prisoners to vote. I welcome, therefore, the support of the hon. Members for Islington North (Jeremy Corbyn) and for Belfast East (Naomi Long), theright hon. Member for Rotherham (Mr MacShane), who opened the batting for those supporting voting rights for prisoners, and the hon. Member for Bolton South East (Yasmin Qureshi).
I am arguing in favour of allowing more prisoners to vote, and the purpose of the intervention that I made on the spokesman for the official Opposition, the hon. Member for Rhondda (Chris Bryant), was to highlight the fact that a number of prisoners already do have the right to vote. People who are presenting this as a black-and-white issue, or a new departure, where, for the first time, prisoners are to be given the right to vote, are misleading the public, because we know that a group of prisoners already have the right to vote.
The case that I am making is based on two simple principles. The first is that when the European Court of Human Rights finds that UK law contravenes the European convention on human rights-in other words, that UK law is unlawful-the UK Government should address that illegality. Once we start picking and choosing the laws that we believe should apply and those that we can disregard-the pick-and-mix approach, as the Attorney-General put it-where does it end? The Americans know where it ends: in Guantanamo Bay and Abu Ghraib.
Even if the ruling makes some feel uncomfortable, what about the other rulings that the Court has made? A couple of Members have referred to those, including in the case of S and Marper, in relation to DNA, and the case of Z and others, in relation to child neglect. I would also mention the case of Al-Saadoon and Mufdhi v. the UK Government in March 2010, when our Government were criticised for failing to obtain assurances from the Iraqi authorities that those men would not face the death penalty there.
Jeremy Corbyn: The hon. Gentleman is right about where we would end up with a pick-and-mix solution. I am sure that he is also aware that the case of the Chagos islanders is coming before the ECHR this summer. A decision will come out, and whatever it is, we hope that the Government accept it. If we go down the other road, everything would be open for debate every time there is a Court decision.
Tom Brake: I thank the hon. Gentleman for that intervention. He has put on record what I know to be his long-standing interest in the Chagos islands, and I hope that a positive outcome will be secured there.
The second reason why I am speaking in favour of more prisoners being given the right to vote is that it is the appropriate course of action. Prisoners have committed a crime. Their punishment is to lose their liberty. That is fair and just. What is then gained by seeking to inflict civil death on them? In what way does that benefit the
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victim? Does it increase the chances of rehabilitation? What is the logic behind the ban? We do not remove prisoners' access to health care, nor do we stop them practising their religion, so why should we impose a blanket ban on prisoners' right to vote? Surely we have moved on from the Victorian notion of civil death.
Simon Hughes: Nor do we prevent prisoners from continuing to have obligations outside-for example, in relation to any assets they own or income they receive, on which they have to pay taxes. All the countries where prisoners are allowed the vote have the additional advantage that people seeking election have to go into prisons and understand life from the inside, rather than commenting only from the outside.
Tom Brake: I am sure that my right hon. Friend and many others here have engaged with prisoners, and that he will have found, as I have, that there is a great degree of interest in what is happening outside the prison walls. It is therefore entirely appropriate that we should seek that engagement.
Mr Lilley: I am grateful to my hon. Friend for giving way. The answer to his question about why we take away the vote is that one forfeits the right to help to make the law when one breaks the law.
Tom Brake: I thank the right hon. Gentleman for that intervention, but that is a matter on which we will have to disagree.
Prison serves to protect and punish, but also to rehabilitate. Release from prison is not the point at which prisoners should re-engage with society. We should be encouraging prisoners to re-engage with society while they are still in prison. The way we treat victims says a lot about the society that we strive to be, but the way we treat prisoners also says a lot about the society that we strive to be. I do not want to shut the door on those prisoners who are ready and willing to re-engage with society and sign up to the tenets that underpin it. Anyone who has visited a prison will know that some prisoners are indeed seeking that engagement.
We have heard a lot said about public opinion and the views of constituents in this debate. The right hon. Member for Blackburn (Mr Straw) said in his article today that the "vast majority" of his constituents
"feel strongly about prisoners' votes,"
and that in 32 years as an MP he had never had a letter from a prisoner seeking the right to vote. Can he recall whether he has ever had a letter from a constituent asking for the right to vote to be taken away from prisoners who already have it? I suspect that the answer would be that he has not.
I visited a group of year 11 pupils in a school yesterday. I started the question and answer session with the topic of the right of prisoners to vote. I expected the Q and A to turn quickly to the subject of tuition fees, but it did not. At the end of a full and frank debate, about 50% of the pupils supported the Government's proposals, and only about a third thought that no prisoners should have the right to vote.
Mr Straw: The difference between the people in prison who can vote and those who cannot is very clear and, self-evidently, justified. Prisoners who have not been
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convicted or sentenced to a term of imprisonment are able to continue to vote. No one would argue with that, because those people have not gone beyond the bar at which they would be unable to vote, so I do not understand the hon. Gentleman's point.
Tom Brake: The right hon. Gentleman will know that civil prisoners are also entitled to vote, and have been throughout the process.
Other organisations support the change. As we have heard, the Prison Governors Association supports it. Interestingly, Victim Support, whose representatives I met a couple of weeks ago, is also of the view that prisoners should have the right to vote. I hope that Members will take that on board. I acknowledge that the Government are between a rock and a hard place, and they have not been helped by the quality of the judgments. They are having to clear up yet another mess left by the previous Government, who sat on the issue for six years and achieved precisely nothing during that time. It is now time for this Government to bite the bullet and do the right thing.
3.22 pm
Kate Green (Stretford and Urmston) (Lab): It is a little unnerving to find myself disagreeing with so many right hon. and hon. Members and with a substantial proportion of public opinion, but I firmly believe that we must rescind the ban on a prisoner's right to vote. I have listened to the arguments on the law and the role of the European Court. It has been suggested that the Court is extending its brief and seeking to prevail over the will of this Parliament and stretch the ambit of the convention beyond the fundamental human rights that it was originally set up to address. I see this in a rather different context-namely, as an opportunity to maintain and extend our understanding of human rights over time. There has never been a time when much of the popular will has been directed towards driving up protections and rights for prisoners. That is why it is important that the Court and our belonging to the convention should exert outside pressure to challenge us to go further in the name of social progress.
It has been argued that our standards are already among the highest, and in some respects they are, although not in respect of a prisoner's right to vote. In many other countries, that right is extended either wholesale or on a more generous basis than it is here in the UK. It is absolutely right that we should aspire to the very highest standards in the rights that we afford people. The philosophical importance of convention rights is that they extend protection to minorities, even the undesirable ones that we do not like very much. We unpick and undermine those protections at great risk.
Mr Stewart Jackson (Peterborough) (Con): Does the hon. Lady agree that the House should be able to make a value judgment between a civic right and a human right? Human rights include the right to food, shelter and family life, whereas civic rights include the right to vote. There is a distinction between the two, and surely we can make a value judgment on behalf of our constituents and exercise our right to say that one is not the same as the other.
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Kate Green: My point is that this external pressure is useful, as it repeatedly questions what our understanding of human rights should be. It is too easy for us to get locked into a narrow definition and understanding of those rights that constantly looks to the past. That is what will happen if we simply sit within our own jurisdictional context and fail to look at what is going on in the wider world.
It has also been suggested that the European Court is making some poor-quality decisions. Questions have been raised about the qualifications of some of the judges and their weakness. Points have also been raised about different sentencing systems in different convention countries. Although I absolutely accept that all of that is true, it should not provide a reason on its own to weaken the overall authority of the convention and the institutions in place to police it. The convention may well not be a perfect framework, but as things stand, it offers one of the best protections of human rights that we have.
I strongly agree with the Attorney-General and the hon. Member for Carshalton and Wallington (Tom Brake) that the convention will be weakened if we start to pick and choose which bits of the Court's findings we like or dislike. How can we expect other countries not to pick and choose if we start to do so ourselves? How can we expect prisoners not to pick and choose which laws they do or do not agree with if we do not seek to follow the rule of law?
Several hon. Members rose -
Kate Green: I am running short of time and I know many other Members wish to speak.
It is important to reflect on how to determine the balance when it comes to extending civil rights to those who disregard the laws of the land. That is a valid question which Members have raised. However, when it comes to setting sanctions in our criminal courts, I would start with the sentencing framework, the approach to sentencing and the identification of sentencing objectives that we already have in place in our criminal justice system. Sentencing should be proportionate and relevant; it is not clear that in all cases removing the right to vote would necessarily apply to all crimes.
It is true, as some hon. Members have suggested, that removing the right to vote might address sentencing goals such as punishment and possibly even deterrence, but what about the goals of rehabilitation and reintegrating prisoners into society, as others have mentioned? On that note, let us remember that so many people in our prisons are among the most marginalised and excluded in society before they go to prison, and they are often the most poorly educated, as has rightly been pointed out. I ask the Government to take the opportunity to develop good-quality programmes of prison education to address the range of factors that determine and drive social exclusion. Will Ministers identify how their thinking is developing about providing programmes to address the role and responsibilities of the citizen, as exercising the right to vote could become part of the rehabilitative process?
As I say, I am aware that these are not popular arguments-either in this House or perhaps beyond it-but I believe that there are strong arguments against the current ban. My starting point would be to have a
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right to vote across the piece, but to allow judges to determine where it would be appropriate to remove it and then to justify their decision in open court.
3.28 pm
Rehman Chishti (Gillingham and Rainham) (Con): I start my comments in light of the doctrine of the supremacy of Parliament, as set out in Hood Phillips's "Constitutional and Administrative Law". As paragraph 3.13 clearly states:
"The legislative supremacy of Parliament means that Parliament (The Queen, Lords and Commons in Parliament assembled) can pass law on any topic affecting any persons, and that there are no fundamental laws which Parliament cannot amend or repeal."
Secondly, all our main legal authorities-from Dicey to Coke and Blackstone-assert that Parliament has the right to make or unmake any law whatsoever. Thirdly, no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.
In that light, if the House were to vote to confirm the current legislative provision that prisoners should not have the right to vote, that must surely be respected. Once a document is recognised as an Act of Parliament, no English court can refuse to obey it or question its validity. That is our common law, as established in the case of Manuel v. Attorney-General of 1983. The courts of our land must therefore respect the wishes of Parliament.
Schedule 3 to the Representation of the People Act 1983, as amended by the Representation of the People Act 1985, makes it quite clear that someone convicted and sentenced to imprisonment loses the capacity to vote.
Gareth Johnson (Dartford) (Con): Does my hon. Friend agree that no one is being forced to forfeit their vote? Criminals choose to forfeit their votes when they decide to break the law. All that people need do in order to retain their votes is comply with the law.
Rehman Chishti: My hon. Friend has highlighted the fundamental point that people have rights and responsibilities.
Successive Governments have made plain that when people are convicted and sentenced to imprisonment, they lose the moral authority to vote. In 2003, Baroness Scotland of Asthal clearly stated that those who were convicted and imprisoned would lose that moral authority. The earlier legislation was right then as this legislation is now, and we should respect that.
Parliament's supremacy has been challenged by the European Court of Human Rights. That cannot be right. It cannot be right for judges from developing judiciaries in eastern European countries to challenge the supremacy of our Parliament and our judiciary.
It is ethically and morally wrong to allow prisoners the right to vote. The concept that those who commit a crime must pay the price with their liberty and the withdrawal of certain rights must be correct.
3.31 pm
Mr Tom Harris (Glasgow South) (Lab): I apologise to you, Madam Deputy Speaker, and to the House for my earlier absence and for missing the opening statements. I was making my way back on the Eurostar from Brussels.
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Chris Bryant: Not Strasbourg?
Mr Harris: No, Brussels.
Let me begin with as much of a mea culpa as a humble Back Bencher can offer for the previous Government. It has been said on a number of occasions that Labour should have dealt with this issue over the past six years, and I think that there is some merit and validity in that criticism. However, there may also be some merit in the political strategy of kicking something into the long grass for as long as possible, which seems to have been about the only strategy that the Labour Government had.
Chris Bryant: It was a very good strategy.
Mr Harris: Certainly it was the only strategy that was discussed. I therefore do not want to encourage my colleagues to criticise the Government for the position in which they now find themselves.
I was disappointed that the hon. Member for Carshalton and Wallington (Tom Brake) referred to Guantanamo Bay and Abu Ghraib in connection with prisoners' rights. It does not promote calm and sensible debate to suggest that reinforcing a legal position that this country has enjoyed for hundreds of years puts us on the road to destroying all civil liberties for all prisoners. That is absolutely not what is at stake.
There are two separate issues. Let me deal first with the principle, which relates to public confidence. I cannot bring myself to try to tell my constituents that the legal and penal systems are on their side when we are bending over backwards to give an additional right to people who have of their own free will chosen to commit an imprisonable offence, and have thereby chosen to give up the right to vote. So often we hear our constituents complain that the legal system is on the side of the offender rather than the victim. Whether there is a lot of truth or a little truth in that does not matter as much as the fact that people will perceive in this debate a further chipping away of what they consider to be our standards in relation to supporting the victim and the law-abiding citizen and not supporting the criminal.
Mr Dodds: The hon. Gentleman is absolutely right. Would not implementing the European Court's decision also reinforce the disconnection between ordinary citizens-ordinary people-and Parliament and politics generally? People already believe that we are out of touch to a great extent, and implementing the Court's decision would cement that view.
Mr Harris: I agree with the hon. Gentleman. I am sure that had it not been for the judgment in Europe, the House could have found something more important to discuss this afternoon, although I accept that we must put the issue to bed one way or another.
I believe that it is simply wrong to offer votes to people who have chosen to commit an imprisonable offence. The only upside for those of us sitting on these green Benches is that if they do get the vote at least when we go and canvass them they will almost certainly be in. The argument that giving prisoners the vote will help their rehabilitation is stretching the point to breaking point. Does anyone actually believe that someone sitting in a prison cell who is desperate to get out again will improve their behaviour and do everything that needs
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to be done to lead a respectable life simply on the basis that they are to have the opportunity to vote in council elections next May? That simply does not make any sense. I suspect that there is not a single person currently incarcerated in this country whose rehabilitation will be affected one way or the other by being given the vote.
Lorely Burt rose -
Mr Harris: I am not going to give way.
I am not a lawyer, so much of the process here is beyond me. However, there have been occasions when British judges sitting in British courts have made interpretations of the Human Rights Act 1998, and sometimes they have made bad interpretations and we have had no choice but to go along with that. That is different from what is happening now. A decision has been made in a court in a foreign land, and it would be wrong for this House to bend over backwards and give way to that judgment without putting up a fight.
We have the right to represent our constituents' views. We also have the right to make a stand on a point of principle. I accept that the law may ultimately go against the opinion of the vast majority of the House on this, and we may have no choice but-God help us-to pay compensation to prisoners as well as allowing them the vote. From what I hear, that may well happen and I accept that, but it would be wrong of us to concede a point of principle because people are threatening to sue. We cannot allow law to be made on that basis.
Regardless of where the barrier is set-at one year, or four years-many people will get the vote who do not have the vote at present. If they think they can claim compensation, let us ask the courts this question: is it right to give compensation to a prisoner who, when he was imprisoned, had not bothered to register to vote? Surely if at that point he had no intention of voting, he has not been deprived of the right to vote because he chose to deprive himself of that right before he went into prison by not registering to vote, and therefore he does not deserve a penny in compensation.
3.37 pm
Tony Baldry (Banbury) (Con): The last Labour Government spent five years dithering over this issue. They did nothing. As with so much else, the Labour party left it to the incoming coalition Government to sort out the mess. Therefore, the one thing on which we can all be agreed is that this is an issue on which we need to take no lessons from those on the Opposition Benches. They had five years to sort out this problem while in government and simply failed to do anything.
The European Court of Human Rights has not said that we have an obligation to give every prisoner the vote. What the ECHR did find was that a blanket ban was not proportionate, that
"the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned"
and that
"in sentencing the criminal courts in England and Wales made no reference to disenfranchisement and it was not apparent that there was any direct link between the facts of any individual case and the removal of the right to vote."
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I think we should seek to address those issues. It would be wrong simply to put two fingers up to the Court because we did not like the implications of its judgment.
There is a perfectly straightforward way forward that deals with the ECHR points and meets the collective view of this House that prisoners should lose the right to vote while in detention, because it has always been agreed that if one commits a serious crime, one should lose the right to have a say in how one is governed. The way forward lies in the ECHR's judgment in Hirst, but it also lies in the ECHR's judgments in cases involving other European countries: Frodl v. Austria and Scoppola v. Italy, the No. 3 case. In Frodl, the Court said that
"the sanction of disenfranchisement...should preferably be imposed not by operation of a law but by the decision of a judge following judicial proceedings".
In Scoppola, the Court held
"that a decision on disenfranchisement should be taken by a court and should be duly reasoned."
When a judge sentences an individual to prison the court has to make a number of decisions: on the length of imprisonment; on whether terms for individual offences should run concurrently or consecutively; and on whether part of the sentence should be suspended. Depending on the exact nature of the offence, the court will also have to put its mind to a number of other possible consequential orders.
I see no reason why a judge should not inform the defendant when sentencing that, in addition to their term of imprisonment and as a consequence of their conduct, they would, as part of their punishment, be disfranchised in regional, national and European elections for a specific period of time. As with every other aspect of sentencing, one would expect the Lord Chief Justice, senior judges and the Supreme Court to issue sentencing guidelines. Crown Court judges and magistrates are given sentencing guidelines on every other aspect of sentencing, so I see no reason why it should not be possible to devise effective sentencing guidelines on disfranchisement that start from the general premise that those who go to prison will lose the vote while they are in prison.
Chris Bryant: I am sorry to stop the hon. Gentleman's drift, but one of the problems with that argument is that many of us disagree with judges deciding who gets to vote or does not get to vote. There is another problem, because if we go over to a system where the judges decide, every current prisoner would be granted the vote.
Tony Baldry: I listened to the hon. Gentleman's speech. He raised lots of problems but gave no solutions. This is an exercise in finding what might be a solution. Sentencing guidelines are effective ways of informing judges and telling them what they should do. As we have heard, the English courts have been pretty robust on this issue, so I see no reason why on devising sentencing guidelines we could not put our trust in the English judges to get it right when advising Crown Court judges and others how they should approach the issue of disfranchisement. It would of course be possible for defence counsel at the time of sentencing to make representations on this aspect of a court's potential sentencing powers, as with any other aspect, and for the defendant to be heard before sentence was passed. Not only would it be made
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very clear that there was a link between the facts of the case and the removal of the right to vote, but the courts would very publicly be making it clear that, so far as the UK is concerned, those whose criminal conduct is such that it results in their having been sentenced to an immediate term of imprisonment also risk losing certain rights of citizenship, including the right to vote.
I appreciate that for many hon. Members this debacle appears to be a convenient opportunity to put two fingers up to Europe, two fingers up to human rights and two fingers up to the judges. I simply note that the motion includes the words
"acknowledges the treaty obligations of the UK".
The motion, in rightly acknowledging our treaty obligation but arguing for the retention of a blanket ban, puts the House in the same position that the previous Government put themselves in. That resulted in the Joint Committee on Human Rights observing:
"It is also a matter for regret that the Government should seek views on retaining the current blanket ban, thereby raising expectations that this could be achieved, when in fact, this is the one option explicitly ruled out by the European Court."
Time prevents me from arguing why this House should seek to support human rights, so I simply conclude by saying that increasing judicial review will be a feature of our lives. If this House collectively started to pick and choose which decisions of the Supreme Court we supported and which decisions of the judges we did not support, that would be a very unsatisfactory way forward. What we need to do is not only acknowledge our treaty obligations, but meet them, and we need to do so in a way that meets the concerns of everyone in this House, from the Prime Minister downwards, about having to give the vote to those in prison.
3.44 pm
Mr Peter Lilley (Hitchin and Harpenden) (Con): As I read the judgments in the cases of Hirst, and Greens and M.T., I was struck by the supreme irony of what the European Court of Human Rights was proposing. The judges in that Court clearly surpass even the Red Queen in "Alice's Adventures in Wonderland" in their ability to believe two impossible things before breakfast. On the one hand, they say that the right to influence the laws under which we live by helping to choose the people who make those laws is so important that even criminals should retain it. On the other hand, they say that even the law-abiding people of this country have no right of last resort to decide the laws of their country if they are overridden by the decisions of the European Court of Human Rights. One can believe one or other of those views, but one cannot uphold both views consistently at the same time.
How did we get into this pickle? As we have heard, after the war Lord Kilmuir codified what were seen to be British liberties and rights in the presumption that two things would follow, the first being that enshrining them in the European convention on human rights would bring the advantage of British liberties to
"lesser breeds without the law",
as Kipling had it. Secondly, it was assumed that the convention would have no effect on the people of this country because it enshrined the laws and liberties that we already had so there would be no need to change them. It was assumed that whereas the European Court could overrule courts in other countries with judiciaries
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who did not have experience in human rights or who were open to intimidation or bribery, we did not have that problem so there would never be any conflict between our courts or laws and the Court.
As we know, things have not worked out like that. In becoming a signatory to the convention, we did not just enshrine and encode the liberties that we had, we changed the way in which, and the basis on which, laws were made, and we changed the people who made them. British liberties evolved through Parliament making laws and the courts elaborating on and clarifying them, as well as through common law, but they were always subject to Parliament being able to have the last word and to make the law if it did not agree with what the courts had done. Our liberties did not result from giving courts the right to explicate an abstract list of rights. They were not given a right to strike down, invent or rewrite laws, but that is what we did, without realising it, when we signed up to the convention after the war-and that is what the European Court of Human Rights is empowered to do.
Rights are not absolute. One right must always be balanced against another. The rights to free speech and free expression must be balanced against the right to privacy or the right to our reputation under the laws of libel. That balance, reconciliation and limiting of extremes is essentially a political matter and it has always, in the last resort, been made by a political body-Parliament. We have done that reconciliation if it needed to be done, but it is no longer up to us-we are no longer allowed to do so. Instead, that power to make a political judgment rests with courts, which are not elected and which lack political skills or sensitivities. That is wrong, and that is why the long-term solution is for us to leave the treaty on the European Court, to entrench the convention rights in our law and to leave our courts to interpret them with Parliament having the ultimate right to disagree, as it does, if it wants to.
I have a question for Government Front Benchers. On what basis are we told that we have to sign up to the Court's judgment in the short term because we will face a huge damages claim if we do not? In all the judgments I have read, the Court has explicitly refused to award damages. It has said that the ruling was sufficient justification in itself and that the prisoners did not need any damages. It considered whether exemplary and punitive damages should be imposed, not so much because the prisoners merited it but to force us to concede, and it concluded that it should not do so. The practice direction that goes to the Court says that it considers it
"inappropriate to accept claims for damages with labels such as"-
Madam Deputy Speaker (Dawn Primarolo): Order. I call Claire Perry.
3.49 pm
Claire Perry (Devizes) (Con): Thank you, Madam Deputy Speaker. I did not expect to be called so soon.
I am of course not a lawyer, so I speak, I hope, the language of common sense. I share the concern of my hon. Friend the Member for Meon Valley (George Hollingbery) that the motion conflates two complicated and quite separate issues. One is the question of the
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encroachment of the European Court of Human Rights into matters of British sovereignty and the other is the much more relevant and thorny question of whether any category of prisoner should ever be given the right to vote.
I confess that in preparing for this speech, I was rather torn. I spoke strongly against the first part of the motion about 15 days ago at the Council of Europe in Strasbourg, and the reaction was like sitting on a whoopee cushion in church. Apparently, the Court has never been criticised on the Floor of the Council. It is simply not done. So to stand up and say that we think the Court is encroaching on matters that should properly be taken as part of sovereign concerns was considered to be a small international incident. I was rather proud of that.
However, the point that I made then, and the point I would make today, is that I think there is a real concern-I say this as a non-lawyer-that the Court is encroaching into areas that are not part of its mandate. As we have heard so eloquently expressed today, the Court was set up in 1948 by Churchill and others to guarantee that there would never be another genocide in Europe. We seem to have gone from that to interpretations of the protocol. That protocol on voting is not about prisoner voting but the right to free and fair elections, which can be seen as completely different. So there has been real mission creep. Of course, the award of compensation of €23,000 to a convicted axe murderer suggests to my constituents that the Court has not only had mission creep but is in danger of becoming completely unhinged.
I am a passionate supporter of our rehabilitation agenda. I think it right and proper that we spend Government time and money on breaking the cycle of reoffending in which 65% of prisoners come out of prison and are re-incarcerated within two years, and I can see reasons to make the privilege of voting part of the rehabilitation package. That is not just my view. I have a category C prison in my constituency-Erlestoke prison. My very first political outing was a hustings at the prison, organised by the prisoners, where candidates were quizzed on this very issue. Everybody said, "It is an absolute right. You must have it. It is a human right." I said, "I don't think so. Perhaps this is something that could be part of your rehabilitation-potentially something that is awarded within six months of release." Guess what? The prisoners agreed. They thought that was right and proper, and nobody stood up and demanded their right to vote. By the way, that is also the view of the governor of the prison-that it should be awarded, potentially on release, to certain categories of prisoners.
However, I have great sympathy for the viewpoint advanced by my hon. Friend the Member for Banbury (Tony Baldry). I think these are matters for British judges in British courts. I cannot see why, as has been done for years in France and Germany, these cannot be part of the sentencing decision, or perhaps of the parole decision. That would be a very sensible step forward.
Despite my concerns about the wording of the motion, I think I am going to vote for it, for the following reason. It is important that the House sends a strong political message to the Court. If the Court has never been criticised in the Council, perhaps there has never been a parliamentary vote that pushes back on its
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particular proposals. [Interruption.] The hon. Member for Rhondda (Chris Bryant) says it has been done; I am not aware of it. It is important for us to stand up and say, "Enough is enough. You are crossing boundaries and we need to take proposals forward."
In summary, I suggest to the Government that those proposals should look hard at the idea of the British judiciary making decisions about British prisoners. That, I believe, is the recommendation in the very sound report by the Political and Constitutional Reform Committee. The question of compensation seems insane. If we are forced to pay compensation to any prisoners who have been awarded these decisions up until now, I would ask that some, if not all, of it be paid to the victims' compensation funds or put into the rehabilitation space.
Last but not least, can we please consider the words of Rob Owen, the head of the St Giles Trust, a social organisation which Members on both sides of the House think is doing incredible work? He said to me today that this whole debate is
"a distraction, and...a drain on"
extremely limited justice
"resources that could be far better used"
to
"dramatically reduce reoffending...saving taxpayers millions of pounds and creating thousands"
fewer
"victims of crime."
3.54 pm
Simon Reevell (Dewsbury) (Con): I am pleased that this has not just been an in or out of the European Court of Human Rights debate, because many from all walks of life turn to that Court, whether they are concerned about the DNA database or hunting legislation. Who would criticise Gary McKinnon for taking his case there in the face of the Extradition Act 2003? Who, as a matter of principle, would not cast an eye to Strasbourg if a high-speed train route was being put through their constituency? But if it is not in or out, is it much better to talk about pick and choose? Is it really suggested that we can welcome rulings that we like, and simply ignore those that we do not?
Would we dream of taking that course if it were the House of Lords as was that had found in Hirst's favour, and we were talking about a House of Lords judgment? Or in those circumstances, would the mood be that the Government should get themselves to Strasbourg and try to use the ECHR to overcome that ruling? Do we really suggest that some rights should be regulated by legislation in Parliament, over which there should be no prospect of review in the courts? If so, might we pause and wonder what would be on the list alongside prisoner votes? What if control orders, as were, came back and went on the list? What about challenges to the Extradition Act? I do not believe that prisoners should be allowed to vote, but I am more concerned about the rule of law, because we cannot be law-makers and law-breakers.
Cases such as the Hirst ruling catch the eye, but so do decisions of the UK courts, and there have been too many instances where the ECHR jurisdiction has been necessary. A trip to Sandhurst and the view of the officer cadets on the subject of prisoners' votes was mentioned. We used to have a system of justice that
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basically followed the principle of military justice of "March in the guilty man." We had that system until a man called Findlay, a member of the armed forces, having been turned down by every court in the United Kingdom, went to Strasbourg and won his case. As a result of that, the military justice system was completely overhauled and the previous Government brought in the Armed Forces Act 2006, which, just a few weeks ago, we all ratified so that it continues. Were it not for the ECHR, that system simply would not have changed.
I do not like the Hirst ruling, but I like less the fact that it was ignored for more than five years. On balance, I like even less the idea of picking and choosing when it comes to this nation's legal obligations.
Andrew Bridgen: Is not the crux of the argument that by supporting the motion this afternoon, we are not seeking to extend the powers of this Parliament but resisting the extension of the powers of the Strasbourg court, an unelected European body that has little respect for or makes little acknowledgment of the great and enviable democratic history of this place?
Simon Reevell: I used the phrase "pick and choose", but it comes to the same thing.
We are entitled to moderate and we should, but we should do that within the rule of law. It is clear that four years is not appropriate, because that would see people convicted of serious crimes of violence, serious sexual offences, perhaps even including the offence of rape, and offences of drug distribution being included. We should not allow judges discretion, not because we do not trust them, but because we must have a robust system that will stand a challenge, and doing it in court on guidelines on a case-by-case basis weakens our position.
We should look at the duration of detention, not just the length of sentence. In fact, Mr Hirst, who pleaded guilty to manslaughter and whose plea was accepted because he had mental health problems, had served his tariff sentence and was being detained because he posed a risk as a result of his mental health when he brought his challenge. It is not a matter just of the length of the sentence, but of the time that someone is lawfully detained once the threshold sentence is passed. We should take the very simple step of amending the Limitation Act 1980, so that anybody who receives damages arising from litigation on this subject can have the damages taken away by the victims of their crime. What prevents that at the moment is the time limit that has usually been exceeded before the convicted person is in funds and so the victim is precluded from claiming. It would take half an hour to draft the amendments to the Limitation Act that would solve that problem.
There are too many examples to mention of necessary and welcome ECHR intervention, so we should not be tempted to walk away from that institution. We should make the best that we can of the situation in which we find ourselves-a situation that we on this side of the House inherited. We do not allow our citizens to pick and choose, so we should not seek to pick and choose ourselves.
4 pm
Ben Gummer (Ipswich) (Con): My right hon. Friend the Member for Hitchin and Harpenden (Mr Lilley) got to the heart of the matter when he said that two things were at stake, one of principle and one of politics. I will
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deal first with two matters of principle on which I do not think the House has yet touched. The first has vexed moral and political philosophers for centuries: the difference, and combat, between freedoms and rights.
Many Members have rightly called the House's attention to the thought of rapists and murderers being given the vote and what that would be like for our constituents. I wonder whether I can place a more positive image of voting in the minds of Members: that of the long queues that formed in the first democratic elections in South Africa, or in the elections that followed the fall of socialist regimes in the eastern bloc, and in those only a few weeks ago in southern Sudan when the people there found their independence. Those people were expressing a freedom; for the first time they were expressing their freedom from tyranny.
Voting is an expression of freedom, but it is more than that: it is the constructive act that makes freedom possible. Those who commit crimes deny freedom to others, either by the force of violence or by inhibiting the actions of people and communities through fear. It is a right and proper mode of retribution for a community to deprive such an individual of their freedom, because that is what he or she has done to others. Surely, therefore, it goes against the essence of the retributive punishment being meted out by the state on behalf of the community if the individual is able to participate in that community while in prison. On that simple issue of principle, I cannot understand, despite all the elegant arguments put forward, why prisoners should be granted that most special and precious freedom, which is an expression of the freedom of those in the community.
Lorely Burt: The hon. Gentleman is making a cohesive argument, but I ask him to reflect on what we are doing here. We are not taking away a freedom from someone, but a human right. That is the only difference between us.
Ben Gummer: I thank the hon. Lady for that point, because it brings me to the second matter of principle that I want to talk about, but I do not want to get into the dangerous territory of discussing rights and freedoms. I am trying to explain why I believe that voting is traditionally a freedom in this country, not a right. That is in part why we have got into this mess.
Taking the European Court of Human Rights on its own terms, those Members who have looked at the comments of the dissenting judges will know that they are very telling. The main point of dissent is that protocol 1 of article 3 is not a substantive individual right. It is one that forced contracting states to provide free and fair elections, but the bounds by which the states make those decisions are left to them.
What worries me, as I said earlier, is the encroachment of jurisprudential evolution on the Court's decision making, which is changing the nature of the convention. It is not the convention that is at fault, but the Court. Here we come to the key point, because the reason we have to listen to the Court's judgment, as my hon. Friend the Member for Bury St Edmunds (Mr Ruffley) so rightly pointed out, is that the Wilson Government decided in 1967 to allow petitioning in person to the European Court and for its decisions to hold force of law in this country. That changes entirely our relationship with the convention. The problem is with the Court, not
10 Feb 2011 : Column 557
with the convention, and that is not my point but one that Lord Hoffmann has made with far greater eloquence and force.
There is a subsidiary point, which has been brought up several times in the debate, about the rightness of decisions. The hon. Member for Rhondda (Chris Bryant) is entirely correct that the shameful denial of service by homosexuals in the military was wrong, but the fact that the European Court judged it to be wrong does not make the existence of the Court itself right. It is right that we reflect on the ability of this House to make the right decision at the right time, even if other courts prompt us to do so.
I shall make quickly two other points about the political issues and why we need to face the matter now. First, I yield to no one in my passion for penal reform, rather like my hon. Friend the Member for Devizes (Claire Perry). I am a proud patron of the Longford Trust, and, with the fantastic plans that the Lord Chancellor has laid before the House, we are about to embark on the most significant period of penal reform since the era of Lord Shaftesbury; but, in what will be a remarkable period of reform and release for some of the most vulnerable people in our community, we will lose the public's confidence if we start off on this footing.
Secondly, I have many problems with the European Union and I disagreed with the Lisbon treaty, but the simple fact is that many people-a majority both in this House and on the Government Benches-believe in this country's continued membership of the European Union. This debate makes it impossible to have a clean debate about the European Union, however, because too many people understand the EU and the European Court of Human Rights to be the same thing. For those reasons, in principle and in politics, I shall support the motion.
4.6 pm
Dr Thérèse Coffey (Suffolk Coastal) (Con): It is a privilege, not a right, to participate in this place, and one that I enjoy thanks to the votes of my electorate.
Thomas Docherty (Dunfermline and West Fife) (Lab): Shame!
Dr Coffey: I shall see you later. [ Interruption. ] Sorry, I do not mean "I shall see Madam Deputy Speaker later".
Members have already discussed how today's debate could be portrayed as one of illiberalism versus liberalism, and that is a great shame, because it was Government Members who decided to scrap the DNA database for people who are innocent of crime. That was decided not because of an ECHR ruling, but because it was the right thing to do, so it is a shame when people cite particular examples, because it is this House that makes those decisions, and I am proud of that.
Members have also referred to judgments, and my hon. Friend the Member for Devizes (Claire Perry) talked about how the issue has become an aspect of the debate about what constitutes a free and fair election. In the Frodl case, the comments on that point were that universal suffrage is required, otherwise it
"risks undermining the democratic validity of the legislature thus elected"-
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like this one-
"and the laws it promulgates."
Personally, I just think that they are wrong, but that is an example of the philosophy we are coming up against.
I, like many other Members, am not a lawyer, but I have a strong sense of justice. People commit crimes not because somebody else has told them to do so, but according to their own free will. Other Members have said that that usually deprives other citizens of their freedoms and rights, so there is a conscious decision to commit a crime, and that is why this House is entitled to make a conscious decision to deprive people who commit criminal offences and are sent to prison of their opportunity to vote in elections.
The 2005 Hirst judgment was a majority verdict, but not one that would pass in a court of law here: a vote of 12 to five means that we are in the situation we are in today. There was a lot of discussion in the judgment about whether this House had had the chance to debate whether depriving somebody of their opportunity to vote is just or proportionate in the light of 21st century standards. That issue has received limited attention today, but the key points about freedom of choice and depriving others of such freedoms have been made.
Members have also cited examples. The hon. Members for East Kilbride, Strathaven and Lesmahagow (Mr McCann), for North Antrim (Ian Paisley) and others talked about the sentences that people have received for particular crimes-the people to whom we would risk giving the vote if the original proposal that the Government made in December were to pass. I have used before in this House the example of someone in Barrow-in-Furness who was convicted of a crime-brandishing a knife during an armed robbery-that carried a sentence of less than four years. There are other examples involving people who have committed rape. These things matter to people in the street. When I went into any pub in Suffolk Coastal in December, everybody was appalled at the idea of any prisoner serving a criminal sentence having the vote.
I want to bring to the House's attention something that greatly surprised me when I was doing my research on this topic. The AIRE-Advice on Individual Rights in Europe-Centre represented prisoner Frodl from Austria against the Austrian Government at the European Court of Human Rights, and gave a contributing opinion to the 2005 Hirst judgment. It has also given evidence to the Political and Constitutional Reform Committee. I am not saying that the AIRE Centre should not exist, but I was surprised, as other Members may be, by some of the people who contribute to it. It might not be surprising that the Joseph Rowntree Charitable Trust and other charitable trusts provide funding, but I was a little surprised that Comic Relief does so. I was also surprised when I discovered that the Equality and Human Rights Commission, which uses public money, contributes to it, and even more surprised that the European Commission does so. I was most surprised when I found that the Foreign and Commonwealth gives money to this organisation, whose No. 1 priority is to help to represent prisoners in the ECHR. We should look into that use of public money. I hope that the Attorney-General listens to that and acts on it.
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4.11 pm
Thomas Docherty (Dunfermline and West Fife) (Lab): I apologise for not being in the Chamber earlier, as I was in the Armed Forces Bill Committee. That got me thinking that this Government have done nothing to make it easier for our gallant men and women serving overseas to get the vote-I will not repeat the arguments that we have had on the Fixed-term Parliaments Bill-but seem rather keen to help criminals to get the vote. I hope that the Attorney-General will reflect on that.
Mrs Laing: In fact, it was the previous Government who did nothing to help our armed forces to get the vote. Some of us argued from the Opposition Benches, hour after hour, day after day, to try to make the Government do something about it, and eventually, three months before the election, they did.
Thomas Docherty: I have a great deal of time for the hon. Lady, but on this occasion she and I will have to disagree, although I hope she will be agreeing with me next Tuesday and Wednesday as we play ping-pong with the other place.
I have been raising the issue of prisoner voting rights for several months, particularly with reference to the Scottish Parliament elections. It is incredibly disappointing that none of the Scottish nationalists saw fit to grace us with their presence today, given that it is their Government in Scotland who have responsibility for the forthcoming parliamentary and local government elections next year. I raised the matter with the Cabinet Secretary for Justice last year. I do not intend to go through all the correspondence that my colleagues and I have had with him and with ministerial teams on this. However, the situation has been confirmed to me and to my colleague, Richard Baker, who is, for now, the shadow Minister but will, I am sure, become Justice Secretary. The SNP Government have not even bothered to write to the Deputy Prime Minister-who, let us be clear, is behind the move to give prisoners the right to vote-to express the Scottish people's opposition to it.
The Attorney-General indicated dissent.
Thomas Docherty: The Attorney-General shakes his head, but this is a Liberal Democrat policy. I remind him that in 2007 the right hon. Member for Gordon (Malcolm Bruce), who was president of the Scottish Liberal Democrats, urged the then Government to give prisoners voting rights in the Scottish elections. I am delighted that my right hon. Friends resisted that request by Scottish Liberal Democrats, and delighted that today we will again be resisting the pressure from Liberal Democrats to give people who have broken the law the right to vote.
I am deeply concerned by the Government's attitude towards the ongoing test case involving the devolved Parliaments and Assemblies. It is clear from the 2007 case that the European Court is minded to grant prisoners the right to vote in Scottish Parliament elections, because, as my hon. Friend the Member for Rhondda (Chris Bryant) has said repeatedly in this debate and elsewhere, the Scottish Parliament is a primary legislative body. It is difficult to envisage how the Attorney-General, as fleet-footed and talented as he is, will persuade the European Court that the Scottish Parliament is exempt.
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I hope that the Attorney-General, when he is not looking at his BlackBerry, will clarify why he thinks the Scottish Parliament will be exempt from this issue.
My colleague Richard Baker MSP wrote to soft-touch Kenny MacAskill on 10 December last year. As I said, the Scottish Government do not believe that they have any role to play in lobbying the UK Government. That is another stain on the record of the SNP Government, who seem quite happy to pick fights with the UK Government, but will not stand up for what the people of Scotland want.
I think that Members from all parts of the House hold principled views on this issue. Although I fundamentally disagree with the Liberal Democrats on this issue, I respect their stance. I hope that they understand that voting is a right. As a former Prime Minister said, there are rights and there are responsibilities. People who break the law and who commit heinous crimes should not be allowed to vote.
As the Government have yet to clarify what the tariff limit will be if they lose the case, we have to assume that it will still be four years, as was leaked previously. I draw the Attorney-General's attention to one of the problems in Scotland, which is that the Scottish Parliament has its own sentencing policy, its own judiciary and its own tariffs. Under a tariff system, the limit might be set at one year, six months or four years. Crimes that have a certain sentence in England, Wales and Northern Ireland might not have the same sentence in Scotland. I hope that the Government will reflect carefully on what the impact will be on Scotland if they use a tariff system, rather than using specific crimes. I accept that the Liberal Democrats probably do not intend to give paedophiles the vote. However, if the limit was set at four years or less, the disgusting individuals involved in the shocking case of child abuse in the south of England last year would qualify to vote. I am sure that that is not the intention of any party.
I am conscious that other hon. Members wish to speak, and I have said my piece. I will vote tonight for the motion in the names of my right hon. Friend the Member for Blackburn (Mr Straw) and other hon. Members.
4.17 pm
Martin Vickers (Cleethorpes) (Con): It has become a badge of honour to stand up in this debate and say, "I am not a lawyer." The hon. Member for Devizes (Claire Perry) started her speech by saying that she was not a lawyer so she would speak common sense. If I were a lawyer, I am not sure that I would take too kindly to that, but I am sure that she meant it in the best spirit. I am not a lawyer and am more of a kindred spirit with those who have spoken, as I see it, as representatives of their communities.
We have heard many eloquent and learned explanations of the tangle that we find ourselves in as a result of the findings of the Court, and about how its decisions have evolved way beyond what was envisaged by a previous generation of politicians. In the aftermath of world war two and all the horrors of that conflict, politicians could not have foreseen a time when human rights would be referred to by many people in the same breath as health and safety. I seek not to trivialise the debate, but that is what can be heard in any debate on the
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doorstep, in the pub or at the shop. What is meant is that the legislation that covers those issues has become disconnected.
Most Governments, if not all, come to power on a wave of public good will. Despite the current one not having come about in the normal way, they retain significant support from the general public. Like all Governments at various times, however, they have found themselves making a proposal that they know full well flies in the face of public opinion. The electorate store up such follies, as they see them, perpetrated by Governments. They eventually reach a tipping point and say to themselves, "This Government no longer speak for me". We are a long way from that, but the current proposal is a very small step in that direction. We are losing touch with those whom we represent. Hon. Members are elected to this place to articulate the hopes, fears and concerns of the electors.
Andrew Bridgen: Does my hon. Friend agree that we have been assured, and often reassured, in the House that we are a sovereign Parliament? Will he join me in urging all right hon. and hon. Members to act like a sovereign Parliament on this issue, and to represent the views of our constituents and resist those of an unelected European body that is seeking to push itself further into domestic UK affairs?
Martin Vickers: I agree entirely. I, too, thought I was being elected to a sovereign body, but as the weeks go by I am beginning to have more doubts than I had six or eight months ago.
We are here to articulate the concerns of the electorate. On some decisions there is room for doubt, but on this one they are giving us a clear message. In fact, they are agreeing with comments by the Attorney-General himself. I note that in the Westminster Hall debate that took place a few weeks ago, my hon. Friend the Member for Kettering (Mr Hollobone) quoted him-so I am sure it must be correct-as having said:
"The principle that those who are in custody after conviction should not have the opportunity to vote is a perfectly rational one."-[ Official Report, 11 January 2011; Vol. 521, c. 2WH.]
Every member of the public to whom I have spoken would entirely agree with that.
If we go along the route of giving prisoners the vote, we will be acting contrary to the overwhelming views of those we represent, and in an irrational manner. I will support the motion. I do not approve of votes for prisoners, and I certainly do not approve of any form of compensation for them. I know that I speak for virtually 100% of my electorate in saying that.
Henry Smith (Crawley) (Con): Will my hon. Friend give way?
Madam Deputy Speaker (Dawn Primarolo): Order. I think he's finished.
4.22 pm
Nick Boles (Grantham and Stamford) (Con): This has been a very interesting debate, and rather unusual for me. I have to confess that in most debates, I arrive knowing what I think on the subject, sit here waiting for my chance to say what I think, say what I think and
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then vote accordingly. On this subject, which is so complicated, I find that my views have shifted during the debate.
My views on prisoner voting have shifted very slightly. I am still of the view that all people convicted and given a prison sentence should lose their right to vote, but I was much struck and influenced by the comments of my hon. Friend the Member for Devizes (Claire Perry), who suggested that in the last six months of a sentence, as part of the rehabilitative process, the Parole Board or whatever is the right authority might give a person back that right if they were showing signs of becoming a good citizen. I have therefore changed my position. I still believe that all convicted prisoners should lose that right, but I am open to persuasion on the possibility of restoration of the vote in the last six months of a sentence.
Before I came to the debate, I was of the view that if the European Court imposed fines, we should simply refuse to pay them and challenge it to send a gunboat up the Thames to extract the money from my right hon. Friend the Chancellor. I would say good luck to it in that-I have tried to do so for my constituents on several occasions and so far not been very successful. That was my view before, but I was persuaded by my hon. Friend the Member for Dewsbury (Simon Reevell), who is no longer in his place, that we who believe in the rule of law and who want the laws that we pass in this place to be respected cannot allow a precedent to be created whereby it is okay to pick and choose which laws we obey and which judgments we accept. If we believe that the Hirst judgment is intolerable, we should go to the root of the problem and not try to evade the particular case.
Mr Brian Binley (Northampton South) (Con) rose-
Nick Boles: I am sorry. I will not give way because we have very little time.
What is the root of the problem? I have reached the uncomfortable conclusion that the root of the problem is the nature and location of the Court. Good judges are not good judges just because they are qualified-although there have been questions about the qualifications of some ECHR judges-or because they understand the laws of the country and respect the right of the legislature to make them, and that their role is simply to interpret and apply them. Good judges are good because they are products of the society within which those laws are created and to which those laws are applied. Judges earn legitimacy to make judgments, tough as they may be. Because they are part of that society, they understand it-they are part of the warp and weft of it.
My fear is that the Strasbourg Court can never be that. That is why I agreed most with the right hon. Member for Blackburn (Mr Straw) when he described why incorporating the convention into our law and making it subject to the interpretation of the Supreme Court-our Court and our justices sitting not 300 yards from Parliament-was a way of making the convention, which is a fine document, something that the British people would come to respect and even love as part of their fundamental freedoms.
I hope that the debate will be one small step along the way to us saying to the Strasbourg Court: "Back in your box! Your role is to bring to our attention-this Parliament's
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attention-when you believe that our laws are out of kilter with the convention. But that is your role and no further. The specific questions of how the laws that we make apply to individual cases and citizens in this country should be for British judges in a British court." In that way, we would have a law that we could all respect.
4.27 pm
Mr Ian Davidson (Glasgow South West) (Lab/Co-op): I wish to echo the remarks of the hon. Member for Cleethorpes (Martin Vickers), who started off by saying that he was not a lawyer, but I would go further. Not only am I not a lawyer, I have never been a lawyer, and I have no intention of ever becoming a lawyer. As far as I am aware, no one in my family unto the nth generation has ever been a lawyer.
We are in danger of turning this debate, which is about basic, simple questions, into a lawyers' talkfest. There is always in tendency in these circumstances for lawyers to show how clever they are by overcomplicating the basic issues at stake. The essentially simple questions are these: should prisoners be allowed to vote, and who should decide?
On the first question, I am clear that prisoners should not be allowed to vote. That is the view of the vast majority of Labour party members and voters up and down the country-there is no doubt about that. As I indicated earlier, we take the view that prisoners are a sub-set of those who have been found guilty. For that comment I was denounced by my hon. Friend the Member for Rhondda (Chris Bryant) for being too subtle, of which, it must be said, I have not often been accused.
Chris Bryant: I said, "Not too subtle"!
Mr Davidson: The distinction between "Not too subtle" and "Too subtle" is too subtle for me, I must confess.
Our system decides who of the guilty should be sent to prison and who should not. That way of subdividing the guilty is perfectly acceptable to me. Those who are deemed to be prisoners have been found to have broken the civic contract that operates between members of society and the society in which they live. I am therefore clear that the vast majority of our people are hostile to prisoners voting.
The second question is this: who decides? I do not think that this is a judicial decision or a legal matter; it is a political decision about who should decide, and I am clear that we in this country should decide who should vote in our elections, rather than somebody external to this country. I was denounced earlier when I called on the Member for Doncaster and Brussels Berlaymont to speak up for Brussels-
Mr Straw: Rotherham.
Mr Davidson: Rotherham sorry. Again, perhaps I do not know the distinction. When the Member for Rotherham and Brussels Berlaymont, the right hon. Member for Rotherham (Mr MacShane), was sounding off, I said, "Speak up for Brussels." His key response was, "Well, it is not physically or geographically in Brussels"-so presumably all my arguments failed. It is not a question of geography though; it is a question of mindset. There is a Brussels mindset, irrespective of where it is physically
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located, that basically says that European is best and that there is a political elite in Europe that knows better than we do in this country how our country should be run. We have to say, "Up with this we will not put." Enough is enough. In these circumstances, we ought to be saying that we wish to repatriate these powers, if they need to be repatriated, and if it is a question of ceasing or stamping on judicial activism by the European Court, that is what we need to do.
This issue should not be seen in isolation. Only today, in The Scotsman-so it must be true-the headline read: "Euro rule lets 900 accused escape justice. Judgment over human rights leads to ten prosecutions being dropped every day in Scotland." The system in Scotland has done us fine for years, but here we have an example of the EU or its various arms, based in Brussels, Strasbourg or somewhere else-someone external-coming in and telling us how we should run our own affairs. As I said before, we ought to be sending the clear message that, "Up with this we will not put", and that we will reject the influence of the Court as it constantly creeps across the United Kingdom.
4.31 pm
Sir Peter Bottomley (Worthing West) (Con): When someone is convicted of an offence, a number of elements are available to the court in disposing of the sentence. I cannot think of a single objective that is met by withdrawing the right to be registered to vote and to vote. It is clearly not a deterrent; I do not see that it is a punishment; I do not see that it helps rehabilitation; and I do not think that it is much of a penance either. The question is, therefore, why do we do it?
I think that Parliament should decide these issues. It should not be for the Supreme Court across the square or the European Court. I pay tribute to my hon. Friend the Member for Kettering (Mr Hollobone) for securing a debate in Westminster Hall on 11 January on this matter, and I am glad that we are having this debate now. The motion is defective in terms of setting policy, although it is very good for expressing opinion. I can agree with its first elements, but as my amendment-it would replace the last clause from the last semicolon in the motion-states, it would be a good idea to note that nearly
"a third of men have by the age of 30 been convicted of a serious criminal offence for which they could"
be sent to jail for six months or more. Hon. Members who have spoken about the problem of people breaking the law were right to phrase it that way. The question of whether someone is sent to jail as well is an extra issue. If we are going to say that breaking the law means that the right to vote should go, a third of us here would have lost the right to vote at some stage in our lives. Fortunately, however, most courts do not use a sentence of six months or more for offences for which one could be used.
We could split the motion-we might have to return to this point-between its European side, with which I mostly agree, and the question of whether we should maintain the blanket ban, or whether we should either say, as the Government suggest we might, a certain number of years, or, as others have said, a certain period before release. We can debate those issues without trying to put the two together. Although the debate has
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been interesting-having listened to it for four hours, I have probably gained as much as many who have been here the whole time-I believe that we ought to consider the issues separately. By all means, we can talk to the public and the newspapers, and look at the good cartoons in the Daily Mail and The Daily Telegraph, most of which could form the basis of a good speech. However, we ought to return to the question: what is the objective of sentencing policy that makes the withdrawal of the right to vote so important?
I leave the House a question: who has the responsibility to register those who are convicted and sent to jail? If I am already on the electoral register, is there a system for the courts to tell my returning officer to take me off it, or am I just left on? If I have set up a proxy beforehand, would that still work? Those are matters of detail, which are not important today. The important question today is: do we, as the motion says we should, acknowledge
"the treaty obligations of the UK"?
I agree with my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) on that. As for the right hon. Member for Blackburn (Mr Straw), whom I knew before he became middle-aged, he said that it was not the right time to bring the issue up, when the period that was "not the right time" allowed for more than five years of procrastination, with one election followed by another within five years. That was not the strongest argument that he brought forward this afternoon.
Mr Straw: It may not have been strong, but it was true.
Sir Peter Bottomley: In the debate in Westminster Hall on 11 January, I quoted Justice Dennis Challeen. He said-I will précis it-that we want people to be responsible, but we deny them more responsibility; that we want them to think of others, but we put them in situations where they do not. As for using the vote, if people could start saying what kind of society they want to be part of, and if they want to be law-abiding subjects and useful citizens on release, as many do, then it could be part rehabilitation. However, I do not believe that by giving the vote we will suddenly find the reconviction rate dropping by 20 points. That would be ambitious. Those are ambitions that we ought to have-I am glad that tribute has been paid to what the Lord Chancellor is proposing to do to change our penal system to make it work better-but would it not be even better if many fewer people were committing criminal offences for the first time, and if the period in which they did were reduced even faster?
Winston Churchill's speech as Home Secretary from 1910 can be quoted, but that point is on the record, so I will not go into that. What I would say, to those who want to start condemning the Prison Reform Trust or the Howard League, or those such as myself-I have served on the council of both Nacro and Mind, the National Association for Mental Health, and I was chairman of the Children's Society, trying to deal with those at risk of becoming serious and serial criminals-is that we have to recognise that most of the people whom we are talking about are bad, mad or sad, or a combination. However, they are not always that all the time, so the
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sooner we start learning how to get deterrents, prevention, rehabilitation and can convert them to law-abiding citizens, the better.
I hope that we shall have this debate again, but after splitting the issues, so that we can make progress on both.
4.37 pm
Mrs Eleanor Laing (Epping Forest) (Con): My hon. Friend the Member for Worthing West (Sir Peter Bottomley) is right in much of what he says. He does not have a lot of support in the House today, but I agree with him that we ought to have another debate to consider the issues in greater detail and singly.
This issue is far more complex than it at first appears, and certainly more than the Daily Mail and others would have us believe. There is no question of criminals who have been convicted of serious crimes being given the vote as a result of today's debate. The ECHR does not require it, the Government do not propose it and the vast majority of the British people-and, I think, of Members of this place-are firmly against it. The Select Committee on Political and Constitutional Reform took evidence last week, and we published a short report in an attempt to inform the debate. I am pleased that my hon. Friend the Member for Devizes (Claire Perry) mentioned that, and that other Members have said that, after listening to the debate and reading the Committee's report, they have thought about the matter more carefully than before.
The point made by the court in the case of Hirst is that
"there has to be a sufficient and discernible link between the conduct and the nature of the punishment."
As Lord Mackay told the Committee last week,
"if somebody commits a crime of serious violence...one can argue...that is a fundamental attack on the basic human rights of the victim...and, therefore, it is perfectly reasonable, as part of the punishment, that the deprivation of the right to vote should be imposed."
Lorely Burt: As I understand it, the hon. Lady is proceeding on the principle of "an eye for an eye and a tooth for a tooth". Like the hon. Member for Glasgow South West (Mr Davidson), who is no longer in his place, I am not a lawyer, but I thought that British justice had abandoned that principle.
Mrs Laing: I am not saying that at all; the hon. Lady has totally misinterpreted what I have said.
Mr Hirst, who brought the case, helpfully submitted evidence to the Select Committee, in which he said that he
"calls into question the purported authority of the HoC Political and Constitutional Reform Committee to investigate a matter already decided by the highest court in Europe".
Mr Hirst further accused me, as the acting Chairman of that Committee, of ignorance of the law. Okay, I know that it is difficult to admit it this afternoon, but I was once a lawyer. He goes on to threaten:
"Neither the Council of Europe nor I will let the UK off the hook with this one."
Well, it is time that someone stood up to Mr Hirst, given all the taxpayers' money that he has spent on legal aid in bringing this case, which is causing nothing but trouble for the Government, Parliament, our courts and our prisons.
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Henry Smith: My hon. Friend has hit the nail on the head. This is about malice on the part of this individual and about compensation money, which is wholly unacceptable.
Mrs Laing: My hon. Friend is absolutely right.
Mr Hirst killed a woman with an axe. He pleaded guilty to manslaughter on the ground of diminished responsibility, and his guilty plea was accepted on the basis of medical evidence that he was amoral-that is, he had no moral judgment. I would argue strongly that Mr Hirst took away the right to life of the woman he killed, and that he therefore deserves to lose some of his rights. Criminals who have broken the law forfeit some of their rights. I am sorry to disagree with something that my hon. Friend the Member for Ealing Central and Acton (Angie Bray) said earlier. Having a vote is not a privilege; it is a right. However, it is not an absolute right; it is a right with conditions attached, and this Parliament can attach those conditions.
I will vote for the motion before us today, but I also say to the Government that there is a way through this problem. We in this Parliament can adhere to our British principle that the loss of the right to vote is part of the punishment for those who commit a serious crime while at the same time fulfilling our obligations to the rule of law under the European convention, which the UK drafted in the first place. We can do that by drawing a distinction between different crimes, and by introducing some judicial discretion in sentencing, based on legislation. That would mean that we would no longer have a blanket ban on prisoners voting, but that only a very small category of prisoners would be able to vote. I do not have time to go into detail this afternoon, but I commend to Ministers and to the House the evidence given to the Select Committee on 1 February. Learned lawyers-very good ones, too-gave evidence on how a way through this could be found.
I also want to say something about public opinion. We have to be careful about this, because public opinion has been whipped up on this subject. There are people in prison who deserve not only retribution but sympathy and help. Edmund Burke said in his speech to the electors of Bristol in 1774:
"Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion."
Lord Mackay of Clashfern told the Select Committee last week that
"the rule of law is very valuable to us. We tend to take it for granted but we need to make sure that we do not let it slip."
It is only by upholding the rule of law that we can play our part in enabling the European Court of Human Rights to hold other countries to account when serious breaches of human rights occur. This afternoon, however, it is our duty to make it clear that this Parliament has at last considered this matter, and that it has a decisive view that, in most circumstances and with few exceptions, a criminal conviction carries with it the loss of the right to vote.
4.44 pm
Mr Brian Binley (Northampton South) (Con): I agree with the hon. Member for Glasgow South (Mr Harris), who is no longer in his place- [Interruption.] Ah, there he is. I agree with many of the words he spoke. I also
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agree with the hon. Member for Glasgow South West (Mr Davidson)who said that we had heard a lot from lawyers. They indeed play an important role-dare I say it, some might say too important a role-in this House. Many of my friends are lawyers, so I would not go there. It is ironic, however, that the problem we are debating today can be placed at the very door of lawyers. I feel that sometimes they ought to take responsibility for such problems; they are the people who we need to solve them, yet it is they who have left us with a massive issue about sovereignty. We need to reflect on it and ensure that this House-and, frankly, not the lawyers-take the decisions. I also find it ironic that constitutionalists are split on this issue. I shall mention just two-because they suit my case. The first authority I shall quote is not considered to be a raging Tory. Indeed-
Chris Bryant: Lord Hoffmann.
Mr Binley: Yes, it is Lord Hoffmann, who said that it was
"not proper for a European supranational court to intervene in matters on which member states... have not surrendered their sovereign powers."
I could go on and mention Dr Michael Pinto-Duschinsky, who said:
"International institutions which are set up by everyone become in practice answerable to no one".
We should take note of what those wise men said. Indeed, we should take note of the many who argue that article 3 of protocol 1 does not constitute a universal right. Therein lies another legal argument for our lawyers to get stuck into.
I want to use my time to speak not about the voice of the law, but about the voice of the people I represent. That is what I think this House should primarily be about. Our constituents deserve to have their views heard, and I have taken much trouble to try to ascertain them. They agree with the sentiments I expressed in the Council of Europe only two weeks ago when I said that many Britons hold the view that restricting the vote of those who freely choose to place themselves outside the rule of law for their own personal gratification, gain or ambition is not a denial of human rights, but a choice those people make. That is simple stuff, not wrapped up in legal language, but we need to take note of it. My constituents also tell me that they are sick to death of the opportunist claims made for compensation, but they are especially sickened by the claim made by the racist John Hirst, who murdered his landlady with an axe. He does not deserve compensation, they tell me, and they do not believe that he cares about the vote either. What he does care about is the money he might get, which is another truth that we need to face up to.
The judgment of people in my constituency is thus quite clear. They say that they do not want prisoners to have the vote. They want to ensure that there is a price for prisoners to pay-a price to pay for those who place themselves of their own free will and volition outside the law. That, with respect, is my answer to my hon. Friend the Member for Worthing West (Sir Peter Bottomley). That matter needs to be taken into account too.
In the time left to me, I want to urge the Minister and the Prime Minister to recognise the dangers of such a judgment, not only for the European Court of Human
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Rights but for the whole concept of the European Union. European institutions continue to enlarge their own areas of decision making at the expense of sovereign Parliaments. If that continues, the institutions themselves will be at risk. The Government need to recognise that fact; more importantly, so do the European institutions. As we saw in eastern Europe and as we are seeing in north African states such as Egypt and in states all over the world, the people will be listened to in the end. That needs to be taken into account both by this Government and by the wider European institutions; they would do well to take heed of that.
4.49 pm
Anna Soubry (Broxtowe) (Con): I am delighted to follow my hon. Friend the Member for Northampton South (Mr Binley). I shall begin by taking off my wig and putting on a very hard hat, because I am another of the lawyers who now have the great pleasure of being in this place.
I will not support the motion if a vote is called, not because I believe for a moment that prisoners should have the right to vote, but because I consider the motion to be a bit of a dog's dinner. I commend the speech of the Attorney-General, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). I also agree with my hon. Friend the Member for Worthing West (Sir Peter Bottomley) that the House should debate the subject again properly, because this dog's dinner confuses a number of issues. As I have said, I do not think that prisoners should have the right to vote, but the subject does not excite me a great deal, although I accept much of what has been said. The Attorney-General made clear his view that it was important for us to debate the issue of prisoners and voting, and to present our opinions on the matter as a Parliament because they might prove useful in another place.
Let me throw this into the mix, for what it is worth. There is no blanket ban at present, as we know. As for whether we should introduce a further restriction, let me say-I have said it before, but I will say it again-that in all the 16 years or so during which I was a barrister in the criminal division, none of my clients who received a custodial sentence ever said to me, "It is an outrage: I have now lost my right to vote." They said many other things, mostly rather derogatory things about my pleas in mitigation and the like, but that was not one of their complaints.
Please, let us not allow our judges to decide whether someone should retain or lose the right to vote. Indeed, let us not place that burden on them. To put it bluntly, judges have enough to do, and have enough of what is often nonsense to read out. I do not think that it is their role to make such a decision. I think that, in a sense, we would abdicate our responsibility if we gave it to them. We can imagine the nightmare that would result: a draftsman would have to specify the circumstances in which a person should be given the right to vote and those in which that right should be taken away, and then someone would appeal against that. It is a bad idea.
I also urge the Government not to prescribe a particular period. I know why a period of four years has been floated-I will not bore all the non-lawyers about the history of that, and why it has now been removed-but
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I think it would be a bad idea to specify two years, three years or four years. I know of cases in which paedophiles have received custodial sentences of less than four years; I know of violent offenders who have received custodial sentences of less than four years, and whose period on licence has been extended because the court has found them to be dangerous. There is also the problem that arises when people have been found to be dangerous and have received what is effectively a life sentence because of the nature of their crimes, but the actual period for which they must serve before being considered for parole is well under four years.
I realise that that sounds technical, but these are really important matters. We could end up with a very peculiar state of affairs. Someone who clearly should not have the right to vote because he is dangerous and has committed a truly terrible offence such as a rape, or an offence of wounding with intent under section 18 of the Offences Against the Person Act 1861, might serve a sentence of less than four years. That is one of my reasons for urging caution against a prescriptive figure.
I suggest that when we have considered the matter and returned to the debate, we should consider an idea which, although I wish it were mine, actually belongs to my hon. Friend the Member for South Swindon (Mr Buckland). As you might imagine, Mr Speaker, he and I have discussed the matter at length, over, obviously, just a couple of pints of lemonade. My hon. Friend's idea, which I consider very worthy, is that anyone who is given a custodial sentence in the Crown court should lose the right to vote. If an either-way offence is involved, a person takes a risk by opting for trial or a committal for sentence, but if they end up in the Crown court, it is already clear that a serious offence is involved. I think that an admirable way of solving the problem would be to specify that someone who receives a custodial sentence in the Crown court should lose the right to vote.
4.54 pm
Mr Richard Shepherd (Aldridge-Brownhills) (Con): First, I wish to express my gratitude that both Law Officers, the Attorney-General and the Solicitor-General, are present for this debate. Secondly, I want to commend my hon. Friend the Member for Ipswich (Ben Gummer) on making such a remarkable speech. His exposition of why prisoners lose the vote in this country was highly effective and eloquent, and what he said is consonant with the will and view of the people of this country.
We in this House too often forget how certain measures were introduced. I was surprised, however, that the hon. Member for Rhondda (Chris Bryant) had forgotten that the measure under discussion was a Labour measure, introduced by Attlee's Government. I will give the hon. Gentleman the dates, just to encourage him a little. In 1948, Germany was divided, and Europe was fighting to maintain democracy and its values in the west. Out of that came the Council of Europe. In May 1949, the statute of the Council of Europe was signed in London, and it included an emphasis on human rights. The Cabinet agreed to the convention on 24 October 1950, and it was signed on 4 November 1950 and ratified on 8 March 1951. The Labour Government did that because of the state of democracy in Europe, as many Europeans felt that would be a bulwark against Soviet hegemony in Europe.
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Chris Bryant: The hon. Gentleman is right that it happened under a Labour Government, but it happened with the full support of the Conservative Opposition. Indeed, that is why the Labour Government supported David Maxwell Fyfe's appointment to the chairmanship of the key committee-the legal committee-in the Council of Europe that drafted the original version of the convention. That happened while there was still a Labour Government.
Mr Shepherd: The hon. Gentleman should also remember that Lord Jowett and the Labour Cabinet were greatly anxious about another court in the English legal system. The convention was therefore very tightly drawn.
Robert Halfon: Will my hon. Friend give way?
Mr Shepherd: No, as I have only three minutes and 49 seconds left.
Moving forward in time, the Hirst case caused a great deal of anxiety in this country. I do not think it the most important case, but we are using it as the means by which we ask questions about the nature of, and what has happened to, the European Court of Human Rights. I think Tyrer v. the UK is more important, because something foreign was then extended to our British legal system: the notion that the Court's role was to use the law as a living instrument. That is in direct conflict with our common law tradition, and no one in this Parliament or this country signed up to such an important agreement. That is why we are in trouble, and that is what lay behind Lord Hoffmann's elegant and eloquent introduction to the policy review argument of Professor Pinto-Duschinsky.
At the heart of this matter, we have to grapple with a profound point. I heard my good friend the former Lord Chancellor, Foreign Secretary, Home Secretary et al, the right hon. Member for Blackburn (Mr Straw), say that their claim was that we were bringing rights home. The truth is not quite that. The statute was brought in, which I support entirely. It is important, because there could be tyranny; one vote could have given us 90 days of imprisonment without charge. Fortunately, that was defeated by this House, but that episode shows how thin our liberties lie. The question, therefore, is how do we entrench them? That was the purpose of the very subtle piece of legislation called the Human Rights Act 1998.
I believe these matters should be brought home. I think our common law judges can define the points and do that work, but there can be no entrenchment of that. That has always been the problem with the British constitution; we cannot entrench that which is good, because another Parliament can do away with it or a simple majority in this House of Commons can undermine it.
I cited one such great case-that of 90 days without charge-which was put forward as a serious proposition by a democracy and a land that believes in the rule of law. I would therefore like to give this task entirely to the British judges. That is what I see as the remedy to this situation: we bring the law back and it is decided here. We support and salute the endeavours of the Council of Europe, but this Court is a shambles as currently constructed and in the way in which it discharges its duty. I support the motion, for the reasons first
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argued so eloquently by my hon. Friend the Member for Ipswich (Ben Gummer), and in the underlying struggle to maintain the common law in this country.
5 pm
Gordon Henderson (Sittingbourne and Sheppey) (Con): Unlike my hon. Friend the Member for Broxtowe (Anna Soubry), I support the motion. I do so because it is unacceptable that unelected European judges think that they can tell elected Members of this British Parliament how we should treat British criminals who break British laws. I am sure that the vast majority of people in Britain find quite unpalatable the idea that we should allow the vote to prisoners convicted of such serious crimes as murder, rape and paedophilia-certainly the overwhelming majority of people in my constituency share that view.
We must remember that prisoners are incarcerated in secure prisons because they are considered to be a danger to the public and that they are in prison as punishment for their crimes. That punishment should include not only the loss of freedom, but the loss of certain rights enjoyed by law-abiding citizens. One such right is the ability to vote in elections, and I very much hope that right hon. and hon. Members on both sides of the House vote for the motion in large numbers. Doing so will make it very clear to the European Court of Human Rights that if a British citizen commits a crime serious enough to warrant incarceration in prison, that person will lose not only his or her freedom, but the privilege of voting in elections during their incarceration.
However, despite my passionate opposition to prisoners having the vote, I recognise the difficulty faced by the Government. It is clear that Ministers do not want to give votes to prisoners, but they feel obliged to abide by the ECHR ruling. A number of suggestions have been made as to how the Government could solve their dilemma and I wish to add my two-penn'orth. First, let us consider what we hope to achieve when we put people in prison.
Mark Reckless (Rochester and Strood) (Con): Does my hon. Friend agree that this House may assist the Government to get out of this dilemma by passing this motion, and that may set a positive precedent for dealing with the European Union and similar issues? If the Government do not succeed in getting agreement to reduce the EU budget, for example, this House should pass a motion resolving to do so, notwithstanding the European Communities Act 1972.
Gordon Henderson: It would be very odd if I did not agree with my hon. Friend.
The first reason for putting people in prison is to punish them, but there is a second reason, which has been mentioned by a number of hon. Members, including my hon. Friends the Members for Devizes (Claire Perry) and for Grantham and Stamford (Nick Boles), who are not in their places. That second reason is to rehabilitate people, so that after they are released they are not subsequently locked up again. Although I totally oppose allowing prisoners to vote while they are incarcerated in a secure prison, there is an argument for allowing them to vote once they are transferred to an open prison as part of their release back into society. If Ministers want a way out of the fix in which they find themselves, they
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should accept the motion, as I shall, as a starting point. However, in addition to the categories of prisoner for whom the vote is currently allowed, which are set out in the motion, they should add a category of all prisoners incarcerated in an open prison, including those transferred from a secure prison as part of their release programme.
Such an approach would have a number of advantages. First, it would obey the European Court of Human Rights' ruling by giving the vote to the majority of prisoners at some stage in their sentence. Secondly, it would allow the vote to those convicted of relatively minor offences and sent to open prison. Thirdly, it would address the arguments of those who claim that giving the vote to prisoners would encourage them to become useful members of society-which it does. Fourthly, it would deny the vote to those convicted of the most heinous crimes until they had served most of their sentence and were about to be released back into the community, when they would get the vote anyway.
I do not want prisoners to have the vote under any circumstances, but I understand the problem that the Government face and I ask them, if they feel forced to give any prisoner the vote, to consider what I believe would be a reasonable compromise.
5.5 pm
Stephen Phillips (Sleaford and North Hykeham) (Con): Notwithstanding the comments of my hon. Friends the Members for Worthing West (Sir Peter Bottomley) and for Broxtowe (Anna Soubry), the motion on the Order Paper in my name and that of right hon. and hon. Members on both sides of the House has been carefully crafted in light of the judgments delivered by the Grand Chamber in the Hirst case. For that reason, and given the limit on Back-Bench contributions, I shall confine my remarks to demonstrating why the motion is correct and why it is important that it receives support from hon. Members on both sides of the House.
The previous Government's decision to refer the Hirst matter to the Grand Chamber is something that we have to live with because of the rule of law. We have to respect the judgment that the Court handed down, whether we agree with it or not, but it is important to bear in mind that the decision in Hirst was far from unanimous. A powerful dissent was delivered by the president of the Court, in which he was joined by four other judges. I add that Judge Costa, who is now the president of the Court, also delivered a dissenting opinion. Those dissenting opinions correctly recognised the importance of the Court not interfering or being seen to interfere in domestic political issues.
Jeremy Corbyn: I am listening intently to the hon. Gentleman. Does he recognise that those opinions dissented from the majority opinion of the Court? If we are to support the whole concept of the European convention on human rights and the Court, we have to accept its judgment.
Stephen Phillips: I am grateful for that intervention, but I ask the hon. Gentleman to listen to where I am going rather than to what he has heard so far.
The minority stressed that
"it is essential to bear in mind that the Court is not a legislator and should be careful not to assume legislative functions."
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I make this point, in answer to the hon. Gentleman, because although I accept, as my right hon. and learned Friend the Attorney-General has made clear, that the Government are bound by the judgment in the Hirst case as between themselves and Mr Hirst, in the sense that it is res judicata between them, they are not bound in relation to future cases brought by other litigants. There is every prospect, given the debate that we are having today, that the judgment in Hirst would not be followed by the Grand Chamber in future should it come to consider the matter again. To be clear, if, as I trust will happen, there is a clear demonstration in the House today of the will of the people, through their democratically elected representatives, to maintain the status quo regarding the removal of voting rights from those who are subject to custodial sentences, I fail to see how that could not subsequently be respected by the courts of this country and by the Strasbourg Court should the matter have to be considered again.
As even the majority in Hirst recognised, there is a substantial margin of appreciation in the context of article 3 of the convention, and the fact remains that there is no consensus across Europe as to whether those serving custodial sentences should have their right to vote removed as a consequence of having put themselves outside the law. Indeed, it was notable in the judgment of the majority in the Grand Chamber that significant reliance had to be placed on decisions from Canada and South Africa. The hon. Member for Islington North (Jeremy Corbyn) quoted from the South African case. It is true that Canada and South Africa are both common law countries, but they have significant civil law traditions stemming from French law and Roman-Dutch law respectively.
The margin of appreciation in the context that is being discussed in the House means, or certainly ought to mean, that if the House passes the motion, as I hope it will, and if it decides that it does not believe, in the name of the people of the United Kingdom, that section 3 of the Representation of the People Act 1983 entails any breach of the human rights of the citizens of the United Kingdom, that, to my mind, must be an end of the matter. It will have to be recognised in the courts of this country. It will, I hope, be recognised by the Court in Strasbourg.
Ben Gummer: On that point, if the House expresses this opinion today, and if the Court takes that into account, and given that the article protects the totality of the democracy and not an individual right, will the Court not be subverting the convention itself if it persists along the course of action that it has begun?
Stephen Phillips: Yes, it will. One of the difficulties that the Government face, and which those arguing the case in the Grand Chamber faced, was the previous jurisprudence of the Court, where the article had been misconstrued well beyond its original purpose, to give rise to individual rights that the framers of the convention had never intended should come into being.
If there is a change in the approach of the Strasbourg Court, as there ought to be in light of the motion-assuming that it carries if there is a vote tonight-and if the Strasbourg Court were arrogantly and excessively to continue to seek to appropriate to itself the right to legislate for the people of the United Kingdom, the
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Government and the House would have to look again at the matter. In those circumstances, it would be difficult to see what properly could be done other than to repatriate the right of the United Kingdom to have sole jurisdiction to decide the human rights of its citizens in its domestic courts, as a number of hon. Members have suggested.
For the present, however, what is necessary, and all that is necessary from those on both sides of the debate-from those who support the existence of the jurisdiction of the Strasbourg Court and those who do not, and from those who believe that we ought to be party to the European convention on human rights and those who do not-is that the motion receives support across the House, so that we make clear the position of the people of the United Kingdom through their elected representatives. For those reasons, I commend the motion to the House. I shall vote for it and I urge hon. Members of all parties to lend it their support.
5.12 pm
Priti Patel (Witham) (Con): It is a real pleasure to follow my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) because I, too, support the motion and he has succinctly explained its purpose and outlined the challenges that confront us.
My contribution will be short because a great many views have already been aired. I agreed with many of the earlier speeches. My contribution very much stems from the fact that many of my constituents are outraged by the concept of votes for prisoners. I support the motion for two main reasons. First, we absolutely should maintain this country's long-standing law refusing prisoners the right to vote. Secondly, as I see it and as we have heard, it is fundamentally wrong and undemocratic for unelected and unaccountable judges in Europe to attempt to undermine the sovereignty of this Parliament.
Mr Matthew Offord (Hendon) (Con): Does my hon. Friend agree with me and people in my constituency that there is another reason that many people are unhappy about this debate? That is simply that decisions of the European Court of Human Rights is a further illustration of the fact that some people are keener to promote the rights of perpetrators of crime than those of victims of crime, as has also been shown in today's debate.
Priti Patel: Indeed I do, and I thank my hon. Friend for his contribution. The majority of the public believe that those who are convicted of criminal offences and sent to prison should forfeit their right to vote and not have the same rights as other members of society. I find it extraordinary that we are talking about the rights of convicted criminals-people in prison-rather than the rights of those who are the victims of crime.
The public are also fed up with the fact that the human rights agenda has been used to undermine our judicial process, and we now have the bizarre scenario where we are effectively talking about giving prisoners and convicted criminals more rights. There are also genuine concerns about the capitulation of successive Governments to these unelected judges in Strasbourg who are determined to expand their influence into areas of law that should not be anywhere within their jurisdiction. They are completely encroaching on that territory.
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Robert Halfon: My hon. Friend makes a powerful case. Is she aware that in 2002, Sweden had a problem with an aspect of the convention and withdrew, then later went back into it? Why cannot we do the same on this issue?
Priti Patel: That is a good example. We need to start exercising our rights more vigorously and standing up for Britain and Britain's interests. This is why Parliament and the Government must stand up to the Strasbourg Court. I fundamentally believe that this Parliament should have the final say on this matter.
My constituents constantly make the point that they are outraged. They feel that the rights of criminals, as opposed to the rights of victims, are constantly discussed and put first. I was not sent to the House by the voters of Witham slavishly to nod through laws and accept every diktat that comes from Europe or the Strasbourg Court. I was elected to this House to defend the national interest, to support my constituents and to hold law-makers to account. It would be a great disservice to the British people if we were to say that the authority of this House and this Parliament is now so denuded, so irrelevant, that we are powerless to act, stand up, speak out and do the right thing in this Chamber. This is a democratic and sovereign Parliament, which has done more to promote democracy and the rule of law than any other. We should not be forced to bow down on this issue, and I urge all hon. Members to put Britain and the law-abiding majority of this country first by sending a clear and unequivocal message to Europe by supporting the motion.
5.17 pm
Lorely Burt (Solihull) (LD): I am probably the only Member of the House to have served as a prison officer and an assistant governor in Her Majesty's Prison Service, so I hope that I can throw a little light as well as heat on the debate .
Despite the disparaging comments of the hon. Member for Birmingham, Selly Oak (Steve McCabe), I can tell colleagues that working in a prison is very, very tough. I have been physically assaulted, tricked, verbally abused and just about everything in between, so I would definitely dispute any accusations of being a bleeding-heart liberal and a soft touch. It was a long time ago that I served in the Prison Service, and I hope things are different now, but when I was there prisoners were treated by many staff with contempt. They were regarded as the lowest of the low, and not deserving of the smallest consideration. People who write to me today to tell me how soft prison is do not necessarily understand the nature of the punishment that prisoners undergo.
There has been a lot of discussion about the terrible, heinous things that prisoners have done, and I in no way wish to detract from some of the terrible crimes that have been perpetrated, but I want to put the other side as well. More than half of people who are sentenced receive a sentence of six months or less. Around 70% of people come into prison addicted to class A drugs or alcohol. The offences committed by the women for whom I was responsible at Holloway were often minor, but persistent. They included fencing stolen goods and shoplifting, often to feed a habit. Many prisoners who commit cynical and premeditated offences, but some cherish hopes of returning to society and their families and behaving themselves, if they are given the chance. If
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we want prisoners to leave prison and rejoin society as citizens who will work, pay taxes and become full members of our society, we must wake up to the idea that depriving them of their dignity and identity as well as their liberty is not the way to go about it.
When I was assistant governor of Holloway prison, I was put in charge of a wing of adult prisoners and the young offenders wing, and I can tell hon. Members that those girls had some of the least attractive personalities of any individuals I have ever met. They were disparaged and looked down on by prison officers throughout the jail. However, as part of my training I spent time with the probation service and at a mental hospital, and the frantic and destructive behaviour of some of the girls started to make sense. They had suffered all forms of abuse, many so awful that they would shock even those hon. Members who have dealt with abuse situations. That is the context in which we are working.
When we take away a prisoner's human rights, we deny their humanity. We are telling them that they are worthless and reinforcing their isolation from the world.
Nick de Bois (Enfield North) (Con): I have listened carefully to the hon. Lady and to her last suggestion that we are taking away prisoners' human rights. Are we not simply taking away a civil right, rather than a human right?
Lorely Burt: I believe that it is a human right, as I have said a number of times, and it is categorised as such by the convention. I will give the last word to Juliet Lyon CBE, chief executive of the Prison Reform Trust, who sums it up well:
"Hanging onto a 19th century punishment of civic death is legally and morally wrong. The outdated ban on prisoners voting has no place in a modern prison service, which is about rehabilitation and respect for the rule of law."
Mr Tom Harris: Will the hon. Lady give way?
Lorely Burt: No, I will not give way again. Colleagues, let us move forward today, rather than backward. I will not be supporting the motion.
5.22 pm
Mr Robert Buckland (South Swindon) (Con): We have had an interesting debate and a number of ideas have come forward from both the Front and, most notably, Back Benches. In the spirit of the invitation of the Attorney-General, who made his remarks in the middle of the debate, I think that it is incumbent on us all to come up with constructive suggestions on how we move forward. Before doing so, I want to say that the debate epitomises the age-old tension between the judiciary and the legislature. It is not something we should apologise for; frankly, it is entirely natural.
There are times when the concept that politicians make the laws and judges merely enforce them comes under severe strain, and this is one such occasion. Often, the fault lies here, with politicians, because of poor and unclear drafting of legislation. Judges will often have the difficult task of interpreting unclear provisions-I pray in aid the Criminal Justice Act 2003, for example-and will do their best to clear up the spilt
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milk that we politicians have left them. However, there are times when the hand of judicial activism can be seen. Nowhere is that more true, I am afraid, than in the European Court of Human Rights.
We have heard much about the original conception of fundamental rights and freedoms, and I associate myself with those remarks. What has clearly occurred is a move from a concept of the guardianship of fundamental liberty to one of pettifogging interference with the mechanisms of liberty itself.
Robert Halfon: Will my hon. Friend give way?
Mr Buckland: I will not, because other hon. Members wish to speak, and I do not want to eat into their time.
In this country, the concept of human rights has become associated not with the far-sighted words of Sir Winston Churchill or the careful drafting of Lord Kilmuir, but with the rather grisly spectre of ambulance-chasing lawyers, scuttling around our prisons, encouraging inmates to think not about the right to vote, but about the prospect of compensation. We should all reflect on that; it is a sad reflection of where human rights have sunk to in the public's perception.
We need to return to the concept of basic rights. The right to vote is not in my view a fundamental freedom of itself. It is the expression of a freedom, of a constitutional right, but it is not of itself a fundamental human right. The suffrage is age-restricted, for example; it depends on electoral registration; and it is a mechanism for expressing our freedom, not the very freedom itself. That is where I am afraid the hon. Member for Solihull (Lorely Burt) gets it wrong. There is a distinction to be made, but it is a distinction that the European Court has blurred-and blurred dangerously through its majority decision in the case of Hirst.
I said that the right to vote is an ancillary to freedom, and equally the loss of the right to vote by a prisoner is an ancillary consequence of incarceration. The punishment is the deprivation of the fundamental freedom that is liberty; one consequence is the loss of the right to vote. They go hand in hand, and the eloquent words of my hon. Friend the Member for Ipswich (Ben Gummer) cannot be improved on. Much has been said about the misnomer of a "blanket ban", and that point needs to be reinforced.
I should like to make a suggestion, which I think my hon. Friend the Member for Broxtowe (Anna Soubry) presaged, but whom I forgive. It is an observation based on the majority decision in the Hirst case. The criteria that troubled the majority there were the nature or gravity of the offence and the individual circumstances. We should move away from worrying about the length of the sentence and look at where we deal with the case. We deal with our most serious cases in the Crown court, and there should be a presumption of the loss of the right to vote for all defendants who are dealt with in that higher court.
We could observe the reverse to be true in the lower or magistrates court. I am reluctant to support the concept of judicial discretion, which brings judges into the political sphere and leads to an effective reduction in the loss of the right to vote. For all those reasons, I support the motion.
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5.28 pm
Bob Blackman (Harrow East) (Con): We have had an excellent debate. Indeed, it has shown the House at its best: the opportunity to debate the issues of the day, without being whipped on how we vote at the end.
I come to the debate not as a lawyer but with a background in science and mathematics, and as such as I treat these issues with logic. My starting point is that Parliament sets the rules-it sets the laws. It decides what is a criminal offence and what is not, and what the range of a sentence should be when someone has broken the law and is guilty of such a criminal offence. It is then for the judges to determine, after someone has been found guilty, what sentence they serve, and the current position is clear: if they are imprisoned, they lose their right to vote.
There is a grave danger, however, in our saying to the judges, "You can decide whether someone should be sent to prison, how long they should lose the vote for, and whether it should be three months, six months or whatever." Equally, there is an inherent danger, because judges might have in the back of their minds the fact that, if they sentence someone to two years' imprisonment, that person will lose their vote, but if they imprison them for only one year, that person will keep it. That would leave the judges to make the judgment. That is fundamentally wrong in society, and we should shy away from it.
Stephen Williams (Bristol West) (LD): Is not the solution that judges should have discretion over whether to withhold the right to vote rather than its being part of a sentence?
Bob Blackman: The logic that flows from that is that when judges decide that someone goes to prison, that person should lose their right to vote, full stop, without any slippery slope in the other direction.
Damian Collins: I am not saying that I agree with my hon. Friend, but judges already have a power to decide whether someone can stand for Parliament, because someone who serves more than a year in prison cannot stand for election as a prisoner, but someone who is serving less than a year can stand and be elected to this House.
Bob Blackman: I thank my hon. Friend for that intervention.
I would argue strongly that the Government should not make any proposals that place limitations on the time served before someone has their vote taken away. That is a slippery slope, and we should not allow the judiciary to take that position. We should clearly adopt that position as a House.
Having had this challenge from the Court of Human Rights in Strasbourg, to which we must respond, we have heard in this debate the voice of the House of Commons. I suspect that when we come to vote there will be an overwhelming majority in favour of this motion. The Government could therefore propose very simple legislation saying that anyone convicted of a criminal offence that results in their going to prison loses their right to vote. That will respond to the challenge that the Court of Human Rights has set us. The House of Commons will consider that legislation, as will the
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House of Lords, and it will command respect and endorsement from all parties in the House. That will end this ongoing argument with the Court of Human Rights once and for all, and reassert the sovereignty of this Parliament and its position over the Court of Human Rights.
Why should we not suggest that to the Government? We have heard many ideas from colleagues on the approach that we should take. I ask the Attorney-General and the Government to take note of all the suggestions that we have put as Members of the House of Commons and come forward with simple legislation that we can all endorse and support. That will send a strong message to the people who would subvert our democracy and try to prevent our Parliament from being sovereign. It will tell them that that is our answer, and that it is clear and unambiguous, once and for all. I strongly support the motion.
5.32 pm
Richard Drax (South Dorset) (Con): I have heard the word "rights" used a lot this afternoon, but surely equal weight should be given to the word "responsibilities". If someone behaves irresponsibly-criminally-they should lose those rights. My right hon. and learned Friend the Attorney-General said that he is angry about this issue, and the Prime Minister has been quoted as saying that it makes him feel sick. I suggest a remedy-a constructive one, may I humbly add?-and that is a steely spine and a determination to rid us of all these human rights laws. It beggars belief that we are having to discuss this subject at all. It only reminds us in this House how impotent we really are. Tied to the well-intended European convention on human rights, subjugated by judges and bureaucrats in Europe, and told we may have to pay £100 million to disfranchised prisoners, we are left humiliated in this place.
Preventing prisoners from having the right to vote is a point of principle for us all. They lost it in 1870, and my constituents say that they should not get it back today. I agree with the former Law Lord, Lord Hoffmann, that while democracy and freedom are certainly human rights, the right to vote is a constitutional right and is therefore different. In my view, prisons should punish. I appreciate that moves are afoot for the emphasis to be more on rehabilitation. I implore our Government that that must not be at the expense of justice.
There are two prisons in my constituency, HMP The Verne and the young offenders institution, both of which are on Portland. The Prison Officers Association already believes that prison today is no deterrent. We hear repeatedly of repeat offenders, and why? It is because there is no deterrent. Most law-abiding citizens do not have the rights and privileges that prisoners have. That is what I hear from those who guard today's prisoners.
I understand that the Government are considering pursuing the minimum legal requirements laid down in the European Court of Human Rights ruling. As I understand it, that would mean withdrawing the right to vote from the most serious offenders: those who have been incarcerated for four years or more. With respect, that misses the point entirely. It would be an ill-considered fudge brought upon us by our coalition partners. It was always a Lib Dem promise-never ours. Such a fudge will encourage prisoners to sue the Government. Already,
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we hear that lawyers are circling like vultures, waiting for convicted men and women to make financial gain from this farce.
Sir Peter Bottomley: Would it not be best, therefore, to set the penalty at the cost of a bottle of House of Commons Speaker's whisky, which is £20, and then to limit the legal aid to the sum that could be gained, or the case would be dropped?
Richard Drax: My hon. Friend is much more learned than I am, and he makes an interesting point.
Finally, I shall touch on the mechanics of giving prisoners the vote. How will we do it? Will we canvass prison cells? Will we knock on each door and ask, "What can we do to get you to vote for us?" Might murders and rapists affect the outcome of an election in a marginal seat? It sounds ridiculous and it is ridiculous. It is also completely unworkable. Surely our criminal justice system if for us and us alone.
During the election, we promised a British Bill of Rights that would balance a citizen's rights more carefully with their responsibilities. It is time that we replaced the European convention on human rights. As one of the oldest democracies on Earth, I think we can be trusted to look after our citizens.
Mr Speaker: To wind up this Back Bench-led debate, I call the hon. Member for Esher and Walton (Mr Raab).
5.37 pm
Mr Dominic Raab (Esher and Walton) (Con): Thank you, Mr Speaker. I wish to pay my thanks to the Backbench Business Committee, and to pay tribute to my hon. Friend the Member for Kettering (Mr Hollobone), who initiated an earlier debate on the same subject, which was extremely useful.
It is a privilege to wind up this debate after so many excellent speeches from all parts of the House. There have been insightful contributions on the criminal justice aspect on both sides of the debate: my hon. Friend the Member for Witham (Priti Patel) was on suitably robust form and the hon. Member for Carshalton and Wallington (Tom Brake) made an eloquent contribution on the other side of the argument. We have heard compelling arguments about democratic accountability from my hon. Friends the Members for St Albans (Mrs Main) and for Gillingham and Rainham (Rehman Chishti). There were valuable contributions on the history of the convention from my right hon. Friend the Member for Hitchin and Harpenden (Mr Lilley) and my hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd).
I will start even further back. The House will recall that Alfred the Great was notorious for smiting Vikings, but he was not just a bruiser.
Chris Bryant: The hon. Member for North East Somerset (Jacob Rees-Mogg) can remember. He was there.
Mr Raab: I give way to my hon. Friend.
Jacob Rees-Mogg (North East Somerset) (Con): I thank my hon. Friend for giving way. King Alfred was a good Somerset man who did his duty to rescue us not only from Vikings, but from high taxation.
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Mr Raab: In the year 888, he was translating "The Consolation of Philosophy" from Latin and he asked a basic existential question: are we determined by fate or do we possess free will? He answered in favour of free will. When he translated the Latin word "libertas", he used the word "freedom"-"free" as in free from bondage, and "dom", for which we would now say "deem", meaning "conscious" of being free. Freedom was linked to free will and the basic idea that we take responsibility for our actions. That is how the word "freedom" entered our language in the first place, and it is what today's debate is about.
If a person commits a serious enough crime to be sent to prison, they forfeit the right to vote, along with their liberty, for the limited period of their incarceration. We have come a long way since the year 888, but our tradition of liberty sustains the basic idea that with freedom comes responsibility. When the European convention on human rights was negotiated in 1949, that remained a guiding principle, so when the French proposed including a right to vote it was rejected because the draft contained the words "universal suffrage". The British delegate, Sir Oscar Dowson, a former Home Office legal adviser, stated:
"In no State is the right to vote enjoyed even by citizens without qualifications. The qualifications required differ from State to State...And it is our view that the variety of circumstances to be considered may justify the imposition of a variety of qualifications, as a condition of the exercise of suffrage".
Robert Halfon: I thank my hon. Friend for giving way and for his important point. Does he agree that the founders of the European convention on human rights, who did what they did because of what had happened in world war two, would never have wanted to give Rudolf Hess and Albert Speer the vote?
Mr Raab: My hon. Friend makes an important point, and of course he is absolutely right.
The context of Sir Oscar Dowson's comments is that when the convention was negotiated Britain barred peers, felons and the insane from voting. The British argument was accepted and the French proposal withdrawn, and when the right to vote reappeared in the protocol, not the convention, two years later, the words "universal suffrage" had been deleted. There can be absolutely no doubt that the protocol was explicitly designed to allow states to ban prisoner voting and impose other restrictions. As a matter of international law and a basic canon of treaty interpretation, Strasbourg should have taken that into account if there were any doubt, but it failed to do so. In doing so, it undermined international law.
Of course, that was not a one-off case. From the time of the Tyrer case against Britain in 1978, Strasbourg started referring to the European convention as a "living instrument". The Court said that its job was not just to interpret and apply convention rights but to expand and update them. The judges assumed the powers of legislators, without any mandate or any basis in the convention, and in defiance of international law and the basis democratic principle that states are bound by the international obligations to which they freely sign up.
From then on, in the UK alone, Strasbourg rewrote the law of negligence as it applies to the police in the Osman case; created novel fetters on our ability to deport criminals and terror suspects in the Chahal case
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and a whole series of article 8 cases since; and overturned both a British jury and the will of Parliament to dictate the rules governing how parents may discipline their children. There are many other examples. Let me be clear about this: Members may reasonably disagree on all those difficult policy and ethical questions, but all democrats must agree that they are questions to be answered by this House-by elected law makers.
One concern expressed in the debate has been about the idea of Britain defying a court, undermining the rule of law. As a public international lawyer, trained and practised, I pay close attention to that matter. However, there is another factor to consider. Impartiality and independence are the pillars of the judicial function, and they begin to crumble if judges are both interpreting and creating human rights law at the same time. That is now a far greater threat to the rule of law, the separation of powers and our basic notions of democratic accountability.
The motion is not about pandering to some populist agenda. I fully support prison reform, as other Members throughout the Chamber have said they do, including more drug rehabilitation, more training and more work in prisons. Nor is it anti-judge. Some of our most senior judges are now openly criticising Strasbourg-the Lord Chief Justice, the President of the Supreme Court and Lord Hoffman, who until recently was our second most senior Law Lord. Lord Hoffman did so not just in the recent Policy Exchange report, but way back when he complained that Strasbourg had proved
"unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe."
That was back in 2009.
The fact is that we face a serious abuse of power-there is no other word for it. I therefore want to put this question to the House: how perverse would a Strasbourg ruling have to be before we, as British lawmakers, stood up for the national interest and our prerogatives as democratic lawmakers? If not now, on prisoner voting, when? I make this prediction: if we do not hold the line here, today, there will be worse to come-far worse-in the years ahead.
What happens if we agree to the motion? Strasbourg could rule against us and we could face compensation awards. However, the architects of the convention introduced a vital safeguard: Strasbourg cannot enforce its own judgments. The worst that can happen is that we remain on a very long list of unenforced judgments to be reviewed by the Committee of Ministers-there are about 800 such judgments at the moment. There is no risk of a fine and no power to enforce compensation, and absolutely no chance of being kicked out of the Council of Europe.
A number of compromise solutions have been mooted, and I have paid careful attention to each and every one. The problem is that giving the vote to prisoners sentenced to six months or less or a year or less is not a compromise, because it is bound to be rejected by Strasbourg. The Court made that crystal clear in the Frodl case last year, and the Council of Europe commissioner for human rights, Thomas Hammarberg, stated that unequivocally on Radio 4 last Saturday. Such so-called compromise proposals are the worst of all worlds. We buckle and
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accept the erosion of our democracy and Strasbourg rejects the compromise anyway.
It is time that we drew a line in the sand and sent this very clear message back: this House will decide whether prisoners get the vote, and this House makes the laws of the land, because this House is accountable to the British people. I commend the motion to the House.
Question put .
The House divided: Ayes 234, Noes 22.
Division No. 199]
[5.47 pm
AYES
Afriyie, Adam
Amess, Mr David
Andrew, Stuart
Austin, Ian
Bacon, Mr Richard
Bailey, Mr Adrian
Baker, Steve
Baldwin, Harriett
Barclay, Stephen
Baron, Mr John
Barron, rh Mr Kevin
Barwell, Gavin
Begg, Dame Anne
Bell, Sir Stuart
Benton, Mr Joe
Betts, Mr Clive
Bingham, Andrew
Binley, Mr Brian
Blackman, Bob
Blackwood, Nicola
Blenkinsop, Tom
Boles, Nick
Bone, Mr Peter
Bradley, Karen
Brady, Mr Graham
Bray, Angie
Brennan, Kevin
Bridgen, Andrew
Brine, Mr Steve
Brown, rh Mr Nicholas
Bruce, Fiona
Buckland, Mr Robert
Burley, Mr Aidan
Burns, Conor
Byles, Dan
Cairns, Alun
Cairns, David
Campbell, Mr Alan
Carmichael, Neil
Carswell, Mr Douglas
Chishti, Rehman
Chope, Mr Christopher
Clappison, Mr James
Clifton-Brown, Geoffrey
Coffey, Dr Thérèse
Collins, Damian
Colvile, Oliver
Connarty, Michael
Cox, Mr Geoffrey
Crausby, Mr David
Creasy, Stella
Crouch, Tracey
Cunningham, Tony
Davidson, Mr Ian
Davies, David T. C. (Monmouth)
Davies, Philip
Davis, rh Mr David
de Bois, Nick
Dinenage, Caroline
Dobbin, Jim
Docherty, Thomas
Dodds, rh Mr Nigel
Dorries, Nadine
Dowd, Jim
Doyle, Gemma
Doyle-Price, Jackie
Drax, Richard
Dugher, Michael
Ellis, Michael
Elphicke, Charlie
Engel, Natascha
Eustice, George
Evans, Graham
Evennett, Mr David
Fallon, Michael
Field, Mr Mark
Fitzpatrick, Jim
Freeman, George
Freer, Mike
Fullbrook, Lorraine
Fuller, Richard
Gapes, Mike
Garnier, Mark
Gilbert, Stephen
Glindon, Mrs Mary
Goggins, rh Paul
Goldsmith, Zac
Graham, Richard
Gray, Mr James
Griffiths, Andrew
Gummer, Ben
Gyimah, Mr Sam
Halfon, Robert
Hamilton, Mr David
Hammond, Stephen
Hancock, Matthew
Hancock, Mr Mike
Hands, Greg
Harris, Rebecca
Harris, Mr Tom
Hart, Simon
Heaton-Harris, Chris
Henderson, Gordon
Hinds, Damian
Hodge, rh Margaret
Hodgson, Mrs Sharon
Hoey, Kate
Holloway, Mr Adam
Hosie, Stewart
Jackson, Mr Stewart
Javid, Sajid
Jenkin, Mr Bernard
Johnson, rh Alan
Johnson, Diana
Johnson, Gareth
Johnson, Joseph
Jones, Andrew
Jones, Mr Kevan
Jones, Mr Marcus
Jones, Susan Elan
Keeley, Barbara
Kelly, Chris
Kirby, Simon
Kwarteng, Kwasi
Laing, Mrs Eleanor
Latham, Pauline
Leadsom, Andrea
Lee, Dr Phillip
Lefroy, Jeremy
Leigh, Mr Edward
Leslie, Charlotte
Leslie, Chris
Lewis, Brandon
Lewis, Dr Julian
Lilley, rh Mr Peter
Lopresti, Jack
Lucas, Ian
Main, Mrs Anne
Maynard, Paul
McCabe, Steve
McCann, Mr Michael
McCartney, Jason
McCartney, Karl
McClymont, Gregg
McGovern, Jim
McVey, Esther
Menzies, Mark
Mercer, Patrick
Metcalfe, Stephen
Michael, rh Alun
Mills, Nigel
Mitchell, Austin
Morgan, Nicky
Morris, Grahame M. (Easington)
Morris, James
Mosley, Stephen
Murray, Sheryll
Newton, Sarah
Nokes, Caroline
Nuttall, Mr David
Offord, Mr Matthew
Ollerenshaw, Eric
Ottaway, Richard
Owen, Albert
Paisley, Ian
Patel, Priti
Pawsey, Mark
Percy, Andrew
Perry, Claire
Phillips, Stephen
Phillipson, Bridget
Pincher, Christopher
Poulter, Dr Daniel
Pound, Stephen
Pritchard, Mark
Pugh, John
Raab, Mr Dominic
Reckless, Mark
Redwood, rh Mr John
Rees-Mogg, Jacob
Reevell, Simon
Robertson, Mr Laurence
Rosindell, Andrew
Rudd, Amber
Ruffley, Mr David
Russell, Bob
Scott, Mr Lee
Selous, Andrew
Sharma, Alok
Shepherd, Mr Richard
Simmonds, Mark
Singh, Mr Marsha
Skidmore, Chris
Skinner, Mr Dennis
Smith, Henry
Smith, Julian
Spellar, rh Mr John
Stanley, rh Sir John
Stewart, Iain
Straw, rh Mr Jack
Streeter, Mr Gary
Stringer, Graham
Stuart, Ms Gisela
Stuart, Mr Graham
Sturdy, Julian
Syms, Mr Robert
Tami, Mark
Tapsell, Sir Peter
Timms, rh Stephen
Tomlinson, Justin
Truss, Elizabeth
Turner, Mr Andrew
Uppal, Paul
Vickers, Martin
Walker, Mr Charles
Walker, Mr Robin
Walter, Mr Robert
Watson, Mr Tom
Weatherley, Mike
Weir, Mr Mike
Wharton, James
Wheeler, Heather
White, Chris
Whiteford, Dr Eilidh
Whittaker, Craig
Whittingdale, Mr John
Wicks, rh Malcolm
Williamson, Gavin
Wilson, Phil
Wilson, Mr Rob
Wollaston, Dr Sarah
Wright, David
Wright, Mr Iain
Zahawi, Nadhim
Tellers for the Ayes:
Mr Roger Gale and
Mr Philip Hollobone
NOES
Beith, rh Sir Alan
Bottomley, Sir Peter
Brake, Tom
Edwards, Jonathan
Foster, rh Mr Don
Gardiner, Barry
Green, Kate
Hames, Duncan
Hermon, Lady
Hughes, rh Simon
Huppert, Dr Julian
Jackson, Glenda
Llwyd, rh Mr Elfyn
Love, Mr Andrew
Lucas, Caroline
McCarthy, Kerry
McDonnell, John
Munt, Tessa
Qureshi, Yasmin
Reid, Mr Alan
Williams, Hywel
Williams, Stephen
Tellers for the Noes:
Jeremy Corbyn and
Lorely Burt
Question accordingly agreed to.
10 Feb 2011 : Column 585
10 Feb 2011 : Column 586
Resolved,
That this House notes the ruling of the European Court of Human Rights in Hirst v . the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.
A mixture of law, politics, autobiography and humour. Once described as "The Devilish Advocate" (Guardian), I do have the ability to provoke a response. Sometimes it comes from someone who uses a thought process, and sometimes from jerks usually associated with the knee.
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