Voting by Prisoners

Robert Buckland Excerpts

Thursday 10th February 2011 Commons Chamber

[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 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.

--- Later in debate ---

[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 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.

Legal aid

Robert Buckland Excerpts

Tuesday 14th December 2010 Westminster Hall

[Mr Robert Buckland (South Swindon) (Con)]

I am grateful to the hon. Member for Islington North (Jeremy Corbyn) for truncating his remarks. I shall follow his example and be as brief as I can. I should declare an interest: I was a criminal legal aid barrister for nearly 20 years, and am still in receipt of some payments for work done before the election. However, my remarks today are centred on what other hon. Members have discussed in the context of the reduction of the ambit of civil legal aid: community legal service funding for work by a number of providers, including law centres. In Swindon, the Wiltshire law centre does excellent work and provides advice for people with debt, housing and welfare benefit problems. I shall not repeat the points that other hon. Members have made. They are right about the important saving that can be made by giving early advice and help to people on welfare benefits. My remarks are focused on the detail of the helpful table towards the back of the Green Paper.

I want to preface my remarks about the Green Paper by saying that I hope it will be the last such consultation for a considerable time. The Lord Chancellor was right to note with some despair that there have been more than 30 consultations about legal aid since 2006. It led to practitioners, including me, getting our heads in a spin, when it seemed that almost month by month the previous Government—or the Legal Services Commission, to be more precise, because that was of course an arm’s length body, though it is now to come back into the Ministry of Justice—issued consultations on legal aid. We do not want permanent revolution. That has caused providers a lot of problems, and has led to some of the uncertainty about sources of work that the hon. Member for Islington North raised. The table at the back of the Green Paper is helpful, but in some cases it is unclear. I hope that the Government will take on board what is said today, and the written evidence that will be submitted by 14 February.

I want first to discuss family legal aid and what is called the domestic violence test. There is no unified definition of what is meant by “domestic violence”. Some might say that they know it when they see it, but questions arise about what the term means. Does it just mean physical violence where there is injury? I submit that that would be far too narrow a test. Does it just involve violence between spouses or partners, or does it include violence against children of the family, or in their presence? All those questions need to be answered. I have dealt with domestic violence cases for many years, and they take many forms. It is not just a question of physical violence. Often there is a course of conduct involving a mental process and psychological damage to a partner. I should like clarity about the meaning of the term “domestic violence” by the time the White Paper is issued.

To deal briefly with education, I noted with concern the suggestion that all education cases would be taken out of scope. We must not ignore the fact that soon the Department for Education will produce its own Green Paper on special educational needs. I know that Ministers intend to look carefully at reform of the current system of tribunals, and the adversarial system that is so often a barrier to parents and children with special educational needs. That is welcome news, and I hope that the Green Paper will contain a commitment to radical reform of the system, so that parents do not feel they must always fight for their children’s rights with respect to special educational needs. However, if that is not what happens, and the Government do not intend to reform the system for SEN provision, legal representation should not be taken out of scope—particularly at the upper tier tribunal level, where there is a lot of law and there are a lot of lawyers; that is a daunting prospect for any parent of a child with SEN.

The matter of clinical negligence in this context is often overlooked. There will be some cases of great complexity, such as where several different causes have led to the condition of the litigant—who will often be very vulnerable and ill, even at the time of litigation. That requires a large amount of work and costly medical expert evidence. It would be a brave set of solicitors that took on cases of such complexity on a no win, no fee basis. I ask that at the margins that aspect of the Green Paper be looked at carefully.

I end on this note: a lot has been said about legal help and representation for debt matters where someone’s home is at immediate risk. I simply ask, what does that mean? Does it mean immediate risk when possession proceedings have been commenced? Does it mean immediate risk at an earlier stage, when perhaps the householder has had a set of letters relating to unpaid debt and is, therefore, greatly concerned? There are a lot of words used, but frankly not carefully enough. I accept that this is Green Paper stage, but I ask for much more clarity when it comes to assessing the precise ambit of scope. As a former member of a funding review committee for the Legal Services Commission, I can say that these criteria are applied very carefully indeed. They have to be right.

Often for a practitioner, such as those who work in the Wiltshire law centre, a case will present itself, which at first blush will appear to be one type of problem, but will transmogrify into another, or a whole different range of problems. Therefore, questions of scope are not just academic; they are very important for solicitors and practitioners when assessing whether cases will come within or without the scope of legal aid. I urge the Minister to take on board hon. Members’ comments today, and to ask his colleagues to look carefully at the ambit of these proposals and to refine them in a way that helps not only litigators and solicitors, but, most important, those in greatest need.