Voting by Prisoners

Andrew Bridgen Excerpts

Thursday 10th February 2011 Commons Chamber

[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”.

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—

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[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.

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[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]

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[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.

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 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 to 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 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.

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[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.

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.

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[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 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.

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[Martin Vickers (Cleethorpes) (Con)]

It has become a badge of honour to stand up in this debate and say, “I am not a lawyer.” My hon. Friend the 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 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.