Voting by Prisoners

Baroness Burt of Solihull Excerpts

Thursday 10th February 2011 Commons Chamber

[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.”

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?

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[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 beneficiaries. 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 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.

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[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 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.

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[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 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 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.

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[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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[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 do 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 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.