Voting by Prisoners

Ben Gummer Excerpts

Thursday 10th February 2011 Commons Chamber

[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 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.

--- Later in debate ---

[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 he is 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 was 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?

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[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—

--- Later in debate ---

[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.

--- Later in debate ---

[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.”

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 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.