Voting by Prisoners
Chris Bryant Excerpts(13 years, 9 months ago)
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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—
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.
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
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 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.
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.
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.
Chris Bryant
I understand the other point that the hon. Gentleman made, and I hope to deal with it shortly.
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.
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”.
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
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
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?
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 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—
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. [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?
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 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
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.
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.
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.
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.”
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 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.
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.
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 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 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—
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 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.
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.
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.