Sentencing

David Lidington Excerpts

Thursday 2nd November 2017 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Mr David Lidington)]

With permission, Mr Deputy Speaker, I should like to make a statement on sentencing and the Government’s response to the Hirst judgment.

For many years, it has been a feature of United Kingdom law that when someone commits a crime that is sufficiently serious to receive a prison sentence they are deemed to have broken their contract with society to such an extent that they should not have the right to vote until they are ready to be back in the community. This prohibition is currently set out in the Representation of the People Act 1983, as amended, and the principle behind it has been reaffirmed by this House, most recently in 2011.

It is in this context that successive Governments have considered the implications of the Hirst judgment in 2005. Labour, coalition and Conservative Governments have all taken the view that UK laws are a matter for elected lawmakers in the United Kingdom and have not enacted any change to legislation. The Conservative Government continue to believe that convicted offenders who are detained in prison should not vote. We do not share the position taken by the Leader of the Opposition that all prisoners should be enfranchised regardless of the length of sentence or the gravity of the crime. The United Kingdom has a proud constitutional tradition and it is clearly right that we uphold our obligations, but the British public expect us to do so in our own way, consistent with British values of rights and responsibilities.

In December 2016, the Government gave a formal and public commitment to the Committee of Ministers of the Council of Europe, the body representing the national Governments of its members, that we would, in time for its meeting next month, provide proposals to address the Hirst judgment. Since then, the Government have considered the issue carefully. We have decided to propose administrative changes to address the points raised in the 2005 judgment, while maintaining the bar on convicted prisoners in custody from voting. First, we will work with the judiciary to make it clear to criminals when they are sentenced that while they are in prison they will lose the right to vote. That directly addresses a specific concern of the Hirst judgment that there was not sufficient clarity in confirming to offenders that they cannot vote in prison.

Secondly, we will amend guidance to address an anomaly in the current system, where offenders who are released back in the community on licence using an electronic tag under the home detention curfew scheme can vote, but those in the community on temporary licence cannot vote. Release on temporary licence is a tool typically used to allow offenders to commute to employment in the community and so prepare themselves for their return to society. Reinstating the civic right of voting at this point is consistent with that approach. Release on temporary licence is absolutely not an automatic entitlement and every case is subject to rigorous risk assessment. The measures I am announcing today do not involve any changes to the criteria for temporary release, and no offenders will be granted release in order to vote.

We expect the change to temporary licence to affect up to 100 offenders at any one time and none of them will be able to vote from prison or to register a prison as a home address. The prisoner would have to have satisfied the conditions for registration at a genuine home address. This measure will require no changes to the Representation of the People Act 1983, but instead will entail a change to Prison Service guidance.

Our relationship with the Council of Europe is a reserved matter under the devolution settlements, but we will certainly work with the three devolved Administrations on this issue. In particular, we shall work hard with the relevant Administrations to reflect the differences in law and practice in Scotland and Northern Ireland respectively. We have informed the devolved Administrations of our plans to resolve this across the UK.

We believe the changes address the points raised in the 2005 judgment in a way that respects the clear direction of successive Parliaments and the strong views of the British public. I commend this statement to the House.

[Richard Burgon (Leeds East) (Lab)]

I welcome the opportunity to discuss this matter today and I thank the Justice Secretary for sharing his statement with me in the past hour.

This matter has been given greater prominence over the past decade due to rulings that found the UK to be in breach of its international human rights obligations. As the House is aware, prisoners serving a custodial sentence do not have any right to vote in any elections. As the Secretary of State said, this blanket ban is set out in the Representation of the People Act 1983. Since 2005, however, the blanket ban has been ruled unlawful by the European Court of Human Rights in the Hirst case.

Subsequent rulings since the 2005 decision have offered further clarity on what is required by law. I note especially the October 2015 ruling of the European Court of Justice that depriving certain prisoners convicted for very serious crimes, such as murder, of the right to vote was not an unlawful breach of the right of EU citizens. Likewise, in 2013, the UK Supreme Court dismissed appeals that prisoners serving life sentences for murder should be able to vote. I think most of the House would feel that that is sensible.

The question remains, however, of how we meet our obligations in relation to the ruling against a blanket ban. This House has been grappling with this issue since 2005. Following the Hirst judgment in 2005, the Labour Government began a consultation on the question of prisoner voting. The Ministry of Justice published a consultation paper in 2009 indicating that some limited enfranchisement of prisoners ought to occur, but made it clear that a final decision on the scope of the franchise must be made by Parliament.

Shortly after the 2010 general election, the Conservative-Liberal Democrat coalition Government announced that offenders sentenced to less than four years in custody would have the right to vote in UK Westminster Parliament and European Parliament elections, except when the judge considered it inappropriate when making the sentence. Soon after, in 2011, the Political and Constitutional Reform Committee published a report stating that while the current ban on prisoner voting may be “morally justifiable”, it was a breach of international law.

As a nation, we pride ourselves on our adherence to the rule of law. I believe we also take pride in being a nation that abides by its commitments. Our respect for the rule of law is something that has led to our legal system being so well regarded around the world that our legal services are exported internationally and contribute vastly to the UK economy. Today is an opportunity to discuss exactly how we will meet our commitments following the 2005 ruling.

I hope the slowness the Government have shown in responding to this issue does not set a precedent for taking over a decade to address our international obligations to uphold human rights. I think we should be clear that if we are signed up to the European convention on human rights, we are bound by its judgment and by those human rights laws. What this debate should be about is not whether we should meet our duties under international human rights law—that is non-negotiable and it is disappointing that some Members have suggested that we should ignore such law—but how we meet our duties and requirements.

Specifically, today’s discussion is about whether the Government’s proposals meet that threshold and satisfy our international obligations to uphold human rights. I hear Government Members saying, “Of course they do,” but we need reassurance, because the Secretary of State said that prisoners sentenced to less than one year in jail who are let out on day release will be allowed to return home to vote. We need to know what discussions with lawyers and assurances he has had to make sure that his proposal brings us into line with human rights law. The last thing this House wants is the right hon. Gentleman having to return to the House at some point to explain that, unfortunately, these measures have not satisfied the test and do not fulfil our international obligations and commitments. I am sure the Government do not want that, and nor do we.

As hon. Members have pointed out, including at this week’s Justice questions, this measure is about rehabilitation. I am therefore disappointed that the statutory duty on prisons to rehabilitate offenders and thereby reduce the number of victims and make society safer was dropped when the Prisons and Courts Bill fell. I hope that will be considered again in due course.

[Mr Lidington]

I think I gathered amid that response that the Opposition spokesman offers no specific criticisms of the proposals I have outlined today. I can give him a clear assurance that we have taken the best advice possible. We believe that this set of proposals complies with our international legal obligations following the Hirst judgment. Obviously, it will have to be considered by the Committee of Ministers at the forthcoming meeting.

I have to say to the hon. Gentleman that it is a bit rich for him to chide me about the pace at which this matter has been addressed. He acknowledged in his response that it took the Labour Government, under whose watch the Hirst case was heard and decided, four years even to get round to publishing the answers to their own consultation paper. In my years of service in this place, I have not seen Labour Home Secretaries or Justice Secretaries rushing to the Dispatch Box to announce that they had the answer and the Government would now publish proposals.

I hope that there will be broad agreement among the parties to support the general approach that I have outlined. Where I agree with the hon. Gentleman is that the European Court of Human Rights has on more than one occasion made it clear that, regardless of the specific circumstances of the Hirst judgment, there is no requirement to enfranchise all prisoners; I hope that that message has by now been conveyed to the Leader of the Opposition. Indeed, many members of the Council of Europe—established, mature democracies like ours—maintain a strict bar against serious offenders voting.

[Robert Neill (Bromley and Chislehurst) (Con)]

I congratulate the Secretary of State on having grasped the nettle that none of his predecessors grasped. He deserves a warm round of applause for having done so.

Will my right hon. Friend confirm that in achieving this measure, we put ourselves in almost exactly the same position as every other mature democracy in western Europe and, indeed, pretty much the same position as 40 out of the 50 states of the United States of America, which do not feel the need for a blanket ban as characterised in the Hirst judgment?

[Mr Lidington]

I am grateful to my hon. Friend for his comments and can confirm the point he makes.

[Joanna Cherry (Edinburgh South West) (SNP)]

I thank the Secretary of State for his statement and for writing to my colleague, the Scottish Government’s Cabinet Secretary for Justice, to inform him of his plans regarding the UK parliamentary franchise.

This is a difficult matter, and I welcome the fact that the UK Government are taking steps to respect the rulings of the European Court of Human Rights. Many people across the UK at first disagreed with that decision, but at Justice questions earlier this week we heard some eloquent explanations of why it is appropriate for the Government to grasp the nettle.

The Scottish Parliament’s Equalities and Human Rights Committee is currently looking at this very issue, taking evidence and examining practical points about whether devolved powers could be used in relation to the franchise for Scottish Parliament elections. The Scottish Government will respond in due course. Will the Secretary of State confirm that the UK will work with the Scottish Government to reach the cross-party agreement required for this sort of reform?

[Mr Lidington]

I am very concerned indeed to ensure that my officials, my Ministers and I work closely with Michael Matheson, the Scottish Justice Minister, and his colleagues and officials in Edinburgh. In my current position, I am well aware of the importance of recognising that the Scottish legal system and legal tradition are distinct from those of England and Wales. We need a policy that works as effectively in Scotland as in the rest of the UK.

[Mrs Cheryl Gillan (Chesham and Amersham) (Con)]

May I add my congratulations to my right hon. Friend, who, after many years, has arrived at an elegant and sensible solution? He will be aware that great consternation was caused in the Council of Europe by the UK’s being unable to comply with the judgments. It even led to talk of the UK leaving the Council of Europe, of which we were a founding member by the treaty of London. Will he confirm that we now leave the company of Armenia, Bulgaria, Estonia, Georgia, Hungary and Russia, which will be the only countries in the Council of Europe that still have a blanket ban?

[Mr Lidington]

It would not be wise of me to comment in detail on the systems in operation in those countries, but in thanking my right hon. Friend for her comments, I can confirm that we will stand in the company of the great majority of established democracies in Europe.

[Kate Green (Stretford and Urmston) (Lab)]

As one of 22 Members who voted against the blanket ban in 2011, this small step forward is mildly welcome to me, but will the right hon. Gentleman accept that it is a missed opportunity better to align sentencing objectives with the right of a prisoner to vote? In particular, as he said in his statement, reinstating the civic right of voting is consistent with a rehabilitative approach. Where rehabilitation is identified by a sentencer as a specific sentencing objective, should not that sentencer also have discretion to consider the individual’s right to vote?

[Mr Lidington]

I understand the principled position from which the hon. Lady approaches the matter. I think it right that there should be consistency in our approach, set by the Government and by Parliament through the appropriate Representation of the People Acts. What the Government propose today provides both clarity and consistency, and enables us to go forward in a way that respects the strong views expressed in this House and among the wider British public, while also respecting our international legal obligations.

[Mr Dominic Grieve (Beaconsfield) (Con)]

May I, too, welcome the statement and the approach my right hon. Friend has taken in resolving the matter? As he will be aware, the problem has bedevilled many Law Officers of the Crown, and if the matter can be resolved along the lines that he suggests, I have no doubt that our right hon. and learned Friend the Attorney General will breathe a sigh of relief.

Does my right hon. Friend agree that it is of immense importance for this country to be seen to be a leader in human rights—something for which we have a great deal of international respect? We have proven track record of improving human rights, not only on the European continent but further afield. Sending out a signal of our willingness to try to adhere to an international legal obligation is of the utmost importance.

May I also say that, should it be necessary for my right hon. Friend to come back to this House because what he has done proved in some way not to meet matters—I hope that will not be necessary—it ought to be part of a wider debate about how we rehabilitate prisoners? When one removes the matter of our international legal obligations, that is a matter that merits debate, and were he to ask the House for its opinion on it, the House might well not express the same opinion as it has expressed in the past.

--- Later in debate ---

[Mr Lidington]

I am grateful to my right hon. and learned Friend for his support, and I will say two things in response. First, I certainly share his commitment to doing all we can to make certain that our prisons are effective agents of rehabilitation, because effective rehabilitation that reduces the cycle of reoffending is in the interests of the safety and security of everybody in this country. Secondly, my right hon. and learned Friend is right about the importance of respecting international obligations. We rightly talk about British values and seek in our various expressions of policy to embody and represent those values, and among those values are respect for the rule of law and a rules-based international order. It is certainly harder to urge respect for those principles on others if we are not clear about doing so ourselves. For those reasons, the package I have announced today represents a clear, and also, I hope, an effective way forward.

[Liz McInnes (Heywood and Middleton) (Lab)]

This Government have introduced a system of universal credit on the basis that it mirrors the world of work, so why will they not use the same logic and consider that prisoners should be prepared for life outside prison by maintaining their civic right to a vote?

[Mr Lidington]

I am not sure whether the hon. Lady was urging that all prisoners should be enfranchised, regardless of the seriousness of the crime or the length of sentence, but I think that was the implication of what she said. What I have announced today relates enfranchisement to effective rehabilitation, but I do not agree that we should depart from the principle that it is reasonable to clearly tell someone who has been sentenced to prison—which means the court must have considered every alternative penalty and decided that the crime had been so serious that no other punishment would suffice—that they have forfeited the right to vote as a consequence.

[Victoria Prentis (Banbury) (Con)]

I conducted the Hirst litigation on behalf of the Government in the domestic courts, and remember only too well that Governments of both colours have found this a very difficult area to deal with for many years now, so I add my congratulations to those of the Chairman of my Select Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), and others in this House for the fact that the Government have found a solution that is not only elegant but sensible. However, I ask the Lord Chancellor to reassure people outside this House that serving prisoners such as Mr Hirst will not be covered by these new rules and would not be able to vote.

[Mr Lidington]

I am grateful to my hon. Friend for her support. I think, first, that it would be unlikely in the extreme for somebody serving a long prison sentence and with a record of violence and posing a risk to public safety to qualify for release on temporary licence in the first place, and, secondly, for anybody serving a long sentence to be able to demonstrate in practical terms that they had a continuing home residence other than a prison, and they would not be allowed to register at the prison.

[Emma Little Pengelly (Belfast South) (DUP)]

I thank the Secretary of State for his statement. It will have impacts on Northern Ireland. What intention does he have to consult in Northern Ireland? Given the unfortunate ongoing situation of no Government in Northern Ireland, how will he find a solution to ensure that full consultation can happen?

[Mr Lidington]

I am grateful to the hon. Lady and realise both the sensitivity of this issue, given the history of Northern Ireland and its current problematic political circumstances. We have notified officials in the Department of Justice of our intentions, and we will continue very close consultation and collaboration with them on the way forward so that we are confident we are addressing the particular administrative and legal circumstances of Northern Ireland. I am also happy to undertake to consult the hon. Lady’s party and the other leading parties in Northern Ireland, so that we take their views into account.

[Sir Desmond Swayne (New Forest West) (Con)]

As a quid pro quo, will my right hon. Friend restore penal servitude with hard labour? There would be plenty of votes for that.

[Mr Lidington]

That takes me on to rather wider territory than the subject of the statement. I thought my right hon. Friend might be about to suggest transportation with penal servitude, but I think the territories are no longer available.

[Kerry McCarthy (Bristol East) (Lab)]

I, too, was one of the 22 who back in 2011 voted against a blanket ban, and I have not changed my view since.

This is a tiny concession from the Government; it is the bare minimum they could get away with. I believe that when we imprison somebody we deprive them of their liberty, but we do not deprive them of their rights. Why does the right hon. Gentleman feel so threatened by that idea?

[Mr Lidington]

I would have thought that the act of depriving someone of his or her liberty when they are sentenced to custody by definition deprives them of some absolutely vital civic rights. What we have announced today is a sensible and constructive way forward that we believe complies with the requirements on us under international law, and the Hirst judgment in particular, but does so in a way that respects the view repeatedly come to by this House.

[Philip Davies (Shipley) (Con)]

The Secretary of State knows that I think giving the vote to any prisoners is idiotic, unjustifiable and about as popular with the general public as finding a rattlesnake in a lucky dip. As he has made great play of the rule of law, he must know that the European Court of Human Rights went way beyond what is in the convention when it made this ruling, so he might want to remind it of the obligations under the rule of the law, which are to stick to what is in the convention. It seems from his statement that he is putting the rulings of unelected, unaccountable pseudo-judges, many of whom are not even proper judges in their own country, above the views of the British public and the British Parliament. Will he at least have the courtesy to put this to a vote of this House, to make sure that what he proposes has the consent of the British Parliament?

[Mr Lidington]

We are not proposing any change in the law, as I have already said. The commitment to stay within the European convention on human rights, which includes the jurisdiction of the European Court of Human Rights, was in the party manifesto on which both my hon. Friend and I stood earlier this year. I do, however, agree with him that it is important to look for ways in which to respect and enlarge the margin of appreciation allowed to individual member states in interpreting the duties under the convention in the light of their national constitutional and legal traditions. We made a significant step forward when the UK held the chair of the Council of Europe and with the Brighton declaration negotiated by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke). In taking the Brighton declaration forward and seeking to implement protocol 15, I would hope that we can count on the support of my hon. Friend.

[John Howell (Henley) (Con)]

I unreservedly welcome the statement and the decision made, which comply with our obligations to the European Court of Human Rights. While we are on that subject, will my right hon. Friend confirm that we win most of the cases that we take to it? Will he also consider producing a more detailed briefing for members of the Council of Europe who are also Members of this Chamber, because it would be useful to have that when we go back to Strasbourg for the next Council of Europe meeting?

[Mr Lidington]

I am grateful to my hon. Friend for his support, and I am happy to offer the briefing that he requests for members of the delegation from this Parliament to the Parliamentary Assembly of the Council of Europe. He is right about cases brought against the United Kingdom: well over 90%—from memory, 96% or 97%—of cases brought against the United Kingdom do not even get to a judgment. They are rejected by the Court as inadmissible, and by no means all of that tiny minority of cases that go through to a judgment are found against us. We have a good track record.

[Mr Philip Hollobone (Kettering) (Con)]

David Cameron, the previous Prime Minister, said that it made him physically sick to think about giving prisoners the right to vote. Many of us on these Benches feel the same nausea, as do many of our constituents. I congratulate the Lord Chancellor on overcoming his nausea. He makes great play in his statement of the point that

“while they are in prison they will lose the right to vote.”

However, for those on temporary licence, if polling day does not fall on a day when they are out of prison, they would presumably have the right to request a postal vote registered at their home address outside the prison, which could presumably be delivered to them in prison. Will the Lord Chancellor ensure that that cannot happen?

[Mr Lidington]

We will obviously ensure, as we work through the details, that we have safeguards against any kind of electoral fraud. It is certainly our intention that for people on temporary licence—like people on home detention curfew under the current arrangements—the franchise would exist on polling day on the assumption that those people would be out of prison on that day. We will certainly be working through the details, following what I hope will be the successful outcome from the Committee of Ministers meeting.

[Madam Deputy Speaker (Mrs Eleanor Laing)]

And the prize for patience goes to James Cleverly.

[James Cleverly (Braintree) (Con)]

Thank you, Madam Deputy Speaker. As a result of this decision, the fact that prisoners are not eligible to vote will now be better communicated to them at the onset of their sentence. What plans has the Secretary of State put in place to ensure that that is effectively communicated to the prisoners themselves and to the electoral registration officers in the places where they are registered to vote?

[Mr Lidington]

On my hon. Friend’s first point, we are going to be talking to the judiciary, whom we have notified about this statement, in order to understand their views on the best means of communicating this to people at the point of sentence. The most probable outcome at this stage would seem to be to look at the wording of the warrant of committal that is issued when a sentenced prisoner is put into custody. On my hon. Friend’s point about electoral registration officers, he will know that guidance for EROs is the responsibility of the Electoral Commission, and we will be talking to the commission in order to understand how it wishes to take this forward.