Voting by Prisoners

Dominic Raab Excerpts

Thursday 10th February 2011 Commons Chamber

[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.

[Mr Raab]

I give way to my hon. Friend.

[Jacob Rees-Mogg (North East Somerset) (Con)]

I thank my hon. Friend for giving way. King Alfred was a good Somerset man who did his duty to rescue us not only from Vikings, but from high taxation.

--- Later in debate ---

[Mr Raab]

In the year 888, he was translating “The Consolation of Philosophy” from Latin and he asked a basic existential question: are we determined by fate or do we possess free will? He answered in favour of free will. When he translated the Latin word “libertas”, he used the word “freedom”—“free” as in free from bondage, and “dom”, for which we would now say “deem”, meaning “conscious” of being free. Freedom was linked to free will and the basic idea that we take responsibility for our actions. That is how the word “freedom” entered our language in the first place, and it is what today’s debate is about.

If a person commits a serious enough crime to be sent to prison, they forfeit the right to vote, along with their liberty, for the limited period of their incarceration. We have come a long way since the year 888, but our tradition of liberty sustains the basic idea that with freedom comes responsibility. When the European convention on human rights was negotiated in 1949, that remained a guiding principle, so when the French proposed including a right to vote it was rejected because the draft contained the words “universal suffrage”. The British delegate, Sir Oscar Dowson, a former Home Office legal adviser, stated:

“In no State is the right to vote enjoyed even by citizens without qualifications. The qualifications required differ from State to State…And it is our view that the variety of circumstances to be considered may justify the imposition of a variety of qualifications, as a condition of the exercise of suffrage”.

[Robert Halfon]

I thank my hon. Friend for giving way and for his important point. Does he agree that the founders of the European convention on human rights, who did what they did because of what had happened in world war two, would never have wanted to give Rudolf Hess and Albert Speer the vote?

[Mr Raab]

My hon. Friend makes an important point, and of course he is absolutely right.

The context of Sir Oscar Dowson’s comments is that when the convention was negotiated Britain barred peers, felons and the insane from voting. The British argument was accepted and the French proposal withdrawn, and when the right to vote reappeared in the protocol, not the convention, two years later, the words “universal suffrage” had been deleted. There can be absolutely no doubt that the protocol was explicitly designed to allow states to ban prisoner voting and impose other restrictions. As a matter of international law and a basic canon of treaty interpretation, Strasbourg should have taken that into account if there were any doubt, but it failed to do so. In doing so, it undermined international law.

Of course, that was not a one-off case. From the time of the Tyrer case against Britain in 1978, Strasbourg started referring to the European convention as a “living instrument”. The Court said that its job was not just to interpret and apply convention rights but to expand and update them. The judges assumed the powers of legislators, without any mandate or any basis in the convention, and in defiance of international law and the basic democratic principle that states are bound by the international obligations to which they freely sign up.

From then on, in the UK alone, Strasbourg rewrote the law of negligence as it applies to the police in the Osman case; created novel fetters on our ability to deport criminals and terror suspects in the Chahal case and a whole series of article 8 cases since; and overturned both a British jury and the will of Parliament to dictate the rules governing how parents may discipline their children. There are many other examples. Let me be clear about this: Members may reasonably disagree on all those difficult policy and ethical questions, but all democrats must agree that they are questions to be answered by this House—by elected law makers.

One concern expressed in the debate has been about the idea of Britain defying a court, undermining the rule of law. As a public international lawyer, trained and practised, I pay close attention to that matter. However, there is another factor to consider. Impartiality and independence are the pillars of the judicial function, and they begin to crumble if judges are both interpreting and creating human rights law at the same time. That is now a far greater threat to the rule of law, the separation of powers and our basic notions of democratic accountability.

The motion is not about pandering to some populist agenda. I fully support prison reform, as other Members throughout the Chamber have said they do, including more drug rehabilitation, more training and more work in prisons. Nor is it anti-judge. Some of our most senior judges are now openly criticising Strasbourg—the Lord Chief Justice, the President of the Supreme Court and Lord Hoffmann, who until recently was our second most senior Law Lord. Lord Hoffman did so not just in the recent Policy Exchange report, but way back when he complained that Strasbourg had proved

“unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe.”

That was back in 2009.

The fact is that we face a serious abuse of power—there is no other word for it. I therefore want to put this question to the House: how perverse would a Strasbourg ruling have to be before we, as British lawmakers, stood up for the national interest and our prerogatives as democratic lawmakers? If not now, on prisoner voting, when? I make this prediction: if we do not hold the line here, today, there will be worse to come—far worse—in the years ahead.

What happens if we agree to the motion? Strasbourg could rule against us and we could face compensation awards. However, the architects of the convention introduced a vital safeguard: Strasbourg cannot enforce its own judgments. The worst that can happen is that we remain on a very long list of unenforced judgments to be reviewed by the Committee of Ministers—there are about 800 such judgments at the moment. There is no risk of a fine and no power to enforce compensation, and absolutely no chance of being kicked out of the Council of Europe.

A number of compromise solutions have been mooted, and I have paid careful attention to each and every one. The problem is that giving the vote to prisoners sentenced to six months or less or a year or less is not a compromise, because it is bound to be rejected by Strasbourg. The Court made that crystal clear in the Frodl case last year, and the Council of Europe commissioner for human rights, Thomas Hammarberg, stated that unequivocally on Radio 4 last Saturday. Such so-called compromise proposals are the worst of all worlds. We buckle and accept the erosion of our democracy and Strasbourg rejects the compromise anyway.

It is time that we drew a line in the sand and sent this very clear message back: this House will decide whether prisoners get the vote, and this House makes the laws of the land, because this House is accountable to the British people. I commend the motion to the House.

Question put.