Jack Straw
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(13 years, 9 months ago)
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Mr Jack Straw (Blackburn) (Lab)
I rise to support the motion in the names of the right hon. Member for Haltemprice and Howden (Mr Davis), the hon. Member for Esher and Walton (Mr Raab), other hon. Members and myself. I should perhaps explain that the hon. Member for Esher and Walton underwent an operation yesterday and is hoping to be present later today, such is his interest and, as a former Foreign Office lawyer, his expertise in this issue. I thank my hon. Friend the Member for North East Derbyshire (Natascha Engel) and the Backbench Business Committee for choosing our motion for today’s debate.
At the heart of this debate is a conflict of principles, which sometimes have to be faced in politics and by Governments. On the one hand, there is the issue of whether convicted prisoners should be allowed to vote while serving their sentence. On the other, there is the question of how we meet out treaty obligations in respect of the Council of Europe, the European convention on human rights and the Court in Strasbourg. I will deal with those points in turn.
A ban on convicted prisoners voting while in jail has existed in this country at least since 1970. Post-war, the question has been considered under a Labour Administration in 1968, a Conservative Administration in 1983 and a Labour Administration in 1999-2000. On each occasion, the position was confirmed by an overwhelming cross-party consensus. On each occasion, amendments could easily have been moved in the House by those who supported an end to the ban, and voted on. On none of those occasions, and on no other occasion that I can recall, has this ever been a matter of active pursuit for Members of any party in this House. Significantly, and to echo the point made by the hon. Member for Harwich and North Essex (Mr Jenkin), neither I nor my staff can recall one letter, among the hundreds of complaints from prisoners with which I have dealt in my 32 years in this House, calling for the right to vote from prison.
I turn to the European convention on human rights and the Strasbourg Court’s decisions. The convention was drafted principally by distinguished British jurists, including David Maxwell Fyfe, who was later Home Secretary and Lord Chancellor in Conservative Administrations. The convention is a fine statement of what we all understand to be fundamental human rights. As an instrument, it has stood the test of time, and I strongly support it. One key problem for many years after the convention was agreed in 1951 was that, in contrast to most signatory states, it was not incorporated into our domestic law. That meant that the United Kingdom was much less likely to be given the latitude offered to other countries—the so-called margin of appreciation—by the Strasbourg Court, because our courts were not able to adjudicate on the convention’s articles.
Mr Edward Leigh (Gainsborough) (Con)
With respect to the right hon. Gentleman, is the problem not that his Government got us into this mess by incorporating the convention into our law? There is no way out now for this Government. There is a queue a mile long of people on no win, no fee cases, waiting to sue the Government. What is he going to do about it?
Mr Straw
I spelled that out in The Times this morning, and I was just about to come on to that point. I am grateful for the cue from the hon. Gentleman.
The Human Rights Act 1998 is part of the solution to the problem; it was never part of the problem. I shall explain why. We have not been able to enjoy the margin of appreciation and our courts have not been able to adjudicate on the convention’s articles. The first attempt to deal with that issue in the House was made in 1987 by the then Conservative Member of Parliament, the late Sir Edward Gardner, QC. His private Member’s Bill failed after receiving considerable Back-Bench support from all parts of the House, but scepticism from those on the Government and Opposition Front Benches. Ten years later, I was privileged to do what Ted Gardner had begun with what became the Human Rights Act 1998. In the end, it gained all-party support, as proceedings on Third Reading show.
Importantly for this debate, and to answer the hon. Member for Gainsborough (Mr Leigh), the White Paper preceding the Human Rights Act was entitled “Rights Brought Home”. It was about repatriating British rights in the convention that we had provided for other countries in Europe, but that were not available to our own citizens.
Mr Straw
I will give way in a couple of seconds, but I will just make some progress.
The retired Law Lord, to whom the right hon. Member for Haltemprice and Howden referred, has recently said that the Human Rights Act could be
“a perfectly serviceable British Bill of Rights”.
That, in essence, is what it is. The Act was expertly drafted. It gave the courts the power to declare primary legislation incompatible with the convention, but no power to strike down that legislation.
Alan Johnson (Kingston upon Hull West and Hessle) (Lab)
Will my right hon. Friend give way?
Alan Johnson
I support the motion in the name of my right hon. Friend and the right hon. Member for Haltemprice and Howden (Mr Davis). Does my right hon. Friend agree that the important issue is not the European convention on human rights, the European Courts, or the universal declaration of human rights, but the reason that the European Court gave for denying a margin of appreciation, which, among other things, was that this House had not debated the issue? That was wrong, but the service provided by this motion is that the House can now judge. People will take different views and put perfectly reasonable arguments, but the important point is that my right hon. Friend and the right hon. Member for Haltemprice and Howden have done us the service of allowing us to debate whether prisoners should have the vote.
Mr Jenkin
I am listening carefully to what the right hon. Gentleman is saying about the margin of appreciation. I think that we are in danger of overselling that as a solution, because the problems with our current relationship with the convention are to do with the drafting of the convention and how the Court interprets its words. Geoffrey Robertson, QC, who is no slouch on human rights and is currently representing Julian Assange, explained in the article “Why We Need a British Bill of Rights”:
“The European Convention also failed to include the rights Parliament won by the ‘Glorious Revolution’ in 1689”.
He went on to state:
“There is mounting evidence that the weasel words of the European Convention are damaging other basic British rights.”
He also stated:
“The Convention is in some respects out of date.”
Does the right hon. Gentleman agree with those words? How are we going to address those problems?
Mr Straw
The hon. Gentleman is taking us into wider territory. I happen to think that the problem is not the plain text of the convention, but the way in which it has been over-interpreted to extend the jurisdiction of the European Court. I will come on to that point in a moment. I do not, however, subscribe to the view that the 1951 convention is the last word on what should be in a Bill of Rights. I share Lord Hoffmann’s view that it is a very good starting point. There is a wider issue—a rabbit hole I do not intend to go down if the hon. Gentleman will forgive me—about whether we should have a written statement of our key constitutional rights. I think that we should, and that the sovereignty of Parliament should be right at the top of it. However, that is a separate point.
Mr Ruffley
I am grateful to the right hon. Gentleman. Is not the essential problem that the European Court in Strasbourg became an appellate court for British cases in 1965—not in 1950—and that that was decided by a British Cabinet without any debate in this House?
Mr Straw
I was not in the House in 1965. [Hon. Members: “Are you sure?”] I was causing trouble at universities at the time, so I have an alibi—I was at the scene of some other crimes.
I do not quite subscribe to the hon. Gentleman’s view about that piece of history. The signing of the protocol that gave the Court that power was very public. Anyway, where we are is where we are, and subsequent Administrations of either persuasion have not objected to the Court’s having that power of what amounts to individual petition.
Our Human Rights Act was expertly drafted, giving our courts the power to declare primary legislation incompatible with the convention but no power to strike down that legislation. In that way, the sovereignty of Parliament is respected and indeed protected by the Act. Our senior judiciary, without question among the best in the world, have applied the Act with the sensitivity that one would expect. As the right hon. Member for Haltemprice and Howden said a moment ago, when the British courts first considered the Hirst case, prior to its going to Strasbourg, they found no breach of the convention whatever. In addition, they said that any change in the law was a matter for Parliament. For the avoidance of doubt, let me put it firmly on record that the tension and conflict that we have to resolve today can in no sense be laid at the door of the Human Rights Act or, in my judgment, at that of the plain text of the convention.
Mr Straw
I need to make progress, but I will give way to the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) a bit later.
Rather, the problem has arisen because of the judicial activism of the Court in Strasbourg, which is widening its role not only beyond anything anticipated in the founding treaties but beyond anything anticipated by the subsequent active consent of all the state parties, including the UK.
In his major lecture two years ago, to which reference has already been made, Lord Hoffmann spelled out in eloquent detail the difficulties that the situation was causing, including for the UK judiciary. He said that the Strasbourg Court
“lacked constitutional legitimacy”
in intervening in matters
“on which Member States…have not surrendered their sovereign powers”.
He added well-founded criticism of the highly variable quality of its judges and administration.
Where the Court has given judgment against the UK in respect of fundamental human rights, successive Home Secretaries and UK Governments have readily complied, whether on specific cases, such as terrorist deportations, or on matters such as the need for proper regulation of phone-tapping and the intelligence agencies—and so has this House, whether or not it agreed with what the Court was saying, because we have voluntarily and readily accepted its jurisdiction.
Sir Alan Beith
Various states will from time to time think that the Court has overstepped its limits and taken too broad a view of its powers. Are they all entitled at any stage to disregard its judgments, and what does that mean for the convention?
Mr Straw
No, they are not, and I will come on to that. The fundamental distinction to be drawn is this: all of us, as I have just spelled out, are required to respect and observe decisions of the Court on fundamental human rights, because it was in respect of those that we and other countries signed up.
Mr Straw
No, I have to make progress.
The issue before us today—here is the heart of the matter—is by no stretch of the imagination a breach of fundamental human rights. Rather, it is a matter of penal policy, which the minority of judges at Strasbourg—and very senior they were, too—said should be left to the UK Parliament. Through the decision in the Hirst case and some similar decisions, the Strasbourg Court is setting itself up as a supreme court for Europe, with an ever-widening remit. That is why the tension that I mentioned now threatens to become a collision.
Even in countries with supreme courts much more powerful than ours, there is a democratic override of their decisions. For example, in the United States or Germany, which have very strong courts that can strike down primary legislation, the courts’ decisions can be overridden by, for instance, democratic amendment to their constitutions. There is no such democratic override available for decisions of the Strasbourg Court, so we are faced with a court judgment following which, without warrant from the treaties to which we signed up, we as elected MPs are expected to do the opposite of that in which we believe.
My predecessor as Lord Chancellor, Lord Falconer, and I wrestled for five years to find a way through the problem. Initially, Lord Falconer’s view was that the requirement on us following the 2005 Hirst decision was simply
“to consider carefully the basis”
of our law. He went on that it could be the case
“that it is a proportionate conclusion that all people who are convicted and sent to prison cannot vote.”
He began one consultation, and when that was inconclusive I launched a second. However, unless and until I found a way—if one existed—that could satisfy the Strasbourg Court, this House and the British people, there was no appetite throughout the House, or among our Whips, for me to bring forward legislative proposals.
The Attorney-General
I am grateful to the right hon. Gentleman for giving way and for how he is articulating his powerful case. Does he not agree that, with hindsight, it is rather unfortunate that such a debate did not take place? When we were first confronted with the problem we had only the Hirst judgment, but since then we have had a number of further judgments without the UK Parliament’s having had an opportunity to influence how the Court’s jurisprudence evolved. He may recall that I asked for such a debate when we were in opposition.
Mr Straw
I understand the right hon. and learned Gentleman’s point, and hindsight is a wonderful thing. If I thought that the only thing preventing the Court from coming to a reasonable compromise was the fact that I had not organised an earlier debate, I would be happy to be taken to Strasbourg to make my apologies. He knows better than anybody that neither set of Whips was keen on such a debate, not least because it was clear that it would be impossible, particularly in the pre-election atmosphere, to have the sober debate that we are to have today.
Mr Denis MacShane (Rotherham) (Lab)
Does my right hon. Friend agree that, if the matter was that important to the then Opposition, they could have had an Opposition day debate on it?
Mr Straw
That is true. I shall now move on.
Our motion has been carefully drafted. It is respectful of the Court and our treaty obligations, but is intended to answer one of the three objections that the majority of the Court in Strasbourg had to our so-called blanket ban—that there had not been any substantive debate on the matter in the light of modern penal policy and human rights standards. This debate is a response to that.
One cannot judge the fairness and effectiveness of penal policy with reference to just one aspect of it, such as the ban on prisoners voting. That judgment has to be made in the round. Since the Strangeways riots of 20 years ago and the Woolf report that followed, there has been a quiet revolution in penal policy. As the chief inspectors of prisons have recognised, conditions for prisoners have been transformed. Every effort is rightly made to treat prisoners with dignity, and to prepare them better for the outside world. The overall environment of our prisons stands up to comparison with any in the world, and is far above that in many European countries.
However, the exact mix must be for domestic Parliaments to decide. They have the knowledge and legitimacy to make appropriate judgments, and we have supervision by our courts of our Executive’s administration of our prisons. The ban on prisoner votes is part of the mix of our penal policy. It is the subject of wide consent among the public, and at least of acquiescence by the vast majority of prisoners, as the silence of our postbags makes clear. Our motion is intended as part of a process better to strengthen the hand of the UK Government in arguing in Strasbourg that the majority of members of the Court are seeking a change in UK legislation which, on the face of it, is difficult or impossible to deliver, and in inviting them to find a constructive way forward.
Two objections to our approach have been raised. One is about the example that we may set, and the other is about compensation. On the first, the argument is that if we fail fully to implement the Court’s decision, we will be unable to put pressure on others who also have outstanding Court judgments against them. That argument does not take account of the reality of the situation. There are scores of as yet unenforced judgments against countries such as Russia—but not just Russia—for egregious breaches of human rights, and for presiding over standards so low as to lack any notion of fair trial.
If I thought that our acquiescence in the Court’s decision in Hirst would be the instrument for a change in approach to those recalcitrant countries, I might be persuaded to drop my objections for the greater good. However, there is no evidence of that—indeed, I suggest the reverse. By extending its remit into areas way beyond any original conception of fundamental human rights, the Court in Strasbourg is undermining its own legitimacy and its potential effectiveness in respect of the purposes for which it was established. In other words, the Court and the Council of Europe would have greater success if they reined in their unnecessary excursions into members states’ policy. In that way, we might see some of those judgments better enforced.
This is my last set of points and I shall be brief. On compensation, I simply say this: there are many predictions that the Court in Strasbourg will award compensation against the UK Government, but as yet there is no certainty. In 2005, the Strasbourg Court denied Hirst compensation. Unless the Court now sees the purpose of compensation as some kind of gratuitous fine on the elected British House of Commons, I fail to see by what algebra or alchemy any court could equate the absence of a vote for prisoners, which almost no prisoners of their own volition ever sought, and which still fewer would exercise, with some monetary amount.
I am a strong supporter of the Human Rights Act 1998, the Council of Europe and the text of the convention. I seek no train wreck, but a solution—that is the purpose of our motion. In turn, I hope the Court pulls back from placing the supporters of those instruments in a near-impossible position.
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.
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.
Tom Brake
I thank the right hon. Gentleman for that intervention, but that is a matter on which we will have to disagree.
Prison serves to protect and punish, but also to rehabilitate. Release from prison is not the point at which prisoners should re-engage with society. We should be encouraging prisoners to re-engage with society while they are still in prison. The way we treat victims says a lot about the society that we strive to be, but the way we treat prisoners also says a lot about the society that we strive to be. I do not want to shut the door on those prisoners who are ready and willing to re-engage with society and sign up to the tenets that underpin it. Anyone who has visited a prison will know that some prisoners are indeed seeking that engagement.
We have heard a lot said about public opinion and the views of constituents in this debate. The right hon. Member for Blackburn (Mr Straw) said in his article today that the “vast majority” of his constituents
“feel strongly about prisoners’ votes,”
and that in 32 years as an MP he had never had a letter from a prisoner seeking the right to vote. Can he recall whether he has ever had a letter from a constituent asking for the right to vote to be taken away from prisoners who already have it? I suspect that the answer would be that he has not.
I visited a group of year 11 pupils in a school yesterday. I started the question and answer session with the topic of the right of prisoners to vote. I expected the Q and A to turn quickly to the subject of tuition fees, but it did not. At the end of a full and frank debate, about 50% of the pupils supported the Government’s proposals, and only about a third thought that no prisoners should have the right to vote.
Mr Straw
The difference between the people in prison who can vote and those who cannot is very clear and, self-evidently, justified. Prisoners who have not been convicted or sentenced to a term of imprisonment are able to continue to vote. No one would argue with that, because those people have not gone beyond the bar at which they would be unable to vote, so I do not understand the hon. Gentleman’s point.
Tom Brake
The right hon. Gentleman will know that civil prisoners are also entitled to vote, and have been throughout the process.
Other organisations support the change. As we have heard, the Prison Governors Association supports it. Interestingly, Victim Support, whose representatives I met a couple of weeks ago, is also of the view that prisoners should have the right to vote. I hope that Members will take that on board. I acknowledge that the Government are between a rock and a hard place, and they have not been helped by the quality of the judgments. They are having to clear up yet another mess left by the previous Government, who sat on the issue for six years and achieved precisely nothing during that time. It is now time for this Government to bite the bullet and do the right thing.
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 Davidson
Rotherham sorry. Again, perhaps I do not know the distinction. When the Member for Rotherham and Brussels Berlaymont, my right hon. Friend the Member for Rotherham (Mr MacShane), was sounding off, I said, “Speak up for Brussels.” His key response was, “Well, it is not physically or geographically in Brussels”—so presumably all my arguments failed. It is not a question of geography though; it is a question of mindset. There is a Brussels mindset, irrespective of where it is physically located, that basically says that European is best and that there is a political elite in Europe that knows better than we do in this country how our country should be run. We have to say, “Up with this we will not put.” Enough is enough. In these circumstances, we ought to be saying that we wish to repatriate these powers, if they need to be repatriated, and if it is a question of ceasing or stamping on judicial activism by the European Court, that is what we need to do.
This issue should not be seen in isolation. Only today, in The Scotsman—so it must be true—the headline read: “Euro rule lets 900 accused escape justice. Judgment over human rights leads to ten prosecutions being dropped every day in Scotland.” The system in Scotland has done us fine for years, but here we have an example of the EU or its various arms, based in Brussels, Strasbourg or somewhere else—someone external—coming in and telling us how we should run our own affairs. As I said before, we ought to be sending the clear message that, “Up with this we will not put”, and that we will reject the influence of the Court as it constantly creeps across the United Kingdom.
Sir Peter Bottomley (Worthing West) (Con)
When someone is convicted of an offence, a number of elements are available to the court in disposing of the sentence. I cannot think of a single objective that is met by withdrawing the right to be registered to vote and to vote. It is clearly not a deterrent; I do not see that it is a punishment; I do not see that it helps rehabilitation; and I do not think that it is much of a penance either. The question is, therefore, why do we do it?
I think that Parliament should decide these issues. It should not be for the Supreme Court across the square or the European Court. I pay tribute to my hon. Friend the Member for Kettering (Mr Hollobone) for securing a debate in Westminster Hall on 11 January on this matter, and I am glad that we are having this debate now. The motion is defective in terms of setting policy, although it is very good for expressing opinion. I can agree with its first elements, but as my amendment—it would replace the last clause from the last semicolon in the motion—states, it would be a good idea to note that nearly
“a third of men have by the age of 30 been convicted of a serious criminal offence for which they could”
be sent to jail for six months or more. Hon. Members who have spoken about the problem of people breaking the law were right to phrase it that way. The question of whether someone is sent to jail as well is an extra issue. If we are going to say that breaking the law means that the right to vote should go, a third of us here would have lost the right to vote at some stage in our lives. Fortunately, however, most courts do not use a sentence of six months or more for offences for which one could be used.
We could split the motion—we might have to return to this point—between its European side, with which I mostly agree, and the question of whether we should maintain the blanket ban, or whether we should either say, as the Government suggest we might, a certain number of years, or, as others have said, a certain period before release. We can debate those issues without trying to put the two together. Although the debate has been interesting—having listened to it for four hours, I have probably gained as much as many who have been here the whole time—I believe that we ought to consider the issues separately. By all means, we can talk to the public and the newspapers, and look at the good cartoons in the Daily Mail and The Daily Telegraph, most of which could form the basis of a good speech. However, we ought to return to the question: what is the objective of sentencing policy that makes the withdrawal of the right to vote so important?
I leave the House a question: who has the responsibility to register those who are convicted and sent to jail? If I am already on the electoral register, is there a system for the courts to tell my returning officer to take me off it, or am I just left on? If I have set up a proxy beforehand, would that still work? Those are matters of detail, which are not important today. The important question today is: do we, as the motion says we should, acknowledge
“the treaty obligations of the UK”?
I agree with my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) on that. As for the right hon. Member for Blackburn (Mr Straw), whom I knew before he became middle-aged, he said that it was not the right time to bring the issue up, when the period that was “not the right time” allowed for more than five years of procrastination, with one election followed by another within five years. That was not the strongest argument that he brought forward this afternoon.
Sir Peter Bottomley
In the debate in Westminster Hall on 11 January, I quoted Justice Dennis Challeen. He said—I will précis it—that we want people to be responsible, but we deny them more responsibility; that we want them to think of others, but we put them in situations where they do not. As for using the vote, if people could start saying what kind of society they want to be part of, and if they want to be law-abiding subjects and useful citizens on release, as many do, then it could be part rehabilitation. However, I do not believe that by giving the vote we will suddenly find the reconviction rate dropping by 20 points. That would be ambitious. Those are ambitions that we ought to have—I am glad that tribute has been paid to what the Lord Chancellor is proposing to do to change our penal system to make it work better—but would it not be even better if many fewer people were committing criminal offences for the first time, and if the period in which they did were reduced even faster?
Winston Churchill’s speech as Home Secretary from 1910 can be quoted, but that point is on the record, so I will not go into that. What I would say, to those who want to start condemning the Prison Reform Trust or the Howard League, or those such as myself—I have served on the council of both Nacro and Mind, the National Association for Mental Health, and I was chairman of the Children’s Society, trying to deal with those at risk of becoming serious and serial criminals—is that we have to recognise that most of the people whom we are talking about are bad, mad or sad, or a combination. However, they are not always that all the time, so the sooner we start learning how to get deterrents, prevention and rehabilitation and can convert them to law-abiding citizens, the better.
I hope that we shall have this debate again, but after splitting the issues, so that we can make progress on both.