Voting by Prisoners

Richard Shepherd Excerpts

Thursday 10th February 2011 Commons Chamber

[The Attorney-General]

There is no mechanism to enforce—[Hon. Members: “Ah!] My hon. Friend must listen carefully. The truth is that enforcing something against a Government who do not wish to have it enforced against them is very difficult, because the Government retain Executive power. If a judge in our High Court said that the Government should do something and the Government said, “We won’t do it,” it would be very difficult to do. Equally, however, it is worth bearing it in mind that the Government would be in rather serious breach of the principles of the rule of law and would, in fact, be behaving tyrannically. One needs to be careful. The principles on which United Kingdom Governments have always operated is that if international obligations confer a power on a court and a court orders compensation, we will honour those international obligations as it is our duty to do so, because without that we diminish our own status, in terms of our respect for international law as much as domestic law. It is therefore a bit of a red herring to suggest that just because something cannot be enforced, that is a justification for ignoring it. It might be a justification for enacting other legislation or taking other steps, but it would be a fairly momentous change in UK practice if we ignored something to which we had indicated by international treaty we subscribe.

[Mr Richard Shepherd (Aldridge-Brownhills) (Con)]

We of course have confidence, by and large, in our judicial system and our courts. I see this issue as a crisis in the question of whether we have confidence in the workings of another court system. That is the tension that underlines so much of what we are discussing today—whether we are talking about a credible court, with the extension of its remit as a living instrument, and so on. That is the criticism that is now coming from judges too. We respect one court; do we respect the European Court, and therefore the international obligation that my right hon. and learned Friend mentions?

[The Attorney-General]

There is no doubt that there has been criticism of the Court, just as I have at times heard views expressed in this House applauding judgments made in the European Court of Human Rights—the judgments on stop and search and on DNA databases come to mind. We therefore need to be careful about too much picking and choosing of what we might think is desirable or not. I recognise that there is a fundamental issue in this debate, which the right hon. Member for Blackburn and others touched on, about the extent to which the Court is turning into a micro-manager.

--- Later in debate ---

[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.

[Mr Shepherd]

rose—

[Chris Bryant]

I understand the other point that the hon. Gentleman made, and I hope to deal with it shortly.

--- Later in debate ---

[Mr Richard Shepherd (Aldridge-Brownhills) (Con)]

First, I wish to express my gratitude that both Law Officers, the Attorney-General and the Solicitor-General, are present for this debate. Secondly, I want to commend my hon. Friend the Member for Ipswich (Ben Gummer) for making such a remarkable speech. His exposition of why prisoners lose the vote in this country was highly effective and eloquent, and what he said is consonant with the will and view of the people of this country.

We in this House too often forget how certain measures were introduced. I was surprised, however, that the hon. Member for Rhondda (Chris Bryant) had forgotten that the measure under discussion was a Labour measure, introduced by Attlee’s Government. I will give the hon. Gentleman the dates, just to encourage him a little. In 1948, Germany was divided, and Europe was fighting to maintain democracy and its values in the west. Out of that came the Council of Europe. In May 1949, the statute of the Council of Europe was signed in London, and it included an emphasis on human rights. The Cabinet agreed to the convention on 24 October 1950, and it was signed on 4 November 1950 and ratified on 8 March 1951. The Labour Government did that because of the state of democracy in Europe, as many Europeans felt that would be a bulwark against Soviet hegemony in Europe.

[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.

[Robert Halfon]

Will my hon. Friend give way?

[Mr Shepherd]

No, as I have only three minutes and 49 seconds left.

Moving forward in time, the Hirst case caused a great deal of anxiety in this country. I do not think it the most important case, but we are using it as the means by which we ask questions about the nature of, and what has happened to, the European Court of Human Rights. I think Tyrer v. the UK is more important, because something foreign was then extended to our British legal system: the notion that the Court’s role was to use the law as a living instrument. That is in direct conflict with our common law tradition, and no one in this Parliament or this country signed up to such an important agreement. That is why we are in trouble, and that is what lay behind Lord Hoffmann’s elegant and eloquent introduction to the policy review argument of Professor Pinto-Duschinsky.

At the heart of this matter, we have to grapple with a profound point. I heard my good friend the former Lord Chancellor, Foreign Secretary, Home Secretary et al, the right hon. Member for Blackburn (Mr Straw), say that their claim was that we were bringing rights home. The truth is not quite that. The statute was brought in, which I support entirely. It is important, because there could be tyranny; one vote could have given us 90 days of imprisonment without charge. Fortunately, that was defeated by this House, but that episode shows how thin our liberties lie. The question, therefore, is how do we entrench them? That was the purpose of the very subtle piece of legislation called the Human Rights Act 1998.

I believe these matters should be brought home. I think our common law judges can define the points and do that work, but there can be no entrenchment of that. That has always been the problem with the British constitution; we cannot entrench that which is good, because another Parliament can do away with it or a simple majority in this House of Commons can undermine it.

I cited one such great case—that of 90 days without charge—which was put forward as a serious proposition by a democracy and a land that believes in the rule of law. I would therefore like to give this task entirely to the British judges. That is what I see as the remedy to this situation: we bring the law back and it is decided here. We support and salute the endeavours of the Council of Europe, but this Court is a shambles as currently constructed and in the way in which it discharges its duty. I support the motion, for the reasons first argued so eloquently by my hon. Friend the Member for Ipswich, and in the underlying struggle to maintain the common law in this country.