Rape Trials: Treatment of Victims

Robert Halfon Excerpts

Wednesday 15th May 2019 Westminster Hall

[Robert Halfon (Harlow) (Con)]

I beg to move,

That this House has considered rape trials and CPS treatment of victims.

It is a pleasure to serve under you today, Mr Bailey. I was recently privileged to meet an extraordinary and courageous young woman from my constituency at my weekly MP’s surgery. She told me that in May last year a man had attempted to rape her on her way home from a night spent with friends. Physically hurt and emotionally distraught, she made the brave decision to go to the police and seek justice for herself and our community. I was saddened to learn that at the most vulnerable time in her life, when she was most in need of human care and protection, she had been left feeling let down by our justice system.

Time and again, this lady has repeated that although she cannot change what has happened to her, she can try to change what happens to others. As her Member of Parliament, I feel it is only right to speak on behalf of my constituent, who is a voice for many other survivors of rape, attempted rape and sexual assault, to draw attention to the need for urgent Government reform.

[John Howell (Henley) (Con)]

I hear what my right hon. Friend says, and I wonder whether he will take back to his constituent the heartfelt feelings of the House for the ordeal that she went through—please convey our best wishes to her. This is not something new or limited to this incident: there are plenty of examples of how the Crown Prosecution Service has not handled this sort of thing very well. I applaud him for what he is trying to do with this debate.

[Robert Halfon]

I thank my hon. Friend for coming today. He will find out that we are trying to do exactly what he said. My constituent is in the Public Gallery—not because she can change what has happened to her, but because we can try to change things for the future.

[Jim Shannon (Strangford) (DUP)]

I congratulate the right hon. Gentleman on everything he does in the House, and particularly on this case. I commend him for what he is doing on behalf of his constituents. There have been 820 accusations of rape in Northern Ireland, but only 15 convictions. Does he believe that the CPS, in co-ordination with the police forces, can enable more cases to be tried successfully by offering greater support to the victims and their families—in other words, by working together on behalf of the victim?

[Robert Halfon]

As so often, the hon. Gentleman gets it in one. From what I am about to say, he will see that I agree with him. I am sure the Minister is listening to what he and my hon. Friend the Member for Henley (John Howell) are saying.

First, I want to raise the issues of sentencing for attempted rape and the lack of transparency in published statistics. Secondly, I want to turn to the treatment of victims who report their assault, and call for Government action to make this process easier. We must strive to ensure that justice is served and that there is always compassion and support for the victim.

Section 1(4) of the Sexual Offences Act 2003 sets out that the maximum penalty for rape is life imprisonment. Under the Criminal Attempts Act 1981, a person who attempts to commit the full offence of rape shall also be liable for a maximum sentence of life imprisonment. In the case of my Harlow constituent, her attacker had the intention, or mens rea, to commit the full offence. Had it not been for the fact that she had the sheer physical strength to fight him off until a security guard heard her screaming for help and intervened, his attempt might have been undeterred.

In their legislative form, the offences of attempted rape and rape are considered punishable by equal measure. However, by taking into account the circumstances of the case under the Sentencing Council’s guidelines, the court often imposes a lesser sentence on perpetrators of attempted rape because they have not committed the actus reus of rape. For my Harlow constituent, she feels let down by the justice system—robbed of the possibility of a longer sentence for the perpetrator because she fought so hard to fend him off. Will the Minister clarify the Sentencing Council’s guidelines for attempted rape and the basis on which their effectiveness as a means of securing justice is tested?

Another key problem on the subject of sentencing for sexual offences is the lack of clarity in the statistics. I welcome the Justice Secretary’s response to my letter on sentencing for attempted rape, but I was shocked by his acknowledgement that

“The Ministry of Justice does not disaggregate attempted rape from rape offences by sentence length in published figures.”

Can the Minister tell us whether the Attorney General’s Office and the Ministry of Justice will commit to transparency in sentencing figures for rape and attempted rape, so that we have a much clearer basis on which to assess the suitability of existing law? Will she ensure that this is clearly published, rather than buried in spreadsheets and data tools?

Only 15% of sexual violence cases are reported to the police, and only 7.5% of rape charges result in conviction. These statistics are devastating and demand urgent Government attention. A whole host of factors might well be to blame for these figures: a high threshold for sufficient evidence; the CPS’s continuous demand for more intrusive personal data, including from mobile phones; and the myths surrounding what constitutes rape, to name but a few. However, some responsibility must be borne by the treatment of victims before, during and after trial. We are discouraging people from reporting their assault or forcing them to drop charges, because they cannot bear to continue.

After making the courageous decision to give her statement to the police, the process of my Harlow constituent’s fight for justice has been arduous and often extremely uncomfortable. It is important that I go through some of her experiences in detail—sadly, my constituent’s account is not unique. In the immediate aftermath of the incident, she waited eight hours in discomfort, exhaustion and emotional trauma to have forensic evidence collected at the sexual assault referral centre, or SARC. She was not permitted to wash and was asked to strip down before being swabbed from head to toe and photographed. She was then interviewed and asked intrusive personal questions. At the time, she was constantly waiting for nurses, police and support staff to attend to her.

As they are often the first port of call after an assault, SARCs play a crucial role in the victim’s ability to secure justice. It is possibly the most critical part of the process in obtaining forensic evidence that can be used by the prosecution at trial. However, we make victims wait in distress and discomfort, because otherwise they risk evidence being lost due to a lack of qualified staff. The rape support fund has been a cornerstone for support services, and I wholeheartedly welcome the Government’s commitment under the victims strategy to increase spending from £31 million in 2016-17 to £39 million in 2020-21. The solution is not necessarily throwing more money at the problem, although more money will always be welcome; it is essential that money is being used wisely and efficiently to maximise reach.

NHS England says that SARCs delivered services to 20,000 people in 2017-18. In the same year, Rape Crisis supported 78,000 individuals on £10 million less funding. What measure will the Minister take to ensure that the £39 million is used to staff SARCs properly? While they are not staffed properly, we are not only adding to the distress and anguish of victims, but potentially risking the successful prosecution of people who commit such horrific acts. Additionally, the all-party parliamentary group on sexual violence, together with Rape Crisis, has identified concerns about increased competition for this extra money and whether there will be any significant changes to individual centres.

The consequences, of course, are felt by the end user—the victim. As my constituent’s experience shows, the Government’s commitment to strengthen victim support, although wholly admirable, does not always trickle down to the people using the services. For example, sexual assault victims do not get the psychological support that they need. Waiting times for counselling are as long as one year, and the counselling sessions that individuals are offered may be just for a few weeks.

My constituent realised that she needed much more counselling. She actively pressed for more, and was given it. On top of her emotional trauma, she felt guilty that she may have been depriving someone else of vital support. People who have already been through an emotional and horrific ordeal should not be concerned about that. Will the Minister ensure that the additional funding outlined in the Government’s victims strategy will be channelled to staff support services properly, minimise waiting times and allow survivors to start getting on with their lives?

In the months leading up to the trial, my constituent was contacted regularly by the police, who asked more questions and wanted more statements, interviews and photographs of the bruising. The trial took more than a week and a half. She had to express her discomfort at the idea that her attacker would be in the same room as her before a screen was put up. She described the trial and cross-examination as:

“A torturous experience of being asked the most vulgar questions...based on the attacker’s recall of the event, which made me feel so uncomfortable and emotional, whilst being forced under pressure by the lawyer”.

Even after a guilty verdict has been reached, victims are still not free to get on with their lives. My constituent had to wait months before her attacker was sentenced to six years.

Survivors of assault put themselves through that not because they want to, but because it is their only hope of building a case, and yet we jeopardise it by making the process so difficult. Minister, what can be done to speed up the process from reporting to the police to sentencing, so we do not prolong the suffering for longer than is wholly necessary?

Since the perpetrator’s imprisonment, my constituent has been asked by her attacker’s parole board to fill in reams of paperwork to put in place measures not only for her, but for him. Although he got six years—now reduced to just three—my constituent feels like she has been served with a life sentence. She is reeling from the anguish and suffering she experienced. Why on earth should she—the innocent party and victim—face a never ending struggle to keep the perpetrator in prison and feel some sense of safety?

I recognise that resources are limited, and that this is a particularly sensitive area of the law, but we cannot sit by and ignore the problems. The statistics relating to this area of justice are dire, as has been highlighted, and they are not getting any better. In 2017-18, the number of rape referrals from the police to the CPS fell by 9%, the number of suspects charged for rape fell by 8% and the number of rape prosecutions fell by 13%. The volume of sexual offence prosecutions excluding rape also fell by 11%.

My constituent suffered because of the lenient justice system. She suffered in the reporting of the attempted rape and suffered again in the aftermath. That is just wrong. She, like every rape and sexual assault survivor, has suffered enough. The Government must review all these areas and ensure that no one feels let down by the justice system again.

European Union (Withdrawal) Act

Robert Halfon Excerpts

Tuesday 15th January 2019 Commons Chamber

[Robert Halfon (Harlow) (Con)]

I voted remain in 2016, because I felt it was better for Britain to belong to an alliance of democracies. However, in my heart I felt that the EU was both undemocratic and bureaucratic. I understood why people wanted to take back control and the pressures that ordinary people face in their daily lives, particularly with the cost of living. It was clear to me after the referendum that the public had had enough. My constituency voted 68% to leave and I made it very clear to the residents of Harlow that I would do all I could to ensure that their wishes on Brexit were followed through. That is why I am strongly opposed to a second referendum, which would divide the country once again and disenfranchise the 17 million people who voted to leave. It would potentially cause political unrest and extremism, as many who voted to leave would feel that their wishes had been ignored.

I do not for a moment believe that the people were not informed or were too stupid. Far from it. In fact, it was we politicians who were the foolish ones for not listening to the anguish of many working class communities over many years, with people struggling with the cost of living and the pressure on our public services, and doing the right thing by working hard yet facing obstacle after obstacle in their daily lives. My view is that any withdrawal agreement needs to follow the wishes of the British people.

The problem for me with the Prime Minister’s deal is this: how do I go back to my community of Harlow and say we do not have money for our libraries, hospital and community groups, but we can give £39 billion of hard-earned taxpayers’ money to the EU without even getting a trade deal at the end of it? When the House of Lords said there was no obligation to pay the £39 billion, should the Government not at least have published a cost-benefit analysis of the money we would have to give to the EU under the withdrawal agreement? We are tied to EU structures via the transition and the backstop, a spaghetti junction of EU bureaucracy that could potentially be infinite. I have never rebelled against this Prime Minister in this Parliament, but I will be voting against the deal tonight for those reasons. It would create two different regimes for Northern Ireland and the rest of the United Kingdom, and that has the potential to weaken our Union.

We are in this spaghetti junction without a voice, a vote or a veto. That is why I am trying, with the hon. Member for Manchester Central (Lucy Powell), to offer an alternative with a common market 2.0. A common market would take back control by removing us from the common fisheries policy and the common agricultural policy, taking back control of our fish and our farms. It would take us out of the jurisdiction of the European Court of Justice and offer us a brake on freedom of movement, but safeguard jobs, communities, business and our economy.

Withdrawal Agreement: Legal Position

Robert Halfon Excerpts

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

The hon. Member puts his finger on something that I do regard as being one of the undesirable features of the backstop, which is that there will be rules passed relating to goods. The trade in goods is a narrow field of human and public life, but rules will be passed and the people of Northern Ireland will not have the right of representation in their passage. That is why I think it is essential it should be temporary, why we must strive to make it so, why the extension of the implementation period is a real option in those circumstances, and why I believe, for the reasons I have already given, we can avoid it or avoid it being of any great length.

[Robert Halfon (Harlow) (Con)]

Will my right hon. and learned Friend publish not the whole legal advice, but the legal advice on why we have to give £39 billion to the European Union? He mentioned that there could possibly be an extension to the transition period. Will he set out our legal financial obligations if we do extend the transition period?

[The Attorney General]

There would be financial obligations for extending the implementation of the transition period. They would have to be negotiated at the time. The Joint Committee would consult on them and it would reflect a reasonable proportion or contribution for the period for which we were signing up. In relation to any advice connected with the £39 billion, again my right hon. Friend will understand that I am not at liberty to disclose advice the Government may have received on that matter. I can say that there has been very widespread commentary and discussion on it. I commend to him, for example, the House of Lords European Union Committee.

Oral Answers to Questions

Robert Halfon Excerpts

Thursday 29th June 2017 Commons Chamber

[Tracey Crouch]

Alas, I do not have the power to tell headteachers anything, but I am sure the Secretary of State for Education will have heard the hon. Lady’s comments. What I know from all the analysis on women and girls in sport is that we see a drop-off among girls at about the age of 14, which is the point at which they become far more body conscious. Having some flexibility in what they wear while they participate in sport may well be an answer to that.

[Robert Halfon (Harlow) (Con)]

14. Harlow gymnastics club is an outstanding sports club that helps many young disadvantaged people. As a limited company, it suffers punitive VAT rates. Will my hon. Friend lobby the Treasury and visit the excellent Harlow gymnastics club to ensure it can carry on giving young people a great service?

[Tracey Crouch]

My right hon. Friend is far better at lobbying the Treasury than anybody else in this House. I congratulate Harlow gymnastics club on its 10th anniversary. I see that it runs a number of exciting initiatives, including the wonderful Head over Heels programme for the under-fours. Given that Harlow has slightly lower than average activity statistics, anything that the gymnastics club and other sports clubs can do to improve them is very welcome.

Assisted Suicide

Robert Halfon Excerpts

Tuesday 27th March 2012 Commons Chamber

[Fiona Bruce]

I will, and I pay tribute to the entire hospice movement in this country. The care and treatment of patients provided by such services embodies the culture that we have in this nation of prioritising care at the end of life, and does not prioritise foreshortening life by months or years at the end-of-life stage.

The DPP has said that the guidelines that he operates are working well; indeed they are. Prosecutorial discretion is part of our criminal law and applies across a wide range of crimes. We cannot fetter it in law because each case is different. The law gives a clear message that one person should not encourage or assist another’s suicide.

[Robert Halfon (Harlow) (Con)]

I am proud to be supporting my hon. Friend’s amendment today. Does she agree that this is not about choice, but is about people being forced to make choices? Does she also agree that rather than having debates about assisted dying it would be much better if we had more debates and discussions about how we could improve palliative care?

[Fiona Bruce]

I do, and that is entirely the intent of my amendment.

--- Later in debate ---

[Robert Halfon (Harlow) (Con)]

I wish to make three points. First, as the right hon. Member for Cardiff South and Penarth (Alun Michael) said earlier, I believe that the people who have pushed forward today’s debate are, in essence, introducing a Trojan horse. I respect the genuine feeling that many have on the issue, but my worry is that whatever the intention of some Members, this will ratchet towards euthanasia.

Secondly, there is a risk of abuse because of the serious abuse that exists in Oregon and the Netherlands, where assisted dying is legal and, dare I say it, in historical examples of state-sanctioned euthanasia, such as in Nazi Germany. Thirdly, I would argue that this is the wrong debate. In terms of resources and philosophically, surely we should put everything into helping people to live, not helping people to die.

My fear is that this is a Trojan horse motion. I accept that the motion simply welcomes the DPP’s advice, and that the Director of Public Prosecutions said in February:

“The policy does not change the law on assisted suicide”,

but he also admitted that there had been changes to the policy. As my hon. Friend the Member for Epping Forest (Mrs Laing) said, Parliament has never voted on these measures, even though they de facto amend the Suicide Act 1961. There is a risk that the guidance will tilt the legal balance towards euthanasia, not least because it clarifies how people can deliberately avoid prosecution.

[Bob Stewart]

I do not understand how they would amend the Suicide Act. It is my understanding that it has not been amended.

[Robert Halfon]

My argument is that the guidelines are too flexible, and that Parliament has not made a decision about the matter. As I said, Parliament has had no say in designing the DPP’s guidance, and that is not how law should be made in Britain. We are simply being asked to rubber-stamp what the DPP has said. This matters because there is a risk of abuse—it could become a lawyer’s charter—and because of the kind of country it would make us.

Sadly, there is a real example in history of how the move to assisted dying has led to something much worse. In 1920, the eminent German medics, Binding and Hoche, argued strenuously that doctors should be protected against prosecution for assisted dying. Their research was popularised during the Weimar era, and by 1932 created the intellectual climate that allowed Prussia to remove support for the disabled and terminally ill. In 1939, we know that Hitler issued orders that doctors be commissioned to grant a mercy death to patients who were judged to be incurably sick. A small step perhaps; each step along this path was a small step. Two years later we know that 70,000 patients from Germany’s hospitals had been killed. We know that in 1941, the gas chambers were moved from the hospitals where they had been used for euthanasia to the death camps of Auschwitz and Treblinka. Nurses, doctors and technicians followed the equipment. That is why I am worried about a conveyor belt. Of course, we live in a benign country, and we think that such things would never happen, but it is precisely because we are a benign country that we have to put in every safeguard to ensure that it does never happen.

I argue that the DPP’s guidance can become a lawyer’s charter. Who will define “compassion” in the DPP’s guidance? What is “minor encouragement”? How will we know the victim’s story if only the suspect can give evidence. Moves towards assisted dying would seriously damage our national character. As the National Review reported, a 1991 Dutch survey showed that 2% of all deaths in the Netherlands were caused by deliberate euthanasia, but 10% were from euthanasia by neglect, omission or other forms of poor care.

This is the wrong debate. We should be supporting palliative care, and I am proud to be very involved with my local hospice, St Clare’s. We should remember that about 40% of hospice in-patients return home and 66% of hospice at-home patients die in their own homes.

As a society, we are beginning to devalue human life, whether it is on television, in computer games or in other forms. I accept that we give people choice, but we are not talking about going to a supermarket and choosing a brand of chocolate. Harold Shipman was mentioned earlier, and he got away with what he did because human beings became digits on a computer: form filling. I wonder whether he would have got away with what he did if we did not devalue human life in the way we do.

--- Later in debate ---

[Guy Opperman (Hexham) (Con)]

During the Budget debate last year, I collapsed in Central Lobby. It was not, I assure hon. Members, the Budget that made be ill, but a tumour the size of a small fist in the left part of my brain. I was taken to St Thomas’s hospital, where an A and E doctor advised me that I required a craniotomy to remove the meningioma from my brain.

That was extremely frightening. I was advised as to the likelihood of death, paralysis, loss of speech or sight, and so much more. It was a week before I had my operation. I was one of the lucky ones. I survived with a few scars and with no deficit whatever. However, I have to face up to the possibility that I might not have been so lucky. I had a week to contemplate the situation. It made me think about what might have been.

One comes back to a simple issue which, I suggest, is at the heart of this entire debate: to whom does a person’s life belong? I suggest that a person’s life belongs to the individual themselves. It is for those who are not as lucky as I was to make their choices about how they live their lives. That somebody cannot take those choices does not mean that we in Parliament should deny them any choice. It upsets me tremendously that the state prescribes that it knows best. It cannot be right that individual members of the public are prevented from doing something in this country that they are able to go and do at Dignitas in Switzerland, where they can die in the manner of their choosing.

[Robert Halfon]

I am glad to see my hon. Friend so strong and alive in this Chamber. He talks about choice. Does he not agree that this issue is not just about individual choice, because people can be pressurised into making choices? That is what is really at the heart of the debate.

[Guy Opperman]

There is a great need for strong protections. Everybody accepts that. Not a single person disagrees with that, just as there is not a single person who does not wholeheartedly endorse the need for palliative care. However, that is not enough. I suggest that the principle of clear self-determination must be the core of any concept of human rights.

I am a huge supporter of palliative care, like all other Members. I pray in aid the Charlotte Straker home and the Tynedale hospice in my constituency. If I need to declare an interest, it is that I have raised considerable sums for both those organisations.

I welcome many constituents of mine who have come from Northumberland today. Many of them were friends of Geraldine McClelland, the former BBC TV producer and founding member of Newcastle’s Live theatre, who took her life at Dignitas last December following an unsuccessful battle with cancer. Her letter has already been read out. Her good friend Nick Ross, the “Crimewatch” presenter, said:

“Gerry had to abandon her home and be driven across Europe…to end her life in a light commercial estate in an impersonal Swiss suburb.”

He continued:

“It sometimes seems that each concession to freedom in this country has had to be dragged out of a reluctant and controlling instinct that someone else knows best.”

I endorse entirely those remarks and urge the House to address the issue that dare not speak its name, which is that we need to consult properly about assisted suicide. I will of course support the amendment tabled by my hon. Friend the Member for Congleton (Fiona Bruce) and the motion moved by my hon. Friend the Member for Croydon South (Richard Ottaway), but in the longer term, the matter will not go away.

Dr David Kelly

Robert Halfon Excerpts

Thursday 9th June 2011 Commons Chamber

[The Attorney-General]

Generally speaking, I do not have to do it myself, but give permission for it to be done. I did that very recently in a case where a body had been found and never identified. Some considerable time afterwards identification became possible, so the inquest had to be reopened for the purpose of identifying that the person who had died and had been long buried was, in fact, the person concerned. That is an example. It is part of my functions to do it. I have to review each such case, but generally speaking, I give my permission to others to do it, and do not have to take that role myself.

[Robert Halfon (Harlow) (Con)]

I commend my right hon. and learned Friend on his statement, and hope very much that it will draw a line under all these conspiracy theories. Does he agree that these theories came about because of the previous Government’s mishandling of the case for the Iraq war, particularly the 45-minute claim about an attack on British targets?

[The Attorney-General]

My hon. Friend asks me to stray from the role that brought me to the Dispatch Box as the guardian of the public interest and into the realm of politics. I shall restrain myself from doing so.

Voting by Prisoners

Robert Halfon Excerpts

Thursday 10th February 2011 Commons Chamber

[Mr Davis]

Of course my hon. Friend is right. One of the points about laws in a democracy is that they exist with, at the very least, the acquiescence—the consent, we hope—of everybody in that democracy. Between 75% and 90% of the population cannot understand what we are doing even considering this proposal.

Let me go back to the compromises that have been talked about. It is not my aim to put the Government in a difficult position from which they cannot escape; the issue is whether those compromises would work. The proposals put up so far—four years, one year, six months—would not work. They would not escape the threat that we have had held over us of compensation or some other form of penalty against our taxpayers. In fact, one member of the Council of Europe, Austria, did give the vote to prisoners serving less than one year, and it then appeared in the Court and was found against.

Just how ridiculous this is became clear earlier this week, when the European Commissioner for Human Rights appeared on Radio 4. Because he had said that a blanket rule would not work, he was asked what the guideline was, and he said, “A breach of electoral law.” That would put us in the ridiculous position whereby we denied the vote to somebody who broke electoral law, in however minor a way, yet gave it to the rapist and the murderer. It is so ridiculous that I cannot believe he really meant it.

[Robert Halfon (Harlow) (Con)]

I congratulate my right hon. Friend on securing this important debate. Does he agree that it is rather strange that we are being forced to do this by the European Court of Human Rights, many of whose own judges come from authoritarian regimes? Is it not time to withdraw from its jurisdiction?

[Mr Davis]

I am now going to lose the House, because I do not agree with withdrawing from the regime. I will explain why in a moment.

Let me conclude this half of my speech—I am using up too much of my time giving way—by saying that it is clear to me that our current system is appropriate, just, proportionate, simple and well understood, and we should stick with it.

The second substantive issue before us is who should decide—the European Court or these Houses of Parliament? British courts themselves are clear on the matter. They rejected the claims of Mr Hirst, the axe killer, at every stage. The High Court said in terms that this was

“plainly a matter for Parliament, not the courts”.

To those who say, “But we must obey the law”, I say that the historical task of this Parliament is to correct bad law, no matter where it comes from.

--- Later in debate ---

[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.

--- Later in debate ---

[Robert Halfon]

My hon. Friend makes a powerful case. Is she aware that in 2002, Sweden had a problem with an aspect of the convention and withdrew, then later went back into it? Why cannot we do the same on this issue?

[Priti Patel]

That is a good example. We need to start exercising our rights more vigorously and standing up for Britain and Britain’s interests. This is why Parliament and the Government must stand up to the Strasbourg Court. I fundamentally believe that this Parliament should have the final say on this matter.

My constituents constantly make the point that they are outraged. They feel that the rights of criminals, as opposed to the rights of victims, are constantly discussed and put first. I was not sent to the House by the voters of Witham slavishly to nod through laws and accept every diktat that comes from Europe or the Strasbourg Court. I was elected to this House to defend the national interest, to support my constituents and to hold law-makers to account. It would be a great disservice to the British people if we were to say that the authority of this House and this Parliament is now so denuded, so irrelevant, that we are powerless to act, stand up, speak out and do the right thing in this Chamber. This is a democratic and sovereign Parliament, which has done more to promote democracy and the rule of law than any other. We should not be forced to bow down on this issue, and I urge all hon. Members to put Britain and the law-abiding majority of this country first by sending a clear and unequivocal message to Europe by supporting the motion.

--- Later in debate ---

[Mr Robert Buckland (South Swindon) (Con)]

We have had an interesting debate and a number of ideas have come forward from both the Front and, most notably, Back Benches. In the spirit of the invitation of the Attorney-General, who made his remarks in the middle of the debate, I think that it is incumbent on us all to come up with constructive suggestions on how we move forward. Before doing so, I want to say that the debate epitomises the age-old tension between the judiciary and the legislature. It is not something we should apologise for; frankly, it is entirely natural.

There are times when the concept that politicians make the laws and judges merely enforce them comes under severe strain, and this is one such occasion. Often, the fault lies here, with politicians, because of poor and unclear drafting of legislation. Judges will often have the difficult task of interpreting unclear provisions—I pray in aid the Criminal Justice Act 2003, for example—and will do their best to clear up the spilt milk that we politicians have left them. However, there are times when the hand of judicial activism can be seen. Nowhere is that more true, I am afraid, than in the European Court of Human Rights.

We have heard much about the original conception of fundamental rights and freedoms, and I associate myself with those remarks. What has clearly occurred is a move from a concept of the guardianship of fundamental liberty to one of pettifogging interference with the mechanisms of liberty itself.

[Robert Halfon]

Will my hon. Friend give way?

[Mr Buckland]

I will not, because other hon. Members wish to speak, and I do not want to eat into their time.

In this country, the concept of human rights has become associated not with the far-sighted words of Sir Winston Churchill or the careful drafting of Lord Kilmuir, but with the rather grisly spectre of ambulance-chasing lawyers, scuttling around our prisons, encouraging inmates to think not about the right to vote, but about the prospect of compensation. We should all reflect on that; it is a sad reflection of where human rights have sunk to in the public’s perception.

We need to return to the concept of basic rights. The right to vote is not in my view a fundamental freedom of itself. It is the expression of a freedom, of a constitutional right, but it is not of itself a fundamental human right. The suffrage is age-restricted, for example; it depends on electoral registration; and it is a mechanism for expressing our freedom, not the very freedom itself. That is where I am afraid the hon. Member for Solihull (Lorely Burt) gets it wrong. There is a distinction to be made, but it is a distinction that the European Court has blurred—and blurred dangerously through its majority decision in the case of Hirst.

I said that the right to vote is an ancillary to freedom, and equally the loss of the right to vote by a prisoner is an ancillary consequence of incarceration. The punishment is the deprivation of the fundamental freedom that is liberty; one consequence is the loss of the right to vote. They go hand in hand, and the eloquent words of my hon. Friend the Member for Ipswich (Ben Gummer) cannot be improved on. Much has been said about the misnomer of a “blanket ban”, and that point needs to be reinforced.

I should like to make a suggestion, which I think my hon. Friend the Member for Broxtowe (Anna Soubry) presaged, but whom I forgive. It is an observation based on the majority decision in the Hirst case. The criteria that troubled the majority there were the nature or gravity of the offence and the individual circumstances. We should move away from worrying about the length of the sentence and look at where we deal with the case. We deal with our most serious cases in the Crown court, and there should be a presumption of the loss of the right to vote for all defendants who are dealt with in that higher court.

We could observe the reverse to be true in the lower or magistrates court. I am reluctant to support the concept of judicial discretion, which brings judges into the political sphere and leads to an effective reduction in the loss of the right to vote. For all those reasons, I support the motion.

--- 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.