Voting by Prisoners

Debate between Robert Halfon and Richard Shepherd

Thursday 10th February 2011 Commons Chamber

[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.