Voting by Prisoners

Stephen Phillips Excerpts

Thursday 10th February 2011 Commons Chamber

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

Notwithstanding the comments of my hon. Friends the Members for Worthing West (Sir Peter Bottomley) and for Broxtowe (Anna Soubry), the motion on the Order Paper in my name and that of right hon. and hon. Members on both sides of the House has been carefully crafted in light of the judgments delivered by the Grand Chamber in the Hirst case. For that reason, and given the limit on Back-Bench contributions, I shall confine my remarks to demonstrating why the motion is correct and why it is important that it receives support from hon. Members on both sides of the House.

The previous Government’s decision to refer the Hirst matter to the Grand Chamber is something that we have to live with because of the rule of law. We have to respect the judgment that the Court handed down, whether we agree with it or not, but it is important to bear in mind that the decision in Hirst was far from unanimous. A powerful dissent was delivered by the president of the Court, in which he was joined by four other judges. I add that Judge Costa, who is now the president of the Court, also delivered a dissenting opinion. Those dissenting opinions correctly recognised the importance of the Court not interfering or being seen to interfere in domestic political issues.

[Jeremy Corbyn]

I am listening intently to the hon. and learned Gentleman. Does he recognise that those opinions dissented from the majority opinion of the Court? If we are to support the whole concept of the European convention on human rights and the Court, we have to accept its judgment.

[Stephen Phillips]

I am grateful for that intervention, but I ask the hon. Gentleman to listen to where I am going rather than to what he has heard so far.

The minority stressed that

“it is essential to bear in mind that the Court is not a legislator and should be careful not to assume legislative functions.”

I make this point, in answer to the hon. Gentleman, because although I accept, as my right hon. and learned Friend the Attorney-General has made clear, that the Government are bound by the judgment in the Hirst case as between themselves and Mr Hirst, in the sense that it is res judicata between them, they are not bound in relation to future cases brought by other litigants. There is every prospect, given the debate that we are having today, that the judgment in Hirst would not be followed by the Grand Chamber in future should it come to consider the matter again. To be clear, if, as I trust will happen, there is a clear demonstration in the House today of the will of the people, through their democratically elected representatives, to maintain the status quo regarding the removal of voting rights from those who are subject to custodial sentences, I fail to see how that could not subsequently be respected by the courts of this country and by the Strasbourg Court should the matter have to be considered again.

As even the majority in Hirst recognised, there is a substantial margin of appreciation in the context of article 3 of the convention, and the fact remains that there is no consensus across Europe as to whether those serving custodial sentences should have their right to vote removed as a consequence of having put themselves outside the law. Indeed, it was notable in the judgment of the majority in the Grand Chamber that significant reliance had to be placed on decisions from Canada and South Africa. The hon. Member for Islington North (Jeremy Corbyn) quoted from the South African case. It is true that Canada and South Africa are both common law countries, but they have significant civil law traditions stemming from French law and Roman-Dutch law respectively.

The margin of appreciation in the context that is being discussed in the House means, or certainly ought to mean, that if the House passes the motion, as I hope it will, and if it decides that it does not believe, in the name of the people of the United Kingdom, that section 3 of the Representation of the People Act 1983 entails any breach of the human rights of the citizens of the United Kingdom, that, to my mind, must be an end of the matter. It will have to be recognised in the courts of this country. It will, I hope, be recognised by the Court in Strasbourg.

[Ben Gummer]

On that point, if the House expresses this opinion today, and if the Court takes that into account, and given that the article protects the totality of the democracy and not an individual right, will the Court not be subverting the convention itself if it persists along the course of action that it has begun?

[Stephen Phillips]

Yes, it will. One of the difficulties that the Government face, and which those arguing the case in the Grand Chamber faced, was the previous jurisprudence of the Court, where the article had been misconstrued well beyond its original purpose, to give rise to individual rights that the framers of the convention had never intended should come into being.

If there is a change in the approach of the Strasbourg Court, as there ought to be in light of the motion—assuming that it carries if there is a vote tonight—and if the Strasbourg Court were arrogantly and excessively to continue to seek to appropriate to itself the right to legislate for the people of the United Kingdom, the Government and the House would have to look again at the matter. In those circumstances, it would be difficult to see what properly could be done other than to repatriate the right of the United Kingdom to have sole jurisdiction to decide the human rights of its citizens in its domestic courts, as a number of hon. Members have suggested.

For the present, however, what is necessary, and all that is necessary from those on both sides of the debate—from those who support the existence of the jurisdiction of the Strasbourg Court and those who do not, and from those who believe that we ought to be party to the European convention on human rights and those who do not—is that the motion receives support across the House, so that we make clear the position of the people of the United Kingdom through their elected representatives. For those reasons, I commend the motion to the House. I shall vote for it and I urge hon. Members of all parties to lend it their support.