Voting by Prisoners

Tony Baldry Excerpts

Thursday 10th February 2011 Commons Chamber

[Tony Baldry (Banbury) (Con)]

The last Labour Government spent five years dithering over this issue. They did nothing. As with so much else, the Labour party left it to the incoming coalition Government to sort out the mess. Therefore, the one thing on which we can all be agreed is that this is an issue on which we need to take no lessons from those on the Opposition Benches. They had five years to sort out this problem while in government and simply failed to do anything.

The European Court of Human Rights has not said that we have an obligation to give every prisoner the vote. What the ECHR did find was that a blanket ban was not proportionate, that

“the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned”

and that

“in sentencing the criminal courts in England and Wales made no reference to disenfranchisement and it was not apparent that there was any direct link between the facts of any individual case and the removal of the right to vote.”

I think we should seek to address those issues. It would be wrong simply to put two fingers up to the Court because we did not like the implications of its judgment.

There is a perfectly straightforward way forward that deals with the ECHR points and meets the collective view of this House that prisoners should lose the right to vote while in detention, because it has always been agreed that if one commits a serious crime, one should lose the right to have a say in how one is governed. The way forward lies in the ECHR’s judgment in Hirst, but it also lies in the ECHR’s judgments in cases involving other European countries: Frodl v. Austria and Scoppola v. Italy, the No. 3 case. In Frodl, the Court said that

“the sanction of disenfranchisement...should preferably be imposed not by operation of a law but by the decision of a judge following judicial proceedings”.

In Scoppola, the Court held

“that a decision on disenfranchisement should be taken by a court and should be duly reasoned.”

When a judge sentences an individual to prison the court has to make a number of decisions: on the length of imprisonment; on whether terms for individual offences should run concurrently or consecutively; and on whether part of the sentence should be suspended. Depending on the exact nature of the offence, the court will also have to put its mind to a number of other possible consequential orders.

I see no reason why a judge should not inform the defendant when sentencing that, in addition to their term of imprisonment and as a consequence of their conduct, they would, as part of their punishment, be disfranchised in regional, national and European elections for a specific period of time. As with every other aspect of sentencing, one would expect the Lord Chief Justice, senior judges and the Supreme Court to issue sentencing guidelines. Crown Court judges and magistrates are given sentencing guidelines on every other aspect of sentencing, so I see no reason why it should not be possible to devise effective sentencing guidelines on disfranchisement that start from the general premise that those who go to prison will lose the vote while they are in prison.

[Chris Bryant]

I am sorry to stop the hon. Gentleman’s drift, but one of the problems with that argument is that many of us disagree with judges deciding who gets to vote or does not get to vote. There is another problem, because if we go over to a system where the judges decide, every current prisoner would be granted the vote.

[Tony Baldry]

I listened to the hon. Gentleman’s speech. He raised lots of problems but gave no solutions. This is an exercise in finding what might be a solution. Sentencing guidelines are effective ways of informing judges and telling them what they should do. As we have heard, the English courts have been pretty robust on this issue, so I see no reason why on devising sentencing guidelines we could not put our trust in the English judges to get it right when advising Crown Court judges and others how they should approach the issue of disfranchisement. It would of course be possible for defence counsel at the time of sentencing to make representations on this aspect of a court’s potential sentencing powers, as with any other aspect, and for the defendant to be heard before sentence was passed. Not only would it be made very clear that there was a link between the facts of the case and the removal of the right to vote, but the courts would very publicly be making it clear that, so far as the UK is concerned, those whose criminal conduct is such that it results in their having been sentenced to an immediate term of imprisonment also risk losing certain rights of citizenship, including the right to vote.

I appreciate that for many hon. Members this debacle appears to be a convenient opportunity to put two fingers up to Europe, two fingers up to human rights and two fingers up to the judges. I simply note that the motion includes the words

“acknowledges the treaty obligations of the UK”.

The motion, in rightly acknowledging our treaty obligation but arguing for the retention of a blanket ban, puts the House in the same position that the previous Government put themselves in. That resulted in the Joint Committee on Human Rights observing:

“It is also a matter for regret that the Government should seek views on retaining the current blanket ban, thereby raising expectations that this could be achieved, when in fact, this is the one option explicitly ruled out by the European Court.”

Time prevents me from arguing why this House should seek to support human rights, so I simply conclude by saying that increasing judicial review will be a feature of our lives. If this House collectively started to pick and choose which decisions of the Supreme Court we supported and which decisions of the judges we did not support, that would be a very unsatisfactory way forward. What we need to do is not only acknowledge our treaty obligations, but meet them, and we need to do so in a way that meets the concerns of everyone in this House, from the Prime Minister downwards, about having to give the vote to those in prison.