Voting by Prisoners

Claire Perry Excerpts

Thursday 10th February 2011 Commons Chamber

[The Attorney-General]

The hon. Gentleman is right that there has been a great deal of commentary, including in some learned lectures by judges, such as Lady Justice Arden, Lord Hoffmann and others, who have expressed growing concern about the way in which the jurisprudence of the European Court of Human Rights is being developed and about the Court’s tendency towards micro-management. That is the nature of the challenge. That said, for the reasons I gave a moment ago, the judgments of the Court constitute an international obligation, so far as we subscribe to the convention and to membership of the Council of Europe. That is the dilemma the Government face, as did the previous Government: how can we find a way to persuade the Court to respect the views that the legislature may express without having to withdraw from the convention or the Council of Europe entirely, which, I have to say, would not come without cost or consequence for this country?

[Claire Perry (Devizes) (Con)]

Can the Attorney-General help the House understand by what mechanism the European Court’s judgment and—rather more unpalatably —the award of compensation to a convicted axe murderer could be enforced in this country?

[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.

--- Later in debate ---

[Chris Bryant]

I have a problem with the position adopted by the Liberal Democrats since the general election. I should be happy to hear their arguments in favour of the substantive issue. Let them put the case, and put it convincingly, rather than hiding behind the process and the European Court. It would be quite nice to hear the Deputy Prime Minister say a single word on the subject.

Let me turn to the Court’s decision in Hirst v. the United Kingdom that the blanket ban on prisoners from voting contravenes article 3 of protocol 1—a decision which, I should point out, was not unanimous, and was not supported by the then Swiss President of the Court, Professor Luzius Wildhaber. The problem is simple. As is stated in the report of the Political and Constitutional Reform Committee, published yesterday,

“however morally justifiable it might be, this current situation is illegal under international law founded on the UK’s treaty obligations.”

Clearly, as some have already suggested today, we could tear up our treaty obligations. I believe that would be wrong in principle and foolhardy in practice. For the UK to leave the Court would be fatally to undermine its authority. It would be to abandon much of Europe to precisely the same disregard of human rights as was evident when the Court was founded, and for British industry and British citizens living, working and doing business across the continent, that rule of law, enforced through the right to petition the Court, is vital. Alternatively, we could seek to reform the Court, steering it away from trying to be a form of supra-national supreme court and quasi-legislature.

It may be that today’s motion could help in that process, as the Attorney-General has suggested. After all, the Court asserted that

“there is no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban”.

It was wrong on that, although there have not been many debates on the matter, but I think that is because there was unanimity in the House rather than because Members did not have a view on it. Following today however, a robust vote from this House will make it impossible for the Grand Chamber to maintain that claim.

The third course of action open to us is to enforce the Court’s judgment, and here there is another problem. While the Grand Chamber maintained that a blanket ban on all convicted prisoners was disproportionate, it also argued that

“Contracting States must be allowed a margin of appreciation in this sphere”

and that

“the margin in this area is wide.”

Subsequent judgments, not least those referred to by the Attorney-General of Frodl v. Austria, Py v. France—which he did not refer to—and Greens and M.T. v. the UK all point in different directions. In particular, Frodl v. Austria seems to suggest putting a new gloss on the Hirst interpretation, while Greens and M.T. v. the UK appears to be rather more lenient in its approach and allows a greater margin of appreciation.

The key question is: how wide is the margin, or how much wriggle room do we have? We know there are wide variations in European practice on prisoners’ voting. In Belgium, four months is the length of time, whereas in some countries the ban on voting can continue after the imprisonment has ended. That is why I wholly agree with the dissenting opinion of Professor Wildhaber and others in the Hirst case when they say

“the legislation in the United Kingdom cannot be claimed to be in disharmony with a common European standard.”

They said that because there is not a European standard, and it is therefore difficult to see how the courts could enforce in this direction. What is the absolute minimum the Government would have to do in order to appease the Court?

[Claire Perry]

Does the hon. Gentleman further agree that part of the problem in defining this on a pan-European basis is that we have completely different definitions of what constitutes a crime and what sentencing should be applied? Therefore, trying to apply a blanket ban on a cross-border basis is inane.

[Chris Bryant]

Indeed, the Court itself has made it clear in successive judgments that a whole series of matters would determine how a national legislature decided to approach the issue of voting. The proportional representation issue has been raised in the debate, but that is not a matter of particular concern to the Court. Matters of concern to it include the history, tradition and pattern of voting. The Court has always accepted that, which is why a lot of us are very keen to make sure that the wriggle room that is allowed—the margin of appreciation to use its term—is as extensive as possible.

--- Later in debate ---

[Claire Perry (Devizes) (Con)]

Thank you, Madam Deputy Speaker. I did not expect to be called so soon.

I am of course not a lawyer, so I speak, I hope, the language of common sense. I share the concern of my hon. Friend the Member for Meon Valley (George Hollingbery) that the motion conflates two complicated and quite separate issues. One is the question of the encroachment of the European Court of Human Rights into matters of British sovereignty and the other is the much more relevant and thorny question of whether any category of prisoner should ever be given the right to vote.

I confess that in preparing for this speech, I was rather torn. I spoke strongly against the first part of the motion about 15 days ago at the Council of Europe in Strasbourg, and the reaction was like sitting on a whoopee cushion in church. Apparently, the Court has never been criticised on the Floor of the Council. It is simply not done. So to stand up and say that we think the Court is encroaching on matters that should properly be taken as part of sovereign concerns was considered to be a small international incident. I was rather proud of that.

However, the point that I made then, and the point I would make today, is that I think there is a real concern—I say this as a non-lawyer—that the Court is encroaching into areas that are not part of its mandate. As we have heard so eloquently expressed today, the Court was set up in 1948 by Churchill and others to guarantee that there would never be another genocide in Europe. We seem to have gone from that to interpretations of the protocol. That protocol on voting is not about prisoner voting but the right to free and fair elections, which can be seen as completely different. So there has been real mission creep. Of course, the award of compensation of €23,000 to a convicted axe murderer suggests to my constituents that the Court has not only had mission creep but is in danger of becoming completely unhinged.

I am a passionate supporter of our rehabilitation agenda. I think it right and proper that we spend Government time and money on breaking the cycle of reoffending in which 65% of prisoners come out of prison and are re-incarcerated within two years, and I can see reasons to make the privilege of voting part of the rehabilitation package. That is not just my view. I have a category C prison in my constituency—Erlestoke prison. My very first political outing was a hustings at the prison, organised by the prisoners, where candidates were quizzed on this very issue. Everybody said, “It is an absolute right. You must have it. It is a human right.” I said, “I don’t think so. Perhaps this is something that could be part of your rehabilitation—potentially something that is awarded within six months of release.” Guess what? The prisoners agreed. They thought that was right and proper, and nobody stood up and demanded their right to vote. By the way, that is also the view of the governor of the prison—that it should be awarded, potentially on release, to certain categories of prisoners.

However, I have great sympathy for the viewpoint advanced by my hon. Friend the Member for Banbury (Tony Baldry). I think these are matters for British judges in British courts. I cannot see why, as has been done for years in France and Germany, these cannot be part of the sentencing decision, or perhaps of the parole decision. That would be a very sensible step forward.

Despite my concerns about the wording of the motion, I think I am going to vote for it, for the following reason. It is important that the House sends a strong political message to the Court. If the Court has never been criticised in the Council, perhaps there has never been a parliamentary vote that pushes back on its particular proposals. [Interruption.] The hon. Member for Rhondda (Chris Bryant) says it has been done; I am not aware of it. It is important for us to stand up and say, “Enough is enough. You are crossing boundaries and we need to take proposals forward.”

In summary, I suggest to the Government that those proposals should look hard at the idea of the British judiciary making decisions about British prisoners. That, I believe, is the recommendation in the very sound report by the Political and Constitutional Reform Committee. The question of compensation seems insane. If we are forced to pay compensation to any prisoners who have been awarded these decisions up until now, I would ask that some, if not all, of it be paid to the victims’ compensation funds or put into the rehabilitation space.

Last but not least, can we please consider the words of Rob Owen, the head of the St Giles Trust, a social organisation which Members on both sides of the House think is doing incredible work? He said to me today that this whole debate is

“a distraction, and…a drain on”

extremely limited justice

“resources that could be far better used”

to

“dramatically reduce reoffending…saving taxpayers millions of pounds and creating thousands”

fewer

“victims of crime.”