Prisoners: Voting Rights

Lord McNally Excerpts

Thursday 22nd November 2012 Lords Chamber

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, with the leave of the House, I will now repeat a Statement made in another place by my right honourable friend the Lord Chancellor and Secretary of State for Justice:

“Mr Speaker, I wish to make a Statement about the Government’s approach to the judgments of the European Court of Human Rights on prisoner voting.

This is a subject that provokes intense debate, not least in this House. As the House will know, from as early as the case of Hirst in 2004, the court found the United Kingdom’s bar on prisoner voting to be ‘general, automatic and indiscriminate’ and concluded that it was, in the court’s view, in violation of Article 3 of Protocol 1 of the European Convention on Human Rights—the right to free and fair elections.

The previous Government committed to implementing the judgment and issued two consultations that did not resolve the issue. Litigation has continued in the domestic and Strasbourg courts. In the case of Greens and MT in 2010, the Strasbourg court again found that the UK was in violation of Article 3 of Protocol 1 of the convention, and gave the UK six months to bring forward legislative proposals to remove the violation. This deadline was stayed pending the UK’s intervention in a further case, Scoppola, involving the Italian Government. In this case, the Attorney-General argued in person before the court that national parliaments’ discretion to determine policy on this issue should allow for a complete bar on prisoner voting.

The judgment in the Scoppola case was handed down in May this year. It concludes the Strasbourg court’s consideration of the issue. In that judgment the court made it clear that in its view the ‘margin of appreciation’ afforded to individual Council of Europe member states to decide on how far prisoners should be enfranchised was wide, but confirmed its position that a complete bar was outside that margin. The judgment restarted the clock on Greens and MT and requires the Government to ‘bring forward legislative proposals’ to give effect to the judgment by tomorrow, 23 November, and to enact the required legislation.

The Prime Minister has made clear, on the record, his personal views on this subject. I have done the same. Those views have not changed. However, the Government are under an international law obligation to implement the court judgment. As Lord Chancellor, as well as Secretary of State for Justice, I take seriously the obligation on me to uphold the rule of law. Equally, it remains the case that Parliament is sovereign, and the Human Rights Act explicitly recognises that fact. The current law passed by Parliament remains in force unless and until Parliament decides to change it.

As Lord Justice Hoffmann put it in a case in 1999: ‘Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost’.

Last month, the Attorney-General made it clear in evidence to the Justice Committee that it is, ‘entirely a matter for Government to make proposals but ultimately for Parliament to determine what it wants to do. Parliament is sovereign in this area; nobody can impose a solution on Parliament, but the accepted practice is that the United Kingdom observes its international obligations’.

The judgment requires the Government to bring forward legislative proposals for Parliament to consider. It will then be for Parliament to scrutinise and decide on those. So I have today laid before Parliament a draft Bill for pre-legislative scrutiny, and the Leaders of both Houses are writing to the Liaison Committees proposing that a Joint Committee of both Houses be appointed to conduct that pre-legislative scrutiny. We judge that pre-legislative scrutiny of this nature is appropriate given the significance of this issue and the strong views on both sides that exist right across this House.

The draft Bill sets out three different potential approaches for the committee to consider. Presenting a draft Bill with that range of options reflects the spectrum of views that we know exist on this question. However, it will of course be for the committee, once established, to consider whether approaches beyond those canvassed in the draft Bill should also be considered by Parliament in due course.

The first approach in the draft Bill is for prisoners sentenced to less than four years to be entitled to vote. A four-year bar has previously been discussed by Parliament. The second approach would limit the vote to prisoners sentenced to six months or less. The final approach would effectively restate the current position that anyone incarcerated following conviction would not have the vote.

The committee will want to consider these approaches, their consequences if they were in due course adopted by Parliament, and whether there are other options; for example, the Italian system, found to be compliant by the court, disenfranchises prisoners post-release. The committee will, I am sure, consider evidence on this and other approaches. It may also want to reflect on the consequences of Parliament’s ultimate decision for the rule of law and the UK’s international standing. The committee might also wish to think about practical implementation. The administrative consequences and costs of different approaches for the Prison Service, the courts, the electoral registration system and electoral registration officers could be significant.

The House will want to note that this draft Bill does not yet deal with territorial extent. Any Bill introduced into Parliament would need to extend to the whole of the United Kingdom, although the Bill is currently drafted for England and Wales only. The Government will engage with the devolved Administrations during the pre-legislative scrutiny process to ensure the legislation applies correctly in Scotland and Northern Ireland, in recognition of the interaction with devolved policy matters.

When the Joint Committee has finished its scrutiny, the Government will reflect on its recommendations. We will continue the legislative process by introducing a Bill for full debate and scrutiny as soon as possible thereafter.

I have set out in some detail for the House the background to the draft legislation that I am publishing today, and the respective roles of the Government and Parliament in resolving this issue. I commend this Statement to the House”.

My Lords, that concludes the Statement.

--- Later in debate ---

[Lord McNally]

My Lords, I thank the noble Baroness, Lady Smith, for that very constructive response and I accept immediately her offer to work with the Government to make this a constructive exercise. Obviously, the first objective will be to set up the Joint Committee and then to let it get down to its work. I hope that I have not damaged her political prospects too much.

[Baroness Smith of Basildon]

My Lords, I had not realised that I had been quite so constructive as the Minister thought.

[Lord McNally]

I am sure that when she reads Hansard she will agree with me, but if she wants to be more abusive to me in a letter, I shall put it in the Library of the House.

We can have analysis of how this issue has been handled during this past 10 years and whether there were better ways of doing it. The Statement today lets Parliament set out a path to resolving the issue which is sensible and which may help us get to a solution which addresses the complex and sometimes conflicting issues to which the noble Baroness referred. It is an acceptable view—I heard Mr Jack Straw express it again today—that denying prisoners the vote is a denial of civic and social rights but not of human rights, but the problem that we face is that the court has taken a different view and that we are legally committed to obey or recognise it. The Joint Committee will be able to listen to a wide range of views, which I am sure will be forthcoming.

It is a long-standing convention that the Government do not disclose their legal advice. However, on this exceptional basis and to facilitate appropriate parliamentary scrutiny of this issue, the Government will publish a summary of their legal position once the proposed Joint Committee convenes. My right honourable friend the Lord Chancellor has also made it clear that the Government will try to give the committee all facilities and information to allow it to come to a considered judgment. We could have lots of fun debating who should have done what and when during this past decade, but today we can set off on a path which allows Parliament, with a full regard—this I do take from what the noble Baroness said—to the wider implications of whatever decision is taken, to take this matter forward. As always, we will listen carefully to the views of this House.

[Baroness Trumpington]

My Lords, I do apologise for jumping up earlier and I shall jump down pretty soon. My remarks are based on many years as a member of the board of visitors of Pentonville prison and many years as a member of the mental health review tribunal dealing with Broadmoor.

First, I wonder about the inmates of Broadmoor, some of whom, one hopes, will become normal, if not totally, criminal lunatics with time. Will they eventually get votes? The same would apply to institutions where the prisoners are drug addicts. What would be their position? I have a feeling that every prison has a hospital. Who is going to judge whether the patients in the prison hospitals are in fit state to vote?

I also wonder whether Members of Parliament who have prisons in their constituencies have thought about their future voting figures—rather different perhaps from what they are now. There are a great many questions to be answered. I have a feeling that I share the views of the Minister and I hope that he can put my mind at rest on some of my questions.

[Lord McNally]

My Lords, the list of questions raised by the noble Baroness illustrates why this has been a very difficult issue. The issue of prisoners with mental illnesses has been looked at separately, but parallel, to this. However, the level and seriousness of illness has been a concern and that is why there are a range of options. I hope that when the Joint Committee is set up it will look at some of these issues and take evidence from a wide range of people with experience and expertise. I pay tribute to the noble Baroness’s personal expertise and experience in this area. Some serious examination is needed now based on good analysis and well informed opinion from people with experience. That then needs to be synthesised by the Select Committee into a well informed recommendation to Parliament. It is a sensible process and the indications are that all sides of the House will pay their part constructively.

[Lord Dubs]

My Lords, when I was on the human rights committee we visited the European Court of Human Rights in Strasbourg. It was concerned that Britain, which had previously implemented all decisions of the European court, would give encouragement to the notorious abusers of human rights around the world by not implementing this one. Will the Minister comment on that? Will he further comment on a letter dated 30 August 2011 that was sent from the European court to the British Government? The final paragraph of the letter states:

“The Chamber would therefore regard as reasonable an extension of six months after the date of the Grand Chamber judgment in Scoppola (no 3) for the introduction of a Bill to Parliament”.

Not a draft Bill; not a committee for the introduction of a Bill to Parliament. Surely we have missed the boat already.

[Lord McNally]

No, I do not think we have missed the boat already. In neither House have we pretended that this is an easy issue to deal with. If there was a consensus on what to do, we would have dealt with it quickly and early. However, we have conflicting views and we are taking this forward.

I agree with the noble Lord on one thing. I heard Mr David Davis in the other place say that what we do on this would be a precedent, and he is quite right. If the United Kingdom were to decide on a “pick-and-mix” attitude to the rulings of the court and the application of human rights, others would gleefully grab that example when we try to take them to task. I did not agree with the noble Baroness when she was rather dismissive of the progress we made in Brighton in reforming the court. I do not think that anybody has denied that the court needs reform and we made great progress there that is ongoing.

The most significant thing for me was the day after the declaration was signed when the Attorney-General hosted a tour de table where each of the responsible Ministers from the Council of Europe gave an explanation and a justification of how they were implementing the convention. Here was a Russian Minister—I know Russia is not perfect—explaining and justifying its stewardship of the ECHR. I am old enough to remember meetings with the old Soviet Union when any attempt to raise human rights was taken to be an interference in its internal affairs and could not be discussed. I consider it tremendous progress by the convention and by the Council of Europe.

[Lord Ramsbotham]

My Lords, I am very glad that we now have a framework but I am sorry that we are still embarked on the approach from the wrong way round, which is why the consultation has failed. The question should not be who should have the vote—that is what was laid down by the European court. The question is who should not have the vote. The consultation failed because it asked the wrong questions. I am concerned by that approach, although I am very glad to see that the Government are going to allow consideration of other options such as the one I have always advocated that the sentencer should award the removal of the right to vote at the time of sentence noted to a crime. I also note that there is still concern about costs. That a slight red herring. I have always understood that the costs are minimal because it will be postal voting which happens for all remand prisoners now anyway.

My concern and question relates to the current law passed by Parliament. As far as I understand it, the only law that affects voting is dated 1870. It condemns a person to prison as being a form of living death. That conflicts quite starkly with the Statement about rehabilitation revolutions which we have just heard from the Secretary of State. Is the law of 1870 still held to be applying or is there a new law at the back of this very sensible proposal? I look forward to helping the Select Committee when the time comes.

[Lord McNally]

I would have to take advice on whether the 1870 law is the only one. I presume that there have been successor electoral laws since then. However, I agree with the noble Lord that we now have a framework. Whether the wrong questions have been asked or in the wrong order, the committee once set up will have considerable leeway to set its own terms of reference. My right honourable friend in the other place made it clear that although the draft Bill gave a number of options that was not the full scope of where the committee could go or what the committee could examine. The Lord is quite right that mention of cost is a bit of scaremongering. It would be handled, I suspect, as postal votes. On the point mentioned by the noble Baroness, Lady Trumpington, I remember a newspaper suggesting that in the Isle of Wight the seat could be swung by the block vote from Parkhurst. It is a reductio ad absurdum of the debate.

I am told that the law disqualifying prisoners from voting is now contained in the Representation of the People Act 1983. We have moved on 100 years and it is interesting that the Act is now nearly 30 years old.

There have been many red herrings in regard to the methodology of prisoner voting. I suspect that it would be done by postal votes, which would not be a tremendous burden on the administration of any elections. However, that is another matter on which the committee can take expert advice.

[Lord Dholakia]

My Lords, whether we like it or not—and if not now then at some time in the future—and whether it makes someone sick or not, the Government are under an international law obligation to implement the ECHR judgment. That being the case, is my noble friend able to identify the countries in the European Union that allow those convicted of crimes to have the right to vote? As the Minister responsible for providing the initiative for the rehabilitation of offenders, does he accept that by granting prisoners the right to vote, it will help in the rehabilitation of offenders?

[Lord McNally]

My Lords, that illustrates the range of opinions on this matter. The Secretary of State set out his personal view and the personal view of the Prime Minister. I share the view of my noble friend that it could be possible to devise a system of enfranchisement for some prisoners that could play a useful part in a rehabilitation process. That may be something that he, or other bodies with which he is associated, may wish to put to the committee.

As regards the Council of Europe, some 41 members give prisoners the right to the vote to some degree or another and six continue with a blanket ban. Those six are: Armenia, Bulgaria, Estonia, Russia, San Marino and the United Kingdom.

[Lord Prescott]

My Lords, I welcome the Statement as it offers a number of options. You can accept the changes and, therefore, observe the rights of the convention; or, if you refuse, you can leave it. To reject and leave the convention would be a proper exercise of parliamentary democracy. Is the Minister aware that I am a member of the human rights committee in the Council of Europe? That committee has received reports of many abuses of human rights, particularly in eastern European countries. I was sent to release 130 people from an Armenian jail, who had been accused of threats to the state simply by holding a public protest. I was able to get them out of jail because I was able to argue that Armenia is in breach of human rights. However, having listened to them, I know that they would like parliamentary sovereignty to overrule the human rights convention and they are watching Britain to see whether we do this.

[Lord McNally]

My Lords, I am aware of the service of the noble Lord, Lord Prescott, not only on the human rights committee, but more generally, to the Council of Europe. That council and its membership is something of which Britain has, rightly, been proud. His illustration is a perfect follow-up to what the noble Lord, Lord Dubs, referred to. I hope that the committee and the other place, when they weigh in the balance the various competing issues, take full account of the fact that we might seem to be setting a precedent whereby it is optional whether one complies with the convention and the court. There are those on whom we have previously been able to exert pressure where that pressure will be the less because we have provided them with a precedent. It is not a complete and convincing argument but it is one that should be put into the mix for careful consideration.

[The Lord Bishop of Chester]

My Lords, does the Minister agree that in today’s society, which is so affected by the pressures of the popular press, there is a danger of prisoners being given pariah status, as illustrated by the fact that candidates for police and crime commissioner who had had a minor offence years ago in their youth were automatically disqualified? Should that not be in the forefront of the consideration of the Joint Committee? Can the Minister also clarify whether, and at what point, this matter might be subject to a free vote rather than a whipped vote?

[Lord McNally]

My Lords, on the latter point, I am afraid I cannot give the House guidance. Without trivialising it, the answer is how long is a piece of string; how long will a committee ponder, deliberate and take evidence on these issues and then bring them forward to Parliament. The process is there and I cannot believe that it will be approached frivolously. It will be approached seriously by those who serve on the committee. They will bring forward their recommendations and then the Government are committed to bringing forward legislation in the light of that.

I agree with the right reverend Prelate on the way that this debate is handled by the media. I am pleased that the Government are concentrating their efforts on rehabilitation—I was very pleased that the noble Baroness, Lady Smith, lent her support to that concept—and it is worth considering that this could be part of a rehabilitation process. That will be a part of the discussions that the committee will have to consider.

[Baroness Seccombe]

My Lords, many people serve up to 50% of their sentence in prison and the remainder on release when, of course, they could exercise their vote. So are we not fulfilling our obligation to the ECHR already?

[Lord McNally]

Apparently not. A number of people have pointed out that those in prison on remand retain the right to vote and a range of others who are incarcerated also retain the right to vote. The noble Baroness points out that those who are released, having served part of their sentence, can resume their right to vote. However, in the view of the court, that was not sufficient to clear the hurdle that it believed was implicit in the Article 3 responsibility. The committee will look at the issues. If there is a way that Parliament, particularly the House of Commons, can find favour with, we will take that solution forward.

[Baroness Liddell of Coatdyke]

My Lords, the Minister will be aware that the Scottish Parliament has more clearly delineated the relationship with the ECHR than this Parliament has. Can he give us some indication, particularly in the light of his response to the right reverend Prelate, on the timing of getting legislation through Parliament and what he thinks the implications of that would be for the referendum on Scottish independence, which is now less than two years away?

[Lord McNally]

I do not want to speculate on that. I shall repeat what my right honourable friend said in the other place concerning the devolved areas and jurisdictions. This morning, he talked to the Scottish justice secretary, and to Wales and Northern Ireland, and the reason they were not in the original document was simply that we were not able to consult them in advance of publication. However, as this matter is taken forward, we want them all to be fully involved.