Nick Gibb is Chair of the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill and MP for Bognor Regis and Littlehampton
Since 2005, there has been a running stand-off between the British Parliament and the European Court of Human Rights in Strasbourg. It is about to erupt into an almighty row. It is a battle that Parliament must win.
In 1980, John Hirst pleaded guilty to the manslaughter of his landlady (on the grounds of diminished responsibility) and received a life sentence. While serving his sentence he took the UK Government to Court, arguing that section 3(1) of the Representation of the People Act 1983, which denied him as a serving prisoner the right to vote, contravened Article 3 of Protocol 1 to the European Convention on Human Rights.
Protocol 1 was ratified after the Convention itself. Article 3 of the Protocol requires signatory states to “hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”.
By 2005, the case had reached the Grand Chamber of the European Court which agreed with Mr Hirst that the UK’s prohibition on prisoners voting was “incompatible” with the Article and therefore the Convention. Despite the fact that under Article 46 of the Convention, Britain was required to implement the judgment, the House of Commons, most recently in February 2011 when only 22 MPs voted in favour of prisoners being given the right to vote, has refused to implement the judgement.
Subsequent cases, such as Greens and MT v United Kingdom (2010), Frodl v Austria (2011) and Scoppola v Italy (2012) confirmed the Court’s position, with the European Court becoming increasingly impatient that the UK had not implemented the judgment in Hirst. More than two thousand prisoners added further pressure by suing the Government, hoping for a pay-out estimated at about £1,000 each. To meet the final deadline imposed on the UK by the European Court, the Government published the Draft Voting Eligibility (Prisoners) Bill in November last year giving Parliament three options to consider: allowing convicted prisoners serving less than four years to vote; allowing prisoners serving less than six months to vote; or maintaining the current position that no serving convicted prisoner can vote.
The Government established a Joint Committee of both Houses of Parliament, made up of six peers and six MPs, to scrutinise the Bill and to take evidence. For the last six months, as chairman of that committee, I have listened to and read a wide range of views from experts on prison reform and on the constitution. As a result, I remain firmly of the view that prisoners serving custodial sentences should not be allowed to vote while in prison. The European Convention on Human Rights allows those convicted of criminal offences to have their liberty restricted. A consequence of that loss of liberty is the loss of the right of free association and the right to engage in society, which should include the loss of the right to participate in elections.
Whatever your views about prisoner voting, this is not an issue that should be decided by the European Court of Human Rights. The Convention and the Court were established in the aftermath of the horrors of the Second World War and the looming terror of the Communist bloc. It was not drafted to opine on domestic legislation such as the determination of the franchise or whether serious criminals can be given whole life sentences. Since 1978, however, following the case of Tyer v United Kingdom (which was about the use of corporal punishment in the Isle of Man) the Court has taken the view that the Convention is a “living instrument” that “must be interpreted in the light of present-day conditions”. It is this principle that has encouraged the judges who serve on the European Court to engage in judicial activism, and which is now putting the Court in direct conflict with the UK Parliament.
In a brilliant lecture earlier this month, the former Lord Chief Justice, Lord Judge, argues that the European Court “appears to be assuming, or seeking to assume the same mantle” as the Supreme Court of the United States. He emphasised that the European Court “has never been granted the kind of authority granted to the Supreme Court of the United States”.
Lord Judge asks the fundamental question that underlies the issues that our committee has been considering:
“Do we, can we, accept … that when a UK case arises, our Parliament must take “general measures in its domestic legal order to put an end” to the violations found by the European Court? Can that possibly be required if Parliament disagrees? For me the answer is, of course not.”
The conundrum we face is this: We signed the European Convention on Human Rights. Article 46 of that Convention says we have to implement judgments of the Court in cases in which the UK is a party. In Hirst, the Court said we have to adapt our law so that the prohibition on prisoner voting is no longer a “blanket ban”. The House of Commons has made it clear it will not do so. The Labour and Conservative front benches have said they will not do so. No one can force any member of either the House of Commons or the House of Lords to vote in accordance with the judgment of the European Court or Article 46 of the Convention. The Committee established to consider the draft Prisoner Voting Bill was deliberately made up of people who represent a wide range of opinion. Lorely Burt MP, for example, is a former prison governor and was one of the 22 MPs who voted in favour of giving prisoners the vote.
Lord Dholakia, as well as a distinguished peer and privy councillor, is also the President of NACRO, the prison reform charity. Lord Phillips is the founding President of the UK Supreme Court. Crispin Blunt MP, a former Prisons Minister, is strongly in favour of prisoners being allowed to vote. From the first session, it was clear that the majority favoured some change to the law in order to bring the UK into line with the European Court’s judgment. My colleagues and I have approached our task in as open minded and enquiring manner as possible, but it is not surprising that the majority of the committee (8 to 4) came out in favour of complying with the Court’s judgment and have recommended that Parliament enfranchises prisoners serving less than 12 months and awards the vote to all prisoners in the last 6 months of their sentence.
The minority (which includes me) wants to give Parliament an additional choice of maintaining the status quo (ie retaining the position that serving prisoners cannot vote) and ignoring the wishes of the activist European Court.
We live in a proud democracy; a tolerant, old and experienced democracy. We haven’t endured recent periods of military dictatorship, or fascist or communist rule. We trust ourselves to make these decisions and we must defend our right to do so. This debate goes beyond the matter of prisoner voting, but we have to stand firm now to prevent future incursions into the sovereignty of our democracy.
The final words in this article should go to Lord Judge who concludes his lecture as follows:
“You can argue for or against prisoner voting rights. You can argue for or against the whole life tariff. Reasonable people will take different views. My personal belief is that sovereignty on these issues should not be exported, and we should beware of the dangers of even an indirect importation of the slightest obligation on Parliament to comply with the orders and directions of any court, let alone a foreign court.”