Personal Blogs

In debating prisoners’ voting in the House of Commons (10 Feb 2011 : Column 493) Liz Truss, newly appointed as Justice Secretary, also voted in favour of the Motion on prisoner voting[1]. This, admittedly rudimentary research, might support the view that the new Prime Minister has incorporated new office holders of a like-mind on the question of the ECHR and ECtHR into her Cabinet.

Whatever the merits of trying to ascertain the predisposition of our law-makers towards particular aspects of law reform, parliamentary debates on such matters, are always well-worth reading. The debate on prisoner voting includes, for example, relevant insight into the position of the current Leader of the Opposition and provides a good idea as to the Government’s likely standpoint today:

The motion on prisoner voting is provided here:

“Mr David Davis (Haltemprice and Howden) (Con): I beg to move,

That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.

The motion stands in the names of the right hon. Member for Blackburn (Mr Straw), my hon. Friend the Member for Esher and Walton (Mr Raab), my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), my hon. Friends the Members for Kettering (Mr Hollobone) and for Basildon and Billericay (Mr Baron) and, of course, myself”.

The debate included some useful discussion, for instance between Bernard Jenkin, Ian Paisley and Dominic Grieve (then Attorney General) regarding the constitutional relationship between the Strasbourg court and the UK:

“Mr Jenkin: I am sure that it will be useful to the House that my right hon. and learned Friend intervenes at this stage. However, when he says that the views of the House are critical, does he not mean that they are decisive? We are a sovereign House; we make the law and the courts interpret it. This is a matter of policy, not a question of legal technicalities. If we do not want prisoners to have the vote, Parliament can legislate for it and that will be final. Does he agree that that is the power of the House?

The Attorney-General: First, I would say this to my hon. Friend. I am very respectful of the powers of this House and, having been a Member of it for 13 years, consider it to be very important. As he will also be aware, it is Parliament that is sovereign. I hope that he will excuse my making that delicate point. The Queen in Parliament is sovereign, and that includes the ability of both Chambers to legislate and to enact primary legislation. We are dealing with an international treaty. That international treaty was signed by the United Kingdom Government under the royal prerogative and was laid before both Houses of Parliament for their consideration. The rule that has been long established in this country is that once a treaty has been ratified by the United Kingdom Government through that process, the Government and their Ministers consider themselves to be bound by its terms. Indeed, as the right hon. Member for Blackburn will know, the ministerial code specifically says that that is the case, and the new ministerial code says it in exactly the same way as the old one did. From that point of view, although my hon. Friend is absolutely right, that does not remove the necessity for the Government to be bound by their treaties and international obligations. [10 Feb 2011 : Column 511]

Mr Jenkin: I am most grateful to my right hon. and learned Friend for giving way again. It has also been recognised that statute law overrides international law. It is statute law that should bind the courts of this land. Does he agree with that?

The Attorney-General: It is certainly true that our international legal obligations may alter by virtue of what Parliament has enacted, but the current position is that we have an international obligation that, if I understood correctly from what they said, is not one from which, in its principles, my right hon. Friend the Member for Haltemprice and Howden or the right hon. Member for Blackburn would wish to resile. We are bound by it as Ministers of the Crown. However, if my hon. Friend will bear with me, I will come to that in a moment.

I repeat the point that the Grand Chamber in the Hirst case commented on the lack of any substantive debate in Parliament. It must be the case, therefore, that the existence of a substantive debate-indeed, we may have to have more than one substantive debate on this issue-will be helpful to the process of finding a way through the problem that is exercising many Members of this House. However, although Members are fully entitled to express their disagreement with the judgment of the European Court-indeed, I have done so myself: I said that I consider the judgment in the Hirst case to be an unsatisfactory one, for precisely the reasons, which I will not repeat, that the right hon. Gentleman and my right hon. Friend articulated-the fact that we may be in disagreement does not in itself solve the problem.

In order for the views of this House to be helpful, we need to demonstrate that we are engaging with the concerns of the Court and that we are not just expressing our frustrations-although I have to say that on occasion I have felt very frustrated on this issue in the last few years, and actually rather angry. Through a dialogue about what the House considers to be proper and reasonable in respect of prisoner voting, we have to see whether we can bring our weight to bear as a legislature in the development of the jurisprudence of the Court. That will give us the best possible chance of winning the challenges that may arise thereafter. As we know, given the litigiousness of those who think that there is a gravy train on which they might be able to climb, we can guarantee that, whatever we do, there will be legal challenge to it that will go back to the European Court of Human Rights for determination.

Ian Paisley: I appreciate the Minister's helpful guidance. Will he address the point made by the right hon. Member for Blackburn (Mr Straw) when he quoted Lord Hoffmann, the former Law Lord, saying in a lecture that it cannot be right for a European supranational court

"to intervene in matters on which Member States of the Council of Europe have not surrendered their sovereign powers"?

Will the right hon. and learned Gentleman give us some guidance on that point?

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  [10 Feb 2011 : Column 512] 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?"