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Ms Harman: We do not normally use consideration of Bills on Report to vote on provisions that simply repeat the current legal position. The hon. Lady's new clause would not change the current legal position, which is that no convicted prisoner can vote. There is no proposal before the House to change that position. Her new clause would simply reinforce and repeat existing law, and inviting us to vote on a draft version of one part of current law is not sensible. I appreciate the intention behind bringing such a provision before the House for debate, but voting on a new clause that would simply reinforce the current legal position and make no change whatsoever makes no sense.
Philip Davies: I am not sure that I share the right hon. and learned Lady's absolute confidence that the current law is as she describes. The point is that the law has been brought into question: it may well allow prisoners to vote, in the light of her Government's Human Rights Act 1998, so it would be very useful if the position were clarified once and for all through a vote in this House.
Ms Harman: The law as it affects elections in this country is laid down in electoral legislation passed by this House. Although the European Court's judgment might cause us to reflect and reconsider—we must address that judgment, which we have yet to do—it does not of itself change the law of this country. The laws of this country are made by this House. We are considering the Electoral Administration Bill, and there is nothing in it that changes the law of this country relating to the circumstances in which prisoners can vote. They can vote when on remand but not after conviction and when serving their sentence, so any vote in the House on this issue would be otiose.
If, as a result of the European Court judgment, we were introducing a provision that changed the voting rules for prisoners, it might be sensible for the hon. Member for Epping Forest to press to a vote a provision that would keep the old law, but we do not plan to change the law on prisoners through this legislation. I welcome her bringing her concerns to the House, but it would be nonsensical to press her new clause to a vote, given that we would vote against it simply in order to keep the current law, which is that those on remand can vote, but those who are convicted cannot. I do not know whether anyone is any the wiser after that, but I hope that the hon. Lady understands what I have said.
Mrs. Laing: I do understand what the Minister has said, but still believe that there would be a benefit in the House dividing on this very important point of principle. The European Court of Human Rights judgment in the Hirst case criticised Parliament for not discussing this issue. The minority of dissenting judges noted that:
"it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern day penal policy and of current human rights standards".
This debate has been brief, but it is a test of the opinion of the elected representatives of the British people. I do not mind—
Mr. Deputy Speaker: Order. I think that the hon. Lady is still making an intervention, and that we should perhaps bring it to an end.
Ms Harman: I thank the hon. Lady for that intervention, and I understand her better now. She is saying that the ECHR has suggested that we should consider the matter further, that the new clause has been proposed to precipitate that consideration, and that the matter will be sorted out when we vote on it.
However, we must look carefully at what that further consideration suggested by the ECHR involves. I am almost certain that a debate on a new clause tabled on Report, important though it is, is inadequate for the purpose of satisfying the court that we have visited the matter afresh after wide consultation and proper consideration in Committee. Her intention is helpful, but the new clause will not do the trick in this regard, especially when the Bill as drafted does not contain a similar proposal. Therefore, no purpose would be served by pressing the matter to a vote.
Mr. Jim Devine (Livingston) (Lab): I seek clarification on this matter. Does my right hon. Friend believe that, in a Division, both sides would be voting for the status quo?
Ms Harman: I do not think that new clause 5 exactly repeats the current law, as it does not employ the same statutory language. I would not want to replace the existing provisions with a hand-drafted proposal that is less precise.
Mr. Clive Betts (Sheffield, Attercliffe) (Lab): I want to help the hon. Member for Epping Forest (Mrs. Laing). Is she saying that the existing provisions might eventually have to be given further consideration in light of the ECHR judgement? Does she agree that accepting new clause 5 would mean not that the existing legislation had been given further consideration, but that an alternative form of words had been adopted in its place? Would that not mean that we might end up with two potentially conflicting formulations that could cause greater confusion in the courts in the future?
Ms Harman: My hon. Friend makes a very helpful point. He has said that the consideration of new clause 5 is likely to be insufficient and defective. The debate has been useful, but it would not be appropriate to press the new clause, as it is drafted, to a vote. It would not satisfy the European Court, and it would not be acceptable to us because it does not contain the right repeals. We would therefore have duplication, with two versions of the law on the statute book at the same time, one being inferior and one the current position.
Anyway, the hon. Lady will have to make her own decision on what to do. Let me turn to the court judgment. Under section 3 of the Representation of the People Act 1983, which remains the law and is unchanged by the European Court's judgment, convicted prisoners are barred from voting while serving their sentences. In April 2001, John Hirst challenged the
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ban on voting by way of judicial review. He was unsuccessful in the UK courts and subsequently sought redress at the European Court of Human Rights. The court found in its initial judgment, given in March 2004, that there had been a breach of article 3 of protocol 1 of the European convention on human rights, which provides for states to hold elections
The Government challenged the judgment and requested that the case be referred to the Grand Chamber of the European Court of Human Rights. That heard the case afresh in April 2005, delivering its judgment in October. It found in favour of the applicant and that the blanket ban on convicted prisoners was a breach of article 3 of protocol 1 of the convention.
We are considering how to respond to that judgment. We have brought forward no proposals, and the current law stands. The court does not make a finding as to what measures would be considered incompatible with the ECHR. The judgment simply implies that any decision must be fully debated and emerge from a discussion that considers modern-day penal policy and current human rights standards. With the best will the world, I do not think that we have had the opportunity to give the issue the consideration that it clearly deserves and which the court has clearly indicated it would like us to give it.
The court has not said that all convicted prisoners should have the right to vote. The majority of the judgment is about process and whether or not we have given the right balance to the question of the right to vote compared to deprivation of liberty following a court judgment. We will have to revisit our consideration of the matter. The judgment raises a number of complex issues about what consideration we will need to give it if we are to bring the UK into ECHR compliance.
I hope that the hon. Lady will withdraw the proposed new clause. It would be confusing for people were we to vote against something that purports to reinstate the current legal position. I hope that she will accept my reassurance that she does not need to reinstate the substantive law as I have expressed it and which she supports.
Mrs. Laing: The right hon. and learned Lady is a very astute lawyer and an eloquent Minister. I appreciate that she is in an awkward position, but we shall nevertheless press the new clause to a vote. It is a chance for an expression of the opinion of the elected representatives in the House, and that can do no harm to the further consideration that may well be necessary of this extremely important matter.
Ms Harman:
Although I understand that the hon. Lady's draft is a correct repeat of section 3 of the Representation of the People Act, on which I have asked for advice since she said that she intended to put the new clause to a vote, it does not include section 3A, which refers to prisoners in Broadmoor, and it does not use the correct terminology. So, frankly speaking, I do not want my colleagues and I to be in the position of looking as if we are voting against the current law, when in fact we support it. However, if she puts the new clause to the vote, we will have to vote against it, because of the
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drafting problems and the Broadmoor issue. That will not help people outside understand the will of the Government or the House.
It being Six o'clock, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [25 October].
Question put, That the clause be read a Second time:—
The House divided: Ayes 237, Noes 310.
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