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The suggestion by my noble friend Lord Ramsbotham that such a matter be dealt with by a guideline would perhaps get the Government off the hook and enable a responsible body of people to put their minds to it and assess the strength of the Government's arguments against it. I quote from the European Court:
"The United Kingdom Government had asserted that the voting restrictions on prisoners were designed to prevent crime and punish offenders and to enhance civil responsibility and respect for the rule of law".
The inclusion of this matter within the work on guidelines would enable it to be considered thoughtfully, related to similar considerations about what should constitute the appropriate penalty for specific offences. It would enable the public to see that the matter had been given serious consideration over a range of cases rather than having been dealt with as a political football. I support the amendment.
Lord Pannick: I, too, support the noble Lord, Lord Ramsbotham. "Votes for felons" is no doubt not a popular slogan or campaign but it is an important one. The Minister should understand that the Government's current position is simply a national disgrace, given the importance of the democratic rights we are talking about, the clarity of the judgment of the European Court that the absolute ban is inconsistent with our international obligations and the extraordinary
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Lord Henley: The House will be aware that the noble Lord, Lord Lester, and I do not always agree on a large amount of matters that come before this House. I can agree with him on one thing: the chances of this amendment getting on the statute book. He was right in saying it has no more than a snowball's chance in hell of being accepted by the Government.
I also thank the noble Lord for his history lesson in the honourable part that my party had in seeing the European Convention on Human Rights come into effect back in the late 1940s and 1950s. I thank him for that lesson but I knew it all already. I remember being informed of all that by our late colleague Lord Renton, who also played some part in these matters.
I admire the ingenuity of the noble Lord, Lord Ramsbotham, in bringing this amendment forward. I warned the Government of this at Second Reading. If they insist on bringing forward these massive Home Office or Ministry of Justice Bills that cover every possible subject, they will find that every other possible subject can be added to them. That is why we have had debates on assisted suicide and all sorts of other matters that were not originally in the Government's plan.
On the amendment itself, as the noble Lord, Lord Ramsbotham, rightly pointed out, it is now seven and a half years since the European Court of Human Rights case was decided. Since then we have had two consultations from the Government. They seem to be frozen like rabbits stuck in the headlights, unable to decide what to do. It is not for me to say what we will do at this stage because we are not yet the Government. That will come in due course.
I can give the Minister some reassurance that we on this side are unhappy with the idea of extending the franchise to offenders in prison. The Minister will be aware of what my honourable friend Dominic Grieve said on this matter:
"Many people will question whether this is a sensible development".
One does not need to dismiss that, as the noble Lord, Lord Lester, did, as a knee-jerk reaction to the tabloid press. Often when people say something is a knee-jerk reaction to the tabloid press they are saying they do not like what the majority of the country thinks about these matters. This is a democracy and we have a chance to make up our minds about it. To continue to quote from what my honourable friend said:
"The principle that those who are in custody after conviction should not have the opportunity to vote is a perfectly rational one. Civic rights go with civic responsibility, but these rights have been flagrantly violated by those who have committed imprisonable offences".
He then went on to demand that the Government allow a parliamentary debate. I appreciate we are
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Lord Lester of Herne Hill: Before the noble Lord sits down, could he explain on behalf of the Opposition whether it is their position that they will abide by binding judgments of the European Court of Human Rights in accordance with Article 14?
Lord Henley: As I made clear, my honourable friend has asked for a debate on this matter. As I understand that particular case-the noble Lord, who is much more learned in these matters than I am, will correct me-that judgment does not insist that we automatically give the vote to every prisoner. It would be possible to make some other adjustment, of the manner suggested by the noble Lord, Lord Ramsbotham. We have asked for a proper debate on this matter. That is the right way of deciding these things. A Conservative Government, when they are in power, would then respond accordingly.
Lord Elystan-Morgan: Briefly, I immensely admire the motivation of the noble Lord, Lord Ramsbotham, in raising this matter. The issue is not what the public would want or what tabloid editors would say, but whether we are going to be loyal to a determination of the European Court and to our treaty obligations. Vox populi is not vox parliamentari, and should not be so. The Government, for the basest of motives-and I accept that over 12 years they have done many splendid things-have kept this matter back. That goes for the Opposition as well.
There is one argument, additional to that put forward by the noble Lord, Lord Lester, that we should bear in mind with regard to the rightness of the act of giving votes to persons in prison. Persons are sent to prison because they have acted in such a manner and their conduct is so intolerable that they have been placed outside the walls of society, but with the intention some day that they should come back to society as persons who have redeemed those offences. Those persons still remain citizens, and it is right and proper that they should be reminded not only that they have responsibilities as citizens but that they have rights as well. This is one way of driving that message home.
Lord Goodhart: I express my strong support for what has been said by the noble Lord, Lord Ramsbotham, and my noble friend Lord Lester, and everybody else who has spoken in this debate, with the obvious exception of the noble Lord, Lord Henley. Of course, we are not suggesting that all prisoners ought to be given the right to vote, but it seems plain that there is a strong argument that, for example, prisoners approaching the end of their sentences should be allowed to vote and consider the political issues facing him or her and the country when they become free again. Allowing them to vote in those circumstances could be part of their rehabilitation as citizens of the country. In those circumstances, I believe that there is absolutely no argument for saying that the present status quo of no prisoner ever being allowed to vote while being in prison should continue.
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Lord Bach: I start by congratulating the noble Lord, Lord Ramsbotham, on his immense skill in persuading the authorities that somehow this amendment fitted into this Bill in any way whatever. I congratulate him on his ingenuity, not for the first time. Secondly, he has surprised me, as I thought that he was in favour of blanket automatic enfranchisement, but he is now saying that he now favours the sentencing court playing a major role in deciding whether or not-
Lord Ramsbotham: If the Minister had read my response to the first consultation document, he would have found this suggestion firmly written in my response.
Lord Bach: In that case, I withdraw what I was saying immediately. I was under the impression that the noble Lord was in favour of automatic enfranchisement. I presume that he is not.
As the noble Lord has reminded us, his amendment seeks seek to repeal Section 3 of the Representation of the People Act 1983, and replace the current blanket ban on voting rights for convicted prisoners with a system by which a prisoner's right to vote is determined by the court that sentenced them. As the noble Lord has reminded the Committee, the European Court of Human Rights in the case of Hirst has ruled that the current statutory prohibition on voting by convicted prisoners was in breach of the convention rights. In response to the judgment, which was delivered in October 2005-which by my estimation is not seven years ago-the Government are undertaking a two-stage consultation on this difficult and sensitive issue. The responses to the first-stage consultation paper indicated that there was no great support for the option of allowing the sentencing court to decide on whether a prisoner retained his or her right to vote.
The Government are not entirely opposed to the principle of allowing the sentencing court to effectively judge each case on its own merits. Indeed, the fourth of the options in the second and current consultation is to allow judges some discretion in enfranchisement. However, this approach needs to be considered very carefully.
As to the substantive issue, let me say a few words about the Government's approach as set out in the current consultation. Our approach to the possible enfranchisement of prisoners is based on the length of custodial sentence to which a prisoner has been sentenced. The Government consider that, in general, the more serious the offence that has been committed, the less right an individual should have to retain the right to vote when sentenced to imprisonment. Tying entitlement to vote to sentence length would have the benefit of establishing a clear relationship between the seriousness of the offence, or offences, and suspension of the right to vote. Therefore, in its second-stage consultation paper, the Government have proposed four policy options to determine a prisoner's entitlement to vote, all of which are based on the length of his custodial sentence as handed down, with one partial exception.
Under our first three options, prisoners would automatically retain the right to vote when they have been sentenced to a period of imprisonment of less than one year, less than two years and less than four
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When the second consultation has concluded, in September this year, the Government will consider the next steps. It would be premature to introduce legislation before this second consultation has been completed, and before we have had the opportunity to give proper consideration to all the complex issues that an approach to enfranchisement based on sentence length throws up. There will be a need for a UK-wide approach to this issue, and the judiciary would need to be fully consulted, particularly where proposals are being made for judicial discretion in enfranchisement.
I noted that the noble Lord said that this was a probing amendment. I thank him for raising it today and ask him to withdraw his amendment.
Lord Lester of Herne Hill: I am very grateful for the Minister's remarks, but could he clarify one matter about the timetable? He said that the consultation would end in September. Let us assume, hypothetically, that the next election is in May. It would be perfectly possible to use a remedial order to accomplish, as one sometimes does, full compliance with the judgment of the court without the need for primary legislation. If the Minister, having had two consultations and having consulted the judiciary, were then to lay a remedial order before both Houses, which would have to be debated and cleared by affirmative resolution, that would enable the matter to be resolved before the next general election. Would that be a matter that the Government would now consider? If they would not consider it, it would mean that it could not happen this side of a general election.
Lord Bach: The noble Lord and I have been on this subject of the remedial order before. No, we do not think that this is an appropriate issue for a remedial order; it is an appropriate issue for both Houses to decide whether and how this particular ruling of the European Court of Human Rights should be brought into force. It is not a proper issue for remedial order, in our view.
Lord Ramsbotham: I am very grateful to all those who have spoken. I must make it abundantly clear that I do not take all the credit for the amendment. The noble Lord, Lord Lester, was closely involved, as were the advisers who drew up the original amendment. There are many who feel, on both sides of this question, that the matter will cause us all some concern until resolved.
My concern about this began some 10 years ago when the then Home Secretary, currently the Justice Minister, told me that prisoners could not vote because
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I add to what my noble friend Lady Stern said. If you are encouraging prisoners to rehabilitate and enhance their respect for the rule of law while doing so, it does not set a very good example if the Government are defying the rule of law in practising rehabilitation. I have always thought, in addition to the points made by the noble Lord, Lord Lester, that if the right to vote was there, prisoners would become constituents of MPs and MPs would have to take an interest in the rehabilitation of their constituents, which would raise their interest and involvement in the whole penal system.
Therefore, I accept entirely what the Minister says about timing at the moment. I will read very carefully what was said. I am happy to withdraw the amendment, but with the full understanding that I will seriously consider bringing the matter back on Report. I beg leave to withdraw the amendment.
Clause 110 : Proposals by Lord Chancellor or Court of Appeal
188Y: Clause 110, page 68, line 46, at end insert-
"( ) This section is without prejudice to any power of the appeal court to provide guidance relating to the sentencing of offenders in a judgment of the court."
Clause 110, as amended, agreed.
Clause 111 : Sentencing guidelines: duty of court
Lord Lloyd of Berwick: The first point that I make in support of the amendment is that there is nothing new about sentencing guidelines. It has always been one of the functions of the Court of Appeal to provide guidelines wherever that has been thought desirable and necessary. However, the absence of a guideline
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Criticism might be made that this is all very well; it is what the judges do for themselves, but it does not reflect the views of the public. That would not be so. From time to time, Parliament takes the view that the sentencing level in a particular type of offence is too low and it takes steps to correct the position. The example that I always give-I am afraid that I have given it before in this House-is causing death by dangerous driving. When I became a judge, the maximum sentence was two years; the maximum sentence is now 14 years. My view happens to be that 14 years is far too high when one compares that offence with other very serious offences, but that is neither here nor there. What matters is that, whenever Parliament has increased the maximum sentence, the judges have always followed suit. That has happened, I think, on every occasion.
In 1998, we had the Sentencing Advisory Panel, whose purpose was to give judges independent advice as to the appropriate level of sentencing and, in 2003, as we all know, we had the Sentencing Guidelines Council. So the judges have not been wanting for outside guidance; we have always welcomed such guidance and we have always had regard to it. Now, for the first time, judges will be obliged to follow the guidelines unless the interests of justice require otherwise. That, to my mind, is a very different thing.
Why are we being asked to change a test so soon after the existing test was approved and confirmed by Parliament in 2003? I remind the Committee of what Section 172 provides. It states:
"Every court must ... in sentencing an offender, have regard to any guidelines which are relevant to the offender's case".
What is wrong with that? That was the Government's view as recently as 2003 in bringing forward legislation, which was by no means noted for its liberality or, indeed, for letting judges get on with the job. That was their view then, so why has their view changed? What is the evidence that that existing test, set out so recently, is proving unsatisfactory? Or is there some other reason for making the change? I hope that the noble Lord will answer that question when he replies.
Perhaps I may venture to suggest a possible explanation. The starting point was, I think, the review of the prison system in 2007 by the noble Lord, Lord Carter of Coles. It was difficult, the noble Lord said, to predict the number of prison places that would be required without a structured framework such as exists in the United States in Minnesota and in North Carolina. Only in that way, he thought, would it be possible to forecast the growth of the prison population.
The noble Lord, Lord Carter, reported in December 2007. The same month, the Lord Chancellor and the Lord Chief Justice asked Lord Justice Gage to chair a working party to consider the recommendations of the noble Lord, Lord Carter. The working party
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I have already said something on the subject of consistency. The noble and learned Lord, Lord Woolf, is right when he says that consistency is a most important objective. The noble Lord, Lord Pannick, is also right when he says that consistency is not incompatible with a degree of flexibility. In any event, as we all know, absolute consistency in sentencing is unobtainable. If we wanted a greater degree of consistency than we have, we ought to have gone the Minnesota route, which we have not done.
It is therefore difficult to see what reasons the minority, as it were, could have had, but let me take them one by one. I have already mentioned consistency. The next was transparency. I fail to understand how transparency is relevant at all in this connection, but perhaps that, too, will be explained. Finally, it said that this was "necessary for predictability". In what sense is it "necessary"? Are the Government saying that it is necessary for the judges to be tied down in the way that is now proposed so that the Government may be able to predict the number of prison places that they may need in 2010, 2015 or 2020?
With regard to "predictability", the working party says, in the next paragraph, that,
- "it is not possible for guidelines to control the prison population, as the prison population will depend on a number of factors the most important being the number of offenders brought to justice and the profile of the crimes they commit".
I would add to that that the number of prison places needed will depend to a even greater extent on how much new criminal legislation is brought forward by the Government, how many new offences are created and things such as the indeterminate sentence for the protection of the public, which, by its very nature, is unpredictable.
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