Voting Eligibility (Prisoners)
Business of the House
12:00 pm

Photo of Chris Grayling

Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

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. The House will know that, from as early as the case of Hirst in 2004, the Court found the United Kingdom’s bar on prisoners voting to be “general, automatic and indiscriminate”, and concluded that it was, in the Court’s view, in violation of article 3, protocol 1 of the European convention on human rights, which covers the right to free and fair elections.

The previous Government committed to implement the judgment, and issued two consultations which 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, protocol 1 of the convention, and gave the UK six months to bring forward legislative proposals to remove the violation. That deadline was stayed pending the UK’s intervention in a further case, Scoppola, involving the Italian Government. In that 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 prisoners voting.

The judgment in the Scoppola case was handed down in May of 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 it 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, and 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 my obligation to uphold the rule of law seriously. Equally, it remains the case that Parliament is sovereign, and the Human Rights Act 1998 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 to decide on them. 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, which disfranchises 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 for the rule of law and the UK’s international standing of Parliament’s ultimate decision. The Committee may also wish to think about practical implementation. The administrative consequences and costs for the Prison Service, the courts and the electoral registration system and electoral registration officers of different approaches 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 that the legislation applies correctly in Northern Ireland and Scotland, 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 Government and Parliament in resolving this issue. I commend this statement to the House.

12:07 pm
Photo of Sadiq Khan

Sadiq Khan (Shadow Lord Chancellor and Shadow Secretary of State for Justice; Tooting, Labour)

I thank the Justice Secretary for allowing advance sight of his statement. This issue has been controversial since the 2004 Hirst v. UK case

when the European Court of Human Rights ruled our blanket ban on prisoner voting was contrary to article 3, protocol 1 of the convention. The Labour Government disagreed with the Court’s decision. It is not, and never has been, Labour’s position to give prisoners the vote. That is why we appealed the decision and continued to challenge it until we lost office.

Under this Government, I am afraid, there has been a lack of consistency on prisoner voting. On 20 December 2010—the last day before the Christmas recess—this Government snuck out a written ministerial statement announcing that prisoners on sentences of under four years would get the vote. This meant roughly 30,000 prisoners getting the vote. Information we sought showed that 4,188 offenders convicted and sent to prison for burglary would get the vote—so much for this Government being on the side of innocent homeowners. Had the Government’s original plans gone ahead, 5,991 offenders convicted of violence against the person, 1,700 offenders convicted for sexual offences and even 67 rapists would also have been given the vote. I asked the Government at the time for their legal advice that supported giving violent and serious prisoners the vote, but they declined to provide it. The Government then performed one of their earlier U-turns and in a debate on 10 February 2011, Back Benchers from all sides voted overwhelmingly to maintain the status quo.

I welcome the fact that the Attorney-General appealed to the European Court again in the Grand Chamber this year, but many of us remember the previous Lord Chancellor boasting that he would use our once-in-a-generation opportunity of chairing the Council of Europe to ensure that the European Court changed the rules so that civic and social issues such as this would not be adjudicated on in this way. Once again, the Government over-promised and under-delivered.

We will digest the details of the draft Bill, and will work with the Government to ensure that it receives the pre-legislative scrutiny that it deserves. Like my predecessors in the last Labour Government, I am unhappy with the European Court’s ruling on prisoner voting. I think that the Court got it wrong. This is not a case of our Government failing to hold free or fair elections, or an issue of massive electoral fraud; it is a case of offenders, sent to prison by judges, being denied the right and the privilege of voting, as they are denied other rights and privileges. This issue should be within the margin of appreciation that nation states are given by the European Court.

Let me make clear that I am passionate about punishing and reforming offenders. I believe in intervening aggressively to address the offending behaviour of prisoners, ensuring that they can read and write, addressing alcohol and drug dependency, treating mental illness, providing job training so that prisoners can find employment later, enabling them to work in prison and to find somewhere to live, providing a mentor to help them with those tasks, and much more. I meet many offenders, ex-offenders and experts, and I know that the idea that depriving prisoners of their votes makes them more likely to reoffend —or less likely to reintegrate themselves in society—is absurd.

That being said, I respect the rule of law, and we must uphold it. We do not and cannot abide only by judgments with which we agree. This issue is part of the bigger picture of our membership of the European convention,

a membership of which Labour Members are proud. We acknowledge its role in protecting human rights throughout Europe for more than 60 years, and the fact that it gives the United Kingdom more leverage over other countries that are less scrupulous in their approach to human rights. It allows us to press others to improve their human rights records, just as the Foreign Secretary rightly did this week with the Syrian opposition coalition.

Parliamentarians need to know the Government’s legal advice on what is needed to enable our obligations under the convention to be discharged. We also need to be clear about the ramifications of any decisions that Parliament makes, as there is a risk that choosing the wrong option could lead to compensation claims from prisoners and to our being in breach of the rule of law. That is why I wrote to the Justice Secretary last week—as I did to his predecessor—to request that his legal advice be published so that Members in all parts of the House could make an informed judgment. He has not responded yet.

I should be grateful if the Lord Chancellor would answer a number of questions. Will he make available to the House the legal advice on which his draft Bill relies, and if not, why not? Does he agree with all the Attorney-General’s views on this matter? When will Parliament vote on his three options, and which of them will he recommend to the Joint Committee and the House? Finally, will he confirm that no compensation will be paid as a result of the announcement that he has made today?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

I am sorry that the shadow Justice Secretary did not take the measured approach that was taken by the shadow Home Secretary at the weekend. When he talks of a lack of consistency and commitment, he should remember that the Attorney-General went personally to Strasbourg to argue the case for this country. That does not suggest to me any lack of determination on the Government’s part.

The right hon. Gentleman also mentioned the previous Lord Chancellor. I pay tribute to him for the progress that he made in the Brighton declaration. These are not easy matters. We are dealing with a very large number of countries, and it is difficult to reach unanimous agreement. I think that my predecessor took a good first step towards securing the reforms that are needed—and I agree that reforms are needed: indeed, I personally take the view that further reforms are needed. I think that I have been very clear about that over the past few weeks. Unless and until such reforms happen, however, we must also recognise the reality of our international obligations, and Parliament must decide what approach it wants this country to take. Having heard the right hon. Gentleman’s remarks, I am not entirely certain what approach he wants us to take, but I think it important for Parliament to be in a position to make the decision.

The right hon. Gentleman asked about the legal advice. I do not think that the Attorney-General’s views on this matter are any great secret: he has given evidence to Committees of this House during the last few weeks. Furthermore, the right hon. Gentleman will recall that on no occasion under the last Government was advice given to them by the Attorney-General willingly published. However, I will give careful thought to the issues that he

has raised. I want to be as helpful as possible to the Joint Committee, and I am willing to consider what methods are available to us that are appropriate and follow due precedent.

The right hon. Gentleman asked for clarification of the implications of all this. It involves complex matters that need to be discussed by Parliament, which is precisely why we need pre-legislative scrutiny and should not head straight into a Bill. Both this Government and the last Government have talked about the importance of pre-legislative scrutiny, and this is exactly the kind of Bill that requires it. The right hon. Gentleman also asked about voting intentions. That is a matter for the House to consider. When we reach the point at which a Bill is before the House, every Member will consider how he or she wishes to vote, but, for now, let us wait and see what the Committee comes up with.

As for the right hon. Gentleman’s question about compensation, I hope that the Court will—as it should—view my announcement as the first step in the process that it has asked us to complete, and that the issues to which he referred will not arise.

Several hon. Members:

rose —

Photo of John Bercow

John Bercow (Speaker)

Order. There is much interest in the statement, and I am keen to accommodate it, but I remind the House that there is a further piece of business within the hands of the Government to follow, and then three pieces of business under the auspices of the Backbench Business Committee, the last of which, in particular, is very heavily subscribed. I am keen to accommodate the interest, but I appeal to colleagues to help me to help them, and that is done through brevity.

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Alan Beith (Berwick-upon-Tweed, Liberal Democrat)

If the House agrees to the establishment of a Joint Committee, should not that Committee consider other options, such as restoring voting rights only in the last stages of a sentence? What makes me feel sick is the thought either of criminals cashing in from compensation because we have not sorted this out, or of Britain using the same arguments against international human rights jurisdictions as states with truly appalling human rights records.

Photo of Chris Grayling

Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

Let me say in answer to the right hon. Gentleman’s question about the different options that it will be for the Committee to decide whether there are other elements that it wishes to see in a Bill. We have tried to put together a simple framework within which consultation and discussion can take place. That will undoubtedly involve considering whether there are other options, in terms of either the scope of the Bill or some of the operational issues that underpin it.

As for the right hon. Gentleman’s point about other countries, I must make clear that I do not equate a legitimate democratic debate about these matters in this democratic House of Parliament with some of the extraordinary abuses of human rights that we have seen elsewhere in the past, and all too often today. These are very different issues.

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Jack Straw (Blackburn, Labour)

Does the Justice Secretary accept that on matters of fundamental human rights, the United Kingdom, under successive Governments,

has been impeccable in observing the judgments of the Strasbourg Court, even—for example, in respect of terrorist suspects—when it has disagreed profoundly with those decisions? Long may that continue.

Given that we are talking about the rule of law, does the Justice Secretary also accept that—in breach of ideas of the rule of law that are based on consent—the Strasbourg Court has extended its jurisdiction from fundamental human rights to social and civic rights, for which we have not signed up? As Lord Hoffmann, the former Law Lord, has said, the Court “lacks constitutional legitimacy” in respect of such matters, and

“has no mandate to unify the laws of Europe”

on subjects of this kind.

Photo of Chris Grayling

Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

I welcome the right hon. Gentleman’s comments. I think it is worth recalling that when the convention was written, back in the 1950s, Stalin was in power in Russia and people were being sent to the gulags without trial. That is what the convention was all about, but over the past 50 or 60 years the Court has moved it away from those fundamentals, and into a territory that many of us find deeply unsettling and wrong. I think there is a compelling case for reform, but while the current situation continues, we must none the less respect the laws of which we are part, and put to Parliament the questions that I am putting to it today.

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David Davis (Haltemprice and Howden, Conservative)

As Mr Straw has just demonstrated, this is a non-partisan, parliamentary issue—a matter of debate across the House. In that context, I congratulate my right hon. Friend on doing exactly the right thing in the Bill and handing the decision back to Parliament. I am sure, given the debate that the right hon. Gentleman and I secured some time ago, that the House will effectively decide on the status quo, but that is for the House to decide. If that is what the House decides, does he accept that it will set a precedent, and that every time the European Court goes beyond the remit set by the treaty, to which we did sign up, Parliament will reserve the right to correct it and put things back into proper law?

Photo of Chris Grayling

Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

My right hon. Friend has set out clearly the legal position: Parliament has that right. It has been endorsed in the comments made to a Committee of this House by the Attorney-General, as it was in the House of Lords 13 years ago by Lord Justice Hoffmann. That is the legal position—Parliament is sovereign, and long should it remain so.

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Paul Flynn (Newport West, Labour)

Are we not in grave danger of insisting on the British way on a relatively insignificant matter and giving an open invitation to other, oppressive countries in Europe to mistreat their prisoners? I recall meeting a woman in a Turkish jail who had been given a 35-year sentence for murdering her abusive husband. As someone who has been involved in these matters for the past 15 years in Europe, may I say that we are sending out a signal that other countries may behave in line with their own national interests and traditions, and that those traditions are to oppress their prisoners and to ignore human rights?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

If the Court in Strasbourg were following those fundamental principles to which Mr Straw referred a moment ago and concentrated on serious human rights problems, the issues we are talking about today simply would not have arisen.

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Gerald Howarth (Aldershot, Conservative)

In thanking you, Mr Speaker, and in congratulating my right hon. Friend, may I suggest to him that it is an affront to the British people that judges from such A-list countries as Andorra, Liechtenstein and Luxembourg should be seeking to usurp the judgments of this sovereign Parliament? In so doing, they have, as Mr Straw implied, discredited themselves. It is not we who are discredited by this judgment; it is they who have discredited the Court.

Photo of Chris Grayling

Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

I know that my hon. Friend has strong views on these matters. What I would say as Lord Chancellor is that it is important always to remember that judges, whoever they are and in whichever court they are, be it the European Court or a national court, have the right to reach the decisions they reach. We may violently disagree with those decisions, but they have the right to reach them, and it would be a sad day when they no longer had that right. Our job and duty as legislators—the job of national Parliaments such as this—is to exercise sovereignty when we wish to do so. If we do not like the decisions that judges take, we always have at our disposal the ability to change the law. My statement today indicates to Parliament that the legal precedents before it are very clear: it has the right to disagree with the decisions reached in the Court in Strasbourg, but it would be for Parliament to decide whether it wishes to exercise that sovereignty.

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Dave Watts (St Helens North, Labour)

Do the Government want to pass this decision to Parliament without providing it with the legal advice or any estimate of the potential compensation claims that might be met if we do not comply?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

Absolutely not; I intend to be as helpful as possible to Parliament. Indeed, my right hon. and learned Friend the Attorney-General has already been extensive in his evidence-giving to Parliament about the legal position. There is no secret and nothing to hide; we want Parliament to have access to all the sensible advice. I am certain that my right hon. and learned Friend will be willing to give evidence before the Joint Committee.

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Peter Bottomley (Worthing West, Conservative)

Just because there may be a bipartisan consensus does not mean that it is right or rational, and it certainly does not include me. May I volunteer to serve on this Joint Committee, and may I ask those who give evidence the following? Is denying the vote to someone who has been sentenced to jail after being convicted of a crime a deterrent? It clearly is not. Is it a punishment, given that most criminals have not voted in their lives? Is it a

penance? Or is it part of rehabilitation? Having discussed Strasbourg, we ought to start discussing why we are doing this to prisoners.

Photo of Chris Grayling

Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

It is clearly a matter for Parliament to decide. There may be divided opinions, in different ways, on whether or not to give votes to prisoners and on which form any reform should take. That will be debated in the coming months, but surely it is ultimately the job of Parliament to decide which of many options it wishes to adopt.

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Valerie Vaz (Walsall South, Labour)

Can the Lord Chancellor confirm the position on judges’ discretion on sentencing and the sentencing guidelines? Is there room in the Bill for that, given that the length of sentences could change over time?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

It would not be my intention to try to add additional dimensions to the Bill. It is important that it concentrates on the core issues in relation to prisoner voting and the decisions of the European Court. There will be other opportunities to debate matters relating to sentencing when we discuss Bills that are before the other place and will, I trust, be before this House in the coming years.

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Nick de Bois (Enfield North, Conservative)

I congratulate my right hon. Friend on his robust position. Can he confirm that the legal advice is that Parliament, not the European Court, has the final say? Will Ministers be free to vote for no change?

Photo of Chris Grayling

Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

As regards voting, I shall leave that question until we see what the Committee has brought forward. As for Parliament having the final say, I can tell my hon. Friend that it absolutely does so. That is clearly what the Law Lords ruled 13 years ago and it is clearly what the Attorney-General has advised. It is also absolutely right—our national Parliament should be sovereign.

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Jonathan Reynolds (Stalybridge and Hyde, Labour)

Let us suppose that this House were to accept the most modest of the Minister’s extensions of voting rights to prisoners—the option for sentences of less than six months. What assurances can he give us that at some point in future that, in itself, would not be found to be incompatible by the European Court?

Photo of Chris Grayling

Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

It is unlikely; the indications from the Court are that a level of reform of that kind would be sufficient to satisfy it that we had conformed to the judgment. That is one reason we have put that option in the Bill for consideration. A number of people have suggested more minor changes, but we do not believe that those would be sufficient to satisfy the Court. One can never say never about anything, but our expectation and belief is that that option would end this matter for the foreseeable future.

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Eleanor Laing (Epping Forest, Conservative)

What sanctions are available to the European Court of Human Rights to apply against the UK Government if they are judged not to have complied with the judgment sent down?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

Ultimately, if this Parliament decides not to agree to rulings from the ECHR, it has no sanction. It can apply fines in absentia, but it will be for Parliament to decide whether it wishes to recognise those decisions, as it is with all decisions. Of course, as Lord Justice Hoffmann said in 1999, there are political consequences for the UK if Parliament chooses to take that decision.

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Eilidh Whiteford (Shadow SNP Spokesperson (Fisheries); Banff and Buchan, Scottish National Party)

It is right and proper that convicted prisoners should not be able to vote while they are in prison. I very much welcome the Minister’s commitment to consult the Scottish Government at the pre-legislative stage, but may I seek his assurance that he will prioritise keeping to a minimum the burden on the Scottish Prison Service, the Scottish Court Service and those who administer elections?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

I will certainly give the hon. Lady that commitment. I should say that I spoke to the Scottish Justice Secretary this morning ahead of this statement, as I did to his counterparts in the other devolved Administrations. It is important that they play a part in the discussions that lie ahead. Of course, one factor that needs to be a part of the discussion is what the burdens will be on those who have to administer systems to provide prisoners with the vote, if indeed that is what Parliament chooses to do.

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Julian Huppert (Cambridge, Liberal Democrat)

Prison governors have more regular contact with prisoners than any of us in this House. Does the Justice Secretary therefore agree with the past president of the Prison Governors Association, who has said:

“The blanket ban on sentenced prisoners’ voting is out of step in a modern prison service and runs counter to resettlement work which aims to ensure that prisoners lead a responsible, law-abiding life on release”?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

What my hon. Friend has just brought before the House is one example of the kind of views I expect to be submitted to the Joint Committee of both Houses of Parliament. I am sure that the views of prison governors will be listened to with interest.

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Diana Johnson (Shadow Minister (Home Affairs); Kingston upon Hull North, Labour)

Of the 43 member countries of the European conventions, which ones maintain a blanket ban on prisoner voting?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

Seven countries have done so. Most recently, Italy was before the Court and has made an amendment to its system. Of course, each country will form its own decision based on the system it has in place and the sovereignty of its Parliament. There has been some suggestion that ours is the only country that has even contemplated failing to implement a decision of the European Court, but I should tell the House that if we look at the record of different members of the Council of Europe for implementing decisions over the years, we see that this country stands near the top of the list.

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Robert Buckland (South Swindon, Conservative)

Does my right hon. Friend agree that we need to nail the myth about the so-called blanket ban? We do not have a blanket ban in this country; remand prisoners, contemnors and fine defaulters retain the right to vote. Will he

assure me that it is for this Parliament to consider a range of options, which I hope the Joint Committee will consider carefully?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

My hon. Friend makes an important point about those in our prisons who vote, including fine defaulters, people on remand and people who are between verdict and sentence. I can give him an absolutely clear assurance that it will be for Parliament to decide whether it wishes to see more prisoners with the vote or simply to retain the number at that level.

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William Bain (Shadow Minister (Scotland); Glasgow North East, Labour)

The Secretary of State will know that the Edinburgh agreement devolves the franchise in the forthcoming independence referendum to the Scottish Parliament but that Acts of the Scottish Parliament have a very different relationship with the European convention on human rights from Acts of this Parliament. Have the Scottish Government contacted him to put on record their position about whether prisoners will have the right to vote in the referendum? Should any prisoner decide to sue, will that Government or this Government be liable in the courts?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

The legal position is very clear: this is a reserved matter for this Parliament and not for the devolved Assemblies. As I mentioned, I have already had a discussion with the Scottish Justice Secretary. Clearly, one issue that will have to be addressed in the pre-legislative process is what will happen with the Scottish referendum. We have already started that conversation and it will continue.

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Edward Leigh (Gainsborough, Conservative)

Should we not set store by precedent? Am I right in believing that when we signed up to the convention, before the 1960s, those serving as misdemeanours for fewer than six months were allowed to vote but felons serving for more than six months could not? Of course we must be sovereign, but is that not the sort of compromise that could be reached to ensure our continued membership of the Council of Europe?

Photo of Chris Grayling

Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

That is a very interesting point. It will be for my hon. Friend, given his expertise on these matters, to make representations to the consultative Committee, which we hope will be able to consider all these issues before it forms a view of what this Parliament should do.

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Derek Twigg (Halton, Labour)

I thank the Secretary of State for his statement, which was very clear. I understand that no matter what the European Court says in the future, if Parliament decides that prisoners will not get the vote, with which I agree completely, that is the end of the matter. What if compensation claims are still made and won in the European Court? Will the Government refuse to pay out any compensation?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

If Parliament decides not to change the current position, that will clearly, as per the ruling from Lord Justice Hoffmann, generate a political issue between the United Kingdom and the Council of Europe. The Joint Committee will wish to consider that as part of its deliberations. As for the consequences, we cannot know what they will be until that decision has been

taken. The legal position is very clear. The hon. Gentleman mentioned fines, and as I said earlier, this Parliament is ultimately sovereign and can decide whether it will accept a ruling of the European Court of any sort or whether it will not.

Several hon. Members:

rose —

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Lindsay Hoyle (Chairman of Ways and Means; Chorley, Labour)

Order. I want to get everybody in and do not want to disappoint anyone, so we need short questions and speedy answers.

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Thomas Docherty (Dunfermline and West Fife, Labour)

Many members of the public will believe that this decision is because of the Human Rights Act. As the Lord Chancellor has said very clearly that it is not, will he confirm whether he supports repealing that Act?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

The hon. Gentleman is quite right that the question refers back to the original convention and the structures that have been in place since the 1950s. I support reform of that system and I have been quite clear that I intend on behalf of my party to introduce proposals before the next election. If the whole House decides to adopt those proposals, that will be great. Otherwise, we will fight the campaign on them.

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Peter Bone (Wellingborough, Conservative)

Will not the whole of the British people welcome the fact that the Secretary of State for Justice has come to the Dispatch Box and put their views first, making this Parliament sovereign and ignoring the Mickey Mouse court in Europe?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

I am grateful to my hon. Friend for his kind comments. He has been a great champion of the rights of Parliament and I think that Parliament’s role in this and other matters is enormously important. I am very glad to put it at the centre of a vital decision for this country.

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James Clappison (Hertsmere, Conservative)

May I commend the approach taken by my right hon. Friend? This is a matter for Parliament and Parliament alone to decide, but the processes he has outlined to the House today, including pre-legislative scrutiny, will take some time. Can he assure me it that will be drawn to the attention of the Court that this House will need a proper amount of time to consider these detailed matters and for reflection?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

I can absolutely give my hon. Friend that assurance. Pre-legislative scrutiny is a part of the legislative process that is now supported strongly on both sides of the House. It has been used on many occasions for other Bills. In the case of a Bill as controversial and with as many permutations as this one, I shall make it very clear to the Court that this is the start of a parliamentary process and an important part of the response to what it has asked us to do.

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Huw Irranca-Davies (Shadow Minister (Environment, Food and Rural Affairs); Ogmore, Labour)

Many people will accept that prisoners serving custodial sentences rightly surrender many of their civil and social privileges and rights. What does the Secretary of State think about

the proposal that one determining factor on reinstating any of those rights to vote should be proximity to the end of a sentence?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

There is a perfectly coherent argument to be made by those who believe that, and it is undoubtedly one of the areas I expect to be discussed by the consultative Committee. I should also say that I would expect the different Select Committees with an involvement in this area to want to contribute to the process, too. I have no doubt that what the hon. Gentleman has just described will be one of the options discussed.

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Caroline Dinenage (Gosport, Conservative)

The option that gives prisoners with lower sentences the opportunity to vote would therefore include some prisoners who have been convicted of electoral fraud. Does the Secretary of State regard that as appropriate?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

We have different rules for those convicted of electoral fraud, who are banned from voting for an extended period. The Government have no plans to change that, but the issue will be discussed as part of the review process and we will see the will of Parliament. I do not believe that that is necessarily the same legal issue as the broader one about the availability to prisoners of the right to vote.

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Christopher Chope (Christchurch, Conservative)

I congratulate my right hon. Friend on emphasising the importance of parliamentary sovereignty. In that context, will he assure us that this is not an area in which the European Union and the fundamental rights agency have any competence whatsoever?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

I wish I could give my hon. Friend that complete assurance, but there is another case pending on the right to vote on European elections, rather than national elections, that will be heard in our Supreme Court next summer. That is another thing that is not entirely welcome, but we will have to see what the judgment is when the time comes.

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Ann Coffey (Stockport, Labour)

I am still not clear about the issue of compensation. What advice has the Secretary of State received about what the situation will be if Parliament restates the present position and current prisoners decide to claim compensation?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

The legal position remains that Parliament has the right to say no to any decision of the European Court of Human Rights, whatever that might be. It is clear that that is its absolute right but, as Lord Justice Hoffmann said, there is a political consequence of doing so. I do not make light of the challenge or debate that would follow if the decision were not to give prisoners the vote.

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Henry Bellingham (North West Norfolk, Conservative)

The Secretary of State has just mentioned that a number of leading EU countries have ignored judgments of the ECHR on the grounds of parliamentary sovereignty. It was stated at the time that their international reputation in various forums, such as the UN Human Rights Council, would suffer. Is there any evidence of that happening and has any analysis being carried out?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

I have no evidence of such issues. Some people have suggested that if Parliament chooses to exercise its right of sovereignty, the UK would become a pariah state, but I must say very clearly that I simply do not accept that. I believe that Parliament has the right to exercise its sovereignty. It will be for Parliament to decide in this situation whether it wishes to exercise that sovereignty, but I do not believe that if it chooses to do so, Britain will somehow turn into a nation with an appalling human rights record. Our human rights record stands comparison with anyone’s.

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Roger Gale (Parliamentary Assembly of the Council of Europe (Full Member); North Thanet, Conservative)

As a member of the Parliamentary Assembly of the Council of Europe, I have had the opportunity to discuss the issue with senior members of the European Court of Human Rights in a particular context. There are 47 member states of the Council of Europe and very many of them—France is one; Malta is another—hold prisoners for very long periods without trial in clear breach of the convention on human rights, about which the ECHR chooses to do precisely nothing. Would it not be a good idea for the ECHR to concentrate on enforcing article 5 and such matters rather than meddling, as Mr Straw has said, in matters that are not even within its remit?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

My hon. Friend is absolutely right. This is the problem; at the moment, we have a Court that is drowning in hundreds of thousands of cases in areas that the originators of the convention would never have considered relevant to what they were creating. That has taken the judges in Strasbourg away from the fundamental principles that they are supposed to be there to protect, so I absolutely agree with my hon. Friend.

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Robert Halfon (Harlow, Conservative)

The European convention on human rights was set up in the aftermath of the second world war to ensure that the horrors of Nazi Germany never happened again. It was never the intention of its framers to give Albert Speer and Rudolf Hess the vote. Does not that make it clear that there is a difference between the convention and the Court? That is why Parliament will have a moral mandate to defy the Court.

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

I really believe that is the central issue, which is why I feel so passionately that we need to reform the system, which has moved a long way from the noble motives of its conservative creators, who were trying to address some of the appalling situations that people in Europe found themselves in at the time. It was not about whether prisoners had the right to vote; it was about people being put in mental hospitals for the rest of their lives without trial as an excuse for taking them out of the political process. That is the kind of thing we should be fighting.

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David Ruffley (Bury St Edmunds, Conservative)

I congratulate the Secretary of State on doing something previous Secretaries of State for Justice have not done, which is invoke parliamentary sovereignty, but I gently suggest that that takes us only so far. It is likely that ambulance-chasing compensation claims will be made, so will he indicate what steps he is taking now, by way of contingency planning, to prevent any prisoners from

making claims, in either the European Court of Human Rights or English courts, for denial of their alleged human rights?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

I cannot say too much about all the detailed plans I have at the moment—I am in the early stages of thinking through some of the broader issues—but one point I will make is that I have asked the question about the use of the legal aid system for purposes that I do not believe it was designed for. I hope to bring forward further thoughts on that before too long.

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Guy Opperman (Hexham, Conservative)

I draw the House’s attention to my recently published book on prison reform.

I have represented hundreds of people who were in prison, not one of whom ever said to my good self that they were busting for a chance to vote; I assure the Secretary of State that that was not the intention of many I represented. What is the proposal in the option for considering short sentences of a few weeks or even a few days in custody?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

Under the proposal to give the vote to prisoners who have received a sentence of either six months or less or four years or less, someone given a very short sentence would be eligible for a postal vote in prison. Of course, whether or not they are given that vote would depend on what Parliament and this House decide.

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Philip Hollobone (Kettering, Conservative)

I am appalled by the lack of legal training for so many of the so-called judges of the European Court of Human Rights, incensed by the Court’s repeated attempts to traduce the sovereignty of the British Parliament, and cognisant of the fact that there would be no Court and no human rights in Europe if this country had not stood alone against Hitler in 1940. My constituents want their MP to vote to ban prisoners from voting, and in that they will not be disappointed.

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

We have had one or two early statements of intent from Members, some of which have not surprised me at all. I know that my hon. Friend feels strongly about these matters and is an effective advocate for both his constituency and his point of view on these issues, which I know is shared across the House. As my hon. Friend Sir Peter Bottomley made clear, those views are not unanimous across the House and, therefore, I think that we will have a constructive and lively debate before Parliament reaches its view on the way forward.

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Dan Byles (North Warwickshire, Conservative)

I strongly welcome the stance my right hon. Friend has taken. Does he agree that everybody supports the concept of genuine human rights but it is this sort of nonsense, whereby the Court interferes in the internal affairs of a country with an impeccable record and tries to micro-manage our system, that gives the whole concept of human rights a bad name and undermines the work the Court should be doing?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

I absolutely agree. It is a little-known fact that at university I was chairman of the Amnesty International group and campaigned for Soviet prisoners

of conscience. That work is a world away from some of the areas the Court is currently considering, which is why I believe it needs serious reform.

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Mark Menzies (Fylde, Conservative)

I welcome the Secretary of State’s comments today about Parliament being sovereign on this issue and on how he is vigilant on legal aid. It would be completely unacceptable to my constituents to see legal aid paid to convicted criminals.

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

On legal aid, there will always be people we might find repellent but for whom we must provide financial support so that they can defend themselves in a fair and open justice system, but that does not mean that our legal aid system should be open to abuse for purposes it is not intended to serve. That is why I have asked my officials to look closely at that area and consider what changes are necessary.

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Tessa Munt (Wells, Liberal Democrat)

Will the Secretary of State clarify that it will be open to Parliament to decide that non-violent offences tried summarily by the magistrates would comply with the requirements of the European Court of Human Rights and that using the sentencing guidelines and the experience of the judiciary, which is independent of interference and hears the evidence, should be a vehicle for deciding whether or not prisoners are entitled to vote?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

My hon. Friend has put forward a further option for the eventual legislation, and I encourage her to take it to the Committee for its consideration.

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Mark Pawsey (Rugby, Conservative)

My constituents are horrified by the prospect of prisoners being given an entitlement to vote. Further to the issue of those given short sentences, will the Secretary of State comment on the position of offenders who are given community sentences?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

Those who are given community sentences are currently still able to vote and we have no intention of changing that, although one option that has been adopted in some other European countries, Italy particularly, is having tighter rules for those released after a prison sentence. That is clearly an option that the Committee might wish to consider.

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Margot James (Stourbridge, Conservative)

I was pleased to hear my right hon. Friend say that he will uphold our obligations under international law. I welcome the middle option of six months or fewer as something that those of us who are not implacably opposed to prisoners having the right to vote under any circumstances could consider. Will he qualify that further and comment on whether further restrictions could be added to that option—for example, eliminating from the list of eligible people those who have a record of violence or taking into consideration their previous convictions?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

Those issues could certainly be discussed, but the Court has indicated to us that, were we to implement a measure that took the bar lower than the six-month sentence point, it would be unlikely to see our approach as compliant with the original ruling. Whether an exception for violence could be made is a matter that needs careful consideration in Committee.

I do not have the legal basis to rule it in or out at the moment, but the six-month threshold is certainly where the Court has indicated that it sees the line being drawn.

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Neil Parish (Tiverton and Honiton, Conservative)

Does my right hon. Friend agree that not only is it fundamentally wrong for prisoners to be given the vote, but it is British courts that see all the evidence and take away the freedom of those people, so why on earth should it be European courts that overrule us?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

As a great believer in the principle of subsidiarity, I think that, where possible, national courts should take decisions on all but the highest points of principle. That, of course, is not where we are at the moment with the European Court of Human Rights, which is taking decisions on issues that, in my view, should certainly be a matter for national courts.

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Andrew Bridgen (North West Leicestershire, Conservative)

The Secretary of State is absolutely right: this is not just about the important matter of prisoner voting; it is about the even more important matter of the very sovereignty of this House and this Parliament. To that end, can he reconfirm that the legal advice is clear and unequivocal that it is this Parliament, not the European Court of Human Rights, that has the final say on this important matter?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

I absolutely confirm that. That advice has come from distinguished legal figures at both ends of this Parliament, from the former Law Lord, Lord Justice Hoffmann, and a current distinguished legal figure, my right hon. and learned Friend the Attorney-General, who have given identical advice on the sovereignty of Parliament and its right to take the final decision on the matter.

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David Nuttall (Bury North, Conservative)

I warmly welcome the Lord Chancellor’s statement and look forward to being able to vote again in favour of maintaining the status quo. In the meantime, will my right hon. Friend please confirm that the pre-legislative scrutiny will in no way be rushed and that when the Joint Committee comes to consider the draft Bill every single issue will be explored and every interested person will be given the time and opportunity to put their views in full and to be examined about them?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

Given the wide range of views expressed in the House today, it is clear that there will be an extensive and broad-ranging debate, and it would be entirely wrong to curtail the parliamentary process and prevent legitimate views from being heard.

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Michael Ellis (Northampton North, Conservative)

Does my right hon. Friend agree that voting is a right, but it is also a responsibility? Prisoners are in prison precisely because they have shown a lack of responsibility, so they should not have the right to make decisions over other people by voting in elections.

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

My hon. Friend has articulated one of the clear views held in the House on this issue. The issue commands very strong opinions, and I believe that

today I have offered Members such as my hon. Friend the opportunity not simply to express their view, but to vote to express it.

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Glyn Davies (Montgomeryshire, Conservative)

I absolutely agree that deciding whether prisoners should have the right to vote is properly a matter for this Parliament, but I am concerned that the United Kingdom may well find itself either asked to pay fines or outside the judgment of the European Court. Britain has an admirable reputation for leading the world in respect of the rule of law, so will my right hon. Friend work with the other 46 members of the Council of Europe to find ways of avoiding the confrontation we seem to be heading for, which will almost inevitably involve curtailing the ambitions and scope of the European Court?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

I can absolutely give my hon. Friend that assurance. It is my view that reform must come, and I am very pleased to have heard today that that is clearly the view of Opposition Members as well. The former Lord Chancellor, my right hon. and learned Friend Mr Clarke, made a good start with the work done before the Brighton declaration, but my view is that there is a long way still to go on this matter.

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Justin Tomlinson (North Swindon, Conservative)

Parliament is rightly seeking to reflect the public’s horror at the prospect of prisoners getting the vote, so why not tap into that by putting the options in a referendum coinciding with the next police and crime commissioner elections, in which we want more people to vote?

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Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative)

That is an intriguing idea, but, sadly, I think the European Court will not allow us to wait four more years before reaching a final decision on this matter. I think Parliament will have to vote before then.