Committee (4th Day)

Parliamentary Voting System and Constituencies Bill – in the House of Lords at 3:09 pm on 13th December 2010.

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Clause 2 : Entitlement to vote in the referendum

Amendment 35

Moved by Lord Foulkes of Cumnock

35: Clause 2, page 2, line 19, at end insert ", and

(c) prisoners in jails in the United Kingdom serving sentences of less than 4 years"

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

My Lords, I beg to move Amendment 35 standing in my name on the fourth Marshalled List of amendments.

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

My Lords, perhaps there could be speed from the many people wanting to leave before the noble Lord, Lord Foulkes, speaks.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

I am grateful to my noble friend Lord McNally, whom I have known for many years and from whom I have learnt to expect nothing better. I am always grateful to him for his acknowledgement of the reality of the situation. I am glad that it is not unique on this occasion.

This amendment raises the issue of the voting rights of prisoners in relation to the referendum. We have a clear ruling from the European Court of Human Rights and an imminent announcement of a decision in relation to that from the Government. Following the judgment of the European Court of Human Rights on 6 October 2005, more than five years ago, many Members will know that United Kingdom's current ban on all serving prisoners from voting in elections contravenes Article 3 of Protocol 1 of the European Convention on Human Rights.

The previous Labour Government decided to carry out a two-stage consultation process on options for a change in policy. The second consultation period ended on 29 September 2009, which is now more than a year ago. In its fourth report of 2008-09, the House of Commons and House of Lords Joint Committee on Human Rights said that it was unacceptable for the Government to continue to delay on this issue. On 21 July 2009, the chair of the Joint Committee wrote to the then Lord Chancellor seeking further information about how the Government were going to respond to the court's judgment. Nothing was done to change the law before the general election on 6 May 2010, although there was an attempt in your Lordships' House to amend the Constitutional Reform and Governance Bill of 2009-10 by inserting a new clause that would have removed the statutory bar by repealing Section 3 of the Representation of the People Act 1983. However, this amendment was withdrawn.

In June 2010, the Committee of Ministers of the Council of Europe expressed "profound regret" that the ban had not been lifted in time for the 2010 general election. The Committee of Ministers said that it would draw up a resolution for action if the United Kingdom Government failed to give prisoners the right to vote in time for the elections to the Scottish Parliament, which will be on 5 May 2011 and are planned to coincide with this referendum, and to the National Assembly for Wales and the Northern Ireland Assembly, which will be on the same day.

On 2 November 2010, in response to an Urgent Question in the other place, Mark Harper, the Parliamentary Secretary in the Cabinet Office, said that the coalition Government accepted that there was a need to change the law and that Ministers were considering how to implement the judgment of the European Court of Human Rights. As I said, I understand that a decision on this is imminent. It is expected that later this month the coalition Government will make an announcement on how they are going to respond to that judgment with regard to implementation. Perhaps the noble Lord, Lord McNally, could confirm that this is the case when he responds.

When I originally tabled the amendment, I specified a term of six months, which seemed at the time the appropriate period to enable us to start this discussion. However, I heard on the grapevine-I am not sure that I should always believe what I hear on it, but on this occasion it seemed fairly plausible-that the Government are going to suggest four years. If that is the case, it is sensible for this amendment to specify the same so that there will not be any confusion between voting in the referendum and voting in the elections that are to take place in Scotland, Wales and Northern Ireland next May. If the amendment is accepted, the Bill will anticipate what the Government are going to do in relation to elections.

This is a very liberal amendment and I make no apology for that. I am not seeking unduly the support of the Liberal Democrats but it is the sort of thing that I have heard Liberal Democrat lawyers in this House argue for at length on many an occasion. No doubt we will hear the same today, knowing their enthusiasm for consistency, particularly in higher education and related matters. However, I should express my own view, because I have tabled the amendment and I have just argued that the case should be considered. I know that some of my noble friends have a slightly different point of view, so the opportunity has been provided for what I hope will be an interesting debate. I hope that the noble Lord, Lord Ramsbotham, will not mind my saying that he has written to me stating that he is in favour not of the time limit but of giving powers to the judge considering the case to withdraw voting rights. I understand his argument, although I do not accept it as the best way forward.

My view is that the decision of the European Court of Human Rights is correct. Once an offender is sentenced, he is fined or jailed. The appropriate sentence is decided on by the court and it is the punishment that the offender should receive in relation to their offence. In fact, the offender suffers a great deal more than that, especially by being jailed. Almost inevitably the person in jail will lose their job and will not go back to it afterwards. Prison has a huge effect on children and families and there is a loss of status and position within society. All those factors are part of the punishment that the offender faces. Is the decision of the court therefore not punishment enough? Why, on top of that, should offenders lose the right to vote? Voting is a fundamental human right and I cannot see any logical argument for withdrawing it other than wishing to punish someone over and above the sentence decided on by the court.

I do not want to speak at great length, so I shall quote in aid of my argument only one published article, not from the Guardian but from the Daily Telegraph. Mary Riddell wrote the following:

"Two cheers for David Cameron, who has done the right thing by giving prisoners the vote, albeit with deep reluctance".

The Prime Minister was, she continued,

"said to be 'exasperated' and 'furious' about a decision reportedly forced by the threat of litigation. In legal terms, the turnround is long overdue. Six years have passed since the European Court of Human Rights ruled that the blanket ban imposed by Britain was discriminatory. Since then, Labour and the Tories have dragged their feet disgracefully. Today's news fits ... with Ken Clarke's hope for a rehabilitation revolution. Prisoners lose their liberty, not their citizenship. If the object is to punish them, protect the public and equip offenders to rejoin the community, then they should work, pay taxes-and vote. Creating a disenfranchised and idle sub-class merely encourages re-offending. There's no question of all prisoners getting the franchise. Very serious offenders will certainly remain barred. But the rest will get a basic right accorded in countries across Europe. Mr Cameron has taken the only decision he could. It is the right one".

If Mr Cameron is right, I hope that his colleague in the coalition, the noble Lord, Lord McNally, will take note of that and accept the amendment.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 3:15 pm, 13th December 2010

My Lords, I am grateful to the noble Lord, Lord Foulkes of Cumnock, for raising this issue, which has been raised on the Floor of this House many times. I am also grateful to him for the way in which he explained the inordinate delay that there has been over the years, which frankly could have been avoided if the nettle had been firmly grasped. The noble Lord mentioned a letter that I wrote to him, which was consistent with what I have contributed to both consultations and, indeed, on many occasions-that one reason for removing the vote as part of a sentence is that that would enable the judge to add that penalty for a particular crime. It is interesting that most of the comments that we see in the press on this issue refer to certain types of prisoner who have committed certain types of crime being given that penalty of having the vote removed. Personally, I would have no objection to that, provided that the measure is adopted as quickly as possible, because too many elections have passed without this happening. Everything possible ought to be done to enable those prisoners who are qualified to take part-whether that is according to the crime or whether, as appears likely, the Government will put a time limit on it-in the referendum and the other elections likely to take place next year.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

My Lords, I do not follow the noble Lord, Lord Ramsbotham. It is difficult to see what would happen if a judge were to be given discretion to impose the loss of the civic right of voting depending on the particular type of crime. One simply asks this question: if, for example, a prisoner were guilty of shoplifting, which would normally have a very short sentence at most, is that crime one that would make him forfeit those civic rights? If there is a form of assault, is that to be one? There would be infinite argument about how the judge should exercise that discretion. Surely it is better to have a blanket bar if there is to be a bar at all.

I have enormous admiration for my noble friend Lord Foulkes. We served for over a decade in the same team in opposition and I had great admiration for his assiduity-fertile in invention was perhaps the way that we always thought of him. However, I thought, with respect to him, that he appeared to be arguing against himself. Having suggested four years in his amendment, for the reason that he gave, he then appeared to be arguing in favour of no bar at all. I will reread what he said but for the life of me I could not see any consistency.

I confess that my predisposition is, in principle, to be in favour of a bar, but I reluctantly accept that those who have committed crimes and therefore forfeit a number of their civic rights should not also forfeit the civic right to have a vote. That puts me not in the liberal club, although perhaps my noble friend Lord Foulkes was trying to follow our party's new line of trying to attract dissident Liberal Democrats into our fold. I will not follow that line. In spite of my predisposition, I accept the ruling of the European Court of Human Rights. Indeed, it has to be accepted-the sooner the better. The only question that remains is the length of sentence that there should be. There has been far too long a delay, as the noble Lord said.

I, too, have heard, perhaps on the same grapevine, that the Government will shortly make an announcement and that they favour four years, without any discretion for the judge. If that be their response, though, there is surely a case for consistency. If it be the case in respect of a general election, surely the Government should now act in the spirit of what we are told they will be announcing shortly and say that the same principle should apply to those who are currently serving sentences. If they will, and I suspect that there is the will for this in the House and in Parliament as a whole, they can ensure that whatever length of time they choose is in operation by the time of the referendum, whenever that may be held, be that 5 May or some other date.

If only for the reason of consistency-even though, like the great mass of public opinion, I suspect, I am not personally convinced of the case-I accept that we must follow the European Court of Human Rights. Pace the noble Lord, Lord Pearson, we cannot pick and choose the judgments that we follow. In following them, we should endeavour to attain consistency in the various elections that our people will be involved in.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, I support the amendment. It is a timid one but it is the only one we have, and I will wholeheartedly support it. There is a paradox, is there not, about one aspect of the punishment of someone who has put themselves outside society being to keep them outside society? Surely the very heart of rehabilitation is to get a prisoner thinking once again that they relate to the society that they have offended against-to bring them back inside the "big society tent", if you like. It seems to be a self-injury to have the rule at all, although I can perhaps understand how the law is as it is out of respect for public sentiment, however wrong that sentiment may be. With that, I will simply say that I endorse and support what the noble Lord, Lord Foulkes, has said.

Photo of Lord Grocott Lord Grocott Labour

My Lords, I had not intended to intervene on this. I have two brief points. First, I know that I shall be told that this is a ferociously anti-European thing to say, but it is emphatically not intended to be that. Am I the only person in this House, or indeed in the other House, who always feels slightly uncomfortable when a Government, of whichever party, stand up and say, "This is something we've absolutely got to do, whether we like it or not"? There comes a point where you question the extent to which that is compatible with a sovereign Parliament. It is a always a bad argument, and I have seen this on a number of other occasions, if an elected Member of the other House has to go back to their constituents and say, "This is something we have no choice whatsoever about; this is a matter that's been decided somewhere else". That is a weak argument and I know that my noble friend did not deploy it; he addressed the actual merits of the case. That is just an observation.

Secondly, I am sure that there is an answer to this, but I am simply not versed enough to know it. Given that there are many other countries where I understand there is an unfettered right to vote in general elections, the practicalities of exercising that right in a meaningful way seem very difficult. A normal constituency campaign involves access to constituents and potential constituents if you are a candidate. It involves meetings, if necessary, and canvassing. I am sure that these practical questions have been asked long before I raised them in this debate, but I would like to know what the practical answers are.

Photo of Lord Browne of Ladyton Lord Browne of Ladyton Labour 3:30 pm, 13th December 2010

My Lords, like my noble friend Lord Grocott, I had not intended to speak in this debate but he encouraged me to do so with his introductory remarks. I rise to do two things. First, I remind your Lordships that, far from the European Convention on Human Rights being some foreign, European imposition on our culture, it was in many ways our post-war gift to the rest of Europe. The convention was largely drafted by British jurists. The structure that was put in place to enforce those conventional rights was part of that gift, which we encouraged upon the rest of Europe. This is a very British thing to do in many ways. It has taken decades for this issue to come before the court and for the court to give its opinion and impose back upon us, as it were, an interpretation of those rules that allows prisoners the legal right to vote. It has it roots in our own jurisprudence and legal thought. We should not in any sense blame this on others or suggest that it is being imposed on us.

Secondly, I support and commend my noble friend Lord Foulkes for raising this issue here, although it will not result in amendment of the Bill or in the opportunity, at last, for us to live up to the consequences of the judgment, do what will inevitably need to be done and deal with the issue-to grasp the nettle, as another noble Lord suggested. However, it gives the coalition Government's Front Bench an opportunity to reassure your Lordships' House that we will not find ourselves in a situation where they give either a subset or all of this group of people a vote by decisions made through legislation in this House, and then immediately deny those persons their say in a referendum. That would be an entirely inconsistent position. I look for assurances from the noble Lord, Lord McNally, that the Government will do everything they can to ensure that, if they intend to give prisoners or any class of prisoners the vote, the legislation will allow prisoners to express their preference in a referendum.

There are several practical considerations. For example, in the other place I represented a constituency that had a large prison in it. Working out whether those people were best served by maintaining their relationship with the Member of Parliament who represented them in their home patch or whether they were my constituents for the issues that they raised with me, exercised my mind on many an occasion. These issues have to be resolved and worked through and they are by no means straightforward.

I remember being told many decades ago by a governor of Barlinnie prison that part of the problem was that we had not appreciated that we send people to prison as punishment, not for punishment. This was at a time when the Scottish prison system was in complete turmoil; we were caging people within cells in Porterfield prison in Inverness to control their behaviour. Many people are punished further than the courts intend by being denied that right and that responsibility when they are in prison. For the bulk of our prison population, whether they lose their vote is entirely a matter of luck. Most of them are in and out in such a short period that, if there is a coincidence of an election, it is entirely a matter of luck-to do with how their case is dealt with, the time involved and the proceedings-whether they are denied a vote. It is not as if everybody who is convicted of a crime between elections is denied a vote in the next election; it is entirely a matter of random luck. The sooner we resolve the issue, the better. The opportunity that my noble friend has given us to air some of these issues has benefited this House and the debate. I commend him once again for introducing this matter.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I can be very brief, mainly because I have not so far taken any part in the issue which has been urged for so long and so very effectively by the noble Lord, Lord Ramsbotham. However, I have listened to the debate this afternoon, and it seems to me that by supporting the amendment we will be taking at least a step in complying with the judgment of the European Court of Human Rights which has been outstanding for so long. It may not be the best solution-I do not know whether it is or not-but, on the principle of half a loaf being better than no bread, I lend my support to the amendment.

Photo of Lord Bach Lord Bach Shadow Spokesperson (Justice)

My Lords, for many years the law in this country has decreed that if you lose your liberty, you lose your right to vote. However, as we have heard, the European Court of Human Rights has ruled that this blanket ban on prisoners voting must be ended. My noble friend Lord Anderson is right: a large number of people in the United Kingdom do not agree with that ruling, which makes the issue a difficult one for politicians of all shapes and sizes. Nevertheless, when Labour were in government-I am delighted to see the noble Lord, Lord Henley, in his place as he and I used to agree on this subject just a few months ago-we accepted that we had a legal obligation to comply with the European Court ruling, and that compliance would ultimately mean giving some prisoners the vote. Mindful of the need to take account of public opinion-that is a real issue here-in responding to the European Court judgment, we undertook a consultation process aimed at identifying an acceptable solution to a difficult problem.

I praise the Liberal Democrats who were always keen, when in opposition, that the Labour Government should act more speedily on this issue than was the case. However, I recall that throughout our discussion on this issue-we debated it for some time in the previous Parliament-the Conservative Party urged us to stay as we were and not to get on with it. Indeed, the right honourable and learned gentleman who is now the Attorney-General said, when in opposition, that it would be "ludicrous" if prisoners got the vote. When I used to sit where the noble Lord, Lord McNally, does today, I was always relieved to have the support of the noble Lord, Lord Henley, when he was on the opposition Front Bench, and that of the noble Lord, Lord Tebbit, among others, against the proposal that prisoners should have the vote. Therefore, let us not have any criticism of us, as I am afraid the Lord Chancellor has been prone to do in the past week or so, saying that we should have legislated on this some time ago. I do not believe that the Conservative Party manifesto stated that prisoners should vote in the previous general election, but I am, of course, conscious that the other half or third, or whatever it is, of the coalition will respond today, and no doubt he will speak, as always, on behalf of the Government.

However, more seriously, it must be acknowledged on all sides of the House that there is a strong sense among the public-I think this is what the noble Lord, Lord Grocott, was getting at-that a decision may be being forced on the country against the will of the people. Indeed, reading what the Prime Minister has said about this issue, one feels that he thinks that, too. Clearly, this issue has some potential to undermine yet again public faith and participation in the political process. For that reason the Government have to respond to the European Court ruling in a way that is mindful of the views of the public and reassures them that their representatives are not simply rubber-stamping decisions made elsewhere. I hope that all noble Lords agree that it must be done in a way that is sensitive to British values and respects the position of this sovereign Parliament.

To be fair, the European Court itself recognises that fact, which is why it agreed to give the Government a degree of flexibility in how they respond to the ruling that a blanket ban on prisoners' voting is unlawful. I believe that the concept is called a "margin of appreciation", which has also been known to apply in other fields, but is particularly important here. In short, therefore, we would argue that the Government are not compelled by the margin of appreciation to give all prisoners the vote, but are required to enfranchise some. It is clearly up to the Government to decide who they believe should have the right to vote and to put that decision to Parliament.

It is rumoured on the grapevine that there will be an announcement before Christmas; I think that that grapevine is called the Lord Chancellor. In reply to the debate last week on the sentencing Green Paper, I think he made an announcement that there would be a parliamentary Statement around this subject before the Christmas Recess, and we look forward to hearing what it has to say.

The amendment of my noble friend proposes to give the vote to all prisoners sentenced for up to four years in jail. That seems to be going too far. While it may be possible to persuade people to accept a change, whereby prisoners convicted of comparatively low-level crimes are allowed to vote, we do not believe that the law-abiding public would easily accept a solution that ends up with people guilty of really serious offences-including violence, sexual assault or crimes against children-having a say in who represents them while they are in custody. That could be the consequence of the amendment, which would set the threshold to as high as four years.

We find deeply unattractive the idea that that a judge should have a say as to whether an individual whom he is sentencing should have the vote. The first reason why it is unattractive is because, frankly, I do not think that there is any judge in existence who would want that power. Secondly, the idea's unattractiveness is demonstrated, for example, by the prospect of a prisoner not being allowed to vote because a judge has used his discretion in a particular way, and whether that prisoner should have a right of appeal about that aspect of the sentence.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, does the noble Lord remember that when we debated this issue on the Floor of the House when he was a Minister, he mentioned that the decision would actually come from the Sentencing Guidelines Council, which would guide the judges in this matter, and would remove the unlikelihood of inconsistencies between judges on different types of sentence?

Photo of Lord Bach Lord Bach Shadow Spokesperson (Justice)

I am grateful to the noble Lord. I am not likely to forget our frequent discussions about this subject. However, can the noble Lord help me? Would he, under his proposal, give the defendant, who the judge has told, "No, you cannot vote", a right of appeal in the normal way against a decision such as that?

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, yes, I believe so.

Photo of Lord Bach Lord Bach Shadow Spokesperson (Justice)

I have to say that the possibility of that kind of appeal clogging up an already busy system is not one that we would support, particularly at this stage.

We cannot support the amendment, although we are grateful to my noble friend for raising this subject-as, I am sure, the Committee is-because the issue has exercised this House a great deal over the past few years. We very much look forward to the Government coming up with their proposals in the next few weeks.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

The noble Lord says that he cannot support four years as being just too long from the point of view of public opinion. What period would he support?

Photo of Lord Bach Lord Bach Shadow Spokesperson (Justice)

I find that question more difficult, but the period would be less than four years, rather than more.

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords 3:45 pm, 13th December 2010

My Lords, I agree with the noble Lord, Lord Anderson; I have known the noble Lord, Lord Foulkes, even longer than he has. Where I would agree with the noble Lord, Lord Anderson, is that the noble Lord is a master of fertile invention-particularly when he is on the opposition Benches. What we have had today is a good debate about a matter that has yet to come before Parliament.

The amendment seeks to amend Clause 2, which sets out the franchise for voting in the referendum on the parliamentary voting system. Under Clause 2, anyone who is entitled to vote in Westminster parliamentary elections would be entitled to vote in the referendum. Members of this House entitled to vote in local and European elections will also be able to vote in the referendum, a matter we debated last Thursday.

Sentenced prisoners are currently barred from voting by Section 3 of the Representation of the People Act 1983. This bar, which has been supported by successive British Governments, has its origins in the Forfeiture Act 1870. However, as has been mentioned by a number of noble Lords, in 2005 the European Court of Human Rights found that the United Kingdom's prohibition on all sentenced prisoners voting breached Article 3 of the First Protocol of the European Convention on Human Rights-the right to free and fair elections. I was pleased by the intervention of the noble Lord, Lord Browne of Ladyton, because it is important to remind people when we are debating our responses to decisions of the European court what its origins were.

I was recently at a meeting where the daughter of Sir David Maxwell Fyfe was present. It was worthwhile for the noble Lord, Lord Browne, to remind us of the major contribution that Sir David and other British lawyers made to a convention that was seen as a response to the horrors and excesses of the untrammelled tyranny that Europe had just experienced. Of course it is important that we look at the decisions of the court in the light of our own experiences and customs, but I am grateful to the noble Lord, Lord Browne, for his reminder.

As Mr Mark Harper, the Minister for Political and Constitutional Reform, made clear in the other place on 2 November, the Government accept that there is a need to change the law. Ministers are currently considering how to implement the judgment and, when the Government have made a decision, their proposals will be announced to Parliament in the usual way. There will then no doubt be a full debate on the issues, giving Parliament the opportunity to discuss the issues reflected in this debate.

Photo of Lord Bach Lord Bach Shadow Spokesperson (Justice)

As I understand it-I may be wrong-the Lord Chancellor, the right honourable Secretary of State for Justice, said last week in answer to questions on the sentencing Green Paper, when this topic came up, that a decision would be made by the Government and announced publicly by the Christmas Recess. Can the Minister confirm that?

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

I cannot confirm it because I do not know. If the Lord Chancellor said that he must know about the timetable. However, I am not in a position today to confirm or otherwise whether such a decision is imminent. When it is, it will be announced to Parliament and I am sure that the usual channels in both Houses will find time for a debate, which will be, I suspect, very much along the lines of today's debate.

Photo of Lord McAvoy Lord McAvoy Opposition Whip (Lords)

As well as Parliament having a say, can the Minister indicate what measures, if any, are being taken to engage public opinion on the length of the term recommended?

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

That is a very good example of why it will be necessary to have a full debate in both Houses of Parliament. I am sure that Members in the other place want to go back to their constituencies and consult their constituents before taking part in such a debate. When they do, I hope that both they and Members of this House will bear in mind the message of the noble Lord, Lord Browne, that what we are discussing is not a heinous directive from Europe, but respect for the European Court of Human Rights, of which we were key architects when it was set up.

Photo of Lord Wills Lord Wills Labour

What consideration has the Minister given to deliberative mechanisms such as citizen jurors for engaging public opinion in the way that my noble friend Lord McAvoy has just suggested should be done?

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

My Lords, that is not a question for today. We should wait to hear the Government's decision and then go through the normal parliamentary processes and consultations. That will take place all in good time. It would not be appropriate for me to make commitments at this Dispatch Box about either the timing of, or consultation around, another Bill altogether. I say to the noble Lord, Lord Foulkes, that his best support has come from the noble and learned Lord, Lord Lloyd, who thinks that this is half a loaf, and from the noble Lord, Lord Bach, who thinks that it is going too far. I suggest that this is not the basis for pressing an amendment. The Government accept that they are legally obliged to lift the blanket ban on prisoner voting in UK parliamentary elections. However, accepting this amendment and allowing a category of prisoners to vote in the referendum would pre-empt Parliament and prevent it following the proper course of debating prisoner voting in both Houses when the Government have come forward when their proposal. I therefore ask the noble Lord to withdraw the amendment.

Photo of Lord Pannick Lord Pannick Crossbench

Will the Minister at least give the Committee an assurance that when the Government come forward with their proposals for reform in this area, they will bring forward an amendment to the Bill that is consistent with the general approach that they propose, so that we do not find, when this referendum takes place-next May or whenever-that prisoners whom the Government accept should have the right to vote are denied it?

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

No, my Lords, I cannot make that commitment. The legislation is specific to this referendum. When the Government have a Statement to make on prisoner voting, there will be time to discuss this and many other matters.

Photo of Lord Rennard Lord Rennard Liberal Democrat

My Lords, perhaps I may ask the Minister whether the Electoral Commission has been able to confirm that such an amendment would be practical if it were approved. It seems that it would involve a change to the franchise and a change to the electoral register process, as well as consideration about how campaigning could take place and how voting mechanisms could be established. I am in favour of such changes being made in future, where appropriate, but it seems that it would be very difficult to do this in time for a vote on 5 May next year.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, is it correct that the Bill proceeds on the basis that those that have a franchise in general elections would have a franchise under the referendum Bill, and that if the legislation covering general elections is altered in the mean time, this would apply automatically to the referendum if it comes after that amendment has taken place?

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

My Lords, the House is entitled to be puzzled by the inability of the Minister to say whether an announcement will be made before Christmas. Either the Lord Chancellor said that it would be made or he did not: which is the case?

Photo of Lord Browne of Ladyton Lord Browne of Ladyton Labour

Taking into account the very wise advice from the Minister's noble and learned friend Lord Mackay of Clashfern, I think that the Committee is entitled to ask the noble Lord for an assurance that the Government will promote legislation according to a timetable that does not leave this country in the ridiculous position of agreeing to allow prisoners the vote when the referendum is imminent but denying them the vote in the referendum.

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

My Lords, if there were a general election next January, prisoners would not get the vote even if the Government had announced their intentions in December. The two things are separate. The Government will announce their intentions on prisoner voting and it will be handled in the proper way with a Statement in both Houses. As I said, the usual channels will find an opportunity for a full debate and in due course legislation will probably be brought forward. However, that legislation is separate from the legislation currently before the House, which is why-

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

My Lords, perhaps by the time the noble Lord reaches the end of his sentence, he can clarify one point for me, because what he is saying is becoming increasingly complex. As I understand it, the Government are rescuing this issue from the long grass, into which it was put for many years while people considered the implications of the European Court of Human Rights judgment. The noble Lord seems to be suggesting that, now that it has been rescued from the long grass, the intention is to embark on a process of Statements, consultation, debates and legislation, which will mean that it goes back into the long grass for very many years. Is that the case?

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

Not at all, my Lords; it is called parliamentary democracy. There are enough experts on those Benches, including the noble Lord, to know that the process that I described is exactly what happens when there is a major change such as this-it will require legislation and parliamentary time. However, I really do not think that there should be any talk on those Benches about long grass and delays, given the five years that they spent on two consultation processes, which, as my noble friend said from a sedentary position, is another way of saying "prevarication". We will come forward with specific proposals-not in this Bill but at the proper time. In the mean time, I again urge the noble Lord, Lord Foulkes, to withdraw his amendment.

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

Is it intended that there will be a Bill in this Session of Parliament or are we talking about putting this off until 2012 and beyond?

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

I have absolutely no idea. I cannot, in the Committee stage of one Bill, start committing the Government to parliamentary time for another Bill. One would almost think that the Benches opposite were trying desperately to get past four o'clock, whereas I know that they are probing me and they continue to do so.

Photo of Lord Bach Lord Bach Shadow Spokesperson (Justice)

My noble and learned friend Lord Falconer is never upset. We have agreed that, whatever time the debate on this amendment ends, the Statement will follow straightaway, so I promise the noble Lord that there really is no attempt to go on beyond four o'clock.

Photo of Lord Rooker Lord Rooker Labour

Does the noble Lord, Lord McNally, agree that the answer to the question, "How long is the grass?", is, "Can you see the giraffe"?

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

I had not noticed the noble Lord come in. I was so relieved that the noble Lord, Lord Campbell-Savours, was not here that I had forgotten about the noble Lord.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour 4:00 pm, 13th December 2010

My Lords, at the risk of sounding immodest, I think that this has turned out to be a very worthwhile debate, if only for the last exchanges. I do not mean the fact that my noble friend Lord Rooker crept in through the long grass and was not seen by the noble Lord, Lord McNally; I am referring to the question whether, when the Lord Chancellor said that there would be an announcement by the end of the year, this referred to a government Statement or to the product of what was earlier described as fertile imagination. However, this has been an interesting debate. As the noble Lord, Lord Ramsbotham, said, there has been an inordinate delay. From these latest exchanges, the noble Lord, Lord McNally, will realise that, if there is a huge further delay, there will be deep concern. My noble friend Lord Anderson said that I was arguing against my own amendment, but he, having argued against lifting the ban, went on to accept it. At least I managed to persuade him.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

I hope that my noble friend will allow me to clarify my position. I said that my predisposition is to be against lifting the ban but that, because I realise that a change has to be made under our obligations to the European Court of Human Rights, with some reluctance I accept that the ban must be lifted in one way or another.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

Exactly. I rest my case.

That brings me to my noble friend Lord Browne, who not only represented a prison in his constituency but who as an advocate represented many prisoners-all of whom were innocent. He gave an erudite explanation and reminded us that the European Court of Human Rights is not part of the European Union but a product of the Council of Europe-a much wider grouping, and with United Kingdom involvement. He hit on an argument that I wished I had thought of, which is that the blanket ban is exceptionally random. It depends on when the prisoner is in prison. If they are not in prison when there is an election, they do not lose the right, but they lose it if they are in prison when there is an election. That is probably the strongest argument of all, which my noble friend Lord Browne put in a gentle and impressive way.

The noble Lord, Lord Phillips of Sudbury, said that my amendment was timid, while my noble friend Lord Bach said that it went too far, so it seems to me to be just about right. There were some questions about its practicality. I do not think that there would be difficulty in giving prisoners the vote; the postal vote provision would enable them to vote.

Photo of Lord McAvoy Lord McAvoy Opposition Whip (Lords)

On the question of practicality and following what the noble Lord, Lord Phillips of Sudbury, said, will my noble friend say what kind of canvassing technique he would use?

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

Of course we can ensure that those in prison get all the available literature. Somebody said to me-I give them the credit-that we would be more likely to get the votes of people who were in there for assault; the Tories would get the tax dodgers; and the Liberal Democrats would get those in for perjury. That is absolutely the last thing that I would suggest. Heaven forbid.

There were some strong arguments in favour of the amendment. The noble and learned Lord, Lord Lloyd, did not say that he was only half in favour; he said that he was wholly in favour. A number of people have come round, even reluctantly, to say that they are in favour of it. However, the noble Lord, Lord McNally, pleaded with me. He got on his knees and asked whether, for the benefit of the House, and to enable the Government to introduce legislation-I hope soon-to cover the referendum and/or elections, I would withdraw the amendment. Because of the eloquence of his plea, I beg leave to withdraw the amendment.

Amendment 35 withdrawn.

House resumed.