Lord Thomas of Gresford:

Moved by Lord Thomas of Gresford

139: After Clause 11, insert the following new Clause—“Voting by convicted persons sentenced to terms of 12 months or less In section 3(1A) (exceptions to the disenfranchisement of prisoners) of the Representation of the People Act 1983, after “Scotland” insert “or a parliamentary election”.”Member’s explanatory statementThis new Clause would allow prisoners serving a sentence of 12 months or less to vote in UK parliamentary elections.

My Lords, perhaps I may be forgiven for my second intrusion into the Committee by all those who are toiling so hard on it day after day.

It may be a bit trite, but in a democracy, all citizens are presumed to have the right to vote. That is the way by which they have a say in making the laws that govern them: demokratia. The Joint Committee of both Houses appointed to consider the draft voting eligibility (prisoners) Bill in 2013 concluded that the vote is a right, not a privilege. It does not have to be earned, and its removal without good reason undermines democratic legitimacy.

In the Criminal Justice Act 2003, the purposes of sentencing are said to be

“the punishment of offenders … the reduction of crime … the reform and rehabilitation of offenders … the protection of the public, and … the making of reparation by offenders to persons affected by their offences.”

Where does the disfranchisement of a prisoner come within those aims? It obviously has nothing to do with the reduction of crime, the protection of the public or the making of reparations. If it is regarded as an act of retribution, part of the punishment of offenders, it is doubtful that the prisoner thinks it significant in any way, compared with his loss of liberty.

This does not concern itself with proportionality: a prisoner loses the vote by the act of imprisonment, not by the nature of his crime. A person imprisoned for dangerous driving is in exactly the same position as a person serving a life sentence for rape or murder. Of course, unconvicted prisoners, convicted prisoners awaiting sentence and people imprisoned for either contempt of court or debt, remain eligible to vote.

Your Lordships will remember that the first case in the European Court of Human Rights in 2001 was the case that made Mr David Cameron sick. In subsequent cases, the European court held that it was disproportionate for there to be an automatic and indiscriminate blanket disfranchisement of prisoners. It said there was a need to discriminate between less serious and more serious offences with some regard to individual circumstances. In his autobiography, Mr Jack Straw said with some pride that as Justice Secretary at the time he had

“kicked the issue into touch, first with one inconclusive public consultation, then with a second.”

When the matter came before the House of Commons in 2011 on a free vote Mr Cameron was very clear that prisoners should not have the vote:

“no one should be in any doubt: prisoners are not getting the vote under this Government”.—[Official Report, Commons, 24/10/12; col. 923.]

Mr Sadiq Khan confirmed that Labour’s policy was, and always had been, that prisoners should not have the vote.

Despite the views of the two largest parties, in its 2013 report the Joint Committee supported, by a majority, the restoration of the right to vote to those sentenced to imprisonment of 12 months or less. It concluded that, if the UK wanted to disobey the European Court of Human Rights decision in Hirst, our doctrine of parliamentary sovereignty gave us power to withdraw from the human rights convention system altogether, but while we are part of that system, as we still are, we incur obligations that cannot be the subject of cherry picking. Dominic Raab, currently the Lord Chancellor, but then not in office, said at the time of the committee’s report, in characteristically restrained tones,

“This report proposes the most politically spineless and morally confused of all the options floated to date. It would give the vote to imprisoned terrorists, rapists and paedophiles, in the vain hope that we can buy a compromise with Strasbourg.”

I have yet to hear of any terrorist, rapist or paedophile sent to prison for only 12 months or less, which was the recommendation of the committee that he was criticising.

In the dispute with the European Court of Human rights, there was eventually a compromise with the Council of Europe, the guardian of the European convention, in 2018 when the UK Government agreed to allow prisoners released on temporary licence to vote in elections. The European court’s file was closed, but not the issue.

While England has stood still, Wales and Scotland have been more progressive. In Scotland, after extensive consultation, the Scottish Elections (Franchise and Representation) Bill was passed in April 2020—the first Bill in the Scottish Parliament to receive a two-thirds supermajority of 92 votes to 27. The Scottish Bill extends the electoral franchise in local and Scottish elections to prisoners serving a sentence of less than 12 months, as the 2013 committee recommended for the whole of the UK. The franchise in Scotland now extends to anyone legally resident in Scotland, including refugees and those granted asylum.

In Wales, as a result of recent legislation, some 1,900 prisoners and 20 young offenders serving four years or less will be able to vote in the May elections for the first time and will ultimately be able to vote in elections for the Senedd. Some 37% of them are held in prisons in England, but they nevertheless will be able to register to vote in an area in Wales with which they can show a positive connection. In the consultation period for the Welsh Bill, the Senedd’s Equality, Local Government and Communities Committee visited Parc prison in Bridgend and spoke to prisoners. Some said that although they were in prison, they still had children, family and friends outside who were affected by political decisions. Political choices by the Government have an impact on the lives of prisoners and the prisoners wanted to have a stake in society. Their complaint was that they were told that prison is about rehabilitation and reintegration, but when it came to voting, they were not to be entrusted with the vote.

So there it is. Mr Raab can choose, with all his bluster about terrorists, rapists and paedophiles, to inflict a Victorian-type civic death on an offender the moment the prison doors clang shut. It is done under the Forfeiture Act 1870 of 150 years ago. It is a relic of Locke’s heavily criticised 1689 theory of the social contract. What does that achieve in the 21st century? In Europe, it aligns us with Russia and Belarus, not the overwhelming majority of European countries that now permit prisoners to exercise their right to vote. Today, this modest amendment will return the franchise to those sentenced to one year’s imprisonment or less. I beg to move.

My Lords, I support the amendment, to which I have added my name and which has been so well introduced by the noble Lord. The House of Commons Library briefing note on prisoners’ votes details the sorry tale, as has the noble Lord, of how the issue has been kicked into the long grass without a satisfactory resolution, following the ECHR ruling that an indiscriminate ban on all serving prisoners contravened the European Convention on Human Rights and subsequent calls from the Council of Europe. The result has been, in the words of one expert commentator, “minimalist compliance”. When it comes to prisoners’ votes, it is a question of “out of sight, out of mind”, just as prisoners themselves are.

The recent prisons White Paper included, in a section on the purposes of prisons, the need to

“promote rehabilitation and reform to reduce reoffending.”

It would be facile to suggest that, of itself, giving short-term prisoners the vote would lead to rehabilitation. But to withhold the right to vote from them, together with some of the things said by Ministers when it was a live issue—the noble Lord quoted David Cameron on the subject, in particular—indicates a punitive rather than a rehabilitative view of the role of prisons. On Thursday, my noble friend Lady Chakrabarti argued powerfully for the right to vote as a fundamental civil and political right. It is a basic right of citizenship. To withhold this right from short-term prisoners is in effect to say that they are not citizens. As the noble Lord said, it has been described as a state of civic death, one which affects black and minority ethnic groups disproportionately, according to the Prison Reform Trust.

Of course, as Governments of all hues like to emphasise, citizenship is about responsibilities as well as rights. My noble friend described it as an “ethical duty”. What better way to instil a sense of civic responsibility in prisoners than to encourage them to see themselves as fellow citizens with a stake in the country and the right and responsibility to express their views through the vote. As Conservative MP Peter Bottomley once argued,

“Ex-offenders and ex-prisoners should be active, responsible citizens. Voting in prison can be a useful first step to engaging in society.”

The Electoral Commission has in the past considered the practicalities involved and concluded that they are perfectly feasible. As has been said, the UK is one of only a handful of European countries which automatically disenfranchises sentenced prisoners. All the amendment would do is extend the vote to those sentenced to 12 months or less, which is a very modest step, but one it is high time we took. It may not be popular, but few people will have heard the case for it, given that most politicians have been so against it. In the name of citizenship and fundamental rights, it is time that a Government had the courage to take this modest step.

My Lords, it is again my great pleasure to follow the noble Baroness, Lady Lister of Burtersett, and agree with everything she has said. I offer Green Party support for Amendment 139. As the noble Lord, Lord Thomas of Gresford, said in introducing the amendment, this is a long-term situation where the UK has not complied with its human rights obligations. This is an occasion where I am not going to hold this Government solely responsible; the Labour Government had five years to remedy the situation and the coalition Government had five years to fix it, yet here we still are.

The Green Party policy, as is the case in many things, would go rather further than the amendment. Our policy is that all prisoners should have the right to vote except where the sentencing judge, taking into account the nature of the offence, decides to make the loss of the vote explicitly part of the penalty. The obvious cases where that might happen would be in a case of electoral fraud, for example, or perhaps where an oligarch who has used some of their ill-gotten gains to attempt to buy a political party or a certain political outcome.

As the noble Baroness, Lady Lister, said, the question is what prisons are for when it comes to more standard types of offences. Are we cutting people off from society, further reinforcing social exclusion and distancing them from the norms and values that we are hoping they will absorb before they go out into society? After all, nearly everyone who is in prison will eventually go out into society. Are we actively trying to rehabilitate people and equip them for a life outside prison?

Voting is a fundamental part of our society. The blanket denial that says that once you are in jail you cannot vote is a way of saying, “We’re not going to do anything to improve the world that helped to put you into this place”. We know the situation of so many people in prison and the huge disadvantage and inequality that is a background to people who are there. So the amendment does not go far enough but it is an important first step.

My Lords, I congratulate the noble Lords, Lord Wallace of Saltaire, on the amendment, and the noble Lord, Lord Thomas of Gresford, on moving it. As always, I thank my noble friend Lady Lister of Burtersett. I am sorry that I am outwith my party’s position on this but there are hawks and doves in both main parties when it comes to penal reform, and indeed when it comes to the law-and-order arms race that I believe has been a problem in our country for too many years—perhaps for my whole adult life.

I remember Lord Hurd addressing the Conservative Party conference when I was a relatively small person—even smaller than I am now. Those were the days when all party conferences were televised in total—can you imagine?—and it was a time when people were calling for the reinstatement of the death penalty. He, as a Conservative Home Secretary, faced that audience down and explained to them why that was a terrible thing. Later in my life and career I had the privilege to congratulate him on that moment, which he remembered, and it was something he could be proud of.

I believe this change will come because I am an optimist about the course of progress in world events. It may well be a Conservative Home Secretary and Government who do the “Nixon in China” thing, but whoever does it, I think they should. I will not cite the European Court of Human Rights, as some would groan and expect me to do. I do not pray in aid its judgments; I pray in aid basic principle and practical logic.

I agree with the points that the noble Lord, Lord Thomas of Gresford, made about the purposes of incarceration. We accept that some people in extremis need to be incarcerated for certain offences for the reasons of retribution, rehabilitation, public protection and deterrence, but none of those four traditional justifications for incarceration after criminal conviction explains why, on a blanket basis, you would take away someone’s vote—particularly people, as in this modest amendment, who will be out very soon and who we want to reintegrate and rehabilitate as best we can. Frankly, we want politicians, activists and voters to be a little bit more concerned about those people whom we are still subjecting to this Victorian notion of civic death.

I will not bore the Committee with those endless Churchillian quotes about how we judge a society by how it treats its prisoners. Instead, I will quote the new and very dynamic chief executive of the Howard League for Penal Reform, Andrea Coomber QC, who says: “Denying prisoners the vote only ostracises them from the civic engagement that marks a healthy democracy. Voting, particularly for those who will soon be released, is an important signal of a commitment to rehabilitation and reintegration. We should be championing prisoner voting, not banning it.”

My Lords, I heard all the contributions from all sides of the House, and I thank the noble Lord, Lord Thomas, for his introduction, which quite accurately set out the history. I have read the parliamentary Commons briefing as well. The reality is that the position of the Labour Party has not changed, and we do not support this amendment.

My Lords, I am grateful to all those who have spoken. Amendment 139, as has been said, seeks to extend the franchise for parliamentary elections to prisoners serving a term of 12 months or less. This Government believe, in common with the party opposite, that when a citizen commits a crime that is sufficiently serious to detain them in prison, they have broken their contract with society. In addition, the Government have made their position clear. We said openly in our manifesto:

“We will maintain the ban on prisoners voting from jail.”

Prison means the loss of a number of rights and freedoms, not least the right to liberty and freedom of association. The Government believe that the loss of voting rights while in prison is a proportionate curtailment of such civic rights. As such, we cannot support this amendment.

I thank those who have supported me in this amendment. I am particularly grateful to those on the Labour Benches, and the noble Baroness, Lady Bennett, who have spoken in favour.

I just wonder about the Labour Party. In Cardiff, it moved to bring about voting for prisoners, seeing it as an important part of its remit from the people of Wales. Here, however, it is dismissed in a sentence: “We haven’t changed”. The Labour Party is a little bit split. I am not sure what it said in Scotland; I will have to look that up after this and investigate.

This is the way the world is going. You can stand in the way if you like, but ultimately the vote will be given to prisoners, just as it is in most democracies around the world. For the moment, I beg leave to withdraw the amendment.

Amendment 139 withdrawn.

Amendment 140 not moved.