My Lords, since universal suffrage was introduced, I thought, pace the noble Lord, Lord Dubs, that the only adults barred from voting in general elections were, as they used to be known, convicts, lunatics and Peers—in modern parlance, prisoners, mental patients and the Members, Peers temporal, of this House. Mental patients, unless also convicted offenders, in fact obtained the vote in 2000—subject, theoretically, to having the requisite mental capacity. Some prisoners, at least, will, I hope—assuming that Her Majesty’s Government sufficiently respect the rule of law and their now clearly established obligations under international law—shortly get the vote.
I take this opportunity to say that, personally, I would give all prisoners the vote by post, regardless of their crimes and regardless of the length of their sentences. It is surely in all our interests as part of the process of their rehabilitation to instil in them, so far as may be, a sense of civic responsibility—to give them a stake in the lawful governance of this country. I should perhaps point out that even those with the longest sentences may well have children or other dependents whose education and general well-being they have a legitimate interest in promoting. I speak as the judge who, in 2001, was responsible for bringing a final end to the attempts by Mr Hirst and other prisoners to establish in our domestic courts the right to vote. Refusing them leave to appeal to the Court of Appeal, I said that it was for Parliament, if Parliament thought fit, to abolish or narrow the ban on prisoner voting. I ended my very brief judgment in that case thus. I said:
“Politically I am not unsympathetic to the applicants’ cause. Jurisprudentially, however, I regard it as doomed”.
That ruling opened the prisoners’ way to Strasbourg, where the court eventually showed that I was wrong jurisprudentially. A few years later, Strasbourg held a blanket ban to be impermissible and, twice since, the Grand Chamber has confirmed that position.
In the present context, that may be thought to be something of a digression. I return, therefore, to the Members of this House, because we remain disenfranchised. It is perhaps difficult to suppose that Strasbourg will too readily be coming to our help. The rationale for our becoming disenfranchised is, I have always understood—I think this in common with the noble Lord, Lord Anderson—that even when Parliament is prorogued, Members of this House remain members of a central legislative body, unlike Members of
Parliament, who have to submit themselves to re-election if they wish to continue. I share with other noble Lords real scepticism as to whether that actually provides any sound or sufficient basis on which to deny us the chance to influence by our vote the composition of the House of Commons as the primary legislative Chamber. Others will no doubt make that argument more effectively than I can.
Rather, I want to focus on a narrower but, I suggest, altogether more obvious grievance that a few of us—admittedly, only a very few—have with regard to the present arrangements. Here I speak as someone who, for two and a half years, was, electorally speaking, in an even worse position than any other noble Lord participating in this debate. Not only was I, in common with all temporal Members of the House, disqualified by virtue of that post from voting at elections for the House of Commons, but, in addition, by virtue of my appointment as a justice of the Supreme Court, as long as I continued in that office, I was disqualified even from speaking or voting in your Lordships’ House. Accordingly, from October 2009 when, as Law Lords, we were banished across the square and recreated there as a new Supreme Court, until my retirement in April last year, on age grounds at 75 when I reached, in the words of the late Lord Bridge of Harwich, “statutory senility”—fortunately not a concept which applies in my present surroundings—I had no vote and no voice in national political life at all.
I well recall, at the time of the Constitutional Reform Act in 2005, pointing that out to the then Permanent Secretary of the Lord Chancellor’s Department. I said that, having lost our say in Parliament, we should now have the vote restored to us at general elections. I was assured that a team of lawyers would immediately be put on the case to overcome that obvious legislative oversight. It never was corrected and there remain five members of the Supreme Court who are still totally disenfranchised. The other seven members of the court are of course not yet Members of this House, although I hope that they will become so when, one by one, they eventually come to retire. They presently enjoy courtesy titles only and therefore can vote at general elections whereas the five most senior members of the court, including the president and vice-president, cannot. That, I suggest, is a bizarre situation indeed.
Whatever the outcome of the wider issue today, that anomaly surely must now be corrected. I wonder whether that possibly provides a peg upon which to hang a wider benefit for all Members of the House, because surely that requires legislative change. Certainly, my preference, in common with most, although I recognise not all, of your Lordships, would be that the wider grievance, too, should now be corrected.
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