Prisoner voting: just get over it (and other random thoughts)

Slightly out of the way of my normal fare today, and probably not very coherent as a result. But I’m going to get a few random thoughts off my chest over this whole human rights / prisoner voting / withdrawal from Strasbourg debate that’s going on this week. My opinion in short is that Parliament should get off its high horse, stop bellyaching about Strasbourg “eating away at our sovereignty”, and get on with passing a sensible law. And in my view, a sensible law says that everyone has to vote.

Background: prisoner voting and Hirst

First, we had Hirst v United Kingdom in 2005, when the European Court of Human Rights (ECtHR) said the UK was breaching the convention by banning all prisoners (well, nearly all, not those in for contempt, non-payment of fines, or on remand) from voting in elections. The ban is contained in legislation passed by Parliament but there hasn’t been a proper debate on it for donkeys’ years and it seems to just be kept because of its historical pedigree and because no one has had the balls to suggest there’s anything wrong with it.

The last government sat on Hirst (the ruling, not the person, it’s not a new restraint technique) for a while, but it has  reared its ugly head again recently and in fact yesterday MPs debated it for six hours, and voted by 234 to 22 to ignore the ECtHR ruling and keep the ban.

Policy Exchange attacks court

Also this week saw the publication of a Policy Exchange paper (pdf) recommending the UK takes a strong negotiating stance with the Council of Europe to “reform” the ECtHR (and I think by “reform” they mean “put the judges back in their box”, especially those foreign ones who have too much say and don’t understand the British Way Of Doing Things), and if this doesn’t work, for the UK to declare itself independent of the court’s jurisdiction. This would not mean scrapping the Convention, apparently, merely “repatriating” the law so that the UK Supreme Court has the final say over UK matters. Lord Hoffmann, one or our former Law Lords, supports the idea, saying the court is “trivializing” the very concept of human rights “by silly interpretations of grand ideas”.

Reactions

The paper was not primarily about the prisoner voting issue (although it is dealt with in some detail at page 36 onwards), and in fact the PM stated yesterday that it is not government policy to withdraw from the ECHR, but the paper has nevertheless added fuel to the fire. Much has been written about the paper’s proposals and I don’t intend to add to those. The piece by Rosalind English of 1 Crown Office Row in the Guardian (repeated on the UK Human Rights Blog) is one of the most sensible analyses I’ve read, and cuts through much of the hyperbole. I also enjoyed Bagehot’s Economist blog piece.

See also this later item on UK Human Rights Blog concerning the prisoner voting ban.

My thoughts

Here, in no particular order (or probably coherence) are my thoughts on prisoner voting and the legal issues.

  • I know feelings are running high on this, but the prisoner voting thing is by no means the sort of political-correctness-gone-mad judicial silliness (assuming such exists) that Hoffmann et al should be using as their ammunition against the court. We are one of only 8 nations in the Council of Europe to ban prisoner voting. By contrast, 20 nations do not. Another 8 have a ban but not an outright one. So we are in a minority here and apparently those other nations are not on the brink of political or social collapse.
  • The Convention says “the High Contracting Parties [note – that means the governments of the countries signed up to it] undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” The people. Not “some of the people”. Free expression. Not “free in some cases”.
  • Some human rights in the convention are subject to exceptions. For example, the right to private life can be forfeit if this is “in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” But there is no such exception to the obligation to let the people express their will through free elections. The parties who signed up to the convention negotiated specific exceptions to some parts, but not others. Make of that what you will. Is it really the judges this time who are to blamE?
  • In fact, the court itself has developed the law to give governments a get-out clause whereby voting can be restricted where the restrictions are (1) imposed in pursuit of a legitimate aim; and (2) the means employed are not disproportionate. Futhermore, it gave governments a “wide margin of discretion” in applying this test. This sort of judicial legislation has benefitted the government, and It all sounds very reasonable to me.
  • The UK government in Hirst argued against paying Mr Hirst any damages. They argued that having his rights restored would amount to “just satisfaction”. The court agreed. But all this seems a bit evil if there was/is no intention to actually restore those rights (and let’s remember the last government sat on this judgment for 5 years without doing anything about it).
  • The government’s legitimate aims (in Hirst) were said to be: (1) to “prevent crime and punish offenders”; (2)  “to enhance civil responsibility and respect for the rule of law by depriving those who have seriously breached the basic rules of society of the right to have a say in the way such rules are made for the duration of their sentence”. The court had some doubts about these (for example, it referred to a Canadian case which had found no evidence that it prevented crime). However, it acknnowledged that whether these aims were legitimate came down to competing  political ideologies, with which it was not the court’s place to interfere.
  • The Court in fact held it came down to proportionality. The ban is too blunt an instrument, and its effects too random. The determining factor is not how serious your crime or how long your sentence, but whether you happen to be in prison at the time of the election – which is really a matter of luck. A person who is in prison for a week on a minor offence during election week loses his vote. A person who is in prison for 4 years but is out in time for an election, gets a vote. Is that really a principle the country believes is worth fighting to keep?*
  • The court said “there is no evidence that the legislature in the United Kingdom has ever sought to weigh the competing interests or to assess the proportionality of the ban as it affects convicted prisoners.” In other words, they have never really discussed it properly, merely trundled along on the assumption that everyone believes its a good thing to ban prisoner voting without really considering the ins and outs of it properly, and making sure it really is in the best interests of society. And if that’s really all Parliament has to do now, then frankly I say MPs should get over all their righteous indignation, and get on with their jobs.

*actually I don’t think anyone is really fighting to keep that principle. The fight is about “us v them”, where “them” means Europe’s “unelected dictators” (about which, more from UK Human Rights Blog). It’s also about the idea, however misguided, that ‘uman rights only ever benefit (a) asylum seekers (b) Muslims and (c) criminals. (In many cases I think no distinction is drawn between those three). A large section of the population (the Prime Minister included it seems) finds it distasteful, or even sickening, to think that criminals, having stepped outside of society’s norms, should have any of the entitlements normally enjoyed by law-abiding citizens. There is also a growing sense among many people that punishments for criminals are inadequate, and this issue is yet another chipping away of the punishment.

I would add the observation that, if human rights decisions by supra-national bodies were supported by the people and convenient to the government of the day, there would be no need for those rights, or those bodies.

All this talk of rights….

All this talk of rights reminds me of another common call of the right-wing press: “enough of rights, what about responsibilities?”. But in fact, shouldn’t we see voting as a responsibility? I do. It might address the problem of low voter turnout and hence increase democratic legitimacy if we started looking at it less as a privilege and more as a duty. Some countries, like Australia, make it compulsory by law.

But if voting were considered a moral and civic duty, rather than a privilege, then the argument for prisoners having the vote would be unassailable.

…and finally

While writing this, I’ve discovered that the very clever Carl Gardner has published a cunning plan for how to actually make it work.

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About Mrs Markleham

Employment lawyer, discrimination lawyer, mildly peevish old woman.
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One Response to Prisoner voting: just get over it (and other random thoughts)

  1. Pingback: Red tape | Mrs Markleham

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