Prisoners, Europe and the Right to Vote

I would like to make two points. The first is about the law, and the second is about the man who's brought about our current impasse. 

The current legal situation is messy. On the one hand, you've the law passed by Parliament which removes the right to vote from prisoners. On the other, the ruling of the European Court of Human Rights which said that this law was superseded by another law the UK signed up to, the European Convention on Human Rights. This plays into a much larger - and for the coalition government, potentially very toxic - debate about the UK's role in Europe and the effect of European laws on our sovereignty. 

UK law currently states (Section 3 of the Representation of the People Act 1983) that "A convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election."

I think that most people in this country would agree with that. If you commit a crime and are punished with a prison sentence then, for the duration of that sentence, you lose some of your rights, and one of those should be the right to vote. Voting is one of the privileges of being a citizen of a free country. People will certainly be repulsed at the prospect of prisoners voting in their constituencies, and politicians having to court a 'prison vote'. 

The British Courts certainly agreed. In 2001 the High Court ruled that there was a spectrum of opinion of prisoner's votes and Britain fell into the middle. It stated that the country's "position in the spectrum is plainly a matter for Parliament, not the courts." So it deferred to Parliament and the 1983 Act mentioned above. 

The European Court of Human Rights (ECHR) disagreed. In 2004 it said that UK law breached the European Convention on Human Rights, a decision that was upheld on appeal in 2005. It noted that "The removal of the vote... runs counter to the rehabilitation of the offender as a law-abiding member of the community and undermines the authority of the law as derived from a legislature which the community as a whole votes into power." This was based on Article 1, Protocol 3, which states that "The High Contracting Parties [i.e. the UK] shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of people in the choice of the legislature."

I'm not a lawyer, but it seems like what influenced the judges in Strasbourg was the prospect of an unrepresentative legislature, rather than the prospect of prisoners having their rights infringed. Either way, the upshot was that the court decided that the UK was in breach of the European Convention on Human Rights. 

So does the government have to allow all prisoners the vote? Well, maybe not. The debate is nuanced by the fact that the court said that the blanket ban on voting was unlawful. It did not say that a partial ban would be unlawful. This appears to be the line the government is taking. They are naturally very anxious at allowing serious offenders the vote so will seek to stop them from voting while allowing those convicted of less serious crimes the vote. 

Yet this will surely only be a temporary fix. The man who brought this case to the ECHR was convicted of manslaughter and served 25 years. A serious offence. He made it clear today that he believed there was no room for a partial ban, suggesting he is prepared for further legal action. 

So that is the problem. The UK had a very clear position on this matter but, in voluntarily signing up to the European Convention on Human Rights, it muddied the waters by agreeing to a document that flatly contradicts its previous position. 

This leads to the bigger debate about the effect of European laws on the UK and what some perceive as a threat to the UK's sovereignty. It is clearly a part of national law that the legislature - in the UK's case its Parliament in Westminster - is the highest law-making authority. Yet the advent of supra-national structures like the EU and UN have created bodies whose legal decisions are deemed to take precedence over national decisions. 

The issue is all about balance. If we want to be part of these organisations because of the benefits they offer - and we entered the EU and UN voluntarily, just as we signed up to the European Convention on Human Rights and the Universal Declaration of Human Rights voluntarily - then we have to find a way to maintain the sovereignty of our own country at the same time, in order to ensure that our country remains responsive to the needs of its citizens. We must ensure we retain our independence and that other states retain theirs: there is nothing noble in having a homogenised Europe.

So there there is now a legal wrangle going on which is trying to work out the jurisdiction of the ECHR. Because the Human Rights Act of 1998, which forms the basis of the Court's decision, states only that we must "take into account" the decisions of the ECHR. This is vague enough, some argue, to mean that it is not totally binding. On the other hand, a much stronger argument is put by those who point to Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, which says "The High Contracting Parties undertake to abide by the final judgement of the court in any case to which they are parties." 

Yet to really understand why this is such an emotive issue, we have to look at it hypothetically, because the Liberal Democrats believe the 1983 law is wrong. Yet they will not get the chance to challenge it in Parliament. If we step back and re-examine the issue without the revulsion to the edict from Strasbourg we can ask: would the government legislate for change or keep the existing provision? 

I believe that the reason for the outcry is that the answer would most emphatically be NO. I don't believe there is any great movement for change on this issue within the UK and I believe that the 1983 law is an accurate reflection of the wishes of the people this country. 

So without a judgement from a court outside this country there would be no change in prisoner's voting rights. This could become a totemic issue for many who resent the subordination of our Parliament. I expect the Conservative Party backbenchers will make a lot of noise on this issue and I don't see many on the Labour benches opposing them. In fact I'd expect them to agree. 

I also expect people to resurrect calls for a British Bill of Rights, which could seek to insulate the UK from European legislation. Completely un-twining our country from Europe would be very difficult and counter-productive, but creating some sort of legislation that reasserts Parliament's sovereign right to make final decisions on legislation and the right of the UK's legal system to have a final say on the superiority of either European or British legislation is surely possible and overdue. It's all about finding a balance. 

On to my second point. John Hirst is the man who brought the Hirst v UK (No 2) case to the European Court of Human Rights. It is unfortunate for other prisoners that he is an unpleasant man, because they could do with someone who isn't aggressive and totally lacking in remorse to argue their case. This video of his interview with Andrew Neil on the Total Politics programme today reflects that. A more eloquent advocate would have a much better chance persuading people to support his cause.