European Court of Human Rights

"I hereby order you to give your inmates the vote!"

The row over giving prisoners the right to vote is about two separate issues, and Britain should comply with the Court’s ruling.

Last evening the House of Commons voted overwhelmingly for a motion urging the Government to defy the European Court of Human Rights’ ruling on giving prisoners the vote. The issue has triggered a heated debate, at least in Westminster village, on two separate matters – whether convicted prisoners deserve the privilege/right to vote and whether the unelected supranational court in Strasbourg can issue such a decree in defiance of the will of the nation’s elected representatives. Some Eurosceptics have even seized on the chance to call for the withdrawal of the UK from the European Convention of Human Rights, the treaty that will celebrate its diamond jubilee in 2018 and is the legal basis of the Court. The rest of the country, of course, is too absorbed in other matters, such as potential cuts to local councils, to care, but I will comment on it anyway.

Unusually for me, I don’t have a “clear” answer, at least to the first debate, the principle of allowing prisoners to vote. Both sides of the argument have equally valid points. Prisoners, by breaking their imaginary contract with society, have certain rights withdrawn from them, mainly personal liberty, and with good reason. On the other hand, they are human beings too, and certain rights apply regardless, such as the right to equal treatment and the right to a fair trial. Should the right to vote constitute part of that bundle of suspended rights?

Clearly, there is a case for either side, and I remain undecided. The only thing I will say regarding that is that although a prisoner is currently living with reduced rights, most will eventually be released into society, their right to vote will one day be restored. With that in mind, it is certainly right to prepare prisoners with the capability to participate in democratic society, perhaps having elected prisoners representatives to represent the interests of inmates in the prison (not sure if this happens now).

But without any clear-cut philosophy or school of thought to fall upon (democracies around the world have different attitudes to the matter), the current debate has been framed as a conflict between the democratically elected national Government and the distant, unaccountable Court in Strasbourg. Popular power, or authority from above?

Solely on the conflict of Parliament vs. Court, I side with the Court, and I believe that the ruling should be followed as a matter of principle. The European Convention on Human Rights is the most powerful human rights legislation in the world to date, and while some are suspicious of its intrusiveness, especially when certain cases are highlighted by the media, many forget that this treaty came as a response to one of the most severe and systematic transgressions of human rights in modern European history – the second world war and the holocaust. Human rights abuses are still rife throughout Europe, especially in ex-communist bloc countries. If long-standing signatories to the Convention such as the UK demonstrate that even it doesn’t respect the Court, it will be impossible for younger members to learn to comply. They will also learn that human rights are applicable only when it is popular or convenient, not when it is right. That is certainly not the image that Britain wants to portray.

People who advocate the withdrawal of Britain from the Convention are taking their Eurosceptic folly into even greater absurdity. They bemoan that the faraway Court is not accountable to the British public, but that is a ridiculous contention. The whole point of having judicial independence is so that popular accountability doesn’t enter the equation. Courts are meant to uphold the law without fear or favour, not pander to whatever is popular at the time. If the focus of the argument is altered to have a sole domestic dimension, one could argue that no British judge is “accountable” to the public, since none of them have to face elections.

Secondly, even though the European Court of Human Rights is based in Strasbourg, the law that it is based on, and the people it serves, are very British, because Britain is willingly under the Court’s jurisdiction by being a party to the Convention. Arguing that a judgment of the Court is not valid because it is not based on British soil would be like saying that a court in London cannot rule on a matter that occurred in Kent, even though both places are subject to the same law and the presiding judges may come from outside Kent.

The House of Commons has understandably and legitimately expressed its opinion, but now is the time for the Government to do the right and proper thing by complying with the Court’s ruling, however “distasteful” it may be.

Advertisements