The prisoner voting saga, human rights, and the rule of law: the thin end of a very unpleasant wedge

The government has got itself into an enormous mess in relation to whether prisoners should be allowed to vote. Under UK law as it stands, prisoners are not allowed to vote in elections. But the European Court of Human Rights decided in 2005, in the case of Hirst v UK (No 2), that a complete ban on voting by prisoners amounts to a breach of the European Convention on Human Rights. Earlier this year, the Court set a deadline – which will expire in November – for the UK Government to bring forward proposals for legislation that would put UK law in line with the requirements of the Convention.

Against that background, on Wednesday morning, the Attorney-General, Dominic Grieve, indicated to the House of Commons Justice Committee that the UK would implement the ECtHR’s ruling. But within hours, the Prime Minister, David Cameron, said at Prime Minister’s Questions: “No one should be in any doubt. Prisoners are not getting the vote under this government.”

This episode, as well as providing a mildly entertaining example of senior members of the Government publicly contradicting one another, illustrates a series of interlocking issues concerning the status and protection of human rights in the UK today. The issues are complex, and in this post I simply wish to outline, very briefly, what they are. A crucial point, however, is to recognize that these issues are, although related, separate – and that a failure to acknowledge their separateness is one of the reasons why the “debate” about prisoner voting lacks coherence and rigour. What, then, are the issues?

The substantive issue

The first, and most obvious, issue is the substantive question: should prisoners be allowed to vote? Some questions concerning human rights – such as “Should the state be allowed to torture people?” – have answers that are so obvious that the question is hardly worth asking. Whether prisoners should be allowed to vote is, however, a rather different type of question. At the very least, there is scope for greater disagreement on this point even amongst people who all subscribe to a fundamental commitment to liberal values. Indeed, the ECtHR itself has indicated – most recently in the case of Scoppola v Italy (No 3) – that banning some prisoners (eg those imprisoned for more serious offences) can be reconciled with the European Convention. It the blanket nature of the ban in the UK to which the Court objects.

The European Court’s interpretation of the Convention

But there is, in any event, far more going on here than a simple disagreement of principle about whether prisoners (and, if so, which ones) should be allowed to vote. The second matter, then, concerns the legitimacy of the European Court’s interpretation of the Convention. The European Convention in fact says nothing explicitly about prisoners being allowed to vote. The judgments in Hirst and Scoppola are instead based on inferences the Court has drawn from Article 3 of Protocol 1, which requires states 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”.

There are those who argue that by finding an implied requirement that some prisoners be allowed to vote, the Court has overreached itself. It is (so the argument goes) finding requirements in the Convention that were not intended by those who drafted it and by the States that signed up to it. Such an argument was made earlier this week in an article in the Telegraph by Jack Straw (a former Labour Home Secretary) and David Davis (a former Conservative Shadow Home Secretary):

Of course, the UK Government should not defy Strasbourg judgments regarding serious breaches of human rights, such as concerns that a deportee may be tortured. Such cases are precisely what the Court was set up to do; its conclusions in such cases ought to be respected by Britain in accordance with our obligations under the European Convention on Human Rights. However, in recent years the Court seems to have forgotten that its job is to apply the principles of the Convention as originally intended by those who signed it – nothing more, nothing less … [W]e now find ourselves in a situation where the Court is trying to impose judgments on Britain which would have astonished those who signed the Convention.

The scope for such “astonishment” does not, however, necessarily mean that the Court is behaving inappropriately. The Convention entered into force over 60 years ago. And the world has moved on since then. People’s attitudes have changed, and have (happily) become more progressive. Take, for instance, Article 14 of the Convention. It prohibits discrimination (in relation to the other Convention rights) in relation to “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. No mention is made of sexual orientation in the text of Article 14 – but there are few today who would doubt that the Court is right to treat sexual orientation as a “status” by reference to which discrimination is prohibited.

The bigger point is that the Convention, like most human rights texts, deals in general principles rather than specifics. Article 3 of Protocol 1 requires “the people” to be able to participate in choosing those who makes their laws. It is self-evident that a national law that disenfranchised vast swathes of the population would fall foul of this requirement: a small fraction of the population would not amount to “the people”. Article 3 of Protocol 1 – like every other provision in the Convention – therefore requires the Court to draw a line that is not drawn by the explicit text of the Convention itself. The judgments in Scoppola and Hirst show the Court grappling precisely with this line-drawing exercise: and in doing so it has distinguished between the UK’s indiscriminate exclusion of all prisoners, which has been held unjustifiably to undermine the principle of universal suffrage enshrined in Article 3 of Protocol 1, and Italy’s more nuanced approach which prevents only a limited category of prisoners from voting.

The rule of law

However, all of the foregoing questions are, in one crucial sense, of only secondary importance. There are many people who think that prisoners should not be allowed to vote and that the European Court went too far in reading into the Convention a requirement that at least some prisoners should be allowed to vote. Those views both relate to matters that are genuinely contestable. What is not, however, contestable is the nature of the legal position in which the United Kingdom now finds itself.

For as long as the UK is a party to the European Convention on Human Rights, it is bound by that Convention in international law. Article 1 of the Convention says that the States that are parties to it have agreed to “secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. (The same is true of rights contained in optional protocols signed by particular States.) And Article 46(1) records that the States have undertaken to “abide by the final judgment of the Court in any case to which they are parties”.

The position is ultimately therefore very simple. Refusing to comply with the Court’s ruling on prisoner voting is not an option that is lawfully open to the UK. Such a refusal would be a breach of its obligations under international law. And as well as being unlawful, it would have significant reputational consequences, as Attorney-General recognized on Wednesday:

The United Kingdom government is adherent to the convention. The convention is one of our international legal obligations. And successive governments, including this one, have always put a great emphasis on the observance of our international legal obligations. We live in a world where international law matters increasingly … We do observe international obligations that are imposed on us … I have absolutely no doubt it would be seen by other countries as a move away from our strict adherence to human rights laws [if the UK refused to comply with the ruling on prisoner votes].

The matter therefore reduces to one of legality. David Cameron – and many other politicians – may think that prisoners should not be allowed to vote. They may also think that the European Court’s interpretation of the Convention went too far. But those objections do not alter the simple fact that respect for the rule of the law now requires the UK to adhere to the Court’s judgment.

Human rights in the UK today

Stepping back from the details of the prisoner voting saga, some broader truths emerge about the nature and status of human rights in the UK today. The Attorney-General correctly pointed out in his evidence to the Justice Committee that “Parliament is sovereign in this area. Nobody can impose a solution on parliament.” This is true as a matter of national law. If Parliament were to refuse to comply with the European Court’s judgment – by allowing at least some prisoners to vote – there would be nothing that domestic courts could do about that: the Human Rights Act 1998 explicitly denies national courts any authority to question the lawfulness of an Act of Parliament.

On the face of it, then, the HRA is an ultimately toothless statute: courts can issue declarations indicating that Acts of Parliament are incompatible with Convention rights, but cannot strike down such laws or require Parliament to change them. But the truth is generally thought to be more subtle: while national courts cannot do these things, behind those courts stands the ECtHR, whose judgments are binding on the UK in international law. It follows that if, as the Prime Minister’s stance on prisoner voting now suggests, the UK is prepared to ignore judgments of the European Court with which it disagrees, then that undermines the effectiveness of the HRA itself.

All of this suggests that it is time for a clear-headed, grown-up debate about the sort of human rights system that should apply in the UK. The process being undertaken by the Commission on a Bill of Rights suffers from deficiencies (some of which are mentioned here) that mean it is no substitute for such a debate. Nor is the highly-charged discussion concerning prisoner voting, which (as I have suggested) fails to distinguish between (on the one hand) questions of policy and  interpretation and (on the other hand) fundamental considerations stemming from the rule of law.

For a British Prime Minister to advocate disregard of the rule of law and to be cheered in Parliament for doing so is a depressing thing. The rule of law requires people and governments to respect the decisions of courts of law whether or not they agree with those decisions. That does not mean that people and governments should not criticize judgments with which they disagree or advocate law reform when courts’ judgments produce outcomes that are felt to be unacceptable – but it does require only lawful means to be resorted to in such circumstances.

If the UK government is prepared to disregard the ruling of the European Court of Human Rights on this particular issue, then what next? Disregard other rulings with which it disagrees, including rulings of national courts? The principle at stake in this case – respect for the rule of law – is a far bigger and deeper matter than any specific question about the rights and wrongs of a ban on prisoner voting (important though that question is). Those who are today applauding the Prime Minister’s “strong” stance on this issue should therefore bear in mind it may represent the thin end of a very unpleasant wedge.

2 thoughts on “The prisoner voting saga, human rights, and the rule of law: the thin end of a very unpleasant wedge

  1. Thank you for a blessedly clear and balanced exposition (at last!) of this complex issue, in which you carefully tease out the different questions of principle involved, yet without appearing to “take sides” on the issue itself. For me, your last two paragraphs capture the “bottom line” perfectly – and provide much-needed support for our embattled Attorney-General, as he doggedly tries to stick up for the rule of law against a toxic cocktail of ideology-driven politics and public misunderstanding. There is hope for reasoned rational debate yet – if only your careful conclusion could be conveyed, in a graphic and digestible form, to the readers of the Daily Mail and the Daily Express.

    For me, the most worrying aspect of the “unpleasant wedge” you identify is not its long-term effects in the United Kingdom, where a robust judicial system, vibrant public debate and a long-standing tradition of general fairness will, I hope, limit any really nasty fallout. Rather, it is the immediate signal it sends to other countries under the Court’s jurisdiction, many of them with much worse human rights records than the UK, that they are free to ignore the Court if they feel like it. Many Council of Europe member states routinely have deep objections to Court judgments – Turkey didn’t like being told it had to compensate Greek Cypriots deprived of their property after the 1974 invasion, Russia doesn’t like being told that it must pay reparation to the families of disappeared Chechens, Bosnia doesn’t like being told that it must allow Jews and Roma to stand for election to the highest offices of state, and so on. Yet in all these cases, the countries concerned – albeit grudgingly or very belatedly – have complied with the Court’s rulings or (in the case of Bosnia) are grinding towards doing so.

    The whole Convention system ultimately comes down to a political (not legal) bargain between the nations that set up the Court and agreed to abide by its rulings – we all police each other, with an unwritten deal that I’ll swallow an unpalatable judgement provided you do the same when your turn comes. If the UK, the very architect of the Convention in many ways and still regarded abroad as a pillar of the rule of law, decides to publicly and consciously trash that bargain, the consequences are potentially grave. At stake is not just the possibility for a handful of British prisoners to mark an X, but rather the gradual undermining of an astonishing experiment in international justice, whose cumulative effects have been – for Britain, Europe and the world – undeniably positive.

  2. Arguably, every criminal is a product of the society.

    Drawing from this, every convicted criminal that finds themselves in prison IS still a part of society, are they not?
    If you are a part of society, an individual of your own right, in a democracy should you not be treated as equals?
    Yes prisoners have broken the law, and yes they are being punished. But to completely deny them the right of voting, IN and FOR the society they live in, which will ultimately affect them too, WOULD be an attack on their human rights.

    Would it not be better to instead of completely banning prisoners of the ability to vote, till they have ”done their time” to simply, allowing them to vote on selective matters?
    Though that would be a problem in itself, deciding what ‘selective matters’ they should be able to vote on, it would still be better than completely banning them.

    I agree that according to the caliber of the crime, the prisoners right of voting should be determined, but also, they SHOULD be allowed to vote on perhaps, the ‘less important’ things.

    After all, though segregated, they are too, part of our society.

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