The European Court of Human Rights, HM Government, and Prisoner Voting

Posted on February 7, 2011

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The European Court of Human Rights

Speculation in the press currently reports that the government are poised to allow MPs a free vote on the issue of whether prisoners should be allowed to vote in UK elections, after the European Court of Human Rights (ECHR) ruled that the UK’s blanket ban on prisoner voting breaches human rights.

Setting aside the specific question of votes for convicts, the opinion of the ECHR that voting is a fundamental human right – although perhaps not among its most bizarre assertions – certainly reflects both a misunderstanding of what makes for healthy democracy, and an impoverished idea of what constitutes a genuine right. On the other hand, those of a certain Anglo-Saxon mentality who exhibit nothing but a mindless fury at the very idea that any criminal should have any rights, cannot be defended. We reported here previously on David Cameron’s comment that burglars leave their human rights outside the door when they cross the threshold of someone else’s property. As men of goodwill, we must assume that this was nothing more than a rhetorical flourish, but the fact that such rhetoric is successful in our country suggests that it plays up to some lust for vengeance buried in our psyche. But for all this, and despite their very divergent conclusions on the rights of prisoners, both the ECHR and HM Government seem to have fallen into the same error.

Former Home Secretary Jack Straw (Lab) and former Shadow Home Secretary David Davis (Con) secured a Commons debate on prisoner voting

Both parties have slid into a form of legal positivism in which rights are thought to be granted and revoked by the authority of the state, rather than being claims of natural justice prior to it. When human rights are seen as created by the state, and not as elements of a higher moral law which must be acknowledged by it and to which the state itself is subject, the result is that fundamental human rights and civil liberties become conflated as if they were the same thing. This has two results, one rather ridiculous after a tragic fashion, and the other more sinister. The first is that all sorts of weird and wonderful civil liberties begin to be treated as fundamental human rights. Many of these liberties – such as the right to vote in elections – may well be salutary and good in themselves. Others, despite their objectionable nature, provide a chuckle for those who read about them in the tabloid newspapers, such as the ECHR’s ruling in Goodwin v. UK (2002) that post-operative transsexuals’ human rights were infringed by the Government’s refusal to grant legal recognition to their affected gender. However, the more sinister aspect of this confusion between human rights and civil liberties is that, whereas meaningless and arbitrary liberties come to be treated as inviolable rights before which the state must prostrate itself, genuine rights which actually are inviolable come to be treated as if they were mere civil liberties which the state can grant or deny as it sees fit. This is perhaps most obvious in the case of the right to life. In Tysiąc v. Poland (2007), for example, the Court ruled that the Polish state should pay a woman €25,000 in compensation after she was denied her alleged ‘right’ to an abortion by doctors who refused to authorise such a procedure. In a dissenting opinion, Judge Javier Borrego of Spain argued that ‘the Court has decided that a human being was born as a result of a violation of the European Convention on Human Rights. According to this reasoning, there is a Polish child, currently six years old, whose right to be born contradicts the Convention. I would never have thought that the Convention would go so far, and I find it frightening’.

Even if – as is highly unlikely – both parties could find and agree on a meaningful concept of rights, and correctly delineate them from political liberties, there is nevertheless the obvious obstacle posed by the fact that the UK’s political system operates in a manner different from those of most other European nations. Because of the English political doctrine of parliamentary sovereignty, it is – rightly or wrongly – axiomatic for most MPs that the will of Parliament should prevail over any court, whereas those countries with codified constitutions are used to a practical (if not theoretically articulated) form of judicial sovereignty in which courts have the power to overrule primary legislation as incompatible with constitutional principles. There is nothing wrong with this in itself, but Britain’s entry into the Council of Europe, and its consequent placing of itself under the jurisdiction of Strasbourg contradicts the idea of parliamentary sovereignty which is arguably the linchpin of the British constitution, and it was perhaps more as a token expression of goodwill, than as a result of serious deliberation about how such an arrangement could work in practice, that the Attlee Government of the 1940s took such a step. The surprise lies not in the fact that the government looks set to clash with the ECHR, but that it has taken so long for this to happen.

(Photo of David Davis: CC: © Robert Sharp. No endorsement implied.)

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