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Herbert Nick Jan 2012Nick Herbert is the Member of Parliament for Arundel and South Downs and a former Minister for Policing and Criminal Justice. Follow Nick on Twitter.

Today the
Government will set out options for giving prisoners the vote. It’s extraordinary to see ministers obliged
to propose legislation which they clearly find abhorrent. But the European Court of Human Rights has ruled,
in the case of convicted killer John Hirst, that our country’s blanket ban on
prisoners voting breaches his rights. Earlier this year, the Government was given six months to ‘introduce
legislative proposals to bring the disputed laws in line with the Convention’. That deadline expires today.

It seems
that Parliament will be given three options: a limited extension of the vote to
prisoners serving sentences of less than six months; a wider enfranchisement of
those serving up to four years, and retention of the existing ban.

The
proposals raise two principal issues. The
first is the merits of the case: should prisoners be given the right to vote? This is debatable, but I don’t believe they
should. We deprive criminals of their
right to liberty by imprisoning them. There
isn’t an absolute right to vote, as even the European Court accepts. And voting is surely a civic right, not a
fundamental human right. We don’t, for
instance, allow foreigners to help decide our government.


In any
case, the argument should not be framed in terms of rights, but
responsibilities. Idealistic claims are
made about making prisoners good citizens. But I think we should focus on our responsibility to rehabilitate
prisoners through hard-headed and practical measures: getting
them off drugs, for instance. Prisoners should take
responsibility for their own actions and go straight. And if citizens have a right to vote, don’t
they also have a responsibility to do so? It’s paradoxical that we will be arguing about whether to extend the
franchise a week after the vast majority of the public – for whatever reason –
declined to vote in new elections.

The
drafters of the European Convention on Human Rights, conscious of the UK’s ban
on prisoner voting, deliberately rejected the idea. What those nations agreed to was to hold ‘free
elections at reasonable intervals by secret ballot, under conditions which will
ensure the free expression of the opinion of the people’. No-one could seriously argue that elections
in the United Kingdom are anything other than free and fair. Yet, out of this commitment, Strasbourg
concocted a universal ‘right’ to vote.

This is
merely the latest manifestation of a wider problem: the European Court of Human
Rights has over-reached itself. As Lord
Hoffmann – a distinguished former Law Lord – has said, the Court ‘has taken
upon itself an extraordinary power to micromanage the legal systems of member
states’ and has been ‘unable to resist the temptation to aggrandise its
jurisdiction’. In Hoffmann’s words, the
‘very concept of human rights is being trivialised’.

By
bringing forward proposals for a limited enfranchisement, the Government may
try to claim that it has complied with the Court’s ruling. But I fear this is unlikely to be the end of
the matter. The Court also required the
UK to ‘to enact the relevant legislation within any time frame decided by the
Committee of Ministers’. Yet it is
virtually certain that the House of Commons will vote to retain the current
ban. The overwhelming majority of
Conservative MPs support it. Labour, despite
holding two consultations on giving convicted prisoners the vote, are cynically
saying that they will support the status quo. Only Liberal Democrats enthusiastically back a
change.

There’s
another absurdity in what is being proposed. Ministers may in fact be unable to vote for, or even advocate, the
existing ban – because to do so would breach the Ministerial Code, which does
not allow them to advocate breaking the law. Yet the Prime Minister has said even contemplating having to give
prisoners the vote makes him physically ill, and recently told the Commons: “no-one should be
in any doubt: prisoners are not getting the vote under this Government.”

So the
reality is that we remain on a collision course with the Council of Europe,
which is unlikely to allow Parliament simply to ignore a Court ruling. The fact that other countries do so, and on
issues which really do relate to fundamental breaches of human rights, is
unlikely to deter them.

And the
Court itself is unlikely to let matters rest. There are over 2,500 cases currently pending against the United Kingdom
in Strasbourg by prisoners denied the vote. The Court has so far accepted that the
prospect of a change in the law amounts to ‘just satisfaction’.  

Once it
is clear that there is no prospect of the law being changed, the Court is
likely to start awarding compensation, which is likely to run into tens, if not
hundreds, of millions of pounds. And if
the British people have difficulty with the idea of giving prisoners the vote,
they will find it harder still to stomach the sight of prisoners each
potentially receiving thousands of pounds in compensation.

In short,
today’s move is unlikely to solve the prisoner vote stand-off: it will merely
kick the can down the street. The
increasing tension between the UK and Strasbourg cannot be left to fester, and
the prisoner voting issue is just one of a number that will require us to make
some hard choices. Which brings us to
the second key issue: who decides whether prisoners should have the vote?

In a
debate last February, a motion to give prisoners the vote was defeated by 234
votes to 22. That should be the end of
the matter. But it cannot be while we allow this supranational court the
ultimate power to overrule own elected House of Commons. I do not
suggest that we should abandon the rights in the Convention. The text was, after all – as is often pointed
out – drafted by British lawyers. And it
existed before the European Court came into being, or direct access to that Court
was allowed – a relatively recent phenomenon.

But as
the prisoner voting issue demonstrates, the Convention has too often been
misinterpreted and misapplied. Next
week, in a lecture for Policy Exchange
entitled ‘What’s Gone Wrong with Rights?
’, I will argue that replacing the Human Rights Act
with a new British Bill of Rights – as the Conservative Party has so far
proposed – will not be enough. We must
also end the writ of the European Court. That would enable Parliament and our own courts to strike a proper
balance between rights and responsibilities, with respect for the democratic
will. We shouldn’t defy the European
Court of Human Rights: we should resile from it altogether.

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