Today Parliament will vote on whether it accepts the European Court ruling to give votes to prisoners. At one level it is a simple decision as to whether we allow robbers, rapists and men of violence the vote while they are still paying for their crime.
At another level it is a historic decision with enormous consequences. Do we allow an international court to exceed the remit we agreed over fifty years ago, or do we assert the right of the British people to make their own decisions about their own democracy through their own democratic institution, Parliament?
This whole row was precipitated when a vicious killer, John Hirst, took the British government to court while serving a 15 year sentence for bludgeoning his landlady to death with an axe. He thought that his decision to steal the right to life of his landlady should not interfere with his right to vote. Several British courts threw the case out, but the European Court of Human Rights found in his favour. A horrified British government prevaricated for years, then another case was brought, by a rapist this time.
Then the government started talking about giving in to the Court and legislating to give the vote to every prisoner with a sentence under 4 years. It was clear that Ministers, from the Prime Minister down, hated the idea, but I could see what was happening. For as long as I can remember, Whitehall legal advisers have always given their advice with one criterion in mind: take no chance whatsoever of ever losing a case in court. This pusillanimous culture of concession has always meant that Ministers are always given ultra low risk advice: no matter that it might concede our national interest or fly against natural justice. Always give in.
The result is capitulation to the will of unelected judges in Strasbourg who are determined to expand their influence into areas of law which should not fall under their jurisdiction. When Britain signed up to the European Convention on Human Rights (ECHR), it was to help prevent a repeat of the catastrophic devastation and unprecedented human suffering caused by the Second World War. With the full horrors of the Holocaust fresh in their memories, European governments met to enshrine in international law every citizen’s right to life and to liberty, to free speech and a fair trial. It was not about giving convicted prisoners the vote.
In fact, Britain specifically sought to avoid such a situation. When the ECHR was negotiated in 1949, the French proposed including the right to vote by ‘universal suffrage’. Britain, with support from other governments, rejected this wording on the grounds that it was too vague, and could lead to the right to vote being given to those who were denied it under British law – including prisoners.
Consequently, the Strasbourg Court has imposed judgments on Britain which would have astonished those who signed the Convention. It has created novel rights and re-written UK law. It has changed our law of negligence relating to the police, prevented our courts from deporting foreign killers on the grounds that it would harm their family life, and overruled our laws on how parents may discipline their own children. None of these judicial innovations were envisaged by the negotiators of the ECHR.
So what can we do about it?
The government promises to do the minimum required to comply with the ruling. It is considering proposals to give the right to vote only to those prisoners serving shorter sentences. This, however, is far from an ideal solution. Ken Clarke claims this is not about giving rapists the vote. Yet if the vote is given to prisoners serving less than 4 years, 28,000 will get the vote including robbers, rapists and drug dealers. If the vote is given to prisoners serving 1 year or less, over 8,000 will still get the vote, including violent, sexual, robbery and burglary offenders.
What’s more, even these concessions would leave the door open to those prisoners who were still deprived of the right to vote to bring compensation claims against the British government. Indeed, Austria tried to comply with a ‘less than one year’ rule and were overturned by the Court.
However, there are those who argue that there is nothing more we can do, that we have accepted the jurisdiction of the Strasbourg Court and must forever obediently obey its decisions. But this is not the case. Britain cannot be forced to give prisoners the vote or to pay compensation to prisoners who sue the government. The Strasbourg Court has no power to fine Britain for non-compliance with its judgments.
The Council of Europe has failed to expel Bulgaria for police brutality, Moldova for torture and Russia for atrocities committed in Chechnya, so it is hardly likely to expel a country for standing up for its proper constitutional rights. If Parliament rejects the proposal to give prisoners the vote, the matter will simply remain on the long list of unenforced judgments reviewed by the Committee of Ministers.
I yield to no-one in my commitment to Britain’s ancient rights and freedoms. But whilst we must defend those rights fearlessly, we should never confuse those freedoms with the far more circumscribed issue of prisoners' rights. Prisoners have rights, of course – the right to decent treatment, to be properly fed, clothed, and housed – but we should not confuse them with the more general rights of free British citizens. When you commit a crime which is sufficiently serious to put you in prison, you sacrifice many important rights – your liberty, your freedom of association, and your vote. When you break the law, you cannot make the law.
Neither do I argue with the Court’s right to curb government excesses within the constraints of the Treaty and Convention we signed. But the paradox in the Court’s ruling on prisoner votes is that, in laying claim to improve our democracy, it is actually overriding and suppressing our democracy.
So today will see a historic vote by Parliament to defend your rights. Parliament has a chance to draw a line in the sand, and to send a clear message to both the government and to Strasbourg. What is important is that the maximum possible number of MPs vote, to give the government the strongest possible card to play when it goes to Strasbourg to demand that the Court puts its own house in order.
Of course it is important that Britain observes its treaty obligations and upholds the rule of law. But in attempting to overrule British law on prisoner voting rights the unelected judges in Strasbourg have exceeded the limits of their authority. A decision of this nature is a matter for the British Parliament alone. That’s where prisoner voting will be debated today, and that’s where the final decision should be made.