Jailhouselawyer's Blog

I accuse the Secretary of State for Constitutional Affairs and Lord Chancellor Lord Falconer of Thoroton of being not only intellectually dishonest but also of being corrupt in this affair. The issue is "Voting Rights of Convicted Prisoners Detained within the United Kingdom". However, the subheading is not factually accurate and contains government spin on the truth to create the impression that the inaccurate statement is true. It is accurate in so far as it states "-The UK Government's response". However, it is not true to claim that it is "to the Grand Chamber of the European Court of Human Rights judgment in the case of Hirst v.The United Kingdom". This is because the judgment states one thing, and the politician asks himself a different question, and answers some of it himself, then purports to throw the whole thing open for consultation, when in fact it has been drafted by a decision-maker who has approached the subject with a closed mind. This is unlawful under the WEDNESBURY reasonableness test. This is not "A consultation produced by the Department for Constitutional Affairs". This is just another dodgy document.

In the "Foreward by Lord Falconer of Thoroton", he states "The right to vote in the UK is considered by many to be a privilege as well as an entitlement, and that persons who are convicted of an offence serious enough to warrant a term in prison have cast aside that privilege and entitlement for the duration of their sentence". This statement is irrelevant to the issue under the WENDESBURY principle. I am privileged to have the right to vote O Lord and Master, doff me cap to you Sir, with thou 17th, 18th and 19th century patronage thinking. Bullshit. What is relevant is paragraph 59 in the judgment: "As pointed out by the applicant, the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion, as may be illustrated, for example, by the parliamentary history of the United Kingdom and other countries where the franchise was gradually extended over the centuries from select individuals, elite groupings or sections of the population approved of by those in power. Universal suffrage has become the basic principle".

I suspect that the Lord Chancellor, now that he has lost the case at first instance, and then lost his appeal to the highest court in Europe, is now attempting to unlawfully appeal to the electorate to bail him out of this mess. I state this because the arguments he is advancing have already been advanced in the Court, and they were ruled out by the judges. Here is more of the Lord Chancellor's Victorian mentality waffle: "Successive UK Governments have held to the view that the right to vote forms part of the social contract between the individual and the State, and that the loss of the right to vote, reflected in the current law, is a proper and proportionate punishment for breaches of the social contract that resulted in imprisonment. That remains this Government's position, and that of a number of other Council of Europe states".

The right to vote has sweet FA to do with Thomas Hobbes (1588-1679) philosophy of the social contract. "Prior to the Reform Acts of 1832 and 1867, the right to vote was limited and based on rights in property" (Hilaire Barnett). It is an outright lie to claim that in relation to convicted prisoners "that the loss of the right to vote, reflected in the current law, is a proper and proportionate punishment". This loss of the right to vote dates from the Forfeiture Act 1870. And yet, the effect of the 1867 Act was only to increase the total of people entitled to vote to 14% of the population! It is not proper, because Parliament has never debated the issue of disenfranchisement of convicted prisoners. It is not proportionate, because the Court ruled that the blanket ban was not proportionate. It is not a punishment because only judges can impose punishment and no judge has ever stated that a convicted prisoner loses the franchise when passing a prison sentence. There is no lawful authority for "That remains this Government's position", when that position has been defeated in the highest Court in Europe. "And that of a number of other Council of Europe states". It was the UK and not other Council of Europe States which I took to court. Moreover, the large majority of other Council of Europe States already allow convicted prisoners to vote. And those that did not before the judgment have had to change the law to comply with the judgment, for example, Ireland which has passed a Bill to allow for prisoners to have the postal vote.