‘Prisoners are civically dead’

‘Prisoners are civically dead’

By: John Hirst

In the eyes of the government, prisoners are deemed less deserving of human rights argues John Hirst

The next General Election in the UK will be invalid according to the Council of Europe. This is because on 1st December 2009, at a special human rights meeting convened in Strasbourg, the Committee of Ministers declared that the UK’s continued failure to comply with the Court’s decision in Hirst v UK(No2) means that the General Election will violate Article 3 of the First Protocol: “The High Contracting Parties undertake 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”.

Almost 64,000 people, convicted prisoners, will not be able to exercise their human right to vote.

According to Secretary of State for Justice Jack Straw: “The difficulty we have got - and there is no secret about this - is this is an issue … on which both the main parties have had a very clear position, which has not been the subject of any significant controversy whatsoever within their parties, that when people are convicted and sentenced to prison they lose their civic right to vote ... If Members of Parliament decide that they are not going to accept what the European Court says then they will not accept it” (given in evidence to the Legislative Scrutiny Committee; source Hansard).

The European Union was founded to promote democracy in Europe. Although the Council of Europe and the EU are separate institutions, Member States which sign up to either must abide by the Convention and Court decisions. The UK is a member of both. When the MPs expenses scandal reared its ugly head, former Archbishop of Canterbury Lord Carey warned that a "culture of abuse" had developed in relation to Westminster expenses, and MPs only had themselves to blame: "The moral authority of Parliament is at its lowest ebb in living memory".

Parliament takes the view that convicted prisoners have lost the moral authority to vote. Governments need to have democratic legitimacy to govern. If an alienated group within society do not see Parliament as a means to improve their lot, they will turn to extra-parliamentary ways of doing so. This poses a moral and legal dilemma: Should prisoners be encouraged to riot?

John Brewer and John Styles in Popular attitudes to the law in the 18th century state: “The pursuit of redress could take either legal or extra-legal forms, though more often than not the two were combined. Petitioning and litigation went hand in hand with riots, demonstrations and the anonymous letter. These protests were neither indiscriminate nor unconstrained. The level of violence or disorder almost invariably corresponded to the lack of responsiveness of those in authority. When first aired, a grievance was more likely to be taken through accepted legal or political channels; it was only when authorities declined to act that hostilities escalated”.

A relatively recent example in a prison context was the Strangeways Prison riot in April 1990. At least for those who do have the vote, now is the only time that leverage can be applied to those seeking to be elected to Parliament at the next General Election. If candidates are not knocking on prisoner’s doors, it is because prisoners are deemed to be less deserving of human rights and therefore are denied the vote and do not count for anything. Prisoners are civically dead. Zombies arise from the dead, so why don’t prisoners? The principle of less eligibility has no place in European human rights law, and the same should apply under English law.

The Legislative Scrutiny Committee in its report concluded: “It is unacceptable that the Government continues to delay on this issue. The judgment of the Grand Chamber was clear that the blanket ban on prisoners voting in our current electoral law is incompatible with the right to participate in free elections. We call on the Government to explore the possibility of bringing forward amendments to this Bill, to give effect to the European Court's judgment.”

It is worth reminding ourselves what Tony Blair wrote in the preface to Rights Brought Home: The Human Rights Bill: “The Government is pledged to modernise British politics. We are committed to a comprehensive programme of constitutional reform. We believe it is right to increase individual rights, to decentralise power, to open up government and to reform Parliament”. In Chapter One: The Case for Change, it states: “For individuals, and for those advising them, the road to Strasbourg is long and hard. Even when they get there, the Convention enforcement machinery is subject to long delays. This might be convenient for a government which was half-hearted about the Convention and the right of individuals to apply under it, since it postpones the moment at which changes in domestic law or practice must be made. But it is not in keeping with the importance which this Government attaches to the observance of basic human rights”.

There is no basic human, legal or moral right for MPs to fiddle their expenses to the detriment of taxpayers, but MPs voted themselves this ‘right’, which we know to be wrong. Conversely, MPs have not voted on the issue of convicted prisoners’ human right to the vote. We know this to be wrong. This situation needs to be changed. A reform much needed is for a written constitution to replace our system with its unwritten constitution. Sovereignty of Parliament must give way to EU law as the UK is at present a satellite state within Europe. We need a true Separation of Powers between the Executive, Judiciary and Parliament. An all-powerful Executive rules the Legislature when it should be vice versa, and fetters the power of judges to determine the law. This is revolutionary. Every revolution in history started in prison.