How an axe killer used 'human rights' to change the law, and give the Government a splitting political headache

How an axe killer used 'human rights' to change the law, and give the Government a splitting political headache

By Neil O'Brien Politics Last updated: September 20th, 2010

According to the front page of the Times, Nick Clegg will come out strongly in favour of prisoners getting the right to vote. Presumably this reflects an agreement that the government will do it, although the PM’s spokesman was still making ambiguous noises about it this morning.

How did this all start?

John Hirst killed his landlady, Bronia Burton, in June 1979. The circumstances of her death were described at the trial by the prosecution in the following terms:

On the evening of June 23 they were watching television when Mrs Burton asked the defendant to collect some coal from the shed. He went to the shed, got the coal and at the same time picked up a heavy hand axe. He returned to the living room, put the coal on the fire, and then approached Mrs Burton and hit her, perhaps seven times, on the head with the axe. He then went to the kitchen to make coffee and drank it, waiting for Mrs Burton to die.

Hirst denied murder, but pleaded guilty to manslaughter on the grounds of diminished responsibility. While in prison he brought a number of cases against the UK Government challenging various aspects of his imprisonment, including an action that was heard by the High Court in 2001, in which he sought a declaration of incompatibility for section 3(1) of the Representation of the People Act 1983, which provides that a convicted prisoner is legally incapable of voting at any parliamentary or local election. The High Court dismissed the claim and Lord Justice Kennedy noted that, in relation to recent discussions about the law that:

When the 2000 Act was being debated in the House of Commons Mr Howarth, for the Government [George Howarth MP, then Parliamentary Under Secretary of State at the Home Office], maintained the view that ‘it should be part of a convicted prisoner’s punishment that he loses rights, and one of them is to vote.’

However, Hirst took his case to the European Court of Human Rights which held in 2005 that there had been a breach of the Article 3 of the First Protocol to the Convention, which states that:

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.

The UK was one of the original signatories of this protocol in 1952, and brought it into force two years later. It is difficult to imagine that the then government would have been willing to sign the protocol – which is basically just a statement of support for democracy – had it been aware that half a century later the Court would compel the UK to change its law in an area (penal policy) that was not mentioned in it. But that’s “creative” human rights law for you.

Interestingly, the court also took time out to diss Parliament for its lack of thoughtful consideration of the issue:

… it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern day penal policy and of current human rights standards for maintaining such a general restriction on the right of prisoners to vote.

Fortunate, then, that we have the wise judges of the ECHR to rule over us.

This surprise decision created a major political problem for the last Labour Government.

It is worth noting that this protocol does not constitute a universal right, even in the court’s own terms – signatories to the European Convention are free to choose whether they regard it as something that they wish to add to their list of obligations. Both Switzerland and Monaco opted not to sign up to the protocol and therefore are not bound by the decision in the Hirst case.

However, Labour had recently introduced the Human Rights Act. So exploring ways to preserve Britain’s traditional stance was off the table. But on the other hand, the polls showed that giving prisoners the vote was very unpopular. So what to do?

In the best political tradition Labour decided to… do nothing, and dump the problem onto the next lot. The final deadline to comply with the ruling was in 2010, so a series of reviews, consultations and options papers were used to prevaricate until the election.

This issue would have been a huge problem for an all-conservative government. However, with Nick Clegg as Deputy PM, the coalition is now able to make a virtue of necessity. But we should still expect some major rows along the way.

The first question is which prisoners will get the right to vote, and why them and not others?

Drawing the line anywhere short of all prisoners being allowed to vote could call forth further legal challenges unless there is a clear rationale. According to the judgement in 2005, around Europe there are 18 countries that allow all prisoners to vote, and 12 countries that allow some prisoners to vote, and 13 countries were in the same boat as us, with a blanket ban on all prisoners voting.

In a consultation paper in 2009, Labour suggested that all prisoners serving less than four years would get the vote. This would cause uproar. To get some sense of what you have to do to get four years in prison, try this news report from just last week, where a man got just over three years:

Former Bristol Rovers midfielder David Pipe has been jailed for 38 months for fracturing the skull of another man in an unprovoked attack in Bristol. Pipe, 26, hit Rhys Morris over the head with a wine bottle outside a nightclub in Park Street in September 2009. Mr Morris, 29, was left with a four-inch hole in his skull and needed emergency surgery… Jailing Pipe at Bristol Crown Court, Judge Mark Horton called the player a “talented man with too much time and too much money”… The court heard that Mr Morris, who needed metal plates inserted into his head after the attack, was an ‘entirely innocent’ bystander.

There are many interesting arguments about whether we should give prisoners the right to vote. Lord Hurd, the former Conservative home secretary, has claimed that “if prisoners had the vote then the MPs would take a good deal more interest in conditions in prisons”. Perhaps.

It would certainly make for interesting new developments in elections, with MPs canvassing furiously in prisons (presumably prisoners would have a high turnout).

However, there is something more important here than all of the arguments for or against prisoners voting. And that is the way this decision was made.

I believe this sort of issue should be a matter for democratic decision, not a ruling handed down from remote judges. If the public don’t want prisoners to have the vote, then prisoners shouldn’t have the vote. That’s the very democracy we signed up to support in 1952.

For me this story tells us something important about just how far “human rights” have spiralled out of control.